I dissent because I feel there has been a substantial compliance with the county purchasing procedure act. See Act 52 of the First Extraordinary Session of 1965. An analysis of this act leads me to the inescapable conclusion that its purpose was to assure competitive bidding in county purchases where the purchase price is $1,000 or more, except for certain commodities which do not include voting machines.
Section 1 makes it unlawful for a county official to make purchases with county funds in excess of $1,-000 unless the method of purchasing set out in the act is followed.
Section 2 of the act is a definition of terms. Among those terms defined are “formal bidding” and “informal bidding.”
Section 3 of the act specifies the instances when formal bidding and informal bidding are required and when “open market purchases” are permitted.
Section 4 relates to specifications with relationship to their effect on competitive bidding and authorizes testing and examination of products of the lowest responsible bidder.
Section 5 requires award of contracts to the lowest responsible bidder, and provides for the rejection of bids, and for certain preferences to residents or firms doing business in the county. This section also requires that a purchasing agent file a written statement of the reason for not accepting any low bid.
Section 6 provides for exceptions to procedures for solicitation of bids.
Section 7 provides for maintenance of a list of eligible bidders and requires an effort by any purchasing official to notify any eligible bidder before purchases are made.
Section 8 requires the opening of bids in public at the time and place specified in the notice and authorizes the requirement of a bond to assure performance by a bidder.
Section 9 provides that no contract may be binding without the approval of the county court and the filing of all documents and bids pertaining to solicitation of bids and awarding of contracts.
Section 10 is a saving clause for remedy for breach of contract by a bidder and allows some latitude to purchasing officials with respect to trade-ins.
Section 11 authorizes the purchase of fuels and certain accessories for motor vehicles by counties through the State Purchasing Agent.
Section 12 authorizes the purchasing official to call upon the prosecuting; attorney or to employ counsel for advice and aid in legal matters in connection with purchases.
Section 13 makes an intentional violation of the act punishable by fine and removal from office.
Section 14 is a severability clause.
Section 15 is a general repealing clause.
In this case, the purchasing officials have not deliberately violated the statute. To the contrary, they have substantially complied with it. The County Judge and County Board of Election Commissioners consulted with the Deputy Prosecuting Attorney and arrived at the procedure to be followed after that consultation. The trial court specifically found that bids were received from all voting machine suppliers authorized to do business in the State of Arkansas. The voting machine law restricts purchases to those machines approved by the State Board of Election Commissioners. Ark. Stat. Ann. § 3-1706 (Supp. 1967). Both the trial court and this court can take judicial notice of the fact that only two such machines have been approved by the State Board of Election Commissioners. The suppliers of these machines were notified to submit their bids for opening on a specified date, place and hour.
Under this rather unusual factual situation, I would consider substance above form and say that the contract was valid and in substantial compliance with the act, having accomplished the fundamental purposes thereof. Invalidation of the contract of purchase in this case puts form above substance and makes strict compliance with the act necessary in every circumstance. In my opinion, this makes the application of the statute ritualistic rather than realistic and makes a procedure mandatory in circumstances where it serves no useful purpose or performs no real function.
The purpose of all such statutes is to assure economy in public administration and honesty, fidelity and good morality in public officials and to protect the public against favoritism, improvidence, extravagance, corruption, imposition, fraud, collusion and extortion by promoting actual, honest and effectual competition. 2 Dillon, Municipal Corporations, 1199 § 802; 10 McQuillin, Municipal Corporations, 321 § 29.29; Dement v. Rokker, 126 Ill. 174, 19 N.E. 33 (1888); Gale v. City of St. Paul, 255 Minn. 108, 96 N.W. 2d 377 (1959); State v. Toole, 26 Mont. 22, 66 P. 496, 91 Am. St. R. 386 (1901); Chippewa Bridge Co. v. City of Durand, 122 Wis. 85, 99 N.W. 603 (1904); Reed v. Rockliffe-Gibson Const. Co., 25 Okla. 633, 107 P. 168, 138 Am. St. R. 937 (1910); Silsby Mfg. Co. v. Allentown, 153 Pa. 319 (1893); Fonder v. City of South Sioux Falls, 76 S.D. 31, 71 N.W. 2d 618, 53 ALR 2d 493 (1955); Cyr v. White, 83 Cal. App. 2d 22, 187 P. 2d 834 (1947); Beall v. Board of Supervisors, 191 Miss. 470, 3 So. 2d 839 (1941); Miller v. Milford, 224 Iowa 753, 276 N.W. 826,114 ALR 1423 (1937); Fones Bros. Hardware Co. v. Erb, 54 Ark. 645, 17 S.W. 7, 13 L.R.A. 353. They also afford businessmen and tax payers of a county a fair opportunity to participate in the benefits flowing from such contracts. Wester v. Belote, 103 Fla. 976, 138 So. 721 (1931).
