Summary
In Weiner v. Cuyahoga CommunityCollege District (1969) 19 Ohio St.2d 35 [48 Ohio Ops.2d 4, 249 N.E.2d 907], the employer was required only to give "unequivocal assurance of positive equal employment opportunity efforts" and was not called upon to assure that a certain percentage of persons hired would be from the minority community.
Summary of this case from Bakke v. Regents of University of CaliforniaOpinion
No. 68-599
Decided July 2, 1969.
Public construction contracts — Bidder required to assure nondiscrimination in employment — Failure to give such assurance ground for rejection of low bid, when.
1. A bidder for a construction contract to be awarded by a public body of this state may be required to assure nondiscrimination in employment in the entire performance of such contract, by appropriate promises contained in contract provisions or related instruments.
2. The failure of a bidder to give such assurances when specified is a lawful ground for rejection of the low bid of such bidder.
APPEAL from the Court of Appeals for Cuyahoga County.
This is a taxpayer's action brought in the Court of Common Pleas of Cuyahoga County to enjoin the Cuyahoga Community College District from awarding or expending funds in furtherance of a contract for heating, ventilating and air-conditioning work on the Cleveland campus of the college, to a contractor other than the lowest and best bidder. The development and construction on the campus necessitating such contract is a joint project of state and federal entities. The invitation for bids on the contract contained specifications which required the contractor to submit an Affirmative Action Plan intended to "have the result of assuring that there is minority group representation in all trades on the job and in all phases of the work." (Emphasis original.) The specifications further provided detailed principles of affirmative action, steps to be taken for a program, a guideline for the contractor's program and established a pre-award meeting one week after bid opening for discussion of such program. It was also specified: "A written affirmative action plan by each such apparent low bidder must be approved by the federal government prior to the contract execution. Such affirmative action plan is to be submitted by such apparent low bidder not later than 15 days after the above mentioned pre-award meeting * * *."
There were two bidders for the contract involved in this suit. Reliance Mechanical Contractors, Inc., submitted the low bid and an Affirmative Action Plan of some 100 pages. Reliance conditioned its proposed minority representation in jobs, however, with the words "Subject to availability and referral to Reliance Mechanical Contractors, Inc. of qualified journeymen and apprentices from Pipefitters Local No. 120," referring to the union with which it had an exclusive hiring hall contract. At the pre-award meeting, the college objected to the foregoing condition in Reliance's plan, and other forms of wording were tried and rejected. The final submission of Reliance stated: "* * * this company will continue to make every reasonable effort to see to it that Negro apprentices are employed and placed on this project. However, this company cannot and, therefore, does not guarantee that it will have Negro apprentices on this project."
Thereafter, Reliance's bid was formally rejected by the college for failure to include submission of an Affirmative Action Program acceptable to the federal government. The contract was awarded to the second low bidder, whose assurance of equal employment opportunity and minority group representation on the job was expressed in its statement: "You are hereby advised that we will have Negro representation in all crafts employed on this project."
Plaintiff contends that the college and federal officials who rejected Reliance's Affirmative Action Plan were seeking an unlawful guarantee that the contractor would have Negroes on the job, that Reliance's bid was lowest and best, that its Affirmative Action Plan was consistent with state and federal law and the specifications of the invitation to bid, and that the rejection of Reliance's bid in favor of a higher bidder was, accordingly, an abuse of discretion and unlawful.
The trial court found that Reliance was never requested or expected to hire Negroes or any other persons on a quota basis, but that the invitation to bid and appellees' position during discussions thereafter did lawfully require an unequivocal assurance of positive equal employment opportunity efforts. It found from both oral testimony and documentary exhibits that Reliance at no time gave such assurance and rendered judgment for defendants. Upon appeal on questions of law and fact, the Court of Appeals took additional documentary evidence, adopted the findings of the trial court and rendered the same judgment.
The cause is before this court pursuant to the allowance of a motion to require the Court of Appeals to certify the record.
Messrs. Thompson, Hine Flory, Mr. William H. Wallace, Mr. S. Stuart Eilers and Mr. Joseph S. Ruggie, Jr., for appellant.
Messrs. Squire, Sanders Dempsey, Mr. George I. Meisel and Mr. Wilbur J. Markstrom, for appellees.
The issue at the heart of this dispute is whether the policies of the United States and the state of Ohio against discriminatory employment practices may be positively enforced by a public body through the medium of public improvement contracts. The public policy is clearly formulated in the legislation proscribing racial discrimination in employment. See Civil Rights Act of 1964, Section 2000e-2, Title 42, U.S. Code; Section 4112.02, Revised Code. Public construction contracts requiring employment in their performance must contain provisions by which the contractor promises that he will not engage in any discriminatory hiring practice (Section 153.59, Revised Code; Presidential Executive Order No. 11246, Section 202 [1], 30 Fed. Reg. 12319), but more important, both state and federal executive orders implementing civil rights legislation enjoin upon public contractors affirmative duties with respect to seeking, hiring, training, promoting and paying employees, and in regard to their dealings with subcontractors, unions and employment agencies, all to the end that nondiscrimination in the performance of the contract will be assured. See Presidential Executive Order No. 11246, supra, Parts II and III; Ohio Gubernatorial Executive Order, June 5, 1967 (unnumbered and unreported).
Plaintiff does not question the requirement that public contractors promise not to discriminate in employment. Exacting such a promise from a contractor does little more than provide a contract remedy for practices already condemned by law. Rather, he contends that the community college district, as a public body of the state, and the federal agency, through the college ( see Section 3354.09 [H], Revised Code), attempted to exact contractual obligations from the successful bidder which were not authorized by law.
