Appeal, No. 239, April T., 1958, from order of Court of Common Pleas of Erie County, Nv. T., 1957, No. 6, in case of Mayer Brothers Construction Company v. The Erie Parking Authority. Order affirmed.
T. P. Dunn, for appellant.
Robert N. Spaeder, with him Marsh, Spaeder, Baur, Spaeder & Schaaf, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Ervin, and Watkins, JJ. (woodside, J., absent).
This appeal is from the refusal of the court below to enter judgment on the pleadings involving a paving contract for a parking lot in the city of Erie. The complaint in equity was brought by a taxpayer-contractor against a municipal parking authority.
On October 9, 1957, the Erie Parking Authority advertised bids for the construction and furnishing of materials for the improvement of a parking site opposite St. Vincent's Hospital in Erie. The Authority requested bids to pave the parking site with concrete
or bituminous, commonly called blacktop paving. In its advertising for bids, the Authority reserved the right to reject any or all proposals and further in its instruction for bidders reserved the right to reject any or all proposals submitted for any reason deemed sufficient by it. The lowest bid for blacktop material was submitted by plaintiff, and the lowest bid for concrete was submitted by James J. Surovick, which bid was higher than that submitted for blacktop. However, plaintiff did not bid on the proposal for concrete material.
After a review of the bids submitted and consideration of the merits of both types of paving in relation to the bid prices, the Authority rejected all blacktop or asphalt bids and awarded the bid to the lowest concrete bidder, James J. Surovick. The contracts were signed with Surovick on October 28, 1957, and the work was commenced immediately thereafter. On November 6, 1957, plaintiff filed his action in equity, praying for an injunction and damages. No preliminary injunction was requested and no bond was posted. In its complaint, plaintiff alleged, inter alia, that because blacktop and concrete are competitive, because the Authority did not disclose an intention to make a choice between blacktop and concrete, it foreclosed the right to exercise any further discretion as to the two types of pavement after the bids were received. In its answer, while admitting that plaintiff was the lowest bidder on blacktop paving, denied that plaintiff was the lowest responsible bidder because blacktop and concrete are not of equal quality, that blacktop paving would not have as long a life as concrete and was subject to greater deterioration from the droppings of oil and gasoline, and that blacktop paving would require additional maintenance in the way of coating at regular intervals to seal the surface and preserve the pavement
from such deterioration, that the materials were not competitive on the basis of the bids submitted. It further alleged that only after the respective bids were submitted, did the Authority have the opportunity to consider the relative merits between blacktop and concrete, considering the difference in price, and that, as an administrative body, it had the right to use reasonable discretion and sound judgment in selecting the best product for doing the job. The Authority further alleged that in the invitation to bids and instruction to bidders, it specifically reserved the right to select the material as its interest may appear. The instruction to bidders stated that "The Authority ...