There are well recognized exceptions to the rule that contracts made without advertisement for bids under such statutes are void. One of these exceptions is the case where such advertisement would not result in competitive bidding. Los Angeles Dredging Co. v. City of Long Beach, 210 Cal. 348, 291 P. 839, 71 ALR 161; Harlem Gas Light Co. v. Mayor, 33 N.Y. 309 (1865); Hurley Water Co. v. Town of Vaughn, 115 Wis. 470, 91 N.W. 971 (1902); Murphy v. Paull, 192 Wis. 93, 212 N.W. 402 (1927); Hodgemam v. City of San Diego, 53 Cal. App. 2d 610, 128 P. 2d 412 (1942); 2 Dillon, Municipal Corporations, 1189 § 802. This exception has been applied to the purchase of voting machines where the same two manufacturers were involved, as they are involved in this case. Kingsley v. City & County of Denver, 126 Colo. 194, 247 P. 2d 805 (1952).
Since the only purpose of the statutes is to assure competitive bidding, when this effect is given to them, nothing further is needed. 2 Dillon, Municipal Corporations, 1200 § 802; Harlem Gas Light Co. v. Mayor, supra.
It has been held that such statutes do not apply where the item to be bought is such that competitive bidding is impractical. Schwartz & Nagel Tires v. Board of Chosen Freeholders, 6 N.J. Super. 79, 69 A. 2d 885 (1949); Whelan v. New Jersey Power & Light Co., 45 N.J. 237, 212 A. 2d 136 (1965). These statutes have been said to have no application unless the contract is naturally competitive. Layne-Western Co. v. Buchanan County, 85 F. 2d 343 (1936). In the Whelan case, the court said that such statutes must be read in the light of the reason for their enactment, lest they be applied where they were not intended to operate and deny authority to deal with problems in a sensible, practical way.
Actually, many of the cases in which competitive bidding or advertisements for bids were held unnecessary, the article or service being contracted for was a patented article or otherwise the subject of a monopoly, so that there could only be one possible supplier. One theory advanced for the exception to the rule is that it would be a useless practice to submit a contract to competitive bidding when it is general knowledge that there are no competing concerns capable of bidding or performing. See Annot., 128 ALE 168. It cannot be said that any offer to contract does not limit itself to those who can perform the contract. Anderson v. Parsley, 37 S.W. 2d 358 (Tex. CA 1931). The same reasoning and rationale should be applied in a case where there are only two possible suppliers and both are notified and both bid.
The implication of these competitive bidding statutes is that there will be equal opportunity to and freedom in all who might be inclined to bid. State v. Toole, 26 Mont. 22, 66 P. 496, 91 Am. St. R. 386 (1901).
Under an unusual circumstance such as this, substantial compliance is all that is required. Anderson v. Parsley, supra. In a case in which a county entered into a contract for rental of voting machines on a bid on terms different from the advertisement for bids, it was held that there was a substantial compliance with the acts requiring competitive bidding. Hayden v. Dallas County, 143 S.W. 2d 990 (Tex. CA 1940).
The language of the Pennsylvania court sustaining a contract for a patented article, entered into without advertisements for bids in Silsby Mfg. Co. v. Allentown, 153 Pa. 319, 324, is appropriate here:
“* # * The law does not insist on what is impossible, or absolutely useless. Advertising for proposals in this case would have been worse than useless, since it could have resulted in nothing but dangerous delay and an idle expenditure of money.”
I feel that we should say here just what the Florida court said in Wester v. Belote, 103 Fla. 976, 138 So. 721:
“And so long as the actual proposition accepted by the board was one which afforded a reasonable basis upon which all desiring to do so could have bid, or did bid, it cannot be said that the resultant award of a contract was so far absolutely void, as to be attacked and enjoined as a matter of course after it was made, at the suit of a citizen and taxpayer, who undertakes to show no resulting damage to himself, except such as may be said to constructively result to taxpayers generally from any substantive violation of the statutes requiring contracts to be let on competitive bids, when such contracts have been entered into by the board in evasion or fraud of the statutory limitations.”1
I would affirm the decree of the chancery court.
I am authorized to state that George Rose Smith, J., joins in this dissent.
The court went on to hold that an injunction would not be granted where there was no fraud, corruption or unfair dealing and there was an honest effort to follow the statute.