FILED JULY 27, 2012
S T A T E O F M I C H I G A N
SUPREME COURT

CEDRONI ASSOCIATES, INC, Plaintiff-Appellee,
v No. 142339 TOMBLINSON, HARBURN ASSOCIATES, ARCHITECTS & PLANNERS, INC, Defendant-Appellant.

BEFORE THE ENTIRE BENCH
M ARKMAN , J. The issue here is whether plaintiff, the disappointed lowest bidder on a public contract, had a valid business expectancy for the purpose of sustaining a claim of tortious interference with a business expe ctancy. The trial court held that plaintiff did not have such an expectancy , but a divided Court of Appeals pa nel held that a genuine issue of
material fact exists in this regard. Because we agree w ith the trial court and the Court of Appeals dissent that plaintiff did not have a valid business expectancy, we reverse the Michigan Supreme Court Lansing, Michigan 

# Opinion Chief Justice: Robert P. Young, Jr. Justices: Michael F. Cavanagh Marilyn Kelly Stephen J. Markman Diane M. Hathaway Mary Beth Kelly Brian K. Zahra2 judgment of the Court of Appeals and re instate the trial court’s order granting defendant’s motion for summary disposition.
I. FACTS AND HISTORY Davison Community Schools, a public school district, entered into a contract with
defendant for architectural servic es with regard to a constructi on project. As part of the contract, defendant agreed to assist the school district with the bid selection process by, among other things, evaluatin g the bids submitted by contractors and making a recommendation to the school district regardi ng which contractor should be awarded the project. Pursuant to defendant ’s recommendation, the school district eventually awarded the project to US Construction and Design Services, LLC, the contractor that had
submitted the second-lowest bid. Plaintiff, the contractor that submitted the lowest bid,
sued defendant for tor tious interference with a business expectancy. 1 The trial court granted defendant’s mo tion for summary disposition, concluding that plaintiff did not have a valid business e xpectancy. In a split decision, the Court of Appeals reversed, holding that a genuine issue of material f act existed in this regard. Cedroni Assoc, Inc v Tomb linson, Harburn Assoc, Architects & Planners, Inc , 290 Mich App 577; 802 NW2d 682 (2010). Judge K IRSTEN F RANK K ELLY dissented, agreeing with

1 According to defendant, its decision to recommend US Construction rather than plaintiff was predicated on the fact that the references supplied by plaintiff gave negative feedback and US Construction had provided construction se rvices for other projects designed by defendant for the school district and had perfo rmed the work adequately. According to plaintiff, on th e other hand, defendant’s decision to recommend US Construction rather than plaintiff was based on defendant’s desire “to punish [plaintiff] for what occurred on the Holly Academy pr oject wherein [defe ndant] was ultimately replaced by another architect.”3 the trial court that plaintiff did not have a valid business expectancy. We ordered and heard oral argument on whether to grant defe ndant’s application for leave to appeal and specifically asked the parties to address whether the Court of Appeals erred when it determined that there are genuine issues of material fact as to (1) whether the plaintiff, a disappointed low bidder on a pub lic contract, had a valid business expectancy and (2) whether the defendant architectural firm’s communications, made pursuant to an agreement with the contracting school district, amounted to intenti onal and improper conduct sufficient to sustain a claim of tortious interfe rence with a business expectancy. [ Cedroni Assoc, Inc v Tomblinson, Ha rburn Assoc, Architects & Planners, Inc , 489 Mich 953, 953-954 (2011).] [2]
II. STANDARD OF REVIEW We review de novo a trial court’s deci sion on a motion for su mmary disposition.
Driver v Naini , 490 Mich 239, 246; 802 NW2d 311 (2011).
III. ANALYSIS The elements of tortious interference w ith a business relationship or expectancy
are “‘the existence of a valid business rela tionship or expectancy, knowledge of the relationship or expectancy on th e part of the defendant, an intentional interference by the defendant inducing or causing a breach or termination of the relationship or expectancy, and resultant damage to the plaintiff.’” Dalley v Dykema Gossett PLLC , 287 Mich App 296, 323; 788 NW2d 679 (2010), quoting BPS Clinical Laboratories v Blue Cross & Blue Shield of Mich (On Remand) , 217 Mich App 687, 698-699; 552 NW2d 919 (1996). The issue here is whether plaintiff, as the lowe st bidder on a public contract, had a valid

