MERRILL, Circuit Judge:
Security Fire Door Company ("Security") has brought this private antitrust action alleging a conspiracy among the defendants-appellees to prepare specifications for a county hospital construction project in such a manner as to exclude all competition upon the dumbwaiter system to be installed as a part of the project, with the result that defendant-appellee Guilbert, Inc., was the only supplier qualified to bid. Security asserts that this conduct violates § 1 of the Sherman Act, 15 U.S.C. § 1, and California's Cartwright Act, Cal.Bus. & Prof.Code § 16720. It seeks treble damages. Upon motion of defendants-appellees, the action was dismissed for lack of subject-matter jurisdiction, Fed. R.Civ.P. 12(b)(1), and failure to state a claim upon which relief could be granted, Fed.R.Civ.P. 12(b)(6). This appeal followed.
It is alleged that the specifications were "intentionally and deliberately drawn and interpreted by said defendants in such a manner so as: to exclude from public competition on said project all manufacturers and producers of dumbwaiters, save and except defendant, GUILBERT, INC.; to discriminate against all manufacturers and producers of dumbwaiter systems, save and except defendant, GUILBERT, INC.; to create a facade of free competition among manufacturers when, in fact, there was none. * * *"
The question presented is whether this complaint alleges a conspiracy in restraint of trade in violation of § 1 of the Sherman Act and the California Cartwright Act.
The alleged conspiracy here was between the supplier of a product and the purchaser (and its representatives). It is difficult to conceive how such a "conspiracy" can effect a restraint of trade in the antitrust sense.
Once a purchaser's choice of product has been exercised competition is, of course, at an end. However, a purchaser is free to choose the product he desires without rendering himself an antitrust conspirator. The proscription against restraint of trade in this context seeks only to assure that the choice of product has been made freely under circumstances where the play of competition has been available rather than in response to anticompetitive factors such as coercion on the part of the supplier or agreements between suppliers not to compete with each other. If anticompetitive factors have foreclosed a free
Here the choice of product by the purchaser, Los Angeles County, was expressed in the specifications. There is nothing alleged in the complaint to suggest that this choice was made other than in an atmosphere of free competition among suppliers. So far as the complaint alleges, each supplier was perfectly free to tout the virtues of his particular dumbwaiter system in an effort to secure favorable specifications. It would appear that the architects simply favored the Guilbert system. In doing so they and their principals can hardly be charged with an antitrust conspiracy.
Security's complaint appears to be that under California's competitive bid statute the choice should not have been made at that time, and it should not have been based upon the characteristics and features specified as desirable; rather the choice should have awaited the outcome of the bidding procedure, and it should have been based upon factors of cost.
The competitive bid statute may well serve to limit the freedom of public purchasers to make specific choices on the basis of preference rather than cost. However, a violation of the letter or spirit of a competitive bid statute, unaccompanied by anticompetitive factors bearing upon the exercise of choice of product, does not create an antitrust problem. Even a direct contract for the Guilbert system, without any pretense of putting the job out to bid (and thus a clear violation of the competitive bid statute), would not in itself have constituted a restraint of trade under the Sherman Act if the selection of Guilbert had been made in an atmosphere free from anticompetitive restraints.
Since we hold that no antitrust violation is alleged, we need not reach the question of exemption. We assume, arguendo, that Whitten correctly holds that the exemptions do not apply in a case such as this.