[Cite as State ex rel. Associated Builders & Contrs. of Cent. Ohio v. Franklin Cty. Bd. of 

Commrs., 125 Ohio St.3d 112, 2010-Ohio-1199.] 

THE STATE EX REL. ASSOCIATED BUILDERS & CONTRACTORS OF CENTRAL 

OHIO ET AL., APPELLANTS, v. FRANKLIN COUNTY BOARD OF 

COMMISSIONERS ET AL., APPELLEES.

[Cite as State ex rel. Associated Builders & Contrs. of Cent. Ohio v. Franklin 

Cty. Bd. of Commrs., 125 Ohio St.3d 112, 2010-Ohio-1199.] 

Labor — Prevailing wage — R.C. Chapter 4115 — Policy of board of county 

commissioners is not equivalent to municipal ordinance or similar 

provision having force of law — Preemption analysis does not apply — 

Board abused its discretion in applying bid-evaluation criterion to bidder 

for public works contract. 

(No. 2008-1478 — Submitted June 2, 2009 — Decided March 25, 2010.) 

APPEAL from the Court of Appeals for Franklin County, No. 08AP-301, 

2008-Ohio-2870. 

__________________ 

SYLLABUS OF THE COURT

1. A policy of a board of county commissioners for evaluating bids on public 

contracts is not the equivalent of a municipal ordinance or similar 

provision having the force of law. Thus, the policy is not a local law 

within the meaning of Section 3, Article XVIII of the Ohio Constitution, 

and a preemption analysis does not apply. 

2. When a public authority adopts a policy establishing criteria for evaluating the 

eligibility of bidders on public works projects, the public authority must 

apply its evaluation criteria in a manner consistent with the exercise of 

sound discretion. 

__________________ 
SUPREME COURT OF OHIO

2 

 CUPP, J. 

{¶ 1} This appeal concerns the process used by the Franklin County 

Board of Commissioners to determine that appellant The Painting Company was 

not the best bidder for a public works contract despite being the lowest bidder. 

We hold that preemption under R.C. Chapter 4115, the framework providing 

rights and remedies for private contractors and subcontractors engaged in the 

construction of public improvements in this state, is not applicable to the policy 

the board established for evaluating bids on public contracts. Therefore, no 

preemption analysis is required. 

{¶ 2} We also hold that a public authority, although it may create a 

policy establishing criteria by which it will evaluate bids for public works 

contracts to determine the lowest and best bidder, is obligated to apply its bid 

evaluation criteria by exercising its sound discretion. In this case, we find that the 

public authority failed to exercise sound discretion with respect to the manner in 

which it applied its bid evaluation criteria to evaluate a bid submitted for a public 

works contract. Therefore, we reverse the court of appeals’ judgment and remand 

for further proceedings. 

I. Factual and Procedural Background 

{¶ 3} In October 2007, the Franklin County Board of Commissioners 

solicited bids for painting work in connection with the construction of the new 

county-owned Huntington Park baseball stadium in Franklin County, Ohio. The 

board received two bids for painting work in the new facility. The lowest and 

best bid would receive the contract for the Huntington Park project. 

{¶ 4} In 2002, the board had adopted by resolution a set of criteria for 

evaluating bids for a public works contract. According to the resolution, the 

purpose of these criteria was to “ensure that the County’s contractors are 

compliant with the law[,] financially stable and capable of executing construction 
January Term, 2010 

3 

contracts in a competent and professional manner.”1 These criteria are referred to 

as the Qualitative Contracting Standards by the board. The board reaffirmed its 

commitment to these criteria in 2006 when it announced that the criteria would be 

incorporated into the invitation to bid for the Huntington Park project. 

{¶ 5} The lowest bidder for the contract was The Painting Company. 

The Painting Company is a nonunion shop. The one other bidder was a union 

shop contractor whose bid was $46,000 more than The Painting Company’s bid. 