2 Because we conclude that plaintiff did not have a valid business expectancy, it is unnecessary for us to address the second issue.4 business expectancy. In order to establish th is, “[t]he expectancy must be a reasonable likelihood or probab ility, not mere wish ful thinking.” Trepel v Pontiac Osteopathic Hosp , 135 Mich App 361, 377; 35 4 NW2d 341 (1984). We agree with the trial court and the Court of Appeals dissent that plainti ff did not have a valid business expectancy because plaintiff had no reasonable expect ation of being awarded the contract, only “wishful thinking.” That plaintiff as the lowest bidder on a public contract had no valid business expectancy is supported by the longstanding rule in Michigan that a disappointed low bidder on a public contract has no standing to sue in order to ch allenge the award of a
contract to another bidder. Detroit v Wayne Circuit Judge , 128 Mich 438, 439; 87 NW 376 (1901) (“As a bidder, the comp lainant has no standing.”). In Talbot Paving Co v
Detroit , 109 Mich 657, 660, 662; 67 NW 979 (1896), this Court held that “the lowest bidder, under a contract proposed to be let by a municipal corporation, whose bid has been rejected, [does not have] a right of acti on at law to recover profits which he might have made had his bid been accepted.” This Court reached this conclusion even though “under the charter of Detroit, it was the duty of the city to le t the contract to the lowest responsible bidder . . . .” Id . at 660. This Court held that the charter did not provide for a private cause of action becaus e it “was not passed for the be nefit of the bidder, but as a protection to the public.” Id . “The charter provision whic h required the acceptance of the lowest responsible bid had no reference to any interest which the bidders might have in the premises, but was passed to protect the interest of the citizens of the city.” Id. at 662 (emphasis added); see also Lasky v City of Bad Axe , 352 Mich 272, 276; 89 NW2d5 520 (1958) (stating that these provisions “are enacted for the benef it of property holders and taxpayers, and not for the benefit of or enrichment of bidders”). Given that a contractor that submits the lowest bid cannot bring a cause of action against the municipality when its bid is reje cted, even when the municipality has adopted a charter provision that requires it to accept th e “lowest responsible bidder,” it is difficult to fathom how plaintiff’s s ubmission of the lowest bid could have created a valid business expectancy in light of the high ly discretionary process of awarding governmental contracts. In terms of whethe r a valid business expectancy is created, a plaintiff’s expectations are entirely the same regardless of whether it alleges that the government has wrongfully denied it the cont ract or, as here, that a third party has
interfered and caused a denial of the contract . In addition to the common-law rule, MCL 380.1267(6) expressly states that “[t]he board , intermediate school board, or board of directors may reject any or all bids . . . .” As the Court of Appe als dissent explained,
“when the ultimate decision to enter into a business relationship is, by statute, a highly discretionary decision, a plaintiff cannot establish that its ‘business expectancy’ [reflected] a reasonable likelih ood or possibility and not me rely wishful thinking.” Cedroni , 290 Mich App at 623 (K. F. K ELLY , J., dissenting). In light of the common-law rule that a bidder that submits the lowest bid has no cause-of-action against the public entity that rejects this bid and the statutory pr ovision that allows the school district to “reject any or all bids,” MCL 380.1267(6), a bidder on a school construction project should know that its submissi on of the lowest bi d does not create a reasonable probability
that the school district will award it the contract. See Lasky , 352 Mich at 276 (“[O]ne making a bid or entering into a contract w ith a municipality, acts at his peril; he is6 supposed to know th e law.”); see also EBI-Detroit, Inc v Detroit , 279 Fed Appx 340, 352 (CA 6, 2008) (“Michigan courts have already rejected the idea that a disappointed bidder has a valid business expectancy in a potential government contract.”). 3 In the instant case, not only should th e common-law rule and MCL 380.1267(6) have made plaintiff aware that its submission of the lowest bid did not create a valid business expectancy, but documents provided by the school district before plaintiff even
submitted its bid should also have made th is perfectly clear. For example, both the
advertisement for bids and the instructions to bidders included in the project manual expressly stated that the school district “res erves the right to accept or reject any or all offers.” The school district’s fiscal manageme nt policy also stated multiple times that the school district has the “right to reject any or all bids” and fu rther stated that “the lowest dollar cost bidder may not always receive award of the bid.” See Leavy v City of

3 The dissent argues that our decision to appl y the “disappointed-bi dder rule” to private entities is “contrary to the purp ose of the disappointed-bidder rule: to protect taxpayers.” Post at 10. However, if this case had anythi ng at all to do with protecting taxpayers, plaintiff “should have proceeded by injunction to prevent the doing of the work under the [US Construction] contract” instead of “l[ying] by, and, after the wo rk had been done and paid for, ask for profits which it might have ma de if it had been perm itted to perform its contract.” Talbot , 109 Mich at 659. By adopting MC L 380.1267(6), which allows the school board to “reject any or all bids,” th e Legislature has determined that the school board is in the best position to “protect taxpayers,” and “[t]he law does not give to courts the power to substitute their judgment fo r the honest judgment of the board.” Kundinger v City of Saginaw , 132 Mich 395, 405; 93 NW 914 (1 903). Finally, as we explain in footnote 8, we are not imm unizing from liability a priv ate entity that “acts with dishonesty and bad faith to interfere w ith the governmental entity’s efforts,” post at 10 n 2; instead, we are simply holding that when the ultimate decision to enter into a business relationship is a highly discretionary decisi on reposed by law within a governmental entity, a disappoint ed low bidder does not have a valid business expectancy for the purpose of sustaining a claim of tortious interferen ce with a busine ss expectancy.7 Jackson , 247 Mich 447, 450; 226 NW 214 (1929), quoting 3 McQuillin, Municipal Corporations (2d ed), p 919 (“Re servation of right to reject any and all bids, where the authorities have power to make such reservation, gives the right to le t the contract to any bidder and reject the others, although the one securing the contract is not the lowest bidder[.]”). Finally, Clay Perk ins, the superintendent of th e school district, averred by affidavit that “[w]hile [pla intiff] submitted the low bid, there was no communication of any intent to accept [plaintiff’s] bid.” That plaintiff did, in fact, understand that it might
not be awarded the contract ev en though it was the lowest bidd er is evidenced by a letter written by plaintiff’s president, Richard Cedroni, to the school district, in which he stated: We are the apparent low bidders on the Additions and Renovations at Hill and Siple Elementary. I look forward to working with the Davison Schools on this project an d I expect you will be more than pleased with my company’s performance and professionalism, if awarded . [Emphasis added.] The Court of Appeals recogniz ed that “the submission of the lowest bid, in and of itself, was inadequate to sustain plaintiff’s suit” and “reject[ed] any ru le per se that would allow litigation to proceed simp ly on the basis of proof of the lowest bid” because submission of the lowest bid does not, by itself, create a valid business expectancy. Cedroni , 290 Mich App at 582. 4 However, the Court concluded that the school district’s

