dissenting:
I respectfully dissent from the conclusion reached by the majority of the Court in this matter.
The clear legal duty of the Commissioner is to award all contracts to the lowest responsible bidder. W. Va. Code, 17-4-19. The bidding process is designed to achieve the best price advantage for the people of the State consistent with high quality performance. The Commissioner’s regulations must fulfill this purpose and are not an end in themselves.
Here the bid was not awarded to the lowest responsible bidder but to a bidder who exceeded the lowest bid by almost $825,000. The bid accepted was 25.1796 percent higher than the low bid on this project. The Highway *894Department attempted to justify its rejection by enforcement and nonwaiver of one of the very regulations by which such advantageous bids were to be sought and exploited. That regulation required, among the 300 estimated documents at the time the bids were opened, an affidavit of noncollusive bidding. The bidder supplied that document one day after the bids were opened and four days before the contract was awarded but failed to include it with his original submission. The Commissioner refused to waive the low bidder’s initial tardiness and this refusal must be judged as to whether it is within or beyond the allowable discretion afforded the Commissioner. The range of that discretion is set forth in Pioneer Co. v. Hutchinson,_W. Va._, 220 S.E.2d 894 (1975), cited by the majority. In my judgment the Commissioner has exceeded the allowances of Pioneer. I have some familiarity with the rationale of that opinion.
The Commissioner’s regulations permitted the waiver of bidding documents. Here, the only waiver required in order to gain the advantage of the low bid was the indulgence of one day. The federal government, which requires the State to secure the bidding affidavit from bidders, allows its submission at any time before the award of the contract. The bidder had thus complied with the federal requirements but the Commissioner refused to be satisfied with the same standards. Ordinarily this would be commendable, to insist on higher than minimum standards to “insure integrity in the bidding process.” But here the one day delay had nothing to do with assuring integrity in the bidding process else we must assume that the federal process does not incorporate sufficient integrity.
The Commissioner is to be commended for assuring over his tenure of office that the award of contracts which have been made in historic proportions and amounts have been untainted by bidding irregularities. Here, however, he was poorly advised by staff members who stubbornly refused to consider and properly weigh the merits of following a course by which he would have *895carried out the law which required the award of this contract to the lowest bidder.