American Totalisator Co. v. Seligman

Concurring Opinion by

Judge Blatt:

While I concur with the majority opinion that “where bids for public contracts are invited and promised to be let to the lowest responsible competing bidder, a disappointed bidder who is also a taxpayer has standing to seek to enjoin the award of a public contract contrary to the promise”, I am concerned that the majority opinion may possibly be understood to provide that American Totalisator Company, Inc. (AmTote) also has standing to seek the additional relief it has requested here: i.e., to enjoin the respondents from contracting with any party except AmTote and to direct the respondents to accept Am-Tote’s bid. AmTote, as both a taxpayer and a disappointed bidder clearly has standing to protest the award of a contract, • but I do not believe that it has standing to request the judicial award of a public contract to itself. Ogden Foods, Inc. v. State Farm Products Show Commission, 11 Pa. Commonwealth Ct. 435, 315 A.2d 329 (1974).

*646As a taxpayer, AmTote may commence an action to guarantee that a public contract is properly awarded according to law, for, as a disappointed bidder, it is in a better position than almost anyone else to be aware of an allegedly improper award. If, however, it is eventually successful in blocking the award of the contract, I believe that the respondents would then be able to proceed to take any action in this matter not contrary to law, which may or may not be an award of the contract to AmTote.

Judge Mencer joins in this concurring opinion.