[Cite as Meccon, Inc. v. Univ. of Akron, 2012-Ohio-6317.]

Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us

MECCON, INC., et al. 

 Plaintiffs 

 v. 

THE UNIVERSITY OF AKRON 

 Defendant 

Case No. 2008-08817 

Judge Alan C. Travis 

Magistrate Lewis F. Pettigrew 

DECISION OF THE MAGISTRATE

{¶ 1} On August 6, 2008, plaintiffs, Meccon, Inc., and Ronald Bassak (Meccon), 

filed a verified complaint and a motion for a temporary restraining order. In the 

complaint, plaintiffs allege that defendant, The University of Akron (Akron), wrongfully 

awarded a contract for a public improvement project in violation the competitive bidding 

processes prescribed by the Ohio Revised Code. The court granted Akron’s motion to 

dismiss on jurisdictional grounds, and the appeal of that decision ultimately reached the 

Supreme Court of Ohio in Meccon, Inc. v. Univ. of Akron, 126 Ohio St.3d 231, 2010-

Ohio-3297. 

{¶ 2} Many of the relevant facts and much of the procedural history of this case is 

set forth in the opinion of the Supreme Court of Ohio in Meccon, supra, as follows: 

{¶ 3} “According to the complaint of Meccon, Inc., and Ronald Bassak, appellees 

(‘Meccon’), the University of Akron proposed to award plumbing, fire-protection, and 

heating, ventilation, and air-conditioning (‘HVAC’) contracts for public-improvement work 

in its football stadium. Meccon submitted a bid for the separate HVAC project, as did 

other contractors. Another contractor, S.A. Comunale, submitted four bids: one for each 
Case No. 2008-08817 - 2 - DECISION

of the stand-alone fire-protection, plumbing, and HVAC contracts and a combined bid to 

perform all three contracts. 

{¶ 4} “When the bids were opened, S.A. Comunale’s combined bid was the 

lowest of the combination bids submitted. S.A. Comunale’s bid was $1.2 million less 

than the next-lowest combination of bids. S.A. Comunale was also the low bidder for 

each of the stand-alone fire-protection, plumbing, and HVAC contracts. Meccon 

submitted the second-lowest bid for the HVAC work. 

{¶ 5} “Thereafter, S.A. Comunale withdrew its combined bid and its stand-alone 

plumbing bid. The university awarded the stand-alone fire-protection and HVAC 

contracts to S.A. Comunale. After the university rebid the stand-alone plumbing 

contract and S.A. Comunale was once again the low bidder, S.A. Comunale also won 

that contract. 

{¶ 6} “Meccon alleges that the university’s award to S.A. Comunale of the three 

stand-alone contracts, after S.A. Comunale had withdrawn both its combined bid and its 

plumbing bid, was in violation of the university’s own ‘Instructions to Bidders’ documents 

and comparable provisions within Ohio statutes. Meccon filed suit in the Court of 

Claims, seeking a temporary restraining order, a declaratory judgment, preliminary and 

permanent injunctive relief, damages for its bid-preparation costs, and any other 

appropriate legal and equitable relief resulting from the university’s failure to award the 

HVAC contract to Meccon. 

{¶ 7} “In response, the university filed a motion to dismiss for lack of subjectmatter jurisdiction. It argued that disappointed bidders were entitled only to injunctive 

relief and that Meccon’s claim for bid-preparation costs and other money damages was 

not cognizable. The Court of Claims granted the university’s motion, concluding that 

only the court of common pleas had jurisdiction because Meccon’s remaining claim was 

only for equitable relief. On the same basis, the Court of Claims also denied the motion 
Case No. 2008-08817 - 3 - DECISION

for a temporary restraining order, denied all other motions as moot, and dismissed the 

complaint. 

{¶ 8} “Meccon appealed to the Tenth District Court of Appeals, and the court 

reversed the Court of Claims with respect to the jurisdiction question. 182 Ohio App.3d 

85, 2009-Ohio-1700, 911 N.E.2d 933. The court concluded that disappointed bidders 

can recover bid-preparation costs and that because such costs are monetary damages, 

the Court of Claims does have subject-matter jurisdiction to hear all of Meccon’s claims. 