4 The dissent, on the other hand, concludes that “once a qualified bidder has submitted a conforming bid and knows that it has provided the lowest bid, there might be a genuine issue of material fact regarding whether the bidder’s expectation reasonably elevated from a ‘mere hope’ to a ‘realistic expectation’ th at it would be awarded the project . . . .” Post at 5. This conclusion is simply inco mpatible with both MCL 380.1267(6), which expressly states that the scho ol board “may reject any or all bids,” and the documents presented to plaintiff, which e qually clearly state that “the lowest dollar cost bidder may not always receive award of the bid.”8 fiscal management policy, coupled with plai ntiff’s submission of the lowest bid, did create a valid business expectancy because the former stated th at “[b]ids shall be awarded in compliance with a pplicable bidding obligations im posed by law to the ‘lowest responsible bidder.’” “Lowest responsible bidder” is defined in the policy as a “responsible contractor,” and “responsible contractor” is defined as a “contractor determined by the [school district] to be sufficiently qualified to satisfactorily perform the Construction Project . . . .” The policy then provides a list of factors for th e school district to consider in determining whether a cont ractor is properly characterized as a “responsible contractor,” including “an overall review of th e Responsibility Criteria,” “the input of the District’s architect(s),” and “other relevant factors.” The “responsibility criteria” include numerous considerations such as “projects co mpleted within the pa st three (3) years”; “experience with construction techniques, tr ade standards, project scheduling, cost control, management of projects and buildin g codes, particular to the Construction Project”; “[r]eferences from indi viduals or entities that have re ceived in the past three (3) years, or that are currently receiving the contractor’s se rvices, including information regarding records of performan ce, job site cooperation, and long term quality standards”; and “any additional criteria that [the school district] may deem relevant for purposes of making a determination of contract or responsibility . . . .”
In Mago Constr Co v Anderson, Eckstein & Westrick, Inc , unpublished opinion per curiam of the Court of Appeals, issu ed November 8, 1996 (Docket No. 183479), a case involving facts similar to the instant case , the Court of Appeals affirmed the trial court’s order granting the defendant’s motio n for summary disposition. The defendant9 was a corporation of professional consul ting engineers and the plaintiff was the disappointed lowest bidder. The plaintiff sued the defendant for, among other things, tortious interference with a business expectancy. The Court of Appeals explained,
“Where the ultimate decision to enter into a business relationshi p is a highly discretionary decision reposed within the structure of a governmental entity, it becomes more difficult for a plaintiff to prove that it had an expect ancy of doing business with the governmental body.” Mago , unpub op at 3. The Court of Appe als concluded that the plaintiff had no valid business exp ectancy because the award of the contract was a highly discretionary governmental activity in which “too many factors [were] in play to be able to reasonably infer that . . . plaintiff would have obtaine d the desired [contract].” Moreover, the bidding instructions clearly inform ed plaintiff that the lowest bidder was not guaranteed to receive the wa ter main improvement contract. [ Id. (citation omitted; first altera tion in the original).] Although Mago is an unpublished and therefore no nbinding opinion of the Court of Appeals, 5 and, as the dissent points out, the facts in Mago are not identical to those in the instant case, we nevertheless find its reasoning persuasive. In the instant case, altho ugh the school district’s fiscal management policy provided that the contract would be awarde d to the “lowest responsible bidder,” the school district itself retained the right to choose the “lowest resp onsible bidder.” The policy provided a nonexhaustiv e list of factors for the school district to consider, including its architect’s input . Therefore, just as in Mago , “the award of the contract was