After reviewing the submitted bids, the board formally rejected The Painting 

Company’s bid for the Huntington Park project. Specifically, the board stated 

that “The Painting Company does not satisfy Section 8.2.4.15 of the [invitation to 

bid] documents.” The board went on to state that “[t]he attached information 

demonstrates that The Painting Company has been found by the State of Ohio to 

have violated the State’s prevailing wage laws more than three times in a twoyear period within the last ten years; therefore, The Painting Company is not 

eligible for award of this contract.” 

{¶ 6} The board’s supporting materials included copies of 14 complaints 

filed with the Ohio Department of Commerce alleging prevailing-wage violations 

against The Painting Company during the specified time period of Section 

8.2.4.15. All of the complaints had been investigated by the department, and 

several investigations concluded that any prevailing-wage violation either was not 

 

1. {¶ a} These criteria included such considerations as: 

{ ¶ b} “3. Bidder certifies that Bidder will employ supervisory personnel on this project that 

have three (3) or more years in the specific trade and/or maintain the appropriate state license, if 

any. 

{ ¶ c} “* * * 

{ ¶ d} “6. Bidder certifies that Bidder has implemented an OSHA compliant Safety Program 

and will provide evidence of such upon request. 

{ ¶ e} “* * * 

{ ¶ f} “10. Bidder certifies that Bidder’s construction license has not been revoked in any state. 

{ ¶ g} “* * * 

{ ¶ h} “15. Bidder certifies that Bidder does not have an Experience Modification Rating of 

greater than 3.0 (a penalty rated employer) with respect to the Bureau of Workers’ Compensation 

risk assessment rating.” 
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4 

intentional or resulted in no liability. Another group of investigations were 

resolved through a settlement agreement between The Painting Company and the 

director of the department. In that agreement, The Painting Company was 

permitted to expressly disclaim, without any qualification by the department, any 

liability or wrongdoing in connection with the prevailing-wage laws. 

{¶ 7} Subsequent to the board’s action, The Painting Company requested 

and received a formal bid-protest meeting, at which the board affirmed its 

rejection of The Painting Company’s bid. 

{¶ 8} Thereafter, The Painting Company appealed from the board’s 

decision. Although questioning the board’s wisdom of disqualifying contractors 

who may have superficial and unintentional violations of the prevailing-wage 

laws, both the trial and appellate courts determined that the board had the 

authority to set relevant criteria to evaluate bids on county public works projects. 

Both courts also held that the board did not abuse its discretion in rejecting The 

Painting Company’s bid because the company failed to meet the county’s 

criterion of compliance with the state’s prevailing-wage laws. 

{¶ 9} Subsequently, The Painting Company, joined by appellant 

Associated Builders & Contractors of Central Ohio trade association (collectively, 

appellants), appealed to this court.2

 We accepted review under our discretionary 

jurisdiction. 120 Ohio St.3d 1415, 2008-Ohio-6166, 897 N.E.2d 651. 

II. Statutory Provisions 

{¶ 10} Ohio’s prevailing-wage laws are contained in R.C. Chapter 4115. 

In general, these provisions require contractors and subcontractors for public 

works projects to pay laborers and mechanics the “prevailing wage” in the locality 

where the project is to be performed. See generally R.C. 4115.03 through 

 

2. Associated Builders & Contractors of Central Ohio is a not-for-profit trade association made up 

of contractors, subcontractors, material suppliers, and related entities that provide construction 

services within Ohio. 
January Term, 2010 

5 

4115.21; J.A. Croson Co. v. J.A. Guy, Inc. (1998), 81 Ohio St.3d 346, 349, 691 

N.E.2d 655. "‘[T]he primary purpose of the prevailing wage law is to support the 

integrity of the collective bargaining process by preventing the undercutting of 

employee wages in the private construction sector.’" Id. at 349, 691 N.E.2d 655, 

citing State ex rel. Evans v. Moore (1982), 69 Ohio St.2d 88, 91, 23 O.O.3d 145, 

431 N.E.2d 311. 

{¶ 11} The prevailing rate of wages for a particular class of work is 

determined by the director of the Ohio Department of Commerce. R.C. 

