Photo-Art Commercial Studios, Inc. v. Hunter

600 P.2d 471, 42 Or. App. 207, 1979 Ore. App. LEXIS 3249
CourtCourt of Appeals of Oregon
DecidedSeptember 17, 1979
DocketNo. A7804-06692, CA 11709
StatusPublished
Cited by5 cases

This text of 600 P.2d 471 (Photo-Art Commercial Studios, Inc. v. Hunter) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Photo-Art Commercial Studios, Inc. v. Hunter, 600 P.2d 471, 42 Or. App. 207, 1979 Ore. App. LEXIS 3249 (Or. Ct. App. 1979).

Opinion

JOSEPH, J.

Plaintiff, a corporation, initiated this proceeding as a taxpayer1 for a declaration that a contract between defendants Oregon Department of Transportation (the state) and Odyssey Productions (Odyssey) for the production of three films was illegal and void because it was not let in compliance with the competitive bidding procedures for public contracts (ORS 279.011 etseq.) In the alternative, plaintiff sought a declaration that the contract was void because the state abused its discretion in failing to investigate alleged misrepresentations by Odyssey which came to the state’s attention after the contract was made. Plaintiff also sought an injunction against continuing performance of the contract by Odyssey and any payment to Odyssey by the state.

The trial court declared the contract void on the ground that it was in violation of the requirements of ORS chapter 279 and enjoined production of the second and third films. The court did not enjoin completion of the first film or payment for it. Defendants appeal, arguing that the contract was not subject to the requirements of the competitive bidding law, and plaintiff cross-appeals.

In January, 1977, the state decided to have a professional film production company make films of the construction of the Interstate 205 Columbia River Bridge. The state was to get a copy of all footage shot, and three "final” films were to be produced. The first and second were to be 20 minute films of the substructure and superstructure work, respectively, for technical audiences. The third was to be a 45 minute film about the entire project for general audiences. The state did not advertise for bids. The film proposal did, however, attract newspaper publicity, and five or six [210]*210film production companies contacted the state and expressed interest in the project.

The state developed a project prospectus and sent a copy to each of those companies, along with a request for bids. The state received five bids, including one from plaintiff and one from Odyssey. A selection committee composed of defendants Hunter, Schroeder, Ru-lien, Hart and Hardt (and advised by defendant Bell) listened to presentations by each of the bidders. They chose Odyssey for the project, despite the fact its bid was not the lowest one. Hunter later explained the selection of Odyssey:

"After hearing the presentations, the committee considered factors such as the professional competence of the personnel, depth and quality of staff, experience with similar projects, quality of presentation films, understanding of the project, stability of the firm, et cetera, and unanimously selected Odyssey Productions, Inc.”

We need not detail either the differences between plaintiff’s and Odyssey’s proposals or the permissible scope of discretion under the public contracting law to choose a bid which is not the lowest. Defendants concede that if the competitive bidding requirements of ORS 279.011 et seq were applicable, the contract was awarded in violation of them. Defendants argue, however, that those requirements were not applicable and that the contract was let in compliance with the requirements applicable to personal service contracts.

ORS 279.015 provides that all "public contracts” (with some exceptions which the state does not contend are applicable here) "shall be based on competitive bids.” ORS 279.025 sets forth the requirements for advertising for bids. ORS 279.029(1) requires that public contracts be awarded to the "lowest responsible bidder,” i.e.,

"*** [T]he lowest bidder who has substantially complied with all prescribed public bidding proce[211]*211dures and who has not been disqualified by the public contracting agency under ORS 279.037.”2

ORS 279.011(1) defines a "public contract” as

"*** any pUrchase, lease or sale by a public agency of personal property, public improvements or services other than agreements which are exclusively for personal service.” (Emphasis supplied.)

Defendant makes several arguments to the point that the contract in question is not within the definition of "public contract.” Some of them overlook the basic principles that in interpreting a statute we begin with the language used and are bound to give words of common usage their natural, ordinary meaning unless that leads to absurd or unreasonable results. Johnson v. Star Machinery Co., 270 Or 694, 530 P2d 53 (1974); Winter v. Miller, 235 Or 25, 383 P2d 1005 (1963). Decisions from other states having different statutory language are not helpful, nor are Oregon decisions based on different statutory language, except insofar as they suggest the unreasonableness of a literal interpretation.

Defendants concede that the contract involved the purchase of personal property (the films) as well as services, but they contend this was nonetheless a contract exclusively for personal services. They argue that the term "agreements which are exclusively for [212]*212personal services” should not be given its natural, ordinary meaning because

"[i]f read literally, this could result in the interpretation that personal services contract selection procedure would only apply to a personal service contract in which no supplies are paid for or no physical product results from the services. Such an interpretation would render the provisions relating to personal services contracts [ORS 279.051]3 virtually meaningless. Respondent submits that the reason the term 'exclusively’ was used in the statute was to insure that the authority given to public agencies to let personal services contracts was not used to circumvent the competitive bidding law: for example, to prevent an agency from treating the contract as a personal services contract when the personal services were only an incidental part of the contract.”

Defendants would thus have us read the word "exclusively” as "substantially” or "primarily.” We see no reason why the legislature would not have used one of those terms if that is what it meant. However, we need not decide whether the term "exclusively” can be given its full literal meaning in all cases, or whether in some cases to avoid unreasonable results we should overlook the furnishing of minimal supplies incidental to personal services or the preparation of a report or summary of services performed (even though those things may be personal property.)4 We need only [213]

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Cite This Page — Counsel Stack

Bluebook (online)
600 P.2d 471, 42 Or. App. 207, 1979 Ore. App. LEXIS 3249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/photo-art-commercial-studios-inc-v-hunter-orctapp-1979.