Id. at ¶ 26. The court also determined that Meccon’s argument that the Court of Claims 

erred when it failed to consider Meccon’s motion for a temporary restraining order was 

moot. Id. at ¶ 27, 29. We accepted the university’s appeal under our discretionary 

jurisdiction. 122 Ohio St.3d 1502, 2009-Ohio-4233, 912 N.E.2d 107.” Id. at ¶ 2-7. 

{¶ 9} The Supreme Court of Ohio held that when a rejected bidder establishes 

that a public authority violated state competitive-bidding laws in awarding a publicimprovement contract, that bidder may recover reasonable bid-preparation costs as 

damages if that bidder promptly sought, but was denied, injunctive relief and it is later 

determined that the bidder was wrongfully rejected and injunctive relief is no longer 

available. Meccon, supra. The case was then remanded to this court for 

further proceedings. Upon remand, the first question for this court was whether the 

contract was awarded illegally.1

 The parties filed cross motions for summary judgment 

on the issue and on April 12, 2011, this court granted partial summary judgment in favor 

of Meccon. The court’s decision reads, in part, as follows: 

{¶ 10} “R.C. 9.31, titled, ‘[w]ithdrawing bids made in error’ provides in relevant 

part: ‘A bidder for a contract with the state * * * may withdraw this bid from 

consideration if the price bid was substantially lower than the other bids, providing the 

bid was submitted in good faith, and the reason for the price bid being substantially 

 1

Akron’s March 19, 2012 motion to dismiss is DENIED. 
Case No. 2008-08817 - 4 - DECISION

lower was a clerical mistake as opposed to a judgment mistake, and was actually due to 

an unintentional and substantial arithmetic error * * *. 

{¶ 11} “‘No bid may be withdrawn under this section when the result would be the 

awarding of the contract on another bid of the same bidder.’ 

{¶ 12} “Although the operative language of the statute is susceptible to alternative 

interpretations, there is no reasonable interpretation that would permit the awarding of 

the contract to S.A. Comunale based upon the undisputed facts in this case. A strict 

interpretation of the statute would mean that any bidder who withdraws a bid cannot be 

considered for a contract for any portion of the work on the project. A more liberal 

construction would mean that any bidder who withdraws a bid cannot be considered for 

a contract involving any portions of the work that were also included in the withdrawn 

bid. “Here, under either a strict interpretation of the statute or a more liberal 

interpretation, the award of the contract to S.A. Comunale runs afoul of the statutory 

proscription. Indeed, the only reason defendant considered the individual bids for 

HVAC and plumbing and ultimately awarded S.A. Comunale a contract for both was 

because S.A. Comunale had been permitted to withdraw its combination bid. 

{¶ 13} “Based upon the foregoing, plaintiffs’ motion for summary judgment shall 

be granted, in part, as there is no question that defendant violated R.C. 9.31.”2 See April 

12, 2011 Decision. 

{¶ 14} Thereafter, on February 6, 2012, the case was tried to a magistrate of the 

court.3

 The issue for the court at this juncture is whether Meccon had “promptly” sought 

injunctive relief and, if so, whether Meccon’s bid was wrongfully rejected. 

 2

Akron’s motion for summary judgment was granted, in part, as it pertained to the claim asserted 

by Reliance. Reliance claimed to be the next-lowest bidder for the plumbing contract, but it had never 

sought injunctive relief. 

3

On October 18, 2011, the court ordered the issue of Meccon’s entitlement to an award of 

attorney fees and the amount thereof bifurcated from the initial trial. 
Case No. 2008-08817 - 5 - DECISION

{¶ 15} Akron maintains that Meccon waited more than two months after the bid 

opening before seeking injunctive relief and that such a delay precludes recovery of bid 

costs under Meccon, supra. Meccon alleges that it timely sought relief inasmuch as it 

filed a verified complaint and a motion for a temporary restraining order within four days 

after Akron released it from its obligation under the bid guaranty.4 

{¶ 16} Thus, the first determination for the court upon remand is when the clock 

starts ticking for the frustrated bidder under Meccon, supra. The Supreme Court of Ohio 

in Meccon, supra, was silent on this issue. 

