Petitioner F. E. Grosvold, as a taxpayer of Eau Claire county, filed his petition with the trial court praying that an alternative writ of mandamus issue commanding the defendant Board of Supervisors of Eau Claire county to rescind and revoke its acceptance of the combined heating and plumbing bid of the defendant Grudem Brothers Company for work to be done in the erection of a new courthouse for Eau Claire county, and the award of any contract on the basis of such combined bid, and to award the plumbing and heating contracts for said project in accordance with law and to the lowest best respective bidders.
An alternative writ of mandamus was issued pursuant to the prayer of the petition, return thereto was made by the defendants, and trial was had to the court upon the issues, and the trial court made findings of fact, among the same being the following:
"5. That prior to the 11th day of August, 1951, the defendant Board of Supervisors of Eau Claire county determined upon the construction and erection of a new county courthouse and jail for Eau Claire county; that thereafter said board, by appropriate order of the building committee of said board, caused to be given by due publication an official notice of the proposed construction of said courthouse and jail, together with an invitation to all interested building contractors to submit, in accordance with certain specified instructions, proposal forms and general conditions, separate proposals for certain specified branches of the work involved in such construction, including, specifying, and limiting such proposals to the following contract classifications:
"General
"Painting
"Asphalt Tile
"Accoustical Ceilings
"Elevator
"Plumbing
"Heating
"Ventilating
"Electric Wiring and Lighting Fixtures
"Jail Equipment
"6. That the official notice so given and also the instructions to bidders which were supplied by the said county board, and its agents and servants Child Smith, architects employed by the said board, specifically provided that the proposals submitted in response to such invitation to bidders were required to be separate proposals with respect to the separate and enumerated branches of the work, and that proposals were required to conform exactly to the written instructions which were given to the bidders, to the forms of proposal prepared and furnished by the architects and must be in strict compliance with the specifications and conditions so provided.
"7. That in none of the documents governing the submission of such bids or proposals was any provision or request made or permission given that any proposal could or would be permitted to combine in one proposal specifications for more than one branch of work. . . .
"10. That pursuant to said notice [for the submission of bids] a large number of contractors submitted bids; that among the bids so submitted was a proposal from defendant Grudem Brothers Company in the base sum of $43,670 for performance of the plumbing contract in accordance with the specifications; that there was also submitted and read the proposal of F. E. Grosvold, Inc., in the base sum of $46,570 for performance of the heating contract in accordance with said specifications; that upon opening and reading of all bids and upon examination thereof it appeared that the two bids above mentioned were the low bids received in their respective classifications; . . .
"11. That in addition to the bids hereinbefore mentioned there was received a proposal of the defendant Grudem Brothers Company in the form of a written letter (Exhibit 14) in the sum of $89,777 purporting to offer performance for such sum of the combined plumbing and heating contracts; that this proposal was not submitted upon the specified proposal form as stipulated by the contract documents, was submitted in an envelope together with one or more other proposals submitted by said defendant Grudem Brothers Company, . . ."
In addition to the foregoing quoted findings, the trial court found that the building committee and the architects had recommended to the Board of Supervisors the acceptance of the said combined bid of the defendant Grudem Brothers Company, and had evidenced intent to award a contract to it based upon such combined bid, but that no formal contract had as yet been executed by the Board of Supervisors. Conclusions of law were entered upon the findings holding: (1) That the combined bid submitted by Grudem Brothers Company, being unauthorized, unsolicited, and not contemplated by the terms of the bidding, was improper and ineligible for acceptance; (2) that the attempted acceptance of said combined bid had the effect of depriving the people of Eau Claire county of the benefit of competitive bidding, that the same was prejudicial to the interests of contractors bidding on the courthouse project and unfair and inequitable, and therefore contrary to the public interest; (3) that petitioner, being a taxpayer of the county, was entitled to maintain the action; (4) that petitioner and other taxpayers of the county have no adequate or complete remedy except that of mandamus; and (5) that a peremptory writ of mandamus should issue as prayed for by petitioner.