4115.04(A)(1). The director is also charged with enforcing the prevailing-wage 

laws. R.C. 4115.10(E). When a complaint is filed with the director alleging that 

a contractor or subcontractor has violated prevailing-wage laws, an investigation 

ensues. R.C. 4115.13(A). At the conclusion of the investigation, the director 

makes a recommendation as to whether a violation occurred and whether that 

violation was intentional. R.C. 4115.13(B). 

{¶ 12} If the director recommends that a violation was intentional, the 

director gives written notice of that recommendation to the violator and advises 

that person or entity that an appeal of the recommendation may be filed. R.C. 

4115.13(B). The notice and hearing procedures are set forth in R.C. 4115.13. A 

recommendation that a contractor or subcontractor intentionally violated the 

prevailing-wage laws becomes a formal finding of fact only if the contractor or 

subcontractor does not appeal the recommendation or, if after a hearing before an 

examiner, the director adopts the examiner’s findings of fact and recommendation 

that the violation was intentional. R.C. 4115.13(B). A contractor or 

subcontractor intentionally violates prevailing-wage laws when it intentionally 

fails to submit payroll records to the contracting public authority, knowingly 

submits false payroll records, intentionally misclassifies employees for the 

purpose of reducing wages, intentionally fails to comply with the apprentice-to-
SUPREME COURT OF OHIO

6 

skilled-worker ratio, or intentionally allows a barred contractor to perform work 

on a public works project. R.C. 4115.13(H)(1) through (6). 

{¶ 13} In certain situations, a failure to comply with prevailing-wage laws 

can be excused. If the director makes a finding that an underpayment was the 

result of a contractor or subcontractor’s misinterpretation of the statutes or an 

erroneous preparation of the payroll documents, no further enforcement 

proceedings take place provided restitution of the underpaid amount is made. 

R.C. 4115.13(C). 

{¶ 14} However, if no such situation is presented, once the director’s 

initial recommendation is reduced to a finding, the director has the power to 

collect underpayments from the contractor or subcontractor in the form of 

restitution, along with a penalty. R.C. 4115.10(A) and (B). The director files 

with the secretary of state the name of the contractor or subcontractor who has 

been prosecuted for and convicted of intentionally violating the prevailing-wage 

laws. R.C 4115.133(A). The name shall not be filed until the applicable appeal 

period has expired or the court makes an entry of final judgment in favor of the 

director in any appeal. Id. 

{¶ 15} The consequence of the filing with the secretary of state is that the 

contractor or subcontractor is barred from contracting with any public authority 

for any public works project for a one-year period. R.C. 4115.13(D) and 

4115.133(B). After the first violation, if a contractor or subcontractor again 

intentionally violates the prevailing-wage laws within a five-year period, the 

debarment period is extended to three years. R.C. 4115.133(B). A public 

authority may not award a contract for any public works project to any contractor 

or subcontractor whose name appears on the list. R.C. 4115.133(C). Criminal 

penalties also apply if the director determines that there was a violation of certain 

provisions of the prevailing-wage laws. R.C. 4115.99(B). 

III. Preemption Analysis 
January Term, 2010 

7 

{¶ 16} In support of the proposition of law accepted by this court, 

appellants assert that the manner in which the board interpreted and applied its 

bid-evaluation criterion contained in Section 8.2.4.15 imposes a “de facto” 

debarment and does so in a more expansive manner than the prevailing-wage 

laws. Appellants claim that the board’s evaluation criterion is invalid because it 

conflicts with, and is therefore preempted by, the state’s prevailing-wage statutes. 

{¶ 17} We find that preemption does not apply to this matter. The starting 

point for a preemption analysis is the language of the Home Rule Amendment, 

Section 3, Article XVIII of the Ohio Constitution: “Municipalities shall have 

authority to exercise all powers of local self-government and to adopt and enforce 

within their limits such local police, sanitary and other similar regulations, as are 

not in conflict with general laws.” The test for whether a conflict exists between 

an ordinance and a statute “is whether the ordinance permits or licenses that 

which the statute prohibits and vice versa.” In re Decertification of Eastlake 

(1981), 66 Ohio St.2d 363, 368, 20 O.O.3d 327, 422 N.E.2d 598. 

