
    Scheff, a Taxpayer, v. Wiegand, Mayor, et al.
    (Decided September 29, 1930.)
    
      Messrs. Farquhar son, Curtiss, Gillie, Gustafson & Miller, for plaintiff.
    
      Mr. R. G. Curren and Messrs. Squire, Sanders d$ Dempsey, for defendants in error.
   Vickery, P. J.

This action came into this court on appeal from the common pleas court, in which court the injunction ashed for in the petition of Frank S. Seheff, as a taxpayer, was refused.

We have this case upon the evidence that was introduced in the court below and upon the statements, briefs, and oral arguments of counsel, and have come to the conclusion that the injunction must be granted; but only upon one ground. Upon the other allegations of the petition, except the one that will be hereafter referred to, this court finds in favor of the defendants, that is, that the bonds were regularly issued under and by virtue of authority of law, that the plans and specifications were ■sufficient under the statute, and that the specifications furnished were sufficiently broad upon which to base competitive bids.

It must be remembered that this was an incinerator and garbage reduction plant, and a certain result was sought to be accomplished, and, under the specifications that were prepared by Engineer Fisher of the city of Lakewood, the bids might be for various types of incinerator plants; and the building of the plant must, in a measure, be a part of the entire result to be accomplished, and the -specifications were sufficiently broad so that various companies or firms engaged in erecting incinerator or garbage reduction plants might become competitors to erect this particular plant. As a matter of fact, seven or eight competitive bids were submitted for the erection of this plant. So far as the furnishing of plans to the health department of the state was concerned, that could be done only after the bid and plan of the incinerator plant to be furnished was submitted to the state department of health, and its approval could be given before a contract was entered into. That would comply with the statutes in this respect — the specifications and the ground plan, the location, and so forth being first furnished — and then, after the type of incinerator plant was determined upon, the plans and specifications for that plant, as determined upon, could be furnished, and that, of course, could not be done until after the bid had been tentatively approved.

We understand in this case that the plan submitted by the successful bidder was approved by the state department of health, and therefore, in so far' as all the objections to this plant by the plaintiff are concerned, we simply refuse the relief sought on all grounds except one, and I am now coming to that one.

It seems that the specifications and blueprint for ground plan were furnished, which would show the character and location of the plant. That the successful bidder was the lowest bidder there is no question. I think it was lower by some $7,000 than its next nearest bidder.

The difficulty arises in that the bid of the successful bidder was not accepted in the terms that it was made, but verbal agreements were subsequently added to it by the successful bidder.

We are pointed to a statute, Section 4331, General Code, which provides that, after a contract is let, if it becomes necessary to make changes, such changes may be made in the’contract; and deductions or additions, in so far as compensation is concerned, may be allowed. The trouble with that argument is that here was a written bid by the successful bidder which did not conform to the specifications, and subsequently a verbal modification of the bid gave the successful bidder an opportunity which the others did not have. In other words, it was not a competitive bid, because the bid as submitted was not accepted, nor was it acceptable, nor did it conform to the specifications, and the fact that the successful bidder afterwards agreed to make certain modifications and changes in order to conform to the specifications would constitute a radical departure from the bid; and, while in this case there might be no harm done, it would be a dangerous precedent to establish, because it might open the door wide to fraud and connivance between the bidder and the authorities, which the statute meant to prohibit.

A letter from one of the councilmen recommending this bid, which is in the record, shows that another agreement was entered into other than the one included in the bid itself, and we think this also is a dangerous precedent to establish, much as the writer of this opinion knows that the city of Lakewood needs an incinerator plant and heartily as he is in sympathy with the council in trying to establish such a plant; for it must be remembered that these changes were not the changes that Section 4331, General Code, contemplates, but, before the contract was entered into, additions and subtractions were made which very greatly changed the character of the bid that was submitted here, and which, if they had been in the contemplation of the party before the bid was made, might have increased its bid more than the $7,000, so that it would not have been the lowest and best bid.

Aside from this, there is another matter, and that is in adding to the specifications in the original bid. One of the specifications provided as to the method of test desired by tbe city of Lakewood before accepting this plant, and it outlined wbat tbat test must comprise and wbat tbe test must be. Now, instead of answering tbis question or agreeing to it, tbe successful bidder says in the bid, “See letter,” which it made a part of its bid and which would naturally be a part of tbe contract. Now an examination of tbat letter will show tbat it very materially departs from tbe test tbat tbe city demanded in its specifications, and which undoubtedly tbe other bidders agreed to. It states an entirely different situation and condition under which tbe test must be made, and under tbe specifications, if tbe successful bidder should build tbis incinerator .plant, and it did not come up to the test in the specifications, tbis bidder could point, and rightfully point, to the modification in tbe letter which accompanied its bid and changed tbe specifications in tbat respect. Tbis the successful bidder bad no right to do.

Now tbe matter may seem simple, but it is much graver than it appears. In tbis case tbe successful bidder was to give a bond in tbe amount of its bid, I believe, something like $77,00j0, tbat tbe plant would perform wbat it was sought to have it perform, and wbat tbe test demanded tbat it should perform, so tbat, if it did not conform to tbe test set up in tbe specifications, and a suit was brought upon the bond against tbe company and tbe bondsmen, they could very naturally and would undoubtedly plead tbat that was not their contract, and refer with much force and effect to tbe letter accompanying tbe bid.

Now we think tbat tbis is a dangerous precedent to establish, and one which would hazard a recovery upon this bond if the successful bidder should build this incinerator plant and it did not perform as it was designed that it should perform. The method of delivering the refuse is so entirely different from that which the specifications provide that the bidders might well place a figure $7,000' lower on their bid, if, as they wanted, the refuse should be delivered to their furnace so that they could continuously perform. The incinerator plant contemplates the disposal of 75 tons of refuse per day. Now that necessitates the storing of about • three-fourths of that refuse, because it is all gathered in an eight-hour shift, and it is put upon the receiving room floor of the plant on the second floor; and, if the specifications as modified by the successful bidder in the letter should be carried into effect, it could demand that the wagons continually stand in line and be driven upon the receiving floor where the garbage could be dumped right into the furnace from the trucks. And they say that under these circumstances their plant would be a success.

Now we think that this is a grievous error in the matter, and one which might jeopardize the right of Lakewood to recover on the bond if this plant should not be a success, and it is for the reason, and only for the reason, that the bid did not conform to the specifications because subsequent modifications by parol and by letter were made to the bid, and because the bid did not conform to the demand of the specifications with respect to the test to be made, but added something which was a radical departure from the test demanded by the city, that we think the injunction prayed for by the plaintiff should be granted.

The injunction will be granted, and a decree may be drawn accordingly.

Injunction allowed.

Levine and Cline, JJ., concur.  