{¶ 17} Although the parties have their respective positions, the court believes that 

the time begins to run for the frustrated bidder under Meccon, supra, when the claim for 

injunctive relief arises. In this instance, Meccon sought to enjoin both the award of a 

contract to S.A. Comunale and, in the event that the contract had been awarded, the 

prosecution of the work by S.A. Comunale.5

{¶ 18} The evidence presented at trial establishes the following relevant facts: the 

bids were opened on June 3, 2008; on June 13, 2008, Meccon’s President, Ronald 

Bassak, authored a letter of protest on behalf of Meccon; on June 22, 2008, the contract 

between Akron and S.A. Comunale was executed; on July 26, 2008, Akron sent a letter 

to Meccon informing it that Akron had entered into a contract with S.A. Comunale and 

had released Meccon from its bid guaranty; Meccon received the letter on July 30, 

2008; and on August 6, 2008, Meccon filed its verified complaint in the Court of Claims. 

 4

Article 5.1.6 of the “Instructions to Bidders” provides: “Bid Guaranties in the form of a certified 

check, cashier’s check, or letter of credit shall be returned to unsuccessful Bidders 60 days after the bid 

opening. Bid Guaranties in the form of a certified check, cashier’s check, or letter of credit shall be 

returned to the successful Bidder upon providing the Bond required by law in form and in substance, and 

from a Surety satisfactory to the Contracting Authority of the instructions to bidders, bid bonds were to be 

held open for a period of 60-days from the date of submission.” 

5

There is no dispute that this action was filed four business days after Meccon received notice 

that Akron had released Meccon from its bid guaranty. 
Case No. 2008-08817 - 6 - DECISION

{¶ 19} Based upon these facts, Akron argues that Meccon, as the next-lowest 

bidder, could have filed an action seeking injunctive relief as early as June 3, 2008, 

when the bid opening revealed that S.A. Comunale was the lowest bidder and that 

Meccon was the next-lowest. In the alternative, Akron argues that a right to injunctive 

relief arose no later than June 13, 2008, when Meccon learned that Akron intended to 

award the contract to S.A. Comunale. The evidence establishes that Meccon gained 

such knowledge no later than June 13, 2008, when Meccon sent the letter of protest. 

{¶ 20} The purpose of a temporary restraining order under the civil rules is to 

prevent “immediate and irreparable injury, loss or damage” to the applicant. Civ.R. 

65(A). The purpose of a preliminary injunction is to preserve the status quo pending 

final determination of the matter. Franks v. Rankin, 10th Dist. No. 11AP-962, 2012-

Ohio-1920, ¶ 46. In determining when a right to seek injunctive relief arises, the court 

must determine when the party seeking such relief had knowledge, either actual or 

constructive, of the impending injury or wrong. See Ohio Hosp. Assn. v. Ohio Bur. of 

Workers’ Comp., 10th Dist. No. 06AP-471, 2007-Ohio-1499; Ohio Civ. Rights Comm. v. 

Triangle Real Estate Servs., 10th Dist. No. 06AP-157, 2007-Ohio-1809, ¶ 18. 

{¶ 21} Based upon the foregoing, the court finds that on or before June 13, 2008, 

Meccon knew that Akron intended to award the HVAC contract to S.A. Comunale in 

violation of R.C. 9.31. Meccon also knew that it was the next-lowest bidder for that 

division of the work. Thus, the court concludes that Meccon’s right to seek injunctive 

relief arose on June 13, 2008, at the latest, and that Meccon had an obligation to 

promptly seek such relief thereafter. The court further finds that Meccon had ample 

time, more than one full week, in which to bring an action to prevent contract execution. 

There is no question that such execution did not occur until June 22, 2008. Instead, 

Meccon waited a total of 53 days before filing its action in this court. 

