IN THE SUPREME COURT OF OHIO

State ex rel, Gaylor, lnc.

Relator,

V.

Jaines A. Goodenow, et al.,

Respondents.

MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT, INSTANTER

Michael F. Coplcy* (0033796)Kenley S. MaddLix (0082786)Adam F. Florey (0084826)The Copley Law Firm, LLC1015 C.oleRoadGalloway, Ohio 43119Telephone: (614) 754-7252Facsimile: (614) 754-7319E-mail: mcopley@copleylawfirmllc.comE-mail: kmaddux@copleylawfirmllc.comE-mail: aflorey@copleylawfirmllo,eomCbunsel foa-Rel.ator* Lead Counsel for Relator

Nick A. Soulas, Jr. (0062166)Anthony E. Palmer, Jr. (0082108)Patrick J. Piccininni (0055324)Office of Franldin County ProsecutingAttorney373 South Iligh Street, 13th Fl.Columbus, Ohio 4315-6318Telephone: (614) 462-3520Facsimile: (614) 432-6012E-nnail :nasotaas@franklincountyohio.govaepalmer c^franklineountyohio.govpjpiccin@franklincountyohio.govCounselfor Respondents

MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT, INSTANTER

NOW COMES Relator Gaylor, Inc. ("Relator" or "Gaylor"), by and through counsel, and

pursuant to S.Ct. Pract. R. 10.2 and Civ. R. 15, liereby requests leave to file a Second Amerided

Complaint, instanter, attached hereto as Exhibit A, against Respondents Janles A Goodenow, et

al. ("Respondents" or "Franklin County"). Respondents' conduct subsequent to Gaylor filing its

Complaint evidences bad faith, a coiitinued effort to thwart this Court's jurisdiction and to avoid

the obligations imposed on Respondents by Ohio law. As such, Gaylor moves for leave to file a

Sccond Arnended Coinplaint to add Count Four to ensure Respondents perform lawiidly by

adding a request for relief in mandamus for this Court to order Respondents to award the

Contract to Gaylor. In addition, Count Forn• asserts a claim for bad faith due to Respondents'

refusal to act as legally required and for needlessly continuing to litigate this action. (iaylor

seeks an award of its attorney fees and legal costs due to Respondents' bad faith. Gaylor's

arguments are more fully set forth in the attached memorandum.

Respectfully submitted,

Michael F. Copley* (0033796)Kenley S. Maddux (0082786)Adam F. Florey (0084826)The Copley Law Firm, LI,C1015 Cole RoadGalloway, Oliio 43119-i'elephone: (614) 754-7252Facsimile: (614) 754-7319E-mail: mcopley@copleylawfirmllc.eomE-mail: kmaddux@copleylawfirmllc.comE-mail: aflorey@copleylavrfu-rnllc.comCoaarzsel. for Relalor" Lead C'ourtsel f'or, Relator

MEMORANDUM IN SUPPORT

This Court's decision in State ex rel. Associated &iailder•s & Contrs. of Cent. Ohio v.

Frttnkliii Cty. Bd.of Comrnrs, Slip Opinion No. 2010-Ohio-1199, established that Franklin

County abused its discretion wlze,n it rejected Gaylor's bid. Gaylor filed its Complaint and

request for emergency relief seeking that its bid be considered BEFORE THE BOARD MET

AND CONSIDERED A RESOLUTION TO AWARD 'I'HE CONTRACT TO A I3IGHER

BIDDER. 'The Court issued its decision in State ex rel. Associated Builders & Contrs. of Cent.

Ohio and issued an Alternative Writ preventing the County from further abusing its discretion.

The Court gave Franklin Couaity every opportunity to evaluate Gaylor's bid using sound

discretion and award it the Contract accordingly. Franklin County has responded defiantly and

in bad faith. Afraid of the political consequences, all three connnissioners liave unanimously

acted in concert to disregard their duties, to challenge the actions of'this Court, and to call out

publically the Court. Instead of sin7ply conforming its actions to Ohio law and considering

Gaylor's bid in public session, it continues to meet behind closed doors to shut Gaylor out of the

process. Even with the Project stopped and its obligations clearly defined, Franklin County

continues to refuse to provide a full and fair analysis of Gaylor's bid using sound discretion,

adopt the decision of its construction manager that Gaylor is lowest and best, or award the

Contract to Gaylor. (Resps. Merit Brief at p. 8-9.) Even as Franklin County delays performanee

of its duties, it has used the media to accuse this Court of partisanship, and in fact blamed the

Coui-t for delay to the Project. (See Columbus Dispatch Articles, attached hereto as Exhibit B.)

With full knowledge of its obligations, instead of simply perfonning as requested in Gaylor's

Complaint and as directed by this Court in State ex rel. Associated Builders & Contrs. of Cent.

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Ohio, Tranklin County has dragged this process on for weeks attempting to avoid the

consequences of its actions.

Not only does Franklin County's aetual refusal to provide a full and fair analysis of

Gaylor-'s bid reflect bad faith, a desire to avoid the consequences of their abuse of' discretion, and

an effort to continue to deny Gaylor its rights, so do the arguments Respoadents use in support of

their illegal behavior. Respondents argue that they succeeded in 1i-ustrating this Court's

jurisdiction by awarding the Contraet to an allernate contractor. (Resps. Merit Brief at p. 3-7.)

Respondents have made this argument three previous times, which the Court rejected each tixne.

(See Resps.' March 4, 2010 Memo Opposing Motion for Stay and Alt. Writ; See also Resps.'

March 12, 2010 Mot. for Clarification; See also Resps.' Mot. for Expedited Briefing.) It is as

persuasive now as it was the first time it was made niore than six weeks ago. Instead of simply

providing an analysis of Gaylor's bid to which Gaylor is clearly eatitled and awarding the

Contract based on that analysis as they are required, Respondents have instead clung to their

desire to continue as before, deny Gaylor its rights, and disregard this Court's authority.