5 MCR 7.215(C)(1) (“An unpublished opinion is not precedentially bi nding under the rule of stare decisis.”).10 a highly discretionary governmental activity in which ‘too many factors [were] in play to be able to reasonably infer that . . . plainti ff [by virtue alone of being the lowest bidder] would have obtained the desired [contract].’” Id. (citation omitted; firs t alteration in the original). In addition, “the bidding instructions cl early informed plain tiff that the lowest bidder was not guaranteed to receive the . . . contract.” Id. Because the school district retained a broad discretionary right to reject the lowest bidder, plaintiff could not have had a valid business expectancy. 6 See also Talbot , 109 Mich 657, and Leavy , 247 Mich 447, both of which involved city charters that contained the same “lowest responsible bidder” requirement and yet this Court held that the lowest bidder could not sue on the basis of not being awarded the contract. See also EBI-Detroit, Inc , 279 Fed Appx at 343, 353, in which, although the c ity of Detroit “made it clear that the Belle Isle Project would be awarded to the lowest bidder who was bo th responsive and responsible,” the United States Court of Appeals for the Sixth Circu it held, in an unpubl ished and nonbinding opinion, that the plaintiff, who was the lowe st responsive bidder, “had a ‘unilateral hope’ of winning the contract, nothing more, so its tortious interference claim cannot proceed.” (Citation omitted; emphasis omitted.)

6 The Court of Appeals majority relied, as does the dissent in this Court, on Joba Constr Co , Inc v Burns & Roe , Inc , 121 Mich App 615; 329 NW2d 760 (1982), to support its holding that a genuine issue of material fact exists regarding whether plaintiff had a valid business expectancy. However, given that Joba “never explained the nature of the evidence presented [in that case ] that gave rise to a legitim ate business expectancy,” we do not find Joba to be a particularly helpful decision. Cedroni , 290 Mich App at 626 (K. F. K ELLY , J., dissenting). Moreover, “[t]his Cour t, of course, is not bound by Court of Appeals decisions.” Catalina Mktg Sales Corp v Dep’t of Treasury , 470 Mich 13, 23; 678 NW2d 619 (2004). Contrary to the dissent’s assertion, we do not reject Joba simply because it is not binding authority. See post at 8 n 1. Rather, we reject Joba, and adopt Mago, because we find the analysis of Mago to be more persuasive than that of Joba

.11 We agree with the Court of Appeals dissent that the school district’s fiscal management policy did not afford plaintif f a valid business exp ectancy. The school district determined that plaintiff was not a “responsible contractor” in this specific circumstance, and it is not our job to second-guess this determination. See Kundinger v City of Saginaw , 132 Mich 395, 405; 93 NW 914 ( 1903) (“The law does not give to courts the power to substitute their judgment for the honest judgme nt of the board.”); Warda v Flushing City Council , 472 Mich 326, 333; 696 NW 2d 671 (2005) (“Whether the council acted wisely or unwisely, prudently or im prudently, is not for the
consideration or determin ation of this Court.”); Leavy , 247 Mich at 450, quoting 3 McQuillin, § 1340 (“‘The court will indulge the presumption that the authorities acted in good faith in awardi ng the contract.’”). “‘The exercise of discretion to accept or reject bids [involvi ng public contracts] will only be controlled by the courts when necessary to pr event fraud, injustice or the
violation of a trust.’” Leavy , 247 Mich at 450, quoting 3 McQuillin, § 1340. In this case, there is no evidence that this Court’s intervention is “necessa ry to prevent fraud, injustice
or the violation of a trust.” Rather, as the Court of Appeals dissent explained, plaintiff “is simply attempting to substitute [its] own judgment for that of the school district,” and “[w]hile plaintiff may believe its . . . judgment to be superior to that of the school board,
the statute endows the school board, not plaintiff, with the discretion to award contracts
in the school board’s best interest.” Cedroni , 290 Mich App at 625 (K. F. K ELLY , J., dissenting). 7 Because plaintiff had no valid busine ss expectancy, and because there is no

7 The dissent states that “plaintiff presen ted evidence that defendant’s opinion and recommendation regarding plai ntiff’s qualifications might have been improperly12 evidence that this Court’s in volvement is “necessary to pr event fraud, injustice or the violation of a trust,” plaintiff’s claim of to rtious interference with a business expectancy must fail as a matter of law. 8
IV. CONCLUSION For these reasons, we reverse the judgmen t of the Court of Appeals and reinstate the trial court’s order granting defendant’s mo tion for summary dispos ition. As the trial court and the Court of Appe als dissent concluded, plai ntiff had no valid business expectancy for the purposes of sustaining a cl aim of tortious interference with a business expectancy.

Stephen J. Markman Robert P. Young, Jr. Mary Beth Kelly Brian K. Zahra

influenced by misplaced or uns upported animosity toward pl aintiff related to problems between plaintiff and defendan t on a previous project.” Post at 6. However, the only “evidence” that plaintiff ha s presented to support its allegation that defendant “improperly influenced” the school distri ct are plaintiff’s own statements.

