[Cite as Suburban Maintenance & Constr., Inc. v. Dept. of Transp., 2012-Ohio-3993.]



                                                       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



SUBURBAN MAINTENANCE & CONSTRUCTION, INC.

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

Case No. 2011-08709

Judge Clark B. Weaver Sr.

ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

        {¶ 1} On February 1, 2012, defendant filed a motion for summary judgment
pursuant to Civ.R. 56(B). Plaintiff filed a response on March 9, 2012. The motion is
now before the court for a non-oral hearing pursuant to L.C.C.R. 4.
        {¶ 2} Civ.R. 56(C) states, in part, as follows:
        {¶ 3} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc., 50 Ohio St.2d 317 (1977).
Case No. 2011-08709                         -2-                                    ENTRY

        {¶ 4} Plaintiff alleges that defendant violated competitive bidding laws by rejecting
a bid that plaintiff submitted for a project to make improvements to Interstate Route 76
in Summit County. Plaintiff seeks injunctive and declaratory relief, as well as damages
for bid preparation costs.
        {¶ 5} Defendant contends that the case is moot in light of the commencement
and completion of the project, and that plaintiff cannot establish the elements necessary
to sustain a common law claim for bid preparation costs pursuant to Meccon, Inc. v.
Univ. of Akron, 126 Ohio St.3d 231, 2010-Ohio-3297.
        {¶ 6} It is undisputed that in March 2011, defendant advertised for bids on the
project, that plaintiff submitted such a bid on April 21, 2011, and that on April 28, 2011,
defendant notified plaintiff that its bid had been rejected on the ground that plaintiff
lacked sufficient pre-qualifications.   There is also no dispute that plaintiff promptly
submitted a formal objection to its bid being rejected, that defendant selected another
bidder with whom it entered into a contract on May 13, 2011, and that on May 18, 2011,
defendant issued a response to plaintiff’s objection wherein it affirmed the rejection of
plaintiff’s bid.
        {¶ 7} Defendant’s motion is accompanied by an affidavit from Gary Angles,
defendant’s State Construction Engineer, wherein he authenticates a project document
which shows that construction commenced on June 6, 2011, and was completed on
September 29, 2011. Plaintiff filed its complaint in this matter on June 17, 2011.
        {¶ 8} “As a general matter, courts will not resolve issues that are moot.” In re
L.W., 168 Ohio App.3d 613, 2006-Ohio-644, ¶11 (10th Dist.). A “‘case is moot when the
issues presented are no longer “live” or the parties lack a legally cognizable interest in
the outcome.’” Cty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979), quoting Powell
v. McCormack, 395 U.S. 486, 496 (1969).            “In 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
Case No. 2011-08709                        -3-                                   ENTRY

decision, and construction commences, the unsuccessful bidder's action will be
dismissed as moot.” State ex rel. Gaylor, Inc. v. Goodenow, 125 Ohio St.3d 407, 2010-
Ohio-1844, ¶11; see also TP Mechanical Contrs., Inc. v. Franklin Cty. Bd. of Commrs.,
10th Dist. No. 08AP-108, 2008-Ohio-6824.
       {¶ 9} Upon review of the memoranda and supporting materials submitted by the
parties, the court concludes that plaintiff filed its complaint after construction
commenced and that the project has since been completed, and, accordingly, plaintiff’s
claims for equitable relief are moot.
       {¶ 10} With respect to plaintiff’s claim for bid preparation costs, the Supreme
Court of Ohio has held: “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, syllabus. (Emphasis added.)
       {¶ 11} It is undisputed that plaintiff filed its complaint one month after defendant
contracted
       {¶ 12} with another bidder, and indeed after construction commenced. Inasmuch
as plaintiff’s claim for injunctive relief had been rendered moot by the time the complaint
was filed, as set forth above, the only reasonable conclusion to be drawn is that plaintiff
failed to seek such relief within the extent of time necessary to support a claim for bid
preparation costs under Meccon.
       {¶ 13} Based on the foregoing, the court concludes that there are no genuine
issues of material fact and that defendant is entitled to judgment as a matter of law.
Accordingly, defendant’s motion for summary judgment is GRANTED and judgment is
rendered in favor of defendant. All previously scheduled events are VACATED. Court
costs are assessed against plaintiff. The clerk shall serve upon all parties notice of this
judgment and its date of entry upon the journal.
Case No. 2011-08709                 -4-                           ENTRY




                                   _____________________________________
                                   CLARK B. WEAVER SR.
                                   Judge




cc:


Jeffrey L. Maloon                    Michael B. Fesler
Assistant Attorney General           P.O. Box 33009
150 East Gay Street, 18th Floor      North Royalton, Ohio 44133
Columbus, Ohio 43215-3130
001

Filed May 1, 2012
To S.C. Reporter August 31, 2012
