[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 subject-
matter 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 public-
improvement 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
       3
court. 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-Ohio-
1844, 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                  Gabe J. Roehrenbeck
Peter D. Welin                       41 South High Street, Suite 1700
240 North Fifth Street, Suite 300    Columbus, Ohio 43215-6101
Columbus, Ohio 43215

Mark R. Wilson                       Michael W. Currie
William C. Becker                    6235 Westerville Road, Suite 200
Assistant Attorneys General          Westerville, Ohio 43081
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130

006
Filed July 9, 2012
To S.C. Reporter January 16, 2013