8 Plaintiff argues that an arch itect should not be immune from liability for making false statements about a low bidder. Similarly, th e dissent argues that this Court should “not protect a private entity that dishonestly influenc es the governmental entity.” Post at 12. However, we do not hold that an architect is “immune fro m liability” for making false statements about a low bidder. Instead, we simply hold th at when the ultimate decision to enter into a business relationship is a highly discretionary de cision reposed by law within a public entity, a di sappointed low bidder does not have a valid business expectancy for the purpose of sustaining a claim of tortious interference with a business expectancy.S T A T E O F M I C H I G A N
SUPREME COURT

CEDRONI ASSOCIATES, INC, Plaintiff-Appellee,
v No. 142339 TOMBLINSON, HARBURN ASSOCIATES, ARCHITECTS & PLANNERS, INC, Defendant-Appellant.

C AVANAGH , J. ( dissenting ). The issue presented in this case is wh ether plaintiff has produced sufficient evidence to create a genuine issue of material fact regarding whether defendant tortiously interfered with plaintiff’s va lid business expectancy. I re spectfully dissent from the majority’s decision to disregard Joba Constr Co, Inc v Burns & Roe Inc , 121 Mich App 615; 329 NW2d 760 (1982). Instead, I would apply Joba and affirm the judgment of the Court of Appeals because I do not believe the “disappointed bidde r” rule should be
extended to the facts of this case.
I. FACTS AND PROCEDURAL HISTORY In 2003, Davison Community Schools deci ded to renovate two elementary schools and contracted with defendan t for architectural and engin eering services. Under the contract, defendant was to assist the sc hool district during th e competitive bidding process “by reviewing and evaluating bid applications, inves tigating competing2 contractors and their references, expressing opinions and views on contractor competence and workmanship, and making recommendations regarding which contractor should be awarded the project.” Cedroni Assoc, Inc v Tomblinson, Harburn Assoc, Architects & Planners, Inc , 290 Mich App 577, 583 ; 802 NW2d 682 (2010) . Jackie Hoist was defendant’s designated repres entative for the project. The school district advertised for bids. With respect to the bidding process, the
school district’s fiscal ma nagement policy (FMP) provided that the school district reserved the right to reject any or all bids. The FMP also stated that “[b]ids shall be awarded in compliance with th e applicable bidding obligations imposed by law to the ‘lowest responsible bidder.’” The FMP de fined “lowest responsible bidder” as [t]he Responsible Contractor that has submitted a fully complete and responsive bid that provides the lowest net dollar cost for all labor and materials required for the complete performance of the work of the Construction Project let for bid. Such bid must satisfy the requirements of all applicable local, state, and federa l laws, this Policy, any administrative rules associated with this Policy de veloped by the Superintendent at the Board’s direction, and bid documents used to solicit bids, and any other guidelines and specifications require d for the Construction Project. Because a bidder with the net lowe st dollar cost bid may not be a Responsible Contractor, the lowest dollar cost bidder may not always receive award of the bid. The FMP defines the “Respo nsible Contractor” as [a] contractor determined by the Bo ard to be sufficien tly qualified to satisfactorily perform the Construction Project, in accordance with all applicable contractual a nd legal requirements. The Board’s determination shall be based upon: (1) an overall review of the Responsibility Criteria listed below and the contract or’s responses, or failure to respond, to same; (2) the contractor’s compliance with th is Policy and all applicable local, state and federal laws; (3) the input of the District’s architect(s) [here defendant] and/or construction mana ger(s), if any; (4) review of the3 contractor’s proposed subcontracto rs; and (5) other relevant factors particular to the Construction Project. It is undisputed that plaintiff was the lo west bidder, having submitted a bid that was $50,000 less than the next-lowest bid, a nd plaintiff was aware that it had provided the lowest bid. However, Hoist sent a letter to the school district recommending that the district not accept plaintiff’s bid and instead a ccept the bid of the next-lowest bidder, US Construction and Design Services, LLC. Ho ist’s notes indicated that while several references provided positive reviews of plaintiff’s work, other references provided negative feedback and that Hoist had had pe rsonal negative experiences with plaintiff on a previous project. Plaintiff alleges that Hoist’s notes regardin g various references’ comments were untrue. Additionally, plain tiff alleges that defendant’s recommendation that the school district reject plaintiff’s bid was born out of a desire to punish plaintiff for a dispute between defendant and plaintiff on th e previous “Holly Academy project” that resulted in defendant’s discharg e from that project. The record also includes an affidavit and letter from plaintiff’s president, Rich ard Cedroni, challengi ng the negative opinions in Hoist’s notes and stating that plainti ff had never been removed from a project or received a poor review in the past. The school board’s review committee endorsed defendant’s recommendation to reject plaintiff’s bid, and the school distri ct awarded the project to US Construction, explaining that its decision was made in reliance on defendant’s recommendation. Plaintiff filed a complaint against defenda nt alleging tortious interference with prospective economic relations, arguing that it had “a legitimate expectancy in obtaining a contract to complete work for the [school] Project,” th at defendant had “wrongfully4 persuaded the School District” to reject plaintiff’s bid, and that defendant had “intentionally interfered with the expectan t business relationship . . . by wrongfully claiming that [plaintiff] was unqualified to perform” the necessary work. Defendant moved for summary disposition, which was ev entually granted under MCR 2.116(C)(10).
II. STANDARD OF REVIEW This Court reviews de novo a trial court’s decision on a motion for summary disposition de novo. Shepherd Montessori Ctr M ilan v Ann Arbor Charter Twp , 486 Mich 311, 317; 783 NW2d 695 (2010). A motion brought under MCR 2.116(C)(10) tests the factual support for a party’s cause of action. Skinner v Square D Co , 445 Mich 153, 161; 516 NW2d 475 (1994). A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if th e pleadings, affidavits, and other documentary evidence, when viewed in a light most favorable to the nonmoving party, show that there is no genuine issue with respect to any material fact. Quinto v Cross & Peters Co , 451 Mich 358, 362; 547 NW2d 314 (1996). The trial court’s task in reviewing the motion entails