It may be argued that requiring public contractors to take affirmative action to forestall discriminatory employment practices in the performance of their contracts will tend to raise the cost of such contracts. Increased costs impair another governmental interest, that of economy. It must be noted, however, that neither state nor federal contracts are secured only to the lowest bidder, but to the lowest and best bidder (Section 3354.16, Revised Code) and lowest responsible bidder (Section 112 [b], Title 23, U.S. Code). Moreover, the alternative of securing a like degree of compliance with equal employment opportunity laws by means of public prosecutions and administrative proceedings is also costly and, in addition, is both post hoc and punitive. Indeed, it might reasonably be supposed that the governmental objectives of equal employment opportunity and low-cost public construction would be better served by requiring public contractors to undertake affimative duties in practicing nondiscrimination in their dealings with and through others in the performance of the contract, thereby denying the benefits of public contract expenditures to those who would discriminate.
In addition to economics as a reason for requiring public contractors to assure nondiscriminatory performance, the strong moral commitment of both state and federal governments to fair employment practices is reflected in their respective legislation. A government which has declared discriminatory employment practices unlawful should not then finance them indirectly by binding only its direct contractor, and not the entire contract performance, to a promise of attempted compliance. We conclude that the capacity to assure a performance which complies with antidiscrimination laws is reasonably a part of the standard of a best or responsible bidder on a contract involving the expenditure of public funds. Accordingly, a bidder for a construction contract to be awarded by a public body of this state may be required to assure, by appropriate promises contained in contract provisions or related instruments, nondiscrimination in employment in the entire performance of the contract.
The remaining issue is the propriety of the particular promise sought in this case.
Plaintiff contends that a guarantee of Negro employment was sought. The only use of those terms occurred in Reliance's negation of what it could assure. The factual determinations of both of the courts below are that neither the invitation to bid nor the negotiations with respect to Affirmative Action Plans were directed at securing either an absolute guarantee of the actual results of such a plan or a result pertaining solely to Negroes. The establishment of a quota of employment of any particular minority would also be discriminatory in violation of the Civil Rights Act of 1964 (Section 2000e-2 [j], Title 42, U.S. Code). It is no answer that the successful bidder promised Negro representation on the job. The record contains no evidence that such a promise was either required or solicited, or that the promise would be enforced to the exclusion of all other persons. The findings of the courts below are supported by the record and we are not disposed to disturb them from this distance. See Radecki v. Lammers (1968), 15 Ohio St.2d 101, 102, 238 N.E.2d 545; Section 2505.31, Revised Code.
The courts below also found that what was sought was an unequivocal statement by the contractor which would assure equal employment opportunity, and that Reliance's posture throughout the discussions included only equivocal assurances. The record supports the conclusion that all parties to the bid understood what was required by the federal government through the college, but that Reliance found itself in the position of being willing but unable to make a contractual commitment of full nondiscriminatory performance. We have determined that such a commitment may validly be exacted and, therefore, Reliance's bid was lawfully rejected.
It is unfortunate that Reliance, whose submitted Affirmative Action Plan reflected the company's equal opportunity employment practices, should have lost this contract for failure to satisfy the government that racial discrimination would not be practiced. However, it must be remembered that while the public entity was interested in Reliance's compliance with the letter and spirit of fair employment laws, it was also vitally concerned that the entire job be conducted in compliance with such laws. Toward this end, it properly sought the prime contractor's unequivocal assurance that it would deal with others involved in the performance in a manner which would secure such compliance, and was entitled to judge the best or responsible bidder accordingly.
The record supports the findings and conclusion that defendants did not abuse their discretion in rejecting the low bid of Reliance and awarding the contract to the second bidder. The judgment of the Court of Appeals is therefore affirmed.
Judgment affirmed.
MATTHIAS, O'NEILL, SCHNEIDER and DUNCAN, JJ., concur.
GRAY, J., of the Fourth Appellate District, sitting for ZIMMERMAN, J. Because of the inability, "by reason of illness," of JUSTICE CHARLES B. ZIMMERMAN "to hear, consider and decide" this cause, JUDGE GRAY of the Court of Appeals was, pursuant to Section 2 of Article IV of the Constitution of Ohio, duly directed by the Chief Justice "to sit with the justices of the Supreme Court in the place and stead of" JUSTICE ZIMMERMAN, and JUDGE GRAY did so and heard and considered this cause prior to the decease of JUSTICE ZIMMERMAN on June 5, 1969.
As stated in the majority's statement of the case, "the invitation for bids on the contract contained specifications which required the contractor to submit an Affirmative Action Plan intended to `have the result of assuring that there is minority group representation in all trades on the job and in all phases of the work'" and "Reliance's bid was formally rejected by the College for failure to include submission of" such a plan.
I fail to perceive any distinction between such a "Plan intended to `have the result of assuring * * * minority group representation'" and a guarantee of such representation. Counsel for the College conceded that such a guarantee would be a discrimination against others that is prohibited by the Civil Rights Act of 1964 (Section 2000e-2 [j], Title 42, U.S. Code).
Likewise, the majority opinion concedes that "the establishment of a quota of employment of any particular minority would * * * be discriminatory in violation of" that Act. Certainly, such an unlawful establishment of a quota would necessarily be a part of any " Affirmative Action Plan intended to `have the result of assuring that there is minority group representation in all trades on the job and in all phases of the work.'"
GRAY, J., concurs in the foregoing dissenting opinion.