Respondents have also attempted to justify their inaction by arguing that they need not

perform, and this Court cannot make it perform, because Gaylor failed to request in its

Complaint that Respondents actually award the Contract to Gaylor. (Resps. Merit Brief at p. 7-

8.) This argument suggests that Gaylor must request and obtain an order from the Court

directing Respondents to proceed lawfully. Gaylor requested a Writ of Mandanlus ordering

Respondents to perform a full and fair analysis af Gaylor's bid to determine whether Gaylor is

lowest and best. (Rel.'s Feb. 22, 2010 Compl. at ¶ 104, ^!105.) Respondents are required by

Ohio law to award contracts on public works projects to the lowest and best bidder. R.C.

307.90(A). As such, by operation of law, an evahlation of Gaylor's bid and a determination that

3

Gaylor is lowest and best necessarily results in award of the Contract to Gaylor. R.C. 307.90.

By arguing that this Court must order them to award the Contract atter it perforins its evaluation,

Franklin County is stating that it will continue to abuse its discretion and will not perform its

legal duties unless conipelled.

Additionally, in the afterrnath oi'this Court's ruling in State ex rel. Associated Builders &

Corrtrs. ofCent. Ohio, establishing that Franklin County abused its discretion when it rejected

(iaylor's bid, Respondents' construction irianager on the Project performed its own analysis and

deemed Gaylor lowest and best. (Resps.' Merit Brief at p. 8-9; Exh. 1, to Rel.'s Merit Brief at ¶

7.) Respondents have nonetheless acted in bad faith, failing to pass a resolution adopting the

decision of their construction manager and awarding the Contract to Gaylor. (Resps.' Merit

Brief at p. 8-9.) This has caused further delay to the Project and cost to the taxpayers.

Respondents have never presented any evidence suggesting that. Gaylor is not lowest and best.

In Pact, armed with all the relevant evidence, its own representative on the Project determined

that Gaylor was the lowest and best bidder. (Resps.' Merit Brief at p. 8-9; Exh. 1, to Rel.'s Merit

Brief at ¶ 7.) in light of the construction manager's finding, nothing less than a continued abuse

of discretion could cause any result other than award of the Coiitract to (iaylor. Respondents,

however, are threatening to do just that, disregarding this Court's authority and decision in State

ex rel. Associated Builders & Contrs, of Cent. Ohio, as well as their statutory mandate to award

the contract to the lowest and best bidder.

By disregarding this Court's decision in .State ex rel. Associated Builders & Conirs. qf

Cent. Ohio, and choosing to ignore its legal obligation to provide a full and fair analysis of

Gaylor's bid, Franklin County is acting in bad faith and is once again abusing its discretion.

Therefore, Gaylor requests leave to file a Second Amended Complaint which addresses

4

Respondents' bad faith and requests dainages and attorneys' fees accordingly. Additionally, in

light of Respondents' behavior, Gaylor has no confidence that without continued oversight by

this Cotirt that Franklin County will satisfy its duty to fully evaluate Gaylor's bid and award of

the Contract to Gaylor if it is lowest and. best. Franklin County has had ample opportunity to

perform and to date has refused to do so. This Court should take the matter out of Franklin

County's hands. Gaylor's Second Amended Complaint includes an added request for relief

requesting a Writ of Mandamus ordering Franklin County to award the Contract to Gaylor

consistent with sound discretion and the determination of Franklin County's construction

manager. As addressed in Gaylor's Reply in Support of its Merit Brief, Gaylor believes that this

remedy can and should be issued to ensure the relief requested in Gaylor's original Complaint

and Amended Complaint. In an abundance of caution, however, Gaylor's Second Amended

Complaint explicitly requests award of the Contract to Gaylor.

Respectfully submitted,

^ lMiehael F. Copley* (0033796)Kenley S. Maddux (0082786)Adam F. Florey (0084826)The Copley Law Firm, LLC1015 Cole RoadGalloway, Ohio 43119Telephone: (614) 754-7252Facsimile: (614) '754-7319E-mail: mcopley@copleylawtrrmlle.comE-mail: kmaddux@copleylawf'irnlll.c.comE-mail: aflorey@copleylawiirmllc.comCounsel for l?elator* Lead C'ounsel fnr ldelator

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CERTIFICATE OF SERVICE I

I hereby certify that the foregoing was served via Regular U.S. Mail this 23rd day of

April, 2010, upon thc following:

Ron O'BrienNick A. Soulas (Counsel of Record)Ptrick J. PiccininniAnthony E. Palmer, Jr.Assistant Prosecuting AttorneysFranklin County Prosecutor's Ofiice, Civil Division373 South High Street, 13th FloorColumbus, Ohio 43215Counsel for Resprnndents

Adarn F. Florey

6

IN THE OIIIO SUPREME COURT

State ex rel. Gaylor, Inc.

` Relator, Case No. 2010, -0330

James A. Goodenow, et al.,

Respondents.

RELATOR'S SECOND AMENDED COMPLAINT

Michael F. Copley* (0033796)Kenley S. Maddux (0082786)Adam F. Florey (0084826)The Copley Law Firm, LLC1015 Cole RoadGalloway, Ohio 43119Telephone: (614) 754-7252Facsimile: (614) 754-7319E-mail: mcopley(ci^copleyiawlirmllo.com

kmaddux@copleylawfinnllc_comaflorey@copleylawfirmlle.com

Counsel for Relator* Lead Courasel,for Relator

Nick A. Soulas, Jr. (0062166)Anthony E. Palmer, Jr. (0082108)

Patrick .1. Piccininni (0055324)Office of Franklin Comity Prosecuting

Attorney373 South Iiigh Street, 13th Fl.Columbus, Ohio 43215-6318Telephone: (614) 462-3520Facsimile: (614) 462-6012E-mail: nasoulas rt franlclincountyohio.gov

aepalmer@franklincountyohio.govpjpiccin@franklincountyohio.gov

Counsel for Resporaderrts

NOW COMES Relator, Gaylor, Inc., and for its second amended coinpiaint against the

respondents in this action ("Respondents") states and alleges as follows:

L. Respondents issued a finding that Gaylor, lnc., an electrical contractor, violated

prevailing wage law. Based on that finding Respondents debarred Gaylor from contracting with

Franlclin County and rejected its low bid on the Franklin County Animal Shelter project (the

"Project"). Respondents thercafter held a hearing, accepted additional evidence, and aflirmed its

prior finding that Gaylor violated the Ohio prevailing wage law.

