Rubino v. Lolli

Opinion

JANES, J. Plaintiffs appeal from a judgment dismissing their first cause of action against the State of California and the director of its Department of General Services after the general demurrer of those defendants was sustained without leave to amend. A second cause of action, directed only against the Builders Exchange of Stockton, is not involved on this appeal.

The sole issue presented is the question whether, in a case where the state is required to award its contract to the lowest responsible bidder, such bidder acquires &■ cause of action for money damages against the state and its responsible officers when they award the contract to a higher bidder for reasons which constitute an abuse of discretion.1

Plaintiffs’ complaint alleged that they, as partners and licensed general contractors, were the lowest responsible bidders on a state public works contract administered by defendant director under the State Contract Act (Gov. Code, § 14250 et seq.), but that, on February 16, 1968, the director awarded the contract to a competitor whose bid was $11,836 higher than plaintiffs’ bid. It was further alleged that defendant state refused to award the contract to plaintiffs on the sole ground that plaintiffs “had obtained one or more of [their] bids from a bid depository”; that plaintiffs had in fact received some of their bids from a bid depository maintained by the Builders Exchange of Stockton, but that this circumstance did not constitute a violation either of any state law or of the bid depository certificate which plaintiffs submitted with their bid;2 that defendants’ failure [1062]to award the contract to plaintiffs was arbitrary, capricious, and an abuse of discretion, and had caused them damage; and that plaintiffs’ claim filed with the state had been denied. The prayer of the complaint sought a money judgment for loss of profits.

Government Code section 14330 provides in material part that “[o]n the day named in the public notice [to bidders] the department shall publicly open the sealed bids and award the contracts to the lowest responsible bidders.” Section 14254.5 of that code ,defines “department” as the Department of General Services as to any project under its jurisdiction.

Government Code section 14335 provides that “[i]f the director deems the acceptance of the lowest responsible bid or bids is not for the best interests of the State, he may reject all bids and proceed by day’s labor or advertise for other bids . . . .” (Italics ours.) Since the statute confers upon the director the power to reject all bids, no right exists in the lowest bidder to compel the acceptance of his bid by a writ of mandate. (Charles L. Harney, Inc. v. Durkee (1951) 107 Cal.App.2d 570, 580 [237 P.2d 561, 31 A.L.R.2d 457]; see also, Old Town Dev. Corp. v. Urban Renewal Agency (1967) 249 Cal.App.2d 313, 331 [57 Cal.Rptr. 426]; Baldwin-Lima-Hamilton Corp. v. Superior Court (1962) 208 Cal.App.2d 803, 816-817 [25 Cal.Rptr. 798]; Judson Pacific-Murphy Corp. V. Durkee (1956) 144 Cal.App.2d 377, 382 [301 P.2d 97].) However, a contract award to one bidder may be restrained upon the petition of another bidder where such award would constitute an abuse of discretion by the awarding entity. (Baldwin-Lima-Hamilton Corp. v. Superior Court, supra, at pp. 824-826.)3