{¶ 22} Meccon argues that even though it had received notice that its bid had 

been rejected in favor of the bid submitted by S.A. Comunale, it still had the right to file 
Case No. 2008-08817 - 7 - DECISION

a bid protest. Meccon further claims that its bid guaranty was still available should 

Akron rule favorably upon Meccon’s June 13, 2008 bid protest. Essentially, Meccon 

claims that the availability of this extra-judicial remedy and the retention of its bid 

guaranty by Akron excuses the delay in filing an action. The court disagrees. 

{¶ 23} A written protest by a rejected bidder is authorized in Article 3.6 of the 

“Instructions to Bidders” as follows: 

{¶ 24} “3.6.1 If the lowest Bidder is not responsive or 

responsible, the Contracting Authority shall reject the Bid and notify the Bidder in writing 

by Certified Mail of the finding and the reasons for the finding. 

{¶ 25} “* * * 

{¶ 26} “3.6.3 A Bidder notified in accordance with 

subparagraph 3.6.1 may object to its rejection by filing a written protest, which must be 

received by the Contracting Authority within 5 days of the notification provided pursuant 

to subparagraph 3.6.1.” (Emphasis added.) 

{¶ 27} There is no question in this case that Meccon’s bid was rejected because it 

was not the lowest bid. Consequently, Akron did not pass upon either the 

responsiveness of Meccon’s bid or the question whether Meccon was a responsible 

bidder. In short, Article 3.6.1 and 3.6.3 does not authorize a bid protest by Meccon 

under these circumstances. Inasmuch as Meccon’s bid protest was not authorized by 

the “Instructions to Bidders,” the June 13, 2008 protest letter could not have prevented 

an award of the contract to S.A. Comunale and it is of no consequence under Meccon, 

supra. 

{¶ 28} In State ex rel. Gaylor, Inc. v. Goodenow, 125 Ohio St.3d 407, 2010-Ohio1844, the court stated that “[i]n a construction-related case, if an unsuccessful bidder 

seeking to enjoin the construction of a public-works project fails to obtain a stay of the 

construction pending judicial resolution of its claims challenging the decision, and 

construction commences, the unsuccessful bidder’s action will be dismissed as moot.” 

Id. at ¶ 11, citing TP Mechanical Contrs., Inc. v. Franklin Cty. Bd. of Commrs., 10th Dist. 
Case No. 2008-08817 - 8 - DECISION

No. 08AP-108, 2008-Ohio-6824, ¶ 20. The weight of the evidence demonstrates that 

on or before contract execution, S.A. Comunale had begun to mobilize its construction 

operations on site and had purchased both equipment and materials for use on the job. 

In fact, by the time Meccon filed an action in this court on August 6, 2008, the evidence 

establishes that S.A. Comunale had expended considerable sums for the purchase of 

necessary equipment. Thus, for purposes of promptness under Meccon, supra, the 

court finds that work on the project had begun before Meccon sought injunctive relief. 

{¶ 29} Based upon the foregoing, the court finds that Meccon failed to promptly 

seek injunctive relief in this case as is required for an award of bid preparation costs 

under Meccon, supra. Accordingly, judgment is recommended in favor of defendant. 

{¶ 30} A party may file written objections to the magistrate’s decision within 14 

days of the filing of the decision, whether or not the court has adopted the decision 

during that 14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files 

objections, any other party may also file objections not later than ten days after the first 

objections are filed. A party shall not assign as error on appeal the court’s adoption of 

any factual finding or legal conclusion, whether or not specifically designated as a 

finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely 

and specifically objects to that factual finding or legal conclusion within 14 days of the 

filing of the decision, as required by Civ.R. 53(D)(3)(b).

 _____________________________________ 

 LEWIS F. PETTIGREW 

 Magistrate 

cc: 

 
Case No. 2008-08817 - 9 - DECISION

Andrew R. Fredelake 

Peter D. Welin 

240 North Fifth Street, Suite 300 

Columbus, Ohio 43215 

Gabe J. Roehrenbeck 

41 South High Street, Suite 1700 

Columbus, Ohio 43215-6101 

Mark R. Wilson 

William C. Becker 

Assistant Attorneys General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Michael W. Currie 

6235 Westerville Road, Suite 200 

Westerville, Ohio 43081 

006

Filed July 9, 2012 

To S.C. Reporter January 16, 2013