2. Respondents patently and unanibiguonsly lack jurisdiction to hear, decide or issue

findings of prevailing wage violations. Respondent's also patently and unambiguously lack

jurisdiction to debar a contractor for such a violation. Exclusive jurisdiction is reserved by

statute for the Ohio Department of Connnerce ("Commerce") and the Courts of Corumon Pleas.

3. Franklin County will continue to act with a patent and unambiguous lack of

-jurisdiction by enforcing Gaylor's illegal debarment and awarding 1he electrical portion of the

Project to another bidder that is neither the lowest nor the best based on their illegal finding.

Franklin County's illegal prevailing wage enforcement will prevent Gaylor from eoutracting

with the County for the foresceable future.

4. Gaylor hereby requests a Writ of Prohibition preventing Respondents from

rnaking or enforcing any finding that Gaylor has violated prevailing wage law; and an

Alternative Writ, staying enforcement of Respondents' illegal finding and award of the electrical

conti-act until after this action is resolved.

S. The pending appeal in State ex rel. Associated Builders and Contractors v.

Fi-ankdzri County Board of Comrnis.sioners•, Ohio Supreme Court Case No. 2008-1478, presents

2

identical issues of state law. This Court's decision in that appeal will resolve the issues in this

action.

' JIJRISDICTION

6. All previous paragraphs of tliis Complaint are incorporated herein by reference as

if fully stated.

7. This original action is brought pursuant to Section 10 of the Rules of Practice of

the Supreine Court of Ohio and Article IV, Section 2 of the Ohio Constitution.

8. No prohibition action is pending in any other eourt regarding the actions that are

the subject of this Complaint.

9. No alternative writ action is pending in any other court regarding the actions that

are the subject of this Complaint

10. No mandarmts action is pending in any other court regarding the actions that are

the subject of this Complaint.

11. Relator Gaylor Electric, Inc. is a comnnercial electrical cornpany with locations in

several states including Dubtin, Ohio.

12. Respondent Franklin County Board of Coinmissioners represents and is

responsible for instituting all policies, procedures andofficial acts of Franklin County, including

enteruig into and awarding contracts for County projects. Franklin County is a non-chartered

subdivision of the State of Ohio.

13. Respondent James A. Goodenow, in his official capacity, is the Director of the

Franklin County Board of Commissioners Department of Public Facilities Management.

14, Respondent Richard E. Meyers, in his official capacity, is the Assistant Director

of the Franklin County Board of Commissioners Department of Public Facilities Management.

3

15. Respondent John O'Grady, in his official capacity, is Lhe President of the 1'ranklin

County Board of Comnlissioncrs.

' 16. Respondent Paula Brooks, in her official capacity, is a Franklin County

Commissione.r^

• 17. Respondeut Marilyn Brown, in her official capacity, is a Franklin County

Commissioner.

FACTS COMMON TO ALL COUNTS

18. All previous paragraphs of this Complaint are incoiTorated herein by reference as

if fully stated.

A. THE PROJECT AND BID DISPUTE

19. Franklin County is constructing an animal shelt.er and adoption center, the

Franklin County Aninial Shelter, ("the Project"). (See Affidavit of Donald Stafford, attached

hereto as Exhibit A, at ¶ 2).

20. 'Ihe Franklin County Board of Commissioners Departrnent of Public Facilities

Management issued an invitation to bid Por the electrical systems package on the Project. At

section 8.2.4, the Invitation to Bid and Contract Documents (the "Contract") mandates that the

Construction Manager obtain information from the lowest responsive Bidder that the Project

Manager uses to evaluate the bid. (Exh. A. at ¶3)

21. Although section 8.2.4. of the Contract lists twenty-five "factors" for the County

to consider when deciding whether a low bidder's bid is best, the County's policy is to first

evaluate information relevant to section 8.2.4.15:

Infotniation that the Bidder has not been debarred fi-on1 public contracts orfound by the state (after all appeals) to have violated prevailing wage lawsmore than t1n•ee times in a two-year period in the last ten years.

(Bxh. A. at 114, 5). This "factor" is in fact dispositive, and the County ignores all other factors

either favorable or unfavorable to the contractor once it makes such a determinat.ion. (Exh. A. at

!1$).

22. O11 Novernber 23, 2009, Gaylor subtnitted the lowest bid for the Project's

electrical systems package. (Exh. A. at If 6).

23. On December 28, 2009, the County sent a letter to Gaylor stating that its bid was

rejected, citing Section 8.2.4.15 of the Contract and stating that based on its review of the records

on iile with the Ohio Depai-tment of Conunerce ("Commerce"), Gaylor had been found to have

violated prevailing wage law. (Exh. A. at 1,[ 7).

24. Cormnerce has never found that Gaylor violated prevailing wage law, has nevcr

issued a[inding that Gaylor violated prevailing wage law, has never notified Gaylor that it

violated prevailing wage law, and has never deban-ed Gaylor for any alleged violation. (Exh. A.

at ^,, 8).