consideration of the record evidence and all reasonable in ferences arising from that
evidence. Skinner , 445 Mich at 161.
III. ANALYSIS
The elements for a claim of tortious interference with advantageous business relationships or prospective economic relations are (1) the existence of a valid business relationship or expectancy; (2) knowledge of the relationship or expect ancy on the part of the interferer; (3) an intentional interference causi ng a breach or termination of the relationship or expectancy; and (4) resulting damage to the party whose relationship or expectancy has been disrupted. [ Joba , 121 Mich App at 634.]5 At issue in this case is whether plainti ff had a “valid busine ss expectancy.” To avoid summary disposition, a plaintiff must assert “a specific and reasonable prospective economic advantage that was interfered with.” Id. The business expectation must be proved “with some degree of specificity” so that it is a “realistic expectation and not merely wishful thinking,” “mere hope,” or “the innate optimism of the salesman.” Id. at 634-635 (quotation marks and citations omitted). Howeve r, a plaintiff “need not demonstrate a guaranteed relationship” given th e prospective nature of the expectation at
issue. Id. at 635 (quotation marks and citations omitted); see, also, Trepel v Pontiac Osteopathic Hosp , 135 Mich App 361, 377; 354 NW2d 341 (1984). Although it is generally difficu lt to claim that a bid—which, at its heart is an offer to perform the work fo r a specified price—can generate a realistic expectation in the bidder that it will be awarded the project, pl aintiff did not merely submit a bid in this case. Rather, plaintiff was informed that it was the lowest bidder. In my view, once a qualified bidder has submitted a conforming bid an d knows that it ha s provided the lowest bid, there might be a genuine issue of material fact regarding whether the bidder’s expectation reasonably elevated from a “mere hope” to a “realistic expectation” that it would be awarded the project, especially in this case, given that the bidding materials provided by the sc hool district stated that the project “shall” be awarded to the “lowest responsible bidder.” See Joba , 121 Mich App at 635 (con cluding that “the lowest qualified bidder” has a “legitimate expectan cy in obtaining th e contracts”). Accordingly, given that plaintiff was awar e of its status as the lowest bidder, and keeping in mind that plaintiff “need no t demonstrate a guaranteed relationship,” id. (quotation marks and citations omitted), I believe that plaintiff might have had a valid6 business expectation as long as plaintiff was ab le to establish a genu ine issue of material fact regarding whether it was a responsible bidder. Although defendant’s investig ation and opinion of plain tiff’s qualifications are certainly valid considerations in determini ng whether plaintiff was a responsible bidder, the parties presented conflicting evidence regard ing plaintiff’s qualific ations. While I do not think that the mere fact that plaintiff believed that it was qualified is sufficient to avoid summary disposition on this issue, pl aintiff presented evid ence that defendant’s opinion and recommendation re garding plaintiff’s qualific ations might have been improperly influenced by misplaced or unsuppor ted animosity toward plaintiff related to problems between plaintiff and defendant on a previous project. Plaintiff’s evidence included Hoist’s allegedly untrue notes re garding plaintiff’s qualifications, which included reviews from individuals who had previously worked with plaintiff, and Richard Cedroni’s affidavit and letter showing that plaintiff had never been removed from a project or received a poor review in the past. This evidence establishes that plaintiff had a realistic expectation that it would qualify as a responsible bidder. This conclusion, in turn, gives rise to a question of material fact about whether plaintif f had a valid business expectancy in being awarded the contract. T hus, because the evidence must be viewed in the light most favorable to plaintiff as the nonmoving party, an d because determining whether plaintiff was “ qualified” or “responsible” is larg ely a question of fact on which both parties have presented conflicting eviden ce, I would affirm the judgment of the Court of Appeals. As the majority notes, however, a specific line of cases beginning with Talbot Paving Co v Detroit , 109 Mich 657; 67 NW 979 (189 6), generally hold that a7 disappointed bidder on a public contract does not have a cause of action regardless of the bidder’s qualifications or the value of the bid offered. See, also, Kundinger v City of Saginaw , 132 Mich 395, 405; 93 NW 914 (1903) (stating that courts cannot “substitute their judgment for the honest judgment of th e [governmental entity ]”). Generally, the theory supporting this rule is that competitiv e bidding is designed to benefit the taxpayers rather than the bidders. See Lasky v City of Bad Axe , 352 Mich 272, 2 76; 89 NW2d 520 (1958). Notably, however, the “disappointed bidder ” rule developed by this line of cases has generally been applied only when the pl aintiff files suit agai nst the contracting governmental entity rather than a nother private entity. Indeed, in Joba , 121 Mich App 615, the Court of Appeals did not apply the disappointed-bidder rule in a dispute between two private entities under circumstance s very similar to this case.
In Joba, the plaintiff was the lowest bidder for a contract with the city of Detroit.
The defendant had been retain ed by the city to evaluate bids and make recommendations regarding which bidders to select for certain contracts, including the contract on which the plaintiff was the lowest bidder. The de fendant recommended that the city not accept the plaintiff’s bid because, in the defendant ’s opinion, the plaintiff was unqualified to perform the contract. However, just as in th is case, there was also evidence presented that animosity existed between the defendan t and the plaintiff, partially resulting from past interaction on a different project. The case went to trial, the ju ry returned a verdict in favor of the plaintiff, and the defendant soug ht a directed verdict, which the trial court denied. Accordingly, the Joba Court considered the defend ant’s appeal of the trial
court’s denial of a directed verdict in the light most favorable to the plaintiff as the8 nonmoving party, and it concluded that the “plaintiff presented su fficient evidence to create a question of fact as to whether it wa s the lowest qualified bi dder and thus had a legitimate expectancy in obtaini ng the contracts . . . .” Id. at 635. As previously stated, Joba did not apply the disappointed-bidder rule to the dispute between the two private entities. The majority, however, summarily discards Joba as not “particularly helpful,”

