(dissenting). I do not contend that Dailey is entitled to complain because his own bids were rejected, but I agree with the chancellor in thinking that these purchases were not made in compliance with the law and that Dailey as a taxpayer should have an injunction. Since the majority have deemed it unnecessary even to state the facts that I regard as controlling it is necessary for me to summarize some of the evidence.
McAmis, executive secretary of the Fish & Game Commission, testified that in advertising for bids the Commission purposely avoided exact sizes and specifications, so that the commissioners would have a wider range of selection. In addition to this intentionally vague invitation to bidders, the prospective sellers were notified by telephone that their bids need not conform exactly to the specifications as advertised. A representative of one of the successful bidders testified that he understood all along that it was a customer’s selection type of bid and that his part in the transaction would be a job of salesmanship.
When the bids were opened all the sellers except Dailey had salesmen present. The salesmen submitted samples of their wares and literature concerning the furniture offered for sale. Eepresentatives of the Commission then went on a shopping tour and selected whatever items they thought would be suitable for the new building, regardless of price. Purchases were made from three different concerns, but in several instances the bid that was accepted was higher than a competing bid made by another one of these same three companies. Obviously in such cases the rejected bid not only was lower but also was admittedly made by a responsible merchant. The representatives of the Commission merely thought that the more costly article would better suit the new building.
To call this procedure competitive bidding is simply a misuse of the English language. The advertisement for sealed bids accomplished nothing except to inform furniture dealers that the Commission was in the market for some merchandise. The statute (Ark. Stats. 1947, § 13-304) requires that the specifications be advertised, that sealed bids be submitted, and that the purchase be made from the lowest responsible bidder. Here neither the specifications nor the sealed bids served the slightest purpose, nor were they intended to. They were empty gestures, devoid of all the significance that the statute meant for them to have. If this method of doing business satisfies the statutory requirement that bidding be competitive, the legislature has wasted its time in enacting the law. Even with some safeguards the State’s purchasing system has been subjected to abuse, but I see no limit either to the favoritism or to the waste of public funds that is made possible by the court’s approval of these contracts.