25. The County's determination that Gaylor violated prevailing wage law was based

on its own review and investigation of Commercc records. It is the first and only finding that

Gaylor violated Ohio prevailing wage law. The power to issue such a finding or deterrnination is

expressly reserved by statute for Commerce and the courts. (Bxh. A. at ¶ 9)

26. On or about December 30, 2009, Gaylor objeeted to the County's rejection of its

bid and requested a "Protest Meeting" under section 8.3.1.1 of the Contract to provide additional

information and arguments in opposition. (l 3xh. A. at ¶ 10)

27. At the Protest Meeting on January 14, 2010, Gaylor presented additional evidence

establishing that it had never been found by the State to have violated prevailing wage law.

(Exh. A. at 1111)

28. Nevertheless, on February 9, 2010, the County affirmed its prcvious finding,

reasserting that Gaylor had violated prevailing wage law, and rejected Gaylor's low bid. (Exh.

A.at¶12)

B. OIIIO'S PREVAILING WAGE LAW

29. C)hio's prevailing wage law (the "Statute") is in Chapter 4115 of the Ohio

Revised Code.

30. The Statute charges Commerce with administering Ohio's prevailing wage law.

(R.C. 4115).

31. The Statute provides no authority to the County to issue findings, hold hearings,

or make decisions or determinations of violations. (Exh. A. at ¶ 13).

^2. The Statute distinguishes between intentional "violations" and underpayments

based on "misinterpretation of statute, or an erroneous preparation of the payroll documents"

(unintentional underpayments). (R.C. 41 15.13(C)).

33. The Statute provides a penalty of debarment for intentional violations. (R.C.

4115.133(B)). The Secretary of State keeps a list of debarred contractors. (R.C. 4115.133(A))

34. 'fhe Statute charges Commerce with the power and responsibility to investigate

complaints of underpayments. (R.C. 4115.13).

35, After investigating, Commerce makes a"recommendation" of whether there was

an inl:entional violation or an underpayment. "fhis recommendation is issued without a hearing,

without adjudication as to the merits of the allegations, and cannot be appealed to a court oflaw.

(R.C. 4115.13).

36, A contractor has the right to appeal a"recommendatioii" of an intentional

violation to Commerce. (R.C. 4115.13(B)). The appeal is a hearing witli the oppot-tunity to

6

present evidence and argument,ca11 witnesses, etc. A hcaring exaniner designated by

Commerce presides, makes findings of fact and issues recoinmendations to Commerce.

Commerce then makes a decision on the alipeal based on the recommendation of the hearing

officer. (R.C. 4115.13(B)).

37. The contractor can appeal. Commerce's decision finding an intentional violation to

the Court of Connnon Pleas. During that appeal, the finding is stayed and the contractor is not

debaired. (R.C.4115.133(A)).

38. All of Gaylor's alleged °violations" of the Statute were in fact unintentional

underpayments. (Exh. A. at 11 14).

39. "I'he contractor cannot appeal a recommendation of unintentional underpayinent.

1'he contractor is not provided a hearing, or any other oppoi-tunity to present evidence or argue

its case. Commerce does not issue findings of fact and does not make a finding of fault. (R.C.

4115).

40. After Commerce issues its reconunendation that an unintentional underpayment

was committed, tlre recommendation is immediately and withotd fiuther review incorporated into

a "decision" ordering the contractor to make restitution. This decision is solely based on

Conmierce's initial investigation and recommendation. it does not inchrde findings of fact or

law; it merely recommends that the contractor pay restitution. (R.C. 4115.13(C)).

41. Without a hearing, the presentation of evidence and argument, and additional fact

finding, Commeree's decision is not an ad-judication or a finding of a "violation." In fact, Ohio

courts have fomsd that Commerce's decision is not final and cannot be appealed. (Exh. A. at ¶

15); State e.x rel. Harris v_ Williarns (1985), 18 Ohio St.3d 198.

7

42. Commerce judicially admitted that it neither adjudicates nor issues adjudicated

fmdings of unnrtsntional prevailing tATage violations. (Exh. A. at ¶ 16).

43. 1'he Statute favors settlement of unintentional underpayments, and protects the

contractor who pays restitution from any further action. (R.C. 4115.13(C")).

44. If, however,, the contractor chooses not to settle and inzstead contests Commerce's

decision, the dispute is removed to the court of common pleas of the county where the

mlderpayment is alleged to have occurred; there are no adninistrative hearings for unintentional

underpayments. If the court finds a violation the contractor is responsible for the opposing

party's attotney fees and costs. (R.C. 4115.16(A),(C)).

C. THF, COUNTY'S FINDING OF VIOLATIONS

45. Although Commerce has received complaints of underpayments by Gaylor, and it

has issued decisions recommending Gaylor make restitution, neither Commerce nor a court of

law has ever found Gaylor guilty of a "violation" of the Statute. (Exh. A. at ¶ 17)

46. Gaylor elected to settle each of the claims brought against it. Gaylor included the

following statement with almost all of its settlement payments:

By entering into this settlement, Gaylor Group, Inc. admits no liability orwrongdoing whatsoever in connection with this or any other project, andexpressly reserves the right to raise any and all possible claims anddefenses on its behalf in connection with any other audit or project.

(Exh. A. at ¶ 18). Two payments were inadvertently made withont the foregoing statenlent. Id.

47. The County requested and obtained from Commerce its records of investigations

and recommendations regarding Gaylor. (Exh. A. at 1119).

48. When a contractor may have unintentionally undeipaid an employee, Coinmerce

neitller issues a finding, nor makes any detennination as to whether a vioZation has occurred.

Commerce merely issues a preliminary decision that a contractor may have niade an

8

underpaytnent based on a misinterpretation of the Statute, or a clerical error. 1'he Statute and

Commerce make a distinction between "violations," which are always intentional, and

"underpayments." Contractors are never found by Commerce to have unintentionally violated

the Statute. (R.C. 4115.13).

1 49. While neither Commerce nor any court has^ ever issued a finding that Gaylor

violated the Statute, the County issued its own finding that Gaylor had in fact violated the

Statute. (Exh. A. at 1120).

