#### The State, ex rel. Coleman, Appellee, *v.*Munger et al., County Commrs. of Montgomery County, et al., Appellants.

(No. 1972

Decided May 17, 1948.)

*Messrs. Iddings, Jeffrey, Weisman & Rogers,*for appellee.

*Mr. Mathias E. Seek,*prosecuting attorney, and Mr. *Albert J. Dwyer,*for appellants.

Wiseman, P. J.

This is an appeal on questions of law and fact from the Common Pleas Court of Mont*149gomery county. The action was brought by-John E.. Coleman, as a taxpayer of Montgomery county, to declare null and void a contract awarded by the county-commissioners to Asphalt Products and to enjoin its execution and performance. The case was submitted on an agreed statement of facts and the testimony of one of the commissioners taken before a special master commissioner.

Briefly, the statement of facts shows that an advertisement was duly published by the commissioners of Montgomery county for sealed bids for resurfacing" with T-35 type “A” material three roads known as Cornell drive, Stroop road and Needmore road. The-legal advertisement provided that “bids shall be upon blank forms to be obtained from the office of the county engineer.” Two sealed proposals were received by the commissioners, one from Boyd & Cook Company and the other from Asphalt Products.

The blank form furnished by the county engineer to-Boyd & Cook Company complied in every particular with the specifications and advertisement with respect, to the roads to be resurfaced. The blank form furnished by the county engineer to Asphalt Products included the three roads to be resurfaced and an additional road, the Airway road, and called for 19,604-tons of resurfacing material rather than 14,273 tons-as stipulated in the legal advertisement. The form-furnished Boyd & Cook Company contained two items which required the bidder to state the cost of the “premium on industrial insurance” and the cost of “maintaining traffic lights, signs, barricades and watchmen, 24-hr. service.” Those two items were not set forth in the form furnished to Asphalt Products. Both contractors bid $5.80 per ton for material. Boyd & Cook Company bid $1,000 for cost of insurance and *150$1,000 for cost of maintaining traffic lights, etc. Asphalt Products placed no separate bid on the last two items mentioned.

The commissioners accepted the bid of Asphalt Products after being requested by Boyd & Cook Company to reject all bids. The plaintiff, appellee herein, informed the prosecuting attorney of Montgomery county of the facts and requested him to bring an ■ action enjoining the execution and performance of the contract awarded Asphalt Products, which request was refused. Thereupon the plaintiff instituted this action, as a taxpayer of Montgomery county, as authorized by the provisions of Sections 2921 and 2922, General Code.

The plaintiff,, as a taxpayer of Montgomery county, was given the legal right to institute the action. His right to prosecute the action is not barred because he has a financial interest in Boyd & Cook Company. In the absence of a showing to the contrary,' the court must conclude the action was instituted in good faith in the interest of the public. *Spahr*v. *Brown, Secy. of State,*19 Ohio App., 107, 110; *State, ex rel. Dacek,*v. *Cleveland Trinidad Paving Co.,*35 Ohio App., 118, 124, 171 N. E., 837.; 39 Ohio Jurisprudence, 22, Section 12; 52 American Jurisprudence, 15, Section 22.

The plaintiff contends that there was no actual competitive bidding as required by statute. Sections 6945 and 6946, General Code, control the legal advertisement, the bidding and the awarding of the contract.

Section 6945, General Code, in part, provides:

“The contract shall be let upon the basis of lump ■sum bids, unless the commissioners order that the same be let upon the basis of unit price bids, in which •event- it shall be let upon such basis.”

The legal advertisement provided that plans and specifications were on file in the office of the county *151engineer and the office of the county commissioners-for the inspection of all parties concerned. Paragraph 8 of the specifications provided: “The contractor shall bid a unit price per ton for furnishing,, applying and rolling the T-35 according to the specifications and the direction of the county engineer.”' Thus, under the statute and the specifications, a bid: on the unit price per ton was required.

The specifications did not require a separate bid on the maintenance of traffic or industrial insurance. With respect to the maintenance of traffic, paragraph-3 of the specifications provided: “Traffic shall be maintained at all times to the satisfaction of the county engineer. The item of maintaining traffic shall include furnishing lights, signs, barricades and watchmen necessary to secure the unimpeded flow of traffic, twenty-four (24) hours daily.” - With respect to insurance, paragraph 10 of the specifications provided: “State labor laws regarding the eight hour-day, sanitation, safety code, industrial compensation,, liability, etc., shall apply.”

