I respectfully dissent from the majority's determination that the contract between appellant GCRTA and appellant Seuffert was valid and consistent with Ohio's competitive bidding laws. I do concur with the majority's opinion in two respects, however. First, I agree with the majority's conclusion that, while the appellees lack standing as taxpayers, they may maintain this action as unsuccessful bidders. Further, I agree that, regardless of the validity of *Page 823 the contract, the trial court erred in enjoining appellant GCRTA from paying any monies to appellant Seuffert on the Project 17A construction contract. Appellant Seuffert was entitled to compensation for the work it actually performed.
However, I believe that GCRTA's failure to require compliance with material bidding instructions and Seuffert's failure to comply with those instructions compromised the integrity of the bidding process. Since the failure to comply with these instructions materially affected the competitive nature of the bidding process, I would affirm that portion of the trial court's judgment which declared the contract void as contrary to law.
GCRTA's Project Manual sets forth the requirements for responsive competitive bidding for Project 17A. Under the manual's "Instructions to Bidders," paragraph 13.1 requires that a bid "must comply in all material respects with the terms and conditions" of bidder instructions in order to be determined "responsive." Here, the record clearly shows that appellant Seuffert failed to comply with bidder instructions by failing to include with its bid (1) an affidavit of its good faith effort to reach minority subcontractor participation goals, (2) a complete schedule of minority subcontractor participation and the prices of their contracts, and (3) letters of intent from all listed minority subcontractors.
GCRTA's effective waiver of these requirements for the benefit of Seuffert represents a significant competitive advantage over those contractors who complied with the project bidding instructions. As the trial court recognized, a conforming bidder who must complete his negotiations with minority subcontractors prior to submitting his bid has less leverage in those negotiations than a non-conforming successful bidder who, by virtue of having the contract in hand, may entice lower subcontractor bids. Moreover, the non-conforming contractor enjoys the advantage of being able to submit a low bid knowing that should the bid prove to be uneconomical, he may effectively end the contract by intentionally failing to meet minority subcontractor participation standards.
Further, this court should not encourage the arbitrary waiver of non-compliance with material bidding instructions by county governments. Requiring all bidders to scrupulously follow material bidding instructions established by the awarding body ensures the fairness and integrity of the competitive bidding process. Perhaps equally important, the awarding body's strict self-regulation of the bidding process prevents the appearance of impropriety, which in essence prompts unsuccessful bidders to challenge the awarding of such contracts in the courts. *Page 824
For these reasons, I would affirm that portion of the trial court's judgment which declared the contract between GCRTA and Seuffert void as contrary to law.