50. In the case of an unintentional underpaymeut, the investigation and

recommendation records maintained by Commerce are not sufficient for a tinding and are not

evidence that a contractor has actually "violated" Ohio's prevailing wage law. (Exh. A. at ¶ 21).

51. The tirst time Gaylor has ever becn found to have violated the Statute, was by the

County based upon the County's interpretation of the nlaterials provided by Cornmerce. (Exh.

A. at ^ 22).

52. The first timc (iaylor had ever been notified that it had been found to have

violatcd the Statute, was by the County upon the County's rejection of Gaylor's low bid. (Exh.

A. at 41^', 23).

53. The first and only time Gaylor has ever been debarred from public contracting is

by the County, based on the County's own finding that Gaylor had violated the Statute. (Exh. A.

at ^ 24). 54. Tf Gaylor had known that theCounty would use Gaylor's prior settlexnent of

claims, and the records held by Commerce, to make its own independent linding that Gaylor had

violated the Statute it would not have settled the disputes, and in fact would have required either

9

Deparlment or a court to actually issue a finding as to whetlier a violation had occurred. (Fxh.

A.at¶25).

55. Moreover, if either'Commerce or a com•t had actually found a violation, (iaylor

would have been entitled to and would have appealed any such fmding or decision. (Rxh. A. at ¶

26).

COUNT ONE: PROHIBITION

56. All previous paragraphs of this Complaint are incorporated herein by reference as

if fully restated.

57. Respondents exercised quasi-judicial power by inaking a f inding that based on the

information on record with Commeree, Gaylor had violated the Statute.

58. Respondents exercised quasi-judicial power by rejecting Gaylor's low bid based

on their fniding that Gaylor had violated the Statute

59. Coimnerce had never before inade such a finding and in fact, is not required to or

empowered to make such a tinding in the case of an unuitentional underpaytnent.

60. Respondents' finding that a violation occurred was not based on a

recominendation by Coinmerce that Gaylor had been found in violation the Statute. It was

instead based solely on Respondents' own review and interpretation of the infonnation on record

wit:h Cominerce.

61. Respondents have continued to exercise quasi-judicial power by holding the

Protest Hearing, heai-ing argument and allowing additional evidence as to whether Gaylor

violated the Statute.

62. Respondents have continued to exercise quasi-judicial power by affirming their

previous finding that Gaylor had violated the Statute.

1 ()

63: Respondents will continue to exercise quasi-judicial power by debarring Gaylor

based on its findiug, thereby preventing Gaylor from contracting with the County ior the

foreseeable`iuture. 1

64. Respondents will continue to exercise quasi-judicial power by awarding the

electrical portion of the Contract to a contractor other than Gaylor, based on its finding and

debarmeiit of Gaylor.

65. Respondents' exercise of quasi judieial power was unauthorized by law because

they do not have the statutory authority to issue a finding or detennination that any contractor,

inchiding Gaylor, has violated prevailing wage law.

66. Respondents' exercise of quasi-judicial power was wiauthorized by law because

they do not have the statutory authority to conduct a review of records for the purpose of

invesfigating or niaking a finding or determination as to whether any contractor, including

Gaylor, has violated prevailing wage law.

67. Respondents' exercise of quasi-judicial power was unauthorized by law because

they do not have the statutory authority to hold a hearing for the purpose of gathcring additional

evidence, hearing argunlent, investigating, and thereafter making a finding or deteruiination as to

wlietlier any contractor, including Gaylor, has violated prevailing wage law.

68. Respondents' exercise of quasi-judicial power is unautliorized by law because the

finding resulted and will continue to result in the rejection of Gaylor's bids ior work with the

County, itself constituting a debarment of Gaylor. Neither the County and nor its officials have

the power or authority to debar contractors for alleged prevailing wage violations.

69. Respondents' actions have deprived Relators oftheir liberty and property interests

without due process.

11

70. Respondents' actions have dainaged the reputation of Gaylor and other similarly

situated contractors.

71. Respondents' actions have dainaged (iaylor's ability to enter into contracts with

Frariklin County.

72. Respondents' actions lrave prevented Gaylor from being awarded the electrical

contract on the Project.

73. Gaylor tacks an adequate reniedy at law that will tinielv and wholly prevent

Respondents frozn finding Gaylor violated prevailing wage law.

74. Gavlor lacks an adequate remedy at law that will timely and wliolly prevent

Respondents from enforcing their finding that Gaylor violated prevailing wage law,

75. Gaylor lacks an adequate reinedy at law that will timely and wholly repair the

damage to Gaylor's right to due process.

76. Gaylor lacks an adequate remedy at law that will timely and wholly repair the

damage to Gaylor's reputation.

77. Gaylor lacks an adequate remedy at law that will timely and wholly repair the

damage to Gaylor's ability to contract with Franklin County.

78. Gaylor lacks an adequate remedy at law that will timely and wholly prevent

Respondents from awarding the electrical portion of the Contract to a contractor other than

Gaylor.

79. Gaylor is entitled to a uTit of prohibition ordering Respoiidents to cease and desist

malcing findings and detenninations that Gaylor and odier contractors have violated prevailing

wage law, a power reserved solely for Commerce and Ohio courts.

12

80, Gaylor is entitled to a Writ of Prohibition ordering Respondents, to cease and

desist conducting a review and investigation of records on file with Comtnerce for the purpose of

issuing a finding or detenmination as to wllether any cotitractor, including Gaylor, has violated

prevailing wage law when rio such finding or determination has ever been issued by Comtnerce,

81. Gaylor is entitled to a Writ of Prohibition ordering Respondents to cease and

desist holding hearings for the purpose of gathering additional evidence, hearing argument,

investigating, and thereafter making a finding or determination as to whether any contractor,

including Gaylor, has violated prevailing wage law, when no such iinding or determination has

ever been issued by Commerce.