{¶ 18} This concept of home rule, however, applies expressly only to 

municipalities, not to county governments. A county government possesses only 

those powers that are authorized by statute, and it generally otherwise lacks the 

authority to exercise powers of local self-government, except for those limited 

instances in which county home rule has been adopted pursuant to R.C. Chapter 

302. See Section 1, Article X, Ohio Constitution; Schaffer v. Franklin Cty. 

Veterans Memorial Bd. of Trustees (1960), 171 Ohio St. 228, 230-231, 12 O.O.2d 

343, 168 N.E.2d 547; Blacker v. Wiethe (1968), 16 Ohio St.2d 65, 45 O.O.2d 367, 

242 N.E.2d 655. 

{¶ 19} Moreover, the evaluation criterion appellants claim conflicts with 

the prevailing-wage statutes is not a municipal ordinance or similar municipal 

provision having the force of law. Rather, Section 8.2.4.15 is a part of a policy 

adopted by a county board for its use in evaluating the eligibility of a bid 
SUPREME COURT OF OHIO

8 

submitted for a public works contract. As a result, there is no local law 

conflicting with the state prevailing-wage statutes within the meaning of Section 

3, Article XVIII, and no preemption analysis is required or applicable. 

{¶ 20} Because there is no preemption question presented, we decline the 

invitation to engage in such an analysis. 

IV. Exercise-of-Discretion Analysis 

{¶ 21} Although we reject appellants’ characterization of this issue as a 

matter of preemption, appellants’ position is supported by an alternate rationale. 

On the record, we find that the board failed to exercise sound discretion with 

respect to the manner in which it applied its evaluation criteria to the bid 

submitted by The Painting Company. Not only did the board misapply one of its 

evaluation criteria to determine that The Painting Company was not the lowest 

and best bidder for the Huntington Park contract, but it relied on its 

misapplication of that criterion to exclude consideration of all other evaluation 

criteria contained in its policy, thereby improperly disqualifying The Painting 

Company’s bid from consideration for the Huntington Park contract. 

{¶ 22} In determining the best bidder for a local public works contract, a 

public authority has considerable latitude in making its decision. Cedar Bay 

Constr., Inc. v. Fremont (1990), 50 Ohio St.3d 19, 21-22, 552 N.E.2d 202. As a 

part of this broad discretion, a public authority may consider all relevant factors in 

its evaluation of which submitted bid is best. See R.C. 9.312(A); Rein Constr. 

Co. v. Trumbull Cty. Bd. of Commrs. (2000), 138 Ohio App.3d 622, 629, 741 

N.E.2d 979; Prime Contrs., Inc. v. Girard (1995), 101 Ohio App.3d 249, 258, 655 

N.E.2d 411. This discretion is not vested in the courts, and the courts cannot 

interfere unless it clearly appears that the public authority is abusing the discretion 

so vested in it. Cedar Bay, 50 Ohio St.3d at 21, 552 N.E.2d 202. 

{¶ 23} To aid in the evaluation process, a public authority may establish 

evaluation criteria that supplement the statutory criteria for reviewing a bid. A 
January Term, 2010 

9 

bidder’s history of compliance with prevailing-wage laws could be among the 

criteria for a public authority to consider. In fact, to the extent a public authority 

is required to comply with the prevailing-wage laws, it may be error for a public 

authority to fail to consider a bidder’s record in this regard. See, e.g., R.C. 

4115.133(C) (no public authority shall award a public works contract to a 

contractor whose name appears on the secretary of state’s list of contractors who 

have violated certain prevailing-wage laws). 

{¶ 24} Nevertheless, once a public authority has adopted supplemental 

evaluation criteria, it is then obligated to follow and apply those criteria within its 

permitted zone of discretion. The presumption in contract-bidding litigation is 

that the public authority performed its duties in a regular and lawful manner. 

