Ohio Contractors Ass'n v. Bicking

[This opinion has been published in Ohio Official Reports at 

71 Ohio St.3d 318

.]




OHIO CONTRACTORS ASSOCIATION, APPELLANT, v. BICKING, DIRECTOR, OHIO
                 PUBLIC WORKS COMMISSION, ET AL., APPELLEES.
           [Cite as Ohio Contractors Assn. v. Bicking, 

1994-Ohio-183

.]
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.
                                  __________________
        {¶ 1} 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.
        {¶ 2} 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
                                SUPREME COURT OF OHIO




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.
       {¶ 3} 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.
       {¶ 4} 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.
       {¶ 5} 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.
       {¶ 6} 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.
       {¶ 7} 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.
       {¶ 8} 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.




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                                January Term, 1994




       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.
       {¶ 9} 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.
       {¶ 10} 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

.
       {¶ 11} 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




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                             SUPREME COURT OF OHIO




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

.
        {¶ 12} 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.
        {¶ 13} 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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