82. Gaylor is entitled to a Writ of Prohibition ordering Respondents, to cease and

desist their current and future debarment of Gaylor based the County's finding that Gaylor

violated prevailing wage law.

COUNT' TWO: ALTERNATIVE WRIT

83. All previous paragraphs of this Complaint are incorporated herein by rcference as

if fully restated.

84. Gaylor is entitled to a Writ of Prohibition preventing Respondents fi•om acting in

a quasi-judicial manner with a patent and unambiguous lack of jurisdiction.

85. Respondents will act in furtherance of their unlawful finding and to the permanent

detriment of Gaylor shortly.

86. Emergency relief is necessary to prevent Respondents fiom enforcing their

fmding in fin-ther proceedirigs and acts that will result in Gaylor's de-facto debarment and award

of the electrical portion of the contract to an alternate bidder that is neither the lowest nor the

best.

13

87. Gaylor is ertitled to an Altornative Writ, preventing enforccment of RespondenY s

unlawful fmding by rejccting Gaylor's low bid, debarring Gaylor from contracting with the

County and awarding the electrical contract to an alternate contractor that is neither the lowest

nor the best.

COUNT THREE: WRIT OF MANDAMUS

88. All previous paragraphs of this Complaint are incorporated herein by reference as

if fully i•estated.

89. The Conti-act lists twenty-five factors the County will consider when detei-mining

whether the low bidder's bid is best. The Contract does not identify any one factor as

dispositive.

90. The County, however, looks first whether "the Bidder has not been debarred from

public contracts or found by the state (after all appeals) to have violated prevailing wage laws

more than three times in a two-year period in the last ten years." If the County finds that the

bidder has violated tYre Statute, it does not consider any additional factors.

91. T'he County iminediately rejected Gaylor's bid upon its determination that Gaylor

had violated the Statute without consideiing any additional favorable or iurfavorable factors.

This rejection constitutes a dcbartnent.

92. Commerce has never found Gaylor to have violated prevailing wage law, and has

never debaired Gaylor from governnient contracting.

93. The County's finding was based on its own review of the documents ou record,

not on any reeommendation, decision or finding of Commerce. The County's finding is in fact

inconsistent witli the Statute.

14

94. The County does not have the autliority to issue findings as to whether a

contractor violated prevailing wage law.

95. The County does nof have the authority to clebar a contractor.

96. Gaylor has a clcar legal riglit to have the County consider each factor listed in the

Contract when establishing whedier its low bid is best. 1

97. Gaylor has a clear legal right to have the County fully and fairly consider its bid

without reference to or relianee on the County'sunlawful finding that Gaylor had violated

prevailing wage law.

98. Gaylor has a clear legal right to compete for public contracts throughout Ohio

because it is not a debarred contractor.

99. Because the County's rejcction of Gaylor's bid and its debarnlent of Gaylor was

unlawful, Gaylor has a clear legal right to have the County reinstate its bids and fully and fairly

consider it without reference to or reliance on the County's unlawful finding that Gaylor had

violated prevailing wage law.

100. Respondents have a clear legal duty set in the Contract to consider eacli factor

listed in the Contract when making its determination as to wbether Gaylor's bid is the best bid.

101. Respondents have a clear legal duty to fully and fairly consider Gaylor's bid

without reference to or reliance on its unlawful fmding that Gaylor had violated prevailing wage

law.

102. Respondents have a clear legal duty to reinstate Gaylor's bid, to the extent

necessary, to afford it fiill and fau- consideration without reference to or reliance on the County's

unlawful finding that Gaylor had violated prevailing wage law.

15

103.Gaylor has no adequate remedy at law to ensw-e that in making its dei:erinination

as to whether its bid is best, that the County will fully and fairly consider Gaylor's low bid

witliout referenee to or reliance on the County's unlawful finding'Gaylor violated prevailing

wage law.

104. Gaylor has no adequate remedy at law to ensure that the County will reinstate

Gaylor's bid to the extent necessaiy to fully and fairly consider it without reference to or reliance

on its unlawful fmding that Gaylor violated prevailing wage law.

105. Gaylor is entitled to a Writ of Mandanus requiring Respondents to iully and

fairly consider whether Gaylor's low bid was the best bid without reference to or reliance on

their unlawful finding that Gayior violated prevailing wage law.

106. Gaylor is entitled to a Writ of Mandamus requiring Respondents to reinstate

Gaylor's bid to the extent necessary to fully and fairly consider it without reference to or reliance

on their unlawful finding that Gaylor violated prevailing wage law.

COUNT FOUR: MANDAMUS COMPELLING AWARD OF CONTRACT

107. All previous paragraphs of this Complaint are incorporated herein by reference as

if fiilly restated.

108. All paragraphs of Count Four are incorporated into Counts One, Two and 1'hree

above as though fully stated therein.

109. Gaylorhas never been found by the state after all appeals to have violated

prevailing wage law, as the term "violation" is defined in ,State ex rel. Associated 13uilders &

Coi2traclors, Slip Op., 2010-Ohio-1199.

110. Respondents awarded the contract to .Iess Howard Electric, Ine., even though

Respondents knew that Jess Howard's bid was $100,000 more than the bid submitted by Gaylor.

16

111. Gaylor has never been adjudicated or convicted of violating prevailing wage law

by the Oliio Department of Commerce or any Ohio court.

112. Respondents never conducted any uavestigation of the factual bases cmderlying

the Ohio Depat-tment of Commerce's actions toward Gaylor, to include prevailing wage

investigations, determinations, and notations in writ-ten records.

113. Respondents have not to date passed a resolution or made a written, public finding

that Gaylor was in violation ot' Ohio prevailing wage law.

114. Respondents are required to award the lowest and best bid for the Contract at

issue pursuant to R.C. § 307.90.