Under the statutory provisions applicable (Section-6945), the legal advertisement and the specifications,, we conclude that the bid of a unit price per ton included the cost of “maintaining traffic, etc.,” and “industrial insurance,” and that no separate bid on those-items was required. The bid of Boyd & Cook Company listed the cost of these two items separately, whereas the bid of Asphalt Products omitted those two ■ items. The bidders were bound- by paragraphs 3 and 10 of the specifications and were compelled to comply therewith. The record shows that Boyd & Cook-Company by letter delivered to the commissioners, before the bid of Asphalt Products was accepted,, waived compensation for the two items of maintaining traffic and industrial insurance and agreed to fur-*152nish material at $5.80 per ton in conformity with its bid. This action on the part of Boyd & Cook Company did not have the effect of making the bidding ■competitive if it was otherwise noncompetitive. Whether the bidding was competitive must be tested ■by the bids submitted at the time they were opened. *Beaver & Butt*v. *Trustees of Institution for the Blind,*19 Ohio St., 97, 108.

We now consider the principal question for determination. The advertisement provided for letting bids for resurfacing three roads. The furnishing of 14,273 tons of T-35 type “A” material was required. 'The specifications conformed to the advertisement. The bid of Asphalt Products was for the resurfacing ■of the three roads stipulated in the advertisement and specifications and, also, an additional road, and provided for the furnishing of 19,604 tons of T-35 type “A” material. The bid of Asphalt Products called for ■furnishing 5,331 more tons of material than the bid of Boyd & Cook Company. . Under the bid- of Boyd & Cook Company the record shows the average length ■of haul of material for the three roads would have been 6.6 miles, and, if the fourth road had been in■cluded, the average haul would have been 5.5 miles. The record is silent in either case with respect to the ■average length of haul required of Asphalt Products. Concededly, the length of haul of material and the ■quantity of material to be furnished affected the amount of the bid of a unit price per ton. Those two factors were material in arriving at the cost. Because ■of the variance of the material to be furnished and the roads to be resurfaced, as reflected by the two bids, it is obvious that the two bidders were not bidding on 'the same project.

It is claimed that the commissioners in the exercise •of their discretion have the authority to waive irregularities in a bid. Although the law gives the commis*153sioners the authority to waive irregularities or requirements as to the form of bids *(State, ex rel. Ross,*v. *Board of Education,*42 Ohio St., 374, 379; *State, ex rel. Ayres,*v. *Green et al., Commrs.,*22 C. C. [N. S.], 321, 327, 33 C. D., 586; *Ach et al., Commrs.,*v. *State, ex rel. Brielmaier,*43 Ohio App., 525, 183 N. E., 543; 33 Ohio Jurisprudence, 694, Section 53), they have no authority to waive defects which affect or destroy competitive bidding *(Beaver & Butt case, supra; Boren & Guckes*v. *Commrs. of Darke County,*21 Ohio St., 311, 322; *State, ex rel. Office Speciality Co.,*v. *Betts et al., Commrs.,*2 C. D., 434, 4 C. C., 86; *Pease*v. *Ryan,*3 C. D., 654, 657, 7 C. C., 44; *Lake Shore Foundry*v. *City of Cleveland, 4 C.*D., 230, 8 C. C., 671; *Mulcahy*v. *City of Akron,*27 Ohio App., 442, 161 N. E., 542; *Foley*v. *City of Cincinnati,*29 Ohio Opinions, 51, 14 Ohio Supp., 78; 33 Ohio Jurisprudence, 694, 697, 698, Sections 53, 55, 56; 43 American Jurisprudence, 789, Suction 46).

The bid of Asphalt Products differing from the-legal advertisement and the specifications so materially as to substantially affect the price, the commissioners were not invested with discretion or authority to waive this vital defect.

It is claimed that a representative of Asphalt Products read the advertisement and discussed with one-of the commissioners the roads to be improved, prior to submitting the bid,' and, therefore, he was advised that the improvement affected only three roads instead of four. Whether the bid submitted complied with the law relative to competitive bidding is determined not by the knowledge of the bidder but by the character of the bid submitted. True, there is no-charge of fraud, bad faith or improper conduct on the-part of bidders or officials concerned. However, when it is reasonably certain that factors, which would! materially affect the price, entered into the submis*154sion of one bid, which were not considered in the other hid as submitted, as shown by the record in this case, the bidding has not been competitive as required by law. In such case the commissioners have no discretion to exercise.

Permanent injunction is granted against defendants as prayed for. An entry may be drawn accordingly.

*Decree accordingly.*

Miller and Hornbeck, JJ., concur.