Hallowell v. Radnor Township

Fronefield, P. J., I find myself unable to agree with the conclusions of law reached by the chancellor and will, therefore, in a few words, state the reasons therefor. The facts in this case are practically undisputed. As a matter of fact, the chief exceptions to the chancellor’s findings of fact relate to additional facts which he refused to find concerning matters occurring at a meeting of the Commissioners of Haverford Township after the bids had been opened and tabulated. I agree with the chancellor that such evidence was immaterial, but for the reason that the legal status of the parties had already been fixed. The case is very similar to that of Straw v. Williams-port et al, 286 Pa. 41. In that case, the City of Williams262 port advertised for bids for certain paving. The advertisement specified that the council reserved the right to reject any or all bids or any part of any bid. An examination of the paper book shows that on July 15, 1925, six bids were received, the two lowest being the Union Paving Company, which bid $58,728.50, and Busch '& Stewart, which bid $59,049.40. All bids were tabulated and filed. On July 16,1925, the council passed a resolution that all bids except the two lowest be returned to their respective bidders. Subsequently the city, without designating the low bidder, decided to eliminate all items pertaining to sewers. The bids were retabulated with these items eliminated and, as a result, the bid of the Union Paving Company became $54,754.50, while the Busch & Stewart bid became $54,017.50. On July 28, 1925, an ordinance was approved which provided that a “contract ... be and the same is hereby awarded to Busch & Stewart of Williamsport, Pa., at the prices named in its bid or proposal, which said bid or proposal is hereby accepted.” Plaintiff, as a taxpayer, thereupon filed a bill to restrain the city from entering into a contract with Busch & Stewart. (The opinion of the Supreme Court inadvertently states “Union Paving Company”). The Supreme Court held that when the advertisement reserves the right to reject any or all bids or parts of bids the city has the right, before selecting the successful bidder, after the proposals are opened, to strike out certain parts of the scheduled work as unnecessary. It went on to say that: “If the city, after tabulation, designated one of the parties as the lowest bidder to whom the contract must be awarded, by that act it accepted his proposition, and the subsequent rejection of any part of the proposed work would not be a rejection of any part of the bid, but of the work.” I agree with defendant that this last statement was obiter dictum, because the facts in that case reveal that there was no “selection of the successful bidder”, nor had the city “designated one of the parties as the lowest bid [263] der” before it eliminated the sewer items. However, I believe that the court intended to establish a rule whereby eliminations before such “designation” would be a rejection of .part of the bids, as bids, and would require the award of the contract to the lowest responsible bidder on the items remaining, but eliminations after such “designation” could not affect his right to the contract and could only eliminate certain parts of the work which he was to do under it. • The question in this case becomes whether or not Rad-nor Township had made such a “designation” as was contemplated in the Straw case before it eliminated the filter item. I believe that it did so. The evidence shows that, at a joint meeting of the Commissioners of the Township of Haverford and of the Township of Radnor, subsequently ratified at an official meeting of the Commissioners of the Township of Rad-nor, the following resolution was adopted: “Resolved, that a recommendation be made to the State Engineer, P. W. A., that the award of Contract No. 2 be made to the Underpinning & Foundation Company, Inc.” It is true that this is only a recommendation, but, nevertheless, the commissioners could only properly recommend the contractor who was the lowest responsible bidder, and the fact that such a recommendation was made is a recognition of the fact that the company was the lowest responsible bidder. “Designation” is defined in the Oxford English Dictionary as: “The action of marking or pointing out; indication of a particular person, place, or thing by gesture, words, or recognizable signs. . . . The qualification of being marked out or fitted for an employment.” Since an essential qualification for the employment of a contractor is that he is the lowest responsible bidder, I feel that the resolution sufficiently identified the company named as the lowest responsible bidder and that the township no longer had the right to award the contract to anyone else. If its commissioners felt that it would be [264] unwise to award such a contract, they could not be compelled to do so, but, in such case, their remedy would be to reject all the bids and readvertise. I would sustain plaintiff’s sixth and seventh exceptions and would enter a decree granting the prayer of plaintiff’s bill.