Under date of April 18, 1952, a peremptory writ of mandamus was issued commanding the Board of Supervisors to rescind and revoke their acceptance of the combined bid of the defendant Grudem Brothers Company, that said board rescind and revoke the award or proposed award of any contract based upon such combined bid, and that said board award the plumbing and heating contracts for the courthouse in accordance with law. On April 22, 1952, the defendant Board of Supervisors made return to the peremptory writ in which said defendant stated that it had sent notice to Grudem Brothers Company that it had rescinded and revoked acceptance of the combined bid and the proposed award of contract based on said bid, and that it was advertising for new bids for the plumbing and heating, such new bids to be submitted on a "separate and/or combined" basis. The defendant Grudem Brothers Company made no return to the peremptory writ of mandamus but appealed therefrom to this court.
CURRIE, J.
Sec. 59.07 (4) (c), Stats., relating to the powers of county boards, provides that "All public work, including any contract for the construction, . . . of any public . . . building . . . shall be let by contract to the lowest responsible bidder, . . ." The first question raised on this appeal is whether the county under such statute may accept a combination bid, such as was submitted by Grudem Brothers Company covering both the heating and plumbing on a county-building project, when the county invited the submission of bids upon the heating and plumbing under a plan of contract letting and explicit instructions requiring the submission of separate bids as to such heating and plumbing.
The decision of this court in Chippewa Bridge Co. v. Durand (1904), 122 Wis. 85, 99 N.W. 603, sets forth the tests or criteria to be used in determining whether the statutory requirements for the letting of public work to "the lowest responsible bidder" have been complied with. Those, criteria pertinent to the issue now before us were stated as follows (pp. 97, 98):
"First in order is the one requiring the work to be let to the lowest reasonable and responsible bidder. . . . In Mazet v. Pittsburgh, 137 Pa. St. 548, 20 A. 693, it was held that a requirement for public work to be let to the `lowest bidder necessarily implies a common standard by which to measure the respective bids, and that common standard must necessarily be previously prepared specifications of the work to be done and materials to be furnished, etc., specifications freely accessible to all who may desire to compete for the contract and upon which alone their respective bids must be based.' We indorse that. . . .
" A second essential contained in the charter is that the plans and specifications and terms, submitted as a basis for the bids, shall not be changed except in such manner as to affect all bidders and persons desiring to bid alike; that in case of a substantial change, either in the character of the structure or the terms of the proposed contract after the first competition shall have been completed, there shall be a second opportunity given to bid upon the new basis." (Emphasis supplied.)
In the Chippewa Bridge Co. Case bids were requested by the defendant city for a bridge superstructure and three bridge companies submitted bids. Subsequently, one of the bidders by negotiation with the city reduced its bid and certain concessions were made to it which changed the terms of the contract from those stated in the written request by the mayor for bids. Therefore, the reference in the foregoing quotation from the decision in that case to change of "terms" has particular reference to change in the contract terms and not in the bidding terms, but nevertheless by analogy the reason advanced against change in terms of the contract would apply with equal force to change in the bidding terms made known to but one bidder or effected after the bids were received and opened in order to qualify a bid which otherwise would have been ineligible. As pointed out in the decision in the Chippewa Bridge Co. Case, there must be a common standard by which to measure all the bids, and without that there is not present the necessary element of equal opportunity afforded to all bidders to bid on the same basis which is implied in the statutory requirement of letting the work "to the lowest responsible bidder."
In Bechthold v. Wauwatosa (1938), 228 Wis. 544, 564, 277 N.W. 657, 280 N.W. 320, the court was considering a letting of public work under sec. 62.15, Stats., which requires cities to let public work "to the lowest responsible bidder," and stated with respect to the objective of such statute:
"The provisions of sec. 62.15 have been developed out of years of experience in the management and regulation of municipal affairs. As has been repeatedly said, the obvious purpose of the section is to prevent fraud, favoritism, imposition, and improvidence." (Emphasis supplied.)
To have awarded the contract for the plumbing and heating in the instant case to Grudem Brothers Company upon their combination bid, when all the other bidders submitted separate bids for the plumbing and separate bids for the heating as required by the bidding instructions, would be an act of "favoritism" which this court in Bechthold v. Wauwatosa, supra, stated that statutes, such as secs. 62.15 and 59.07 (4) (c), were enacted to prevent.
