Concurring and Dissenting.—The pertinent facts are quite simple. ERS1 and Embree are both bus transportation contractors. Each of them bid on District’s proposed school bus contract covering the period of July 1, 1975, to June 30, 1980. The sole criterion stated in the request for bids was that the contract would “be awarded to the contractor whose sum of the daily rate and one-half hour of excess time is low for each size bus.”2 Analysis of the bids established that ERS was the low bidder by roughly $90,000 per year. It is clearly established that both ERS and Embree are responsible bidders with satisfactory prior service performances with District.3 The contract, however, was awarded to Embree.
The issue may also be simply stated: Does the District have discretion to award such a contract to other than the lowest responsible bidder?
*787 Analysis
The request for bids was pursuant to Education Code section 16802: “In order to procure the service at the lowest possible figure consistent with proper and satisfactory service, the governing board shall, whenever an expenditure of more than five thousand dollars ($5,000) is involved, secure bids pursuant to Sections 15951 and 15952 whenever it be contemplated that a contract may be made with a person or corporation other than a common carrier or a municipally owned transit system or a person or guardian of the pupils to be transported. The governing board may let the contract for the service to other than the lowest bidder. No board shall make any purchase or enter into any contract for the service without securing the written approval of the county superintendent of schools.”
In approaching an understanding of the purpose and meaning of requiring bidding in cases such as that before us, the magnitude of school busing must be kept in mind. While school busing was not an extraordinaiy fact in past years, it now takes on magnified importance due to school integration programs. The daily papers keep us all informed of the numerous buses which are necessarily in service and the tax collector notifies us as to the magnitude of the service, dollar-wise.
With these factors in mind, Embree and the District would have section 16802 read in such manner as to authorize the District to accept a higher bid for the same services and comparable acceptability. There is no rationale reasoning to such statutory construction. As stated in Swinerton & Walberg Co. v. City of Inglewood—L.A. County Civic Center Authority, 40 Cal.App.3d 98, 104 [114 Cal.Rptr. 834]: “To hold that Argo was not entitled to rely upon this promise [to award the contract to the lowest responsible bidder] because of the just mentioned reservation of the right to reject any and all bids would make the Authority’s promise an illusory one and render the whole competitive bidding process nugatory.” The public has both an economic and moral interest in.public service contracts being awarded to the lowest responsible bidder.4
*788This determination harmonizes the provisions of sections 16802, 15951 and 15952. The opening sentence of section 16802 states the purpose of calling for bids; the first sentence of section 15951 mandates the letting of the contract to “lowest responsible bidder” and section 15952 provides the manner in which the bids shall be called. That portion of section 16802 seized upon by Embree, i.e., “The governing board may let the contract for the service to other than the lowest bidder,” merely recognizes the distinction between the lowest bidder and the lowest responsible bidder. It places bidders on notice that proper and satisfactory service is at least of equal importance as the cost of such service.5
The resolution of the question may be simply determined: The public is protected to the tune of some $90,000 per year by the reasonable construction of the legislative mandate. There is no justification in this case for permitting that kind of added cost to be imposed upon the citizens of Pasadena. The judgment should be reversed but not for the reasons set forth in the majority opinion.
A petition for a rehearing was denied February 1, 1977. Stephens, J., was of the opinion that the petition should be granted. Appellant’s petition for a hearing by the Supreme Court was denied March 17, 1977.
The same “short-titles” are used herein as those used in the majority opinion.
District specified the criterion on the basis of which the contract would be awarded as follows: “Subject to the District’s right to reject any or all bids and to waive any informality (See Page B 13), a contract or contracts will be awarded to the contractor whose sum of the daily rate and one-half hour of excess time is low for each size bus. If not enough buses are available at the low bid, the next higher bid shall be considered until enough buses are contracted for. A bidder may bid on one bus or as many as he has available for all capacity buses.”
The existent three contracts for school busing and their renewal options should play no part in the consideration of the basic contract proposals before us.
The term “lowest responsible bidder” connotes reference to the “ . .. quality, fitness, and capacity of the low bidder to satisfactorily perform the proposed work.” (City of Inglewood—Los Angeles Count v. Civic Center Authority v. Superior Court, 1 Cal.3d 861, 867 [103 Cal.Rptr. 689, 500 P.2d 601].)
The language in section 15951 granting the board authority to reject all bids (not any or all) recognizes that all of the bids may be unreasonable in amount or not from responsible bidders. If, however, any of the bids is both reasonable in amount and from a responsible bidder an exercise in futility in asking for bids when no bid is to be accepted, is unreasonable. (See Swinerton, supra.)