Ohio Contractors Assn. v. Bicking

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State: Ohio

Court: Supreme Court

Docket No: 1993-2034

Case Date: 12/23/1994

Plaintiff: Ohio Contractors Assn.

Defendant: Bicking

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Ohio Contractors Association, Appellant, v. Bicking,
Director, Ohio Public Works Commission, et al., Appellees.
[Cite as Ohio Contractors Assn. v. Bicking (1994), Ohio
St.3d .]
Civil procedure -- Association representing private contractors

lacks standing to challenge the legality of a village's

bidding procedure on a storm sewer drainage project when

its members fail to bid on the project.

(No. 93-2034 -- Submitted November 29, 1994 -- Decided
December 23, 1994.)

Appeal from the Court of Appeals for Franklin County, No.
93AP-939.

On October 30, 1992, the village of South Point entered
into a contract with the Ohio Public Works Commission to fund a
storm sewer drainage project known as Garden Court Neighborhood
Storm Drainage Improvements. The estimated cost of the project
was $450,000. Of this amount, $370,000 was to be paid by the
State Issue 2 Small Government Fund, $5,970 was to be financed
through local public revenues and the village was to provide
the remaining $74,030 from in-kind contributions, including
labor by village employees and cash. Hence, as part of its
funding, the village intended to use its own employees for the
labor portion of the project and to pay them less than the
prevailing wage. Even though the village had decided to employ
its own workforce, it nevertheless advertised in the local
paper for bids for the installation of the storm sewer.

Ohio Contractors Association ("OCA"), a not-for-profit
corporation and association of Ohio contractors, was upset with
the village's decision not to competitively bid the labor
portion of the sewer project. Therefore, OCA filed suit in the
Franklin County Court of Common Pleas against W. Lawrence
Bicking, Director of the Ohio Public Works Commission, and Pat
Leighty, the village administrator of South Point. OCA sought
to enjoin construction of the project and disbursement of
funds; it further asked the court to declare that defendants
violated statutory bidding requirements and that the bidding

procedure used by the village was unlawful.

A two-day hearing was held before a trial-court referee.
At the hearing, Leighty testified that he had told two
prospective bidders that the village planned to proceed with
the project by "force account." This meant that it would use
its own employees to perform the labor rather than hire private
contractors. Nonetheless, Leighty told these contractors they
were welcome to submit bids. No bids were submitted. Nor did
any contractor testify that he intended to bid the project. In
fact, OCA's only contractor witness did not intend to submit a
bid and did not even speak with anyone about submitting a bid
until the actual bid date.

The referee found that OCA had standing to bring the
lawsuit and that the village was not obliged to competitively
bid for the installation of the storm sewer. The referee
recommended denying OCA's request for preliminary and permanent
injunction.

Both OCA and Leighty filed objections to the referee's
report. Leighty specifically objected to that portion of the
report wherein the referee found that OCA had standing to bring
suit.

The trial court overruled the objections of OCA. However,
it sustained the village's objection as to standing. The trial
court adopted the referee's report on all other grounds.

OCA filed a timely appeal to the Franklin County Court of
Appeals. The court of appeals chose not to resolve the
standing issue, but instead reached the merits of the case and
affirmed the trial court.

The cause is now before this court pursuant to the
allowance of a motion to certify the record.

Schottenstein, Zox & Dunn and Roger L. Sabo, for appellant.

Lee Fisher, Attorney General, and Doug S. Musick,
Assistant Attorney General, for appellees W. Lawrence Bicking,
Director of the Ohio Public Works Commission, and David Kern,
Administrator, Ohio Small Government Capital Improvements
Commission.

Vorys, Sater, Seymour & Pease, G. Ross Bridgman and
Michael N. Barnett, for appellee Pat Leighty, village
administrator.

John E. Gotherman and Malcolm C. Douglas, urging
affirmance for amici curiae, Ohio Municipal League and Ohio
Municipal Attorneys Association.

Francis E. Sweeney, Sr., J. Ohio Contractors Association
asks this court to decide the legality of a village's decision
to use its own, regularly employed workforce on a public
project and to pay them less than the prevailing wage rather
than competitively bid the work to outside contractors. Since
we find that OCA does not have standing, we decline to reach
the merits of this case. Instead, we dismiss the cause due to
OCA's lack of standing.

The question of standing is whether a litigant is entitled
to have a court determine the merits of the issues presented.
Warth v. Seldin (1975), 422 U.S. 490, 498, 95 S.Ct. 2197, 2205,
45 L.Ed.2d 343, 354.

In this case, OCA seeks legal redress in its capacity as

an association representing private contractors. In Hunt v.
Washington State Apple Advertising Comm. (1977), 432 U.S. 333,
343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383, 394, The United
States Supreme Court has held that an association has standing
on behalf of its members when "(a) its members would otherwise
have standing to sue in their own right; (b) the interests it
seeks to protect are germane to the organization's purpose; and

(c)
neither the claim asserted nor the relief requested
requires the participation of individual members in the
lawsuit." However, to have standing, the association must
establish that its members have suffered actual injury. Simon

v.
E. Kentucky Welfare Rights Org. (1976), 426 U.S. 26, 40, 96
S.Ct. 1917, 1925, 48 L.Ed.2d 450, 460-461; Warth, supra at 511,
95 S.Ct. at 2211-2212, 45 L.Ed.2d at 362. To be compensable,
the injury must be concrete and not simply abstract or
suspected. See State ex rel. Consumers League of Ohio v.
Ratchford (1982), 8 Ohio App.3d 420, 424, 8 OBR 544, 548, 457
N.E.2d 878, 883.

OCA has failed to satisfy this burden. The evidence
clearly shows that no outside bids were ever submitted on this
project. The only contractor to testify on behalf of OCA
neither submitted a bid nor intended to submit a bid. Thus, no
aggrieved contractor exists. OCA has failed to prove that any
of its members have suffered actual injury. Clearly, under the
facts of this case, where no bid was submitted and there was
consequently no concrete injury suffered by any private
contractor, OCA does not have the standing to challenge the
legality of the village's bidding procedure. We hold that a
contractor's association lacks standing to pursue a cause of
action in a representative capacity where its members fail to
bid on the project in question.

Accordingly, for the reason that OCA lacks standing, we
affirm the judgment of the court of appeals, and dismiss the
instant cause.

Judgment affirmed.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick and
Pfeifer, JJ., concur.

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