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The Lake County Public Library entered into a contract providing that CSK would serve as the architect in the construction and/or renovation of branch library facilities. The Library then solicited bids for a construction project. Two entities submitted bids, Gariup and http://www.indianalawupdate.com/owner/entry/post#Behling. The bid was awarded to Behling.

The majority owner of CSK was a close personal friend of Behling. After losing the bid, Gariup filed an action under the Indiana Antitust Act, alleging that CSK and Behling conspired to restrict the bidding, which caused Gariup to lose the bid. The defendants moved for summary judgment and the trial court granted those motions.

On appeal, the defendants, relying on Shook Heavy & Environmental Construction Group v. City of Kokomo, 632 N.E.2d 355 (Ind. 1994), argued that they could not be liable for restricting the bids if the Library was not a party to the collusion. The Court disagreed, noting that Shook's analysis "focused on what the unsuccessful bidder had to allege in order to make out a claim under the Indiana Antitrust Act – collusion or fraud – and not on who had to engage in the collusion or fraud." Therefore, "a Section 24-1-2-3 claim need not allege collusion with a governmental entity."

While the defendants lost on this argument, they still succeeded in the end, because Gariup failed to demonstrate a genuine issue of material fact regarding whether any collusion took place.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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