Lake Shore Foundry v. Cleveland

“It is objected in this case that the plaintiff has no standing to make this contest; that under sec. 1778, Rev. Stat., it should ask the city solicitor to bring this suit, and can only do it itself on being refused. That section *231applies to a taxpayer’s right to bring a suit to protect the public interest, and not to this case, where the plaintiff has the personal interest in this controversy that it claims to be the lowest bidder to whom this contract should be awarded, if to any one. In Boren & Guckes v. Comrs. Darke Co., 21 O. S., 311, the court say, on page 321, “In no other manner can the right of bidders and the manifest policy of the statute in relation to the public interest be adequately secured and conferred,” and in State v. Comrs., 18 O. S., 386-390, it is plainly stated that an injunction is a proper remedy. As a taxpayer without any special interest, he would only sue under sec. 1778, Rev. Stat.

The obvious purpose of the statute, 88 O. L., 105, secs. 75 and 76, is to invite competition in the purchase of material by the city. This competition is obtained by requiring all bidders to name a price for which the specific article designated will be furnished. It is then easy to determine the lowest and best bid for furnishing the same material.

It is manifest that there is a marked difference between the commercial value of new and second-hand water pipe. The specifications plainly contemplate that the pipe is to be new, and so manufactured as to be inspected during the process of manufacture. The bid of Clow & Son proposes to furnish secondhand pipe. Under specifications calling for new pipe a bid received for furnishing second-hand pipe is without any competition with others of the same class and should be excluded as not conforming to the specifications.

If the city will waive conditions materially affecting the price, that fact should be known before the bids are made and should appear in the advertisement or specifications. Authorities are cited showing that certain formal defects in bids may be waived. This waiver of formal defects does not apply to changes in the requirements of the advertisement and specifications so material as to substantially affect the price.

The temporary injunction will be granted.