Cedar Bay, 50 Ohio St.3d at 21, 552 N.E.2d 202. The wide discretion vested in 

the public authority is not abused when the public authority exercises will, 

judgment, or reason in its award of a contract to a bidder, but this discretion is 

neither “unlimited nor unbridled.” Dayton ex rel. Scandrick v. McGee (1981), 67 

Ohio St.2d 356, 360, 21 O.O.3d 225, 423 N.E.2d 1095. Accordingly, a 

disappointed bidder must present clear and convincing evidence to demonstrate 

that the public authority abused its discretion in awarding a contract. State ex rel. 

Shafer v. Ohio Turnpike Comm. (1953), 159 Ohio St. 581, 590, 50 O.O. 465, 113 

N.E.2d 14; Cleveland Constr., Inc. v. Ohio Dept. of Adm. Servs., Gen. Servs. Adm.

(1997), 121 Ohio App.3d 372, 384, 700 N.E.2d 54.

{¶ 25} In this case, The Painting Company has demonstrated with clear 

and convincing evidence that the board abused its discretion by misapplying one 

of its evaluation criteria, Section 8.2.4.15, to determine that the bid submitted by 

The Painting Company was not the lowest and best bid for the Huntington Park 

contract. Section 8.2.4.15 requires the lowest responsive bidder to provide all 

information that “the Project Representative deems appropriate to the 
SUPREME COURT OF OHIO

10 

consideration of factors showing that such Bidder’s bid is best, including without 

limitation the following: 

{¶ 26} “* * * 

{¶ 27} “8.2.4.15. Information that the Bidder has not been debarred from 

public contracts or found by the state (after all appeals) to have violated 

prevailing wage laws more than three times in a two-year period in the last ten 

years.” 

{¶ 28} The question is whether The Painting Company has been 

“debarred from public contracts or found by the state (after all appeals) to have 

violated prevailing wage laws” within the specified time period. 

{¶ 29} Our analysis begins with the observation that the term “violated” 

as contained in Section 8.2.4.15 is imprecise. Neither the board’s contractingstandards criteria nor the Project Manual provides a definition of “violation.” Nor 

is there a definition of “violation” in the prevailing-wage statutes of R.C. Chapter 

4115, or any indication of whether “violation” refers only to intentional violations 

or to any violation no matter how unintended or inconsequential. Even the chief 

of the Wage and Hour Bureau opined that the “quest for a definition of ‘violation’ 

cannot be secured through a review of [R.C. Chapter 4115] in and of itself. Some 

would argue that the mere fact that back wages are owed constitutes a violation. 

However, under Section 4115.13(C), that is not necessarily accurate.” Although 

there is no formal definition of the term “violation” in either the county policy or 

state statutes, we conclude that the plain sense of the term “violat[ion],” as used in 

Section 8.2.4.15, refers to the situation in which the director makes a formal 

finding that a contractor or subcontractor intentionally violated the prevailingwage laws, and all appeals are exhausted. 

{¶ 30} The process for ascertaining whether a contractor or subcontractor 

has violated prevailing-wage laws supports this meaning of the term. For 

instance, when the director completes an investigation, a recommendation is 
January Term, 2010 

11 

issued. R.C. 4115.13(B). This recommendation is the first step in prosecuting 

potential violations; a recommendation alone does not give rise to penalties or 

equate to a finding of intentional misconduct. That recommendation may lead, in 

various ways, to a decision by the director that a violation has occurred, either 

intentional or unintentional. R.C. 4115.13(B), (C), (D), and (G). The director 

will then determine whether a sanction is appropriate. R.C. 4115.13(D) and 

4115.133. A finding that a wage underpayment has occurred does not 

automatically equate to a finding of an intentional prevailing-wage violation. For 

instance, the wage underpayment could be excused upon restitution under R.C. 

4115.13(C). 

{¶ 31} Nor do settlement agreements that resolve prevailing-wage 

disputes between a contractor and the director constitute evidence of a violation. 

