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Bader v. Sharp

Supreme Court of Delaware

March 18, 1955

Merwin O. BADER, Plaintiff below, Appellant,
v.
Hugh R. SHARP, Jr., J. Draper Brown, Jr., Benjamin F. Shaw, II, J. Gordon Smith, William P. Richardson, Frank R. Grier, and Dallas D. Culver, being and constituting the Commissioners of the State Highway Department of the State of Delaware; A. S. Wikstrom, Inc., a corporation of the State of New York; Clarence S. Collins, Jr., as State Treasurer of the State of Delaware, and William A. McWilliams, as Chief Engineer of the State Highway Department, Defendants below, Appellees.

Taxpayer's suit to enjoin award by State Highway Department of contract for public work. From a judgment for defendants entered by the Court of Chancery of New Castle County, 110 A.2d 300, the plaintiff appealed. The Supreme Court, Southerland, C. J., held that requirement that bridge construction bidder certify that supply commitments have been obtained could be dispensed with by Highway Department if it was otherwise satisfied that successful bidder was responsible.

Affirmed.

Appeal from a judgment for defendants entered by the Court of Chancery of New Castle. Affirmed.

John Merwin Bader, Wilmington, for appellant.

[36 Del.Ch. 90] Herbert L. Cobin, Chief Deputy Atty. Gen., for appellees State Highway Department, State Treasurer and Chief Engineer of State Highway Department.

Richard F. Corroon, of Berl Potter & Anderson, Wilmington, for appellee A. S. Wikstrom, Inc.

SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.

SOUTHERLAND, Chief Justice.

This is a taxpayer's suit to enjoin the award by the State Highway Department of a contract for public work. The essential question is whether an alleged variance from the bidding requirements by the successful

Page 500

bidder was so substantial as to require the rejection of its bid.

In July 1954 the State Highway Department advertised for bids for a contract for the construction of the superstructure of the new Walnut Street Bridge in Wilmington. Bids were opened on September 1, 1954. S. A. Wikstrom, Inc., one of the defendants, was the lowest bidder. Wikstrom had failed to execute a form contained in the bidding papers. It is as follows:

‘ Certification

‘ I/we do hereby certify that necessary commitments for supplying material required for the following items entering into the construction of this contract have been obtained from:

Cement: __________ (Name of Supplier) (Address)

Coarse Aggregate: __________ (Name of Supplier) (Address)

Structural Steel: __________ (Name of Supplier) (Address)

Reinforcing Steel: __________ (Name of Supplier) (Address)

Signature of Bidder ________

By ________

Address ________

Date: ________'

[36 Del.Ch. 91] At the request of the Department, Wikstrom on September 2, 1954 advised the Department of the names of the suppliers from which it expected to obtain the required material.

The Department had reserved the right ‘ to waive technicalities'. The Chief Engineer asked the Attorney General whether the Department had the right to waive the omission of the execution of the certificate and was advised that it had that ...


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