State Ex Rel. Printing-Litho, Inc. v. Wilson

Haymond, Judge,

dissenting:

In my judgment the petitioner, Printing-Litho, Inc., is entitled to the writ which it seeks in this original mandamus proceeding. In consequence I dissent from the decision of the majority which refused to require the defendant to comply with the mandate of the statute and accept the bid of the petitioner and contract with it as the lowest responsible bidder with respect to certain miscellaneous printing and binding for this State during a two year period from 1962 to 1964.

Notwithstanding the statement in the opinion in Butler v. Printing Commissioners, 68 W. Va. 493, 70 S. E. 119, 38 L.R.A. (N. S.) 653, that “where with an executive commission of the character involved in this case there is lodged judgment and discretion, a court cannot control it by man-damusreferred to and expressly disapproved by the majority in this proceeding, the principle established by numerous decisions of this Court is that mandamus lies to control the action of an administrative officer or agency in the exercise of discretion where such action is arbitrary, capricious, unsound or wrongful. State ex rel. Payne v. Board of Education of Jefferson County, 135 W. Va. 349, 63 S. E. 2d 579; Beverly Grill, Inc. v. Crow, 133 W. Va. 214, 57 *425S. E. 2d 244; State ex rel. Garbutt v. Charnock, 105 W. Va. 8, 141 S. E. 403, 56 A.L.R. 1094; State ex rel. Dillon v. Neal, 104 W. Va. 259, 139 S. E. 757; State ex rel. Hoffman v. Town of Clendenin, 92 W. Va. 618, 115 S. E. 583, 29 A.L.R. 37; State ex rel. Noyes v. Lane, 89 W. Va. 744, 110 S. E. 180; Dillon v. Bare and Carter, 60 W. Va. 483, 56 S. E. 390.

The Butler case, cited and relied on by the defendant, does not control the decision in this proceeding. It is not controlling for several reasons. In the first place its broad denial of relief by mandamus is expressly disapproved by the majority as heretofore indicated. Secondly, it is contrary to the above cited cases which hold that arbitrary, capricious, unsound, or wrongful exercise of discretion will be controlled by mandamus. Moreover, the reasoning of the majority in the Butler case is completely refuted by these expressions in the dissenting opinion of Judge Poffen-barger in that case: “But discretion in the commissioners, extending to all phases of their work would not necessarily bar the remedy invoked. Officers exercising the discretionary powers cannot act arbitrarily. Reason must govern their action. They cannot say a clearly responsible man is irresponsible, or that a bidder has not complied with conditions, when he obviously has. Neither ignorance, a fanciful, groundless notion as to law, nor fraud will be permitted to bar the writ. The suggestion that only collusion or fraud will do so is too narrow. The authorities go beyond that. Judgment as well as honesty must be put into effect. Dillon v. Bare & Carter, 60 W. Va. 483; Glencoe v. People, 78 Ill. 382; State v. School Directors, 134 Mo. 296; State v. Kellogg, 95 Wis. 672; State v. Johnson, 103 Wis. 591; Briggs v. Hawkins, 16 R. I. 83; Sparrow’s Petition, 138 Pa. St. 116; Brewing Company’s Petition, 127 Pa. St. 523; Dental Examiner v. People, 123 Ill. 227. This principle has been enforced on applications for the writ by bidders, entitled to awards. State v. Commissioners, 39 O. St. 188; People v. Contracting Board, 46 Barb. 254. In the former case, the commissioners rejected the lowest bid on the theory of irresponsibility of the bidder. The court said: ‘We are satisfied from the evidence, after carefully considering it, that the commissioners acted in good faith, under the mistaken advice and *426belief that ample discretion was vested in them to- reject the bid of the relator, upon the information which they had. We are equally satisfied, that, whether any discretion is vested in them or not, they acted upon insufficient information, and to some extent incorrect information, and that they offered the relator no opportunity to put them in possession of the real facts, before deciding against awarding him the contract. We must assume that if the commissioners, when the charges were made against Mitchell, had given him a hearing, he would have satisfied them, as he had us, that there was, in fact, no reason why this contract should not be awarded to him.’ In the latter, it was rejected for alleged non-compliance with the condition as to security, and there the court said: We must assume that the defendants put their refusal to grant the contract to Vickerman solely on the ground that his certificate of deposit did not conform to that required by the notice. That it did so conform in substance, if not absolute in form, and gave to the defendants the whole benefit of the deposit, equally as if it had been in every respect formal. That such being the case, there was no discretion left in the board to award to the relator the contract. He was entitled to it as matter of right and of law.’ ” And finally the statute in effect when the Butler case was decided in 1911, Sections 5 and 22, Chapter 16, Code, 1906, has been amended with regard to the factors to be considered in determining the lowest responsible bidder. The earlier statute merely provided that the contract should be awarded to the lowest responsible bidder and did not require any factors to be taken into consideration in determining such bidder as does the present statute.

Article VI, Section 34, of the Constitution of this State provides, in part, that “The Legislature shall provide by law that the fuel, stationery and printing paper, furnished for the use of the State; the copying, printing, binding and distributing the laws and journals; and all other printing ordered by the Legislature, shall be let by contract to the lowest responsible bidder,”. Pursuant to the mandate of the Constitution, the Legislature enacted Chapter 132, Acts of the Legislature, 1961, Regular Session, which amended *427the Code of 1931, by adding Chapter 5A, the pertinent portions of which are quoted in the majority opinion. Section 14, Article 3, of that enactment provides that all open market orders, purchases based on advertised bid requests, or contracts made by the director of purchases or by a state department shall be awarded to the lowest responsible bidder and that in determining the lowest responsible bidder the qualities of the articles to be supplied, their conformity with the specifications, their suitability to the requirements of the state government, and the delivery terms shall be taken into consideration.