The settlement agreement represents a negotiated conclusion to a dispute. 

Because the dispute was resolved through negotiation and consequently removed 

from the statutory decision-making process, no administrative or judicial authority 

ever made a final determination that any prevailing-wage laws were violated, as 

contemplated in Section 8.2.4.15 by the phrase “found by the state (after all 

appeals).” Cf. State ex rel. Dillard Dept. Stores v. Ryan, 122 Ohio St.3d 241, 

2009-Ohio-2683, 910 N.E.2d 438, syllabus (a voluntary dismissal with prejudice 

is not a judicial determination that workers’ compensation payments were made 

to an employee in error, when no court has entered a judgment to that effect). 

{¶ 32} In this case, the board applied Section 8.2.4.15 to mean that any 

noncompliance with prevailing-wage laws by the bidder during the applicable 

time period was the equivalent of a prevailing-wage violation. The board never 

considered that under R.C. 4115.13(C), wage underpayments resulting from mere 

mistake are excused from prosecution as a violation. 

{¶ 33} The board’s rejection of The Painting Company’s bid is not 

consistent with the term “violated” as used in Section 8.2.4.15. Section 8.2.4.15, 
SUPREME COURT OF OHIO

12 

for instance, does not require disclosure of information pertaining to instances of 

noncompliance with the prevailing-wage laws. Rather, it requires disclosure of 

information when the bidder “violated” those laws. Moreover, the disclosure 

requirement is further limited to violations found by the state “after all appeals.” 

There is no evidence that The Painting Company has violated the prevailing-wage 

laws within the meaning of Section 8.2.4.15 or the prevailing-wage statutes 

because after all appeals, the director never found under R.C. 4115.13 that The 

Painting Company violated the prevailing-wage laws. The Painting Company is 

not included on the secretary of state’s listing of contractors and subcontractors 

who are debarred from public works projects, as set forth in R.C. 4115.13 and 

4115.133. 

{¶ 34} Moreover, in the settlement agreement, The Painting Company 

was permitted to expressly disclaim, without any contradiction by the department, 

any liability or wrongdoing in connection with wage underpayments.3

 This 

situation is analogous to that in Dillard, because without debarment or a finding 

by the state (after all appeals) of a prevailing-wage violation, the settlement 

agreement cannot evidence any such violations within the meaning of the 

 

3. { ¶ a} The settlement agreement provides: 

{ ¶ b} “WHEREAS, The Painting Company disputes any liability for the underpayment of 

prevailing wages * * *; and 

{ ¶ c} “*** 

{ ¶ d} “WHEREAS, [the Department of] Commerce and The Painting Company have 

successfully negotiated a settlement of the dispute without any acknowledgement of liability by 

The Painting Company; 

{ ¶ e} “NOW THEREFORE, * * * the Department of Commerce, on behalf of the State of 

Ohio, hereby releases and forever discharges The Painting Company * * * from any and all * * * 

penalties * * * arising out of or in any way concerning, directly or indirectly, claims against The 

Painting Company for the alleged underpayment of prevailing wages by The Painting Company 

[on specified projects]. 

{ ¶ f} “*** 

{ ¶ g} “It is understood and agreed by [the Department of] Commerce that this release 

constitutes a compromise settlement of the disputed claim or claims, and that payment by The 

Painting Company of the above-stated settlement is not to be construed as and does not constitute 

an admission of liability or wrongdoing on the part of The Painting Company.” 
January Term, 2010 

13 

prevailing-wage statutes for purposes of Section 8.2.4.15. See id., 122 Ohio St.3d 

241, 2009-Ohio-2683, 910 N.E.2d 438. 

{¶ 35} Based on the foregoing, the board misapplied Section 8.2.4.15 of 

the evaluation criteria to the bid submitted by The Painting Company. 

{¶ 36} The Painting Company has also demonstrated with clear and 

convincing evidence that the board failed to exercise sound discretion because in 

erroneously disqualifying The Painting Company’s bid, it relied on a mistaken 

application of a single criterion without considering any of the remaining criteria. 