ante at 10 n 6, and instead relies on Mago Constr Co v Anders on, Eckstein & Westrick,
Inc , unpublished opinion per curi am of the Court of Appeal s, issued November 8, 1996 (Docket No. 183479), to support its argumen t that the disappointed-bidder rule should apply in this case. Mago , however, is unpersuasive for a vari ety of reasons. First, to the
extent that Mago is inconsistent with Joba , Joba should be given grea ter weight because, as the majority concedes, “[a]n unpublished opinion is not precedentially binding under
the rule of stare deci sis.” MCR 7.215(C)(1). 1 Second, regardless of the relative precedential value of the two opinions, Mago is distinguishable on its facts because,

1 I recognize that, under MCR 7.215(J), the Court of App eals was not bound to follow Joba , because Joba was issued before November 1, 1990. However, when faced with two nonbinding opini ons reaching different results on the same issue, the Court of Appeals properly gave more weight to the published opinion. Moreover, Mago is distinguishable from this case for the reasons di scussed later in this opinion. Finally, the majority’s decision to reject Joba in part because this Court is not bound by the Court of Appeals’ opinions, see ante at 10 n 6, citing Catalina Mktg Sales Corp v Dep’t of Treasury , 470 Mich 13, 23; 678 NW2d 619 (2004 ), is perplexing given the majority’s reliance on a single unpersuasive and unpublished Court of Ap peals opinion to extend the disappointed-bidder rule beyond its traditiona l scope. The majority’s conclusion that Mago is more persuasive than Joba is equally perple xing, given that Joba is exactly on point and consistent with the traditional sc ope of the disappointed-bidder rule, while Mago is entirely distinguishable for the reas ons discussed later in this opinion.9 unlike plaintiff in this case, the plaintiff in Mago submitted a nonconforming bid

. Accordingly, Mago held that “the fact that plai ntiff submitted a nonconforming bid should have negated a ny expectation that it might have had regarding the possibility of receiving the contract.” Mago , unpub op at 3. Likewise, the majority’s reliance on an unpublished opinion of the United States Court of Appeals for the Sixth Circuit, EBI-Detroit, Inc v Detroit , 279 Fed Appx 340 (CA 6, 2008), in support of its extension of the disappointed-bidder rule to a dispute between two private entities is misplaced. Specifically, EBI-Detroit , 279 Fed Appx at 352-353, cited Timmons v Bone , unpublished opinion per curiam of the Court of Appeals, issued April 23, 2002 (Doc ket No. 228942), p 2, which had rejected a tortiousinterference claim because the plaintiff “did not meet th e minimum qualifications for obtaining the . . . contract . . . .” Accordi ngly, all the cases cite d by the majority in support of its decision to ex tend the disappointed-bidder ru le are both unpublished and distinguishable because the plaintiffs in thos e cases failed to satis fy the requirements for submitting a conforming bid. While I agree that submission of a nonconforming bid might be insufficient, as a matter of law, to create a valid bu siness expectancy for purposes of a claim of tortious interference, th ere is nothing in the record indicating that plaintiff’s bid in this case wa s nonconforming. Accordingl y, the majority’s position is without support in the caselaw. The Court of Appeals’ opinion in this case, however, is fully supported by the directly applicable opinion in Joba

