From Antitrust Law Daily, May 2, 2014

Complaining contractors fail to demonstrate antitrust injury from violation of Indiana public bidding laws

By Jeffrey May, J.D.

Although a scheme involving an Indiana school corporation and a private, non-profit public school endowment foundation to avoid the public bidding process for a renovation project violated state public bidding laws, it did not expose the participants to liability to complaining contractors under the Indiana Antitrust Act, the state's supreme court has ruled. The complaining contractors failed to present evidence of antitrust injury. Thus, the trial court’s grant of summary judgment in favor of the defendants on the antitrust claim was affirmed (Alva Electric, Inc. v. Evansville Vanderburgh School Corp., May 1, 2014, Rucker, R.).

Evansville-Vanderburgh School Corporation proposed a plan, purportedly due to budget constraints, to convey a building in need of renovation to EVSC Foundation so that the foundation could hire a contractor, Industrial Contractors, Inc. (ICI) to do the renovations. ICI apparently agreed to accept payment for the renovations over time. By using the foundation, the school corporation could avoid the public bidding process. Under the plan, the foundation would later sell the building back to the school corporation.

While the renovation was underway, several area contracting businesses filed an action against the school corporation and the foundation for the defendants’ alleged violations of public bidding statutes and Indiana’s Antitrust Act.

The state supreme court summarily affirmed the appellate court's determination that the scheme used by the school corporation and the foundation violated the public building laws. The court went on to hold that such a violation did not entitle the complaining contractor's to relief under the antitrust laws.

The complaining contractors contended that they were injured: (1) as taxpayers by the supposed higher price for the building renovation than it would have been if the project had been publicly bid; and (2) as competitors to ICI by the loss of a contract that would have ultimately been awarded to one of them. The plaintiffs designated no evidence to support a conclusion that these injuries in fact occurred, the court ruled. They did not demonstrate actual injury.

The case is No. 82S01-1307-PL-473.

Attorneys: Jon Bosworth Laramore (Faegre Baker Daniels LLP) for Alva Electric, Inc. Patrick A. Shoulders (Ziemer, Stayman, Weitzel & Shoulders, LLP) for Evansville Vanderburgh School Corporation. Richard T. Mullineaux (Kightlinger & Gray, LLP) for EVSC Foundation, Inc.

Companies: Alva Electric, Inc.; Evansville Vanderburgh School Corp.; EVSC Foundation, Inc.

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