{¶ 37} The Painting Company was the lowest bidder on the project by a 

significant amount. The Painting Company also has a record of successful 

performance in projects similar to the Huntington Park project. And the 

Huntington Park construction manager and the board’s own representative 

recommended that The Painting Company receive the contract. 

{¶ 38} Nevertheless, these recommendations were apparently dismissed 

by the board in determining that The Painting Company was ineligible to bid on 

the Huntington Park project. There is no indication that the board relied on any of 

the other evaluation criteria to find that The Painting Company was not the best 

bidder for the Huntington Park project. The trial court also found it notable that 

the board failed to provide any evidence justifying its decision to reject the 

recommendations of its own construction manager and representative. 

{¶ 39} From all appearances, the board relied on its misapplication of 

Section 8.2.4.15 as a sole gate-keeping criterion rather than considering its 

evaluation criteria as a whole when it disqualified the bid submitted by The 

Painting Company for the Huntington Park project. This departure constituted an 

abuse of discretion. 

V. Conclusion 

{¶ 40} Upon review of the matter at issue herein, we hold that a policy of 

a board of county commissioners for evaluating bids on public contracts is not the 
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14 

equivalent of a municipal ordinance or other municipal provision having the force 

of law. Thus, the policy is not a local law within the meaning of Section 3, 

Article XVIII of the Ohio Constitution, and a preemption analysis does not apply. 

{¶ 41} Moreover, we hold that when a public authority adopts a policy 

establishing criteria for evaluating the eligibility of bidders on public works 

projects, the public authority must apply its evaluation criteria in a manner 

consistent with the exercise of sound discretion. 

{¶ 42} Based on the foregoing, the judgment of the court of appeals is 

reversed, and the cause is remanded to the trial court for further proceedings 

consistent with this opinion. 

Judgment reversed 

and cause remanded. 

 MOYER, C.J., and LUNDBERG STRATTON, O’CONNOR, and O’DONNELL, JJ., 

concur. 

 PFEIFER and LANZINGER, JJ., dissent. 

__________________ 

 PFEIFER, J., dissenting. 

I. The Merits 

{¶ 43} The majority opinion correctly explains that public authorities have 

broad discretion in evaluating submitted bids and that we "cannot interfere unless 

it clearly appears that the public authority is abusing [its] discretion." Maj. op. at 

¶ 22, citing Cedar Bay Constr., Inc. v. Fremont (1990), 50 Ohio St.3d 19, 21, 552 

N.E.2d 202. But when the majority opinion discusses how the Franklin County 

Board of Commissioners wielded its discretion, it does not address the widely 

known abuse-of-discretion standard, which states that "[t]he term 'abuse of 

discretion' connotes more than an error of law or of judgment; it implies that the 

court's attitude is unreasonable, arbitrary or unconscionable." State v. Adams
January Term, 2010 

15 

(1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 404 N.E.2d 144, citing Steiner v. 

Custer (1940), 137 Ohio St. 448, 451, 19 O.O. 148, 31 N.E.2d 855. 

{¶ 44} In this case, the majority opinion is reversing the considered 

judgments of the Franklin County Board of Commissioners, the trial judge, and 

the judges of the Tenth District Court of Appeals. In doing so, it invents a 

definition of "violation" in the prevailing-wage context without recourse to case 

law, statutes, administrative codes, or even a dictionary. And it substitutes its 

definition of "violation" for the definition used by the Franklin County Board of 

Commissioners without explaining how the commissioners abused their 

discretion. Even if I accept the majority opinion's definition of "violation," and I 

concede that it is as good a definition as any other, I cannot conclude that in 

adopting a different definition, the commissioners acted unreasonably, arbitrarily, 

or unconscionably. 