The statute is mandatory, not directory, and imposes the imperative duty upon the director or the state department to determine, under the terms of the statute, the lowest responsible bidder and to award the contract made by the director or the department to such bidder.

If the director or the department is permitted to ignore the mandate of the statute and exercise discretion arbitrarily or capriciously in designating the lowest responsible bidder and in awarding the contract to a person who in fact is not the lowest, responsible bidder the mandate of the statute is defeated, its mandatory character is emasculated, and the statute is rendered merely directory in character, contrary to. the. express legislative purpose to safeguard ¡the public. funds of the State. Such arbitrary or capricious action,.wfil. not be permitted by this Court and mandamus lies-to control the .arbitrary or. capricious exercise of the discretion by the director or the department.

The.sole basis for the refusal of the defendant, as director ■ of purchases, to honor the admittedly lowest bid submitted .by the: petitioner is its allegedly unsatisfactory financiál condition or. status. The principal part of the allegation on this point in the answer of the defendant is that the petitioner “was refused the contract because its financial statements do not show that it is a responsible bidder and able to perform the contract as set out by the State of West Virginia.”

■ The ability of the petitioner to comply with the statutory requirements concerning the qualities of the articles to be *428supplied, their conformity with the specifications, their suitability to the requirements of the state government, and the delivery terms is clearly established by the pleadings and the proof and is not challenged or denied by the defendant who failed to testify as a witness in support of his contention that the financial condition of the petitioner is not sufficient to enable it to perform the contract. The record discloses that the petitioner, though a small and recently organized business enterprise, is a going concern which has obtained and is now engaged in performing similar printing contracts with the United States for quantities in excess of those required in the requested contract with the State; that, though it does not have a large amount of working capital and does not own its operating facilities and owes indebtedness to judgment creditors who are friendly and not presently pressing for payment, it is in possession of and is operating a plant and facilities adequate to enable it to perform the requested contract; that it employs six experienced production workers; and that its president and production manager have had at least fifteen years experience in the performance of state contracts similar to the requested contract and are well qualified to satisfy the requirements of the qualities of the articles to be supplied, their conformity with the specifications, their suitability to the requirements of the state government, and the delivery terms. The record also shows beyond question that the petitioner possesses sufficient financial strength and monetary credit to furnish, as it did with its bid, a bond in the penalty of $50,000.00 with a bonding company as surety, and is able to give a sufficient bond to assure its performance of the contract and that, the bid of the petitioner in the amount of $62,049.50, being $51,266.70 less than the next lowest bid of $113,316.20 which the defendant has accepted, the rejection of the bid of the petitioner will result in a loss or an additional expense to the taxpayers of the State of the difference of $51,266.70.

From the foregoing it is evident that the attitude of the director, at least in this instance, is that a small enterprise which happens to have an indebtedness but which nevertheless is a going concern whose operators and facilities are *429capable of performing the contract which it seeks and is able to guarantee its performance, will not be awarded a contract which will save the State the sizeable sum of $51,266.70. If it is necessary for a successful bidder to be of many years experience, affluent and without indebtedness, there is little, if any, inducement for the establishment and maintenance of newly created small businesses of moderate means in the economic development of this State. To me such an attitude is neither desirable nor economically defensible from any practicable point of view and should not be given judicial sanction. It should be obvious that to enable a new business to expand it must in the beginning be trusted with sufficient orders to permit its growth and development.

The foregoing clearly established facts do not indicate inability or lack of qualification of the petitioner to perform the contract which it requests with a resultant saving of $51,266.70 to the State and its taxpayers. On the contrary, thosé facts are sufficient to prove to my satisfaction that the petitioner is in all respects qualified, financially and from the standpoint of experience, to perform fully and satisfactorily the requested contract and that it is the duty of the defendant, under the statute, to honor the lower bid of the petitioner and to award it the contract which it seeks and requests instead of honoring the greatly increased bid of the next highest bidder. With respect to that action of the defendant it is pertinent to observe that there is no showing in this proceeding that the successful bidder possesses greater financial strength or credit than the petitioner, or that it owns its facilities or owes no debts, or that its operators or production workers have, the same amount of experience in the performance of contracts of the type requested by the petitioner as that possessed by the production managers and workers of the petitioner.

In the light of the well established facts and circumstances mentioned and referred to in this dissenting opinion, the action of the defendant in rejecting the bid of the petitioner in the amount of $62,049.50 and in accepting the next highest bid of $113,316.20 for the identical contract requested *430by the petitioner at a loss or the additional cost of the difference of $51,266.70 in the public funds contributed by the taxpayers of this State, in my considered opinion, constitutes an arbitrary, capricious, and intolerable exercise of discretion which should not be permitted but instead should be controlled in a mandamus proceeding in this Court.

For the reasons stated and under the authorities cited and referred to in this dissenting opinion, I would award a writ of mandamus as prayed for by the petitioner and require the defendant to award it the contract which it seeks to obtain; and I am authorized to say that. Judge Calhoun concurs in the views expressed in this dissent.