While this is apparently a case of first impression in this state on the question of the right of a municipal corporation to accept a combination bid unauthorized in the notice soliciting bids and instructions to bidders, the decision of the New Jersey supreme court in Pew v. Chester (1921), 96 N.J.L. 45, 114 A. 151, did directly pass upon such question. In that case the public body (the commissioners of a fire district) solicited separate bids for a motor truck, the pumping outfit to be installed thereon, and the body to be placed on the truck equipped to carry hose. Further facts and the determination of the court thereon appear in the following quotation from the New Jersey court's opinion (p. 46):
"The proofs show, and it is not denied, that not one bid was received in which the truck, the pumping outfit, and the body equipped to carry hose were priced separately. Two bids were received for the complete apparatus, and one of these, the Obenchain Boyer bid, was accepted as the lowest. It must be obvious that if the advertisement called for separate pricing of the component parts of the truck, the award was illegally made; for, if the contract is awarded on some other basis than that advertised, the bidders are not on the same footing, and this is the express purpose of the statutory competition. [Citing cases.] It is no answer to say that both bids were for a lump sum; for there is no telling how many other and lower bids there might have been on that advertised basis." (Emphasis supplied.)
It is argued in the instant case that the county was not hurt by the submission of the combination bid, but, on the contrary, it stood to benefit by the submission thereof if the same were accepted because of it being lower than the aggregate amount of the lowest separate bid for the plumbing plus the lowest separate bid for the heating. However, to paraphrase the language of the New Jersey court in Pew v. Chester, supra, "there is no telling how many other and lower bids there might have been" if the county in its instructions to bidders had authorized the submission in the alternative of combination bids as well as separate bids. The defendant Board of Supervisors took cognizance of this possibility of saving money for the taxpayers of the county when it advertised for bids for the heating and plumbing the second time pursuant to the peremptory writ of mandamus because, as set forth in its return to such writ, the new bids were solicited on such alternative basis.
The defendant Grudem Brothers Company contends it was entitled to submit a combination bid because of the alleged fact that before submitting its bids it privately contacted the architect and was informed by the latter that combination bids were acceptable, and therefore any other bidder could have done the same. The answer to this is that other bidders had a right to rely on the bidding instructions which specified that only separate bids on each branch of the project were to be submitted, and the architect had no legal authority under the statute to vary such bidding instructions.
It is, therefore, our conclusion that the learned trial court rightly determined the controversy upon the merits in the instant case in holding that the act of Grudem Brothers Company in submitting a combination bid was unauthorized and that the acceptance thereof would violate the statute. There remains, however, the further question raised by Grudem Brothers Company both in the trial court and in this court that mandamus does not lie to achieve the relief sought by petitioner, but rather a proceeding for injunction.
The general principles regarding the availability of mandamus in proceedings involving the awarding of public contracts are set forth in 34 Am. Jur., Mandamus, p. 936, secs. 159, 160. The author of the annotation on the subject of "Mandamus — Public Contracts," 80 A.L.R. 1382, 1397, states:
"No case has been found in which a writ of mandamus has been sought solely to compel the rejection of a particular bid for public work; nor in which such a writ has been sought to compel the rejection of all bids."
However, we find it unnecessary in this case to determine whether a proceeding in mandamus is proper because the defendant Board of Supervisors did not appeal from the peremptory writ but instead filed a return stating that it had complied with all the provisions thereof. The peremptory writ did not command the defendant Grudem Brothers Company to do anything. If we were to determine that mandamus was not the proper proceeding, but rather an action for injunction, this court under the provisions of sec. 269.52, Stats., covering cases of "mistaken remedy or action," would be required to remand the case to the trial court to permit plaintiff to amend. This court in State ex rel. Conway v. District Board (1916), 162 Wis. 482, 489, 156 N.W. 477, held such statute applicable to mandamus. It would appear to be the height of futility to remand in this case where the merits of the controversy have been determined and the only objective that might be attained thereby would be to change the type of affirmative relief granted. Grudem Brothers Company has no interest in such relief but only in the determination on the merits that it does not have a valid contract based upon the alleged acceptance of its combination bid. The Board of Supervisors is the only party affected by the commands of the writ and it has not appealed therefrom, but, on the contrary, has fully complied therewith.
By the Court. — Judgment affirmed.