{¶ 45} Based on the record and briefs, I conclude that the Franklin County 

Board of Commissioners adopted a definition of "violation" that was designed to 

allow them to reject bids from contractors with a history of prevailing-wagerelated problems. There is nothing unreasonable, arbitrary, or unconscionable 

about a public authority promoting a policy that encourages contractors to comply 

with the spirit as well as the letter of the prevailing-wage law. 

II. Jurisdiction 

{¶ 46} The appellants' memorandum in support of jurisdiction contained 

five propositions of law, including the following: 

{¶ 47} "Proposition of Law No. 3: Appellees' de facto debarment rule is 

preempted by R.C. Chapter 4115, a comprehensive scheme balancing the 

competing public interests in prevailing wage compliance and competition for 

public contracts. 

{¶ 48} "Proposition of Law No. 4: The settlement agreements and court 

proceedings cannot legally be considered as establishing a violation of law, 
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16 

because such [a] finding would be contrary to both the language of the 

agreements and the public policy favoring resolution of disputes through 

mediation and settlement. 

{¶ 49} "Proposition of Law No. 5: Because the state has not ‘found’ that 

[The Painting Company] violated the prevailing wage law within the last ten 

years, Appellees abused their discretion because either the Standards are void for 

vagueness or the Commissioners' interpretation constituted an unannounced bid 

criterion." 

{¶ 50} This court accepted jurisdiction over Proposition of Law III only. 

State ex rel. Associated Builders & Contrs. of Cent. Ohio v. Franklin Cty. Bd. of 

Commrs., 120 Ohio St.3d 1415, 2008-Ohio-6166, 897 N.E.2d 651. I dissented. 

Id. 

{¶ 51} As I have explained in the past, "I disagree with this court's 

practice of picking and choosing, within a case, the issues that we are willing to 

review. If a case is worthy of review, in the interests of providing justice to the 

parties and because, until we see the entire record, it is exceedingly difficult to 

ascertain the interplay of various issues, all appealed issues should be before us. 

Whether we address each issue at that point is, of course, within our considered 

discretion." Meyer v. United Parcel Serv., Inc., 122 Ohio St.3d 104, 2009-Ohio2463, 909 N.E.2d 106, ¶ 60 (Pfeifer, J., dissenting). 

{¶ 52} Apparently a majority of this court now agrees with my dissent in 

Meyer because, even though this court accepted jurisdiction over Proposition of 

Law III only, the majority opinion also addresses Propositions of Law IV and V. 

I do not disagree with that approach; in fact, I applaud it. But wouldn't it be better 

for parties and their attorneys if this court accepted jurisdiction without 

limitation? The current practice is confusing. Attorneys don't know whether they 

should argue issues that aren't before us; based on this case, they should. 
January Term, 2010 

17 

Attorneys also don't know whether they can safely ignore issues that we have told 

them are not before us; based on this case, they shouldn't. 

III. Conclusion 

{¶ 53} I conclude that the Franklin County Board of Commissioners did 

not abuse its discretion. I would affirm the decision of the court of appeals. I 

dissent.

 LANZINGER, J., concurs in the foregoing opinion. 

__________________ 

 The Copley Law Firm, L.L.C., Michael F. Copley, Mark E. Landers, 

Douglas M. Beard, and Kenley S. Maddux; and The Mason Law Firm Co., 

L.P.A., Ronald L. Mason, and Aaron T. Tulencik, for appellants. 

 Ron O’Brien, Franklin County Prosecuting Attorney, Nick A. Soulas Jr., 

First Assistant Prosecuting Attorney, and Anthony E. Palmer, Assistant 

Prosecuting Attorney, for appellee. 

Benesch, Friedlander, Coplan & Aronoff, L.L.P., N. Victor Goodman, and 

Mark D. Tucker, urging affirmance for amici curiae Ohio State Building & 

Construction Trades Council and Columbus/Central Ohio Building & 

Construction Trades Council. 

 Bricker & Eckler, L.L.P., and Luther L. Liggett Jr., urging affirmance for 

amici curiae National Electrical Contractors’ Association, Ohio Conference, and 

Mechanical Contractors Association of Northwestern Ohio. 

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