. Furthermore, unlike the majority’s holding in this case, Joba ’s decision to limit the disappointed-bidder rule to suits against governmental entities is consistent with the purpose of that rule. Specifically, by declin ing to provide private entities with the same10 protection from suit granted to governmental entities, Joba ensures that taxpayers obtain the best price possible for public contract s, free of improper interference by private entities. As evidenced by the facts of Joba and, potentially, the fact s of this case, private entities may be motivated to make contracting decisions for reasons that are not consistent with the purpose of competitive bidding for gove rnment contracts. Because these potential motivations may not result in the selection of the “lowest responsible bidder,” they are contrary to the purpose of the disappointed-bidder rule: to protect taxpayers. 2 Finally, this Court’s opinions establishing the disappointed-bidder rule do not mandate the majority’s result. To begin with, the rule should not apply to protect private entities for the reasons previously discussed. Moreover, in Kundinger , 132 Mich at 405, this Court explained that courts cann ot “substitute their judgment for the honest judgment of the [governmental entity].” (E mphasis added.) Similarly, in Leavy v City of Jackson , 247 Mich 447, 450; 226 NW 214 (1929), quoting 3 McQu illin, Municipal Corporations

2 The majority misconstrues my discussion of the purpose of the disappointed-bidder rule. See ante at 6 n 3. As stated previously, in my view the disappointed-bidder rule should not be extended to protect private entities and, thus, should not apply in this case. I merely discuss the purpose of the disappoin ted-bidder rule to sh ow that, by extending the rule’s protections beyond go vernmental entities, the major ity’s holding is contrary to the purpose of the very rule that it applies. Stated diffe rently, the purpose underlying competitive bidding on public contracts and the di sappointed-bidder rule is to ensure that taxpayers obtain the best possible price from a qualified contractor. I agree with the majority that the Legislature has determined that the govern mental entity is generally in the best position to carry out that purpose. However, the governmental entity is deprived of its ability to carry out that purpose when a private entity, such as defendant in this case, allegedly acts with dishonesty and bad faith to interfere w ith the governmental entity’s efforts.11 (2d ed), § 1340, this Court stat ed that “‘[t]he court will indu lge the presumption that the
authorities acted in good faith in awarding the contract.’” (Emphasis added.) Accordingly, the disappointed-bidder rule is premised on a governme ntal entity’s ability to exercise “honest” and “good faith” discretion. 3 However, when a private entity intentionally provides in accurate or misleading information to a governmental entity and the governmental en tity in turn relies on that information in making a cont racting decision, the private entity has injected dishonesty
and bad faith into the decision- making process. Accordingly, the bidding process results in an “injustice,” and courts may interven e without impermissibl y interfering with the governmental entity’s exercise of discre tion in making contrac ting decisions. See Leavy , 247 Mich at 450 (stating that courts may intervene in th e public bidding process to prevent an “injustice”) (quotation marks and citation omitted). Stat ed more simply, if plaintiff had lost the contract in this case so lely because the school district had exercised its discretion free of improper influence and se lected a bidder other than plaintiff, I would agree that plaintiff has no claim. However, because plaintiff has established a genuine issue of material fact in regard to whether it lost the contract because defendant acted dishonestly and in bad faith by improperly interfering with the school district’s decision, I

3 Plaintiff’s letter to the school boa rd, which the majority cites, see ante at 7, merely recognizes the school district’s discretion in selecting a bidder. The letter cannot be reasonably interpreted as implyi ng that plaintiff consented to defendant’s alleged efforts to improperly influence the school district’s exercise of that discretion.12 believe that plaintiff may have a valid claim for tortious interference under Joba

. 4 Thus, in my view, defendant is not entitled to summary disposition. Accordingly, although a governmental entity is entitled to deference regarding its discretionary selection of a bi dder under this Court’s jurispru dence, that caselaw does not protect a private entity that dishonestly influences the governmental entity. All the various documents and statutes that the majority cites to establish the fact that the school
district in this case had the au thority to reject any and all bi ds are rooted in deference to the school district’s discretion in making cont racting decisions. However, this case raises the separate issue of whether the deference afforded to governmental entities should be extended to protect private entities, even when the private entity dishonestly influences the governmental entity’s discretion. More over, because this case is at the summary disposition stage, we must view the evidence in the light most favorable to plaintiff as the nonmoving party. Doing so, I believe that pl aintiff has presented su fficient evidence to create a genuine issue of material fact rega rding whether plaintiff met the definition of “lowest responsible bidder” as well as whet her defendant’s recomme ndation to the school district was the result of a personal ve ndetta against plaintiff. Thus, because Joba is the

4 Even the Court of Appeals dissent in this case recognized that “a plaintiff does have a legitimate expectancy that the bid it submits will be evaluated fairly and openly and will be subject to the same or similar scrutiny as other bids, so that the plaintiff’s bid stands on an even playing field with all other bids.” Cedroni , 290 Mich App at 623 (K. F. K ELLY , J., dissenting) (emphasis added).13 most relevant published opinion, and Joba ’s 30-year-old holding is consistent with the purpose of the disappointed-bidder rule, I would apply Joba and affirm the judgment of the Court of Appeals.

Michael F. Cavanagh Marilyn Kelly Diane M. Hathaway