115. The solicitation and contract documents for the Project i»coiporate the

Respondents' 2002 policy known as the Quality Contracting Standards or Quality Contracting

Criteria, as adopted in Franklin County Resohxtion No. 421-02. They contain section 8.2.4.15,

which provision is identical to the provision at issue in Stat.e ex rel. Associated Builders &

Contractors, Slip Op., 2010-Ohio-1199.

116. Respondents' rejection of Gaylor's bid was based solely upon the County's

applicatioii of 8.2.4.15, and no further application of any of Gaylor's bid was conducted,

including application of the other Quality Contracting Criteria.

117. Prior to the decision in Associated Builclers & Contractors, Respondents

beinoaned the uncertainty ancl delays caused by this action.

118. On March 22, 2010, Respondents [iled their "Bmergency Motion for Expedited

Briefing Schedule," citing a "dire need far expedited briefing and adjudication process."

119. The motion for cxpcdited briefing stated that the Projeet is an "ongoing important

public project and ... the electrical systems work in on the construction schedule's critical path."

17

Respondents defended their actions as consistent with legal authority as it existed on March 22,

citing lower court decisions upholding their prevailing wage policy. 7'hey decried the amount of

money at stake in project delays, to include contractor delay claims, interest, and tax penalties.

120. As of the date Respondents filed the motion for expedited briefing, the Court's

alternative writ had been in effect for 10 days. 1

121. Respondents also took to the media to rail against the delays. On A4arch 24, 2010,

the Columbus Dispatch quoted respondent Paula Brooks discussing the Project: "We have 75

people who want to go to work, and this is being held up over a lawsuit."

122. On March 25, 2010, this Court issued the decision in Associated Builders &

Coritractors, overturning the precedent Respondents relied upon.

123. The decision in Associated Builders & Contractors resolves the legal questions in

this action and makes it clear that Respondents' policy cannot be applied to exclude cont7•actors

as Gaylor was exchided.

124. Under Ohio law, Gaylor has a right to have its bid on the Project fully and fairly

considered by Respondents.

125. Under Ohio law, it is illegal to award a contract to other than the lowest and best

bidder.

126. Respondents have a clear legal duty to fiilly and fairly consider Gaylor's bid.

127. Respondents' award of the Project to another contractor was illegal.

128. Following the Associated Builders & Contractors decision, the Project

constn.iction nzanager has vetted Gaylor and found that its bid meets the project specifications.

129. Gaylor's bid was the lowest and best bid.

18

130. In the weeks since the Associated Builders &. Contractors decision, Respondents

liave failcd to take any action to perform their legal duties or rencdy the situation they so

bemoaied before the decision.

131, Even though the construction manager has completely evaluated Gaylor's bid,

Respondents have not acted to either accept or reject Gaylor's bid,

132. Respondents have not acted to cancel the illegal contract entered with a higher

bidder based on the policies and practices found unlawful in Associated Builders & Contractors.

133. Respondents' merit brief filed April 16, 2010, adinits that "I'he bid seleetion

criterion at issue in Associated Builders is the same bid selection criterion upon which Gaylor's

bid was rejected."

134. Respondents' merit brief does not deny that Gaylor's bid meets all Project

specifications.

135. Respondents' merit brief argues that °Gaylor did not plead . . . that it was entitled

to award of the contract."

136. By action of Ohio law, Gaylor is entitled to award of the contract.

137. Respondents' merit brief argues that the Franklin County Board of

Commissioners has the "responsibility to determine which contractor is the lowest and best

bidder."

138. Respondents have a clear legal duty to detei-mine which bidder is lowest and best.

139. Respondents have thus far refnsed to fullill their responsibility in light of

Associated Bzsilders & Contractors.

140. It would be a bad faith abuse of discretion to reject all bids whel one of the bids is

responsive to the contract and priced lower than a bid previously accepted for the saine prqjeet.

19

141. It would be a bad faith abuse of discretion to reject all bids in retaliation for this

legal challenge.

142. It would be a bad faith abuse of discretion to reject all bids for a contraci that

Respondents recently described as "on the critical path" of' an "ongoing important public

project."

143. Respondents have completed their entire customary investigation into whether

Gaylor is the lowest and best bidder.

144. No furtlier actions are necessary before Respondents can decide whether Gaylor is

the lowest and best bidder.

145. It is a continuing and bad faith abuse of discretion to delay a decision on whother

Gaylor's bid was lowest and best.

146. It is a continuing aizd bad faith abuse of discretion to delay awarding the Project

to Gaylor.

147. Respondents' refusal to comply with Associated Bu6lders constitutes vad faith.

148. Respondents' decision to continue litigating this matter despite the Associated

Builders decision and without taking any action on Gaylor's bid is strictly for the purposes of

delay and 'harassment of Gaylor in violation of Rule 14, Section 5 of the Supreme Court Rules of

Practice.

149. Respondents' decision to continue litigating this matter despite the Associated

Builders decision and without taking any action on Gaylor's bid constitutes bad faitli.

150. Respondents' bad faith actions have unjustly caused Gaylor to incur attorneys'

fees and other costs.

20

151, All previous paragraphs of this Complault are iticorporated herein by reference as

if fully restated.

152. ' Respondents have a clear legal duty to remedy their abuse of discretion in

awarding the contract based on their unlawful prevailing wage policy.

153. Respondents have a clear legal duty to evaluate whether the lowest bidder,

Gaylor, is also the best bidder without furtlier delay.

154. Respondents have a clear legal duty to award the Project to the lowest and best

bidder.

155. Respondents have a clear legal duty to award the Project to Gaylor.

156. Gaylor has a right to the award of the Project without further delay.

157. . Gaylor has a right to a complete and adequate remedy for the unlawful and bad

faith actions of Respondents.

158, Gaylor has no adequate remedy at law.

PRAYER FOR RELIEF

WT-IEREFORE, Relators request and are entitled to a Writ of Prohibition ordering

Respondents (1) to cease and desist issuing findings and determinations that Gaylor and other

contractors have violated prevailing wage law, a power reserved solely for Commeree and Ohio

courts; (2) to cease and desist conducting a review and investigation of records on file witlz

Commerce for the purpose of issuing a finding or determination as to whether any contractor,

inctuding (iaylor, has violated prevailing wage law when no such finding or determinatiou has

ever been issued by Commerce; (3) to cease and desist enforcement of their finding by rejecting

Gaylor's low bid, debarring Gaylor from contracting with the Cotmty and awarding the electrical

portion of the Contract to any eontractor other than Gaylor; and (4) to cease and desist holding

21

hearings for the purpose of gatl-iering additional evidence, hearing argument, investigating, and

thereafter making a finding or determination as to whether any contractor, including Gaylor, has

violated prevailing wage law; when no such finding or determination has ever been issued by

Commerce.

WHEREFORE, Relators request and are entitled to an Alternative Writ staying

enforcemcnt of the County's finding and determination that (;aylor unintentionally violated

prevailing wage law. Enforcement of this finding has resulted in the Coimty's rejection of

Gaylor's low bid and its continued enforcement will result in the County awarding the electrical

contract to an alternate contractor that is neither the lowest nor the best and debarring Gaylor

f'rom contracting with the County. Gaylor seeks such a stay directing Respondents to not award

the contract until this prohibition action can be decided oti its merits or the issues raised herein

are disposed by other actions of this Court.

WHEREFORE, Relators request and are entitled to a Writ of Mandannus ordering

Respondents to: (1) fully and fairly consider whether Gaylor's low bid was the best bid without

reference to or reliance on their imlawful finding that Gaylor violated prevailing wage law; and

(2) reinstate (iaylor's bid to the extent necessary to fully and fairly consider it without referenec

to or reliance on their unlawful finding that Gaylor violated prevailing wage law.

WHEREFOI2E, Relators request and are entitled to a Writ of Mandamus ordering

respondents to award the Project to Gaylor without further delay. Gaylor further requests an

award of its attorneys' fees in an arnount exceeding $25,000 due to Respondents' bad faith, and

other and further relief to provide a cornplete legal and equitable remedy.

22

Respectfully suhmitted,

Micha^l F. opley (0033796)Kenley S addux (0082786)-Adam F. , lorey (0084826)The Col lcy Law Firm, LLC1015 Cole RoadGalloway, Ohio 43119"Telephone: (614) 754-7252Facsimile: (614) 754-7319E-mail: mcopley a,copleylawfirtnllc.comE-mail: lanaddux@copleylawfirmiIc.comE-mail: afforey@copleylawfinnlle.comCounsel For Relator

23

Rejected contractor's lawsuit stalls county work I Columbus Dispatch Politics

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ANIMAL SHELTER, COURTS

Rejected contractor's lawsuit stalls county workWednesday, March 24, 2010 3:38 AM

BY DOUG CARUSO

THE COLUMBUS DISPATCH

Franklin County is putting on hold further construction of its newanimal shelter and other projects while the Ohio Supreme Court sortsout lawsuits that question the county's contracting rules.

'The Dublin branch of Gaylor Inc., an electrical contractor based inCarmel, Irid., says county officials improperly threw out its low bid forwork on the shelter in December because of minor payroll mistakes.The case is nearly identical to a lawsuit that a low-bidding paintingcontractor filed after it was rejected for work on Huntington Park, theColumbus Clippers' new ballpark.

The court has been considering that case since June.

Last week, Chief Justice Thomas J. Moyer ordered a halt toconstruction at the $18 million shelter while the court sorts out theGaylor case. Plumbing work that had started will continue for three tofour weeks, county officials said, but the county can't proceed withelectrical work or award other contracts unless the hold is lifted.

And it can't award contracts to complete work on the newcourthouse, the sheriffs training academy or relocated sheriffsoffices, said county Prosecutor Ron O'Brien, Depending on how thecourt rules, those decisions could be called into question, too.

"AII we can do is tell commissioners that vou're at substantial risk ifyou proceed," O'Brien said.

Those contracts are ready to go out for bid, said CountyAdministrator Don L. Brown.

"Time is money."

Commissioners want to move ahead on the shelter, which issupposed to open early next year, as quickly as possible,

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Rejected contractor's lawsuit stalls county work I Columbus Dispateh Politics Page 2 of 3

Commissioner Paula Brooks said. "We have 75 people who want togo to work, and this is being held up over a lawsuit."

Ort Monday, O'Brien's office asked the court to speed up theprocess.

At issue are the county's contracting standards, which say thatcompanies with three or more violations of the state's wage laws in atwo-year period are barred from county work. In its suit, Gaylor sayscommissioners used instances in which the company agreed to payworkers for inadvertent payroll mistakes to throw out its low bid forthe shelter work.

The state found no intentional violations, said Michael Copley, anattorney for Gaylor, "and the only way you can toss these bidders outis if the state found these violations."

That's the same argument Copley made for the Painting Co. after itwas barred from work on the ballpark in 2008. The Franklin CountyCourt of Appeals decided in the county's favor, but the Painting Co.appealed. The Ohio Supreme Court heard arguments on the case inJune but has not ruled.

In the shelter case, attorneys for the county have denied that officialsimproperly barred Gaylor. The county awarded the electrical work toJess Howard Electric Co. of Blacklick, which bid just under $1.4million. Gaylor's bid was $100,000 lower, Copley said.

Yesterday morning, commissioners approved borrowing $10.2 millionto complete the shelter. It was part of a $50 million package of bondsthey authorized selling.

The other bond-financed projects are $10.2million to complete aconcourse, tunnels, elevators and other work to connect the county's

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four buildings, including a new courthouse, at Mound and High streets Downtown; $23 million tomake county buildings more energy-efficient, a move officials say will save more than $40millionover the life of the bonds; and $6.6 million for sanitary sewers in two areas-

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