Clarification of Answer by
pafalafa-ga
on
02 Jun 2005 11:39 PDT
Hello again.
I've put in a few hours on an extra-thorough review of available cases.
I turned up a few interesting tidbits regarding use/definition of the
term 'best'. But as suspected, there was nothing on the matter of
two-vs-three as a legally-desirable distinction for using 'best',
rather than 'better'.
Here are the cases, some excerpts, and a few comments of mine [ in brackets]:
=====
MORAN v. PITTSBURGH-DES MOINES STEEL CO. et al.
Civ. No. 4761
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
86 F. Supp. 255
July 29, 1949
[The language here refers to using a "better method or best method",
which implies a recognizable distinction between the two terms in the
eyes of the law. However, there is no explicit discussion of what the
distinction might be]:
...It is my conclusion that it is improper to establish negligence,
where a custom or usage has not heretofore been established, that some
other instrumentality or approach might have been better or the best
where only isolated instances exist. The construction of the tanks for
the storage of liquid gas was a new venture since liquid gas had not
heretofore been stored or used for storage prior to the construction
of the spherical tank. A situation, therefore, existed which amounted
to pioneering and, therefore, no custom or practice could possibly
have existed in the trade or business of this nature. In negligence
cases the test is always what a person of ordinary caution would have
used under the circumstances. It is one of the common places of the
law. Texas & Pacific Railway Co. v. Behymer, 189 U.S. 468, 470, 23
S.Ct. 622, 47 L.Ed. 905.
...Furthermore, there was no obligation existing upon the defendant to
use a better method or best method, but only to use due care and
caution under the circumstances. In the trial of this proceeding where
the plaintiff offered testimony to establish or show that some of the
features of the cylindrical tank were improper, or that other features
of the cylindrical tank would not be sound from an engineering or
construction standpoint, such evidence was admitted in order to assist
the jury in determining whether or not due care and caution was
exercised. In short, there is considerable testimony in the record to
establish that the steel used in the cylindrical tank was improper,
the insulation was faulty, the design was bad, the valves were not
adequate, and numerous other references which tended to prove that the
design and construction of the cylindrical tank was improper.
=====
W. RALPH HOLLOWAY, ET AL., APPELLANT v. ATLANTIC RICHFIELD COMPANY AND
B & A PIPELINE COMPANY, APPELLEE
NO. 12-97-00075-CV
COURT OF APPEALS OF TEXAS, TWELFTH DISTRICT, TYLER
970 S.W.2d 64
April 28, 1998
[discussion of the definition of 'best price']
...We note that Arco, in its first motion for summary judgment,
admitted that it was "the Court's duty to define best price
obtainable." And Arco cited no authority supporting its position that
market price and best price obtainable are synonymous terms. We
conclude that they are not. It is possible that by the exercise of
reasonable effort on the part of a seller, more favorable terms than
fair market value could be obtained for the gas produced. See Amoco
Production Co. v. First Baptist Church of Pyote, 579 S.W.2d 280,
286-87 (Tex. Civ. App. - El Paso 1979), writ ref'd n.r.e per curiam,
611 S.W.2d [**10] 610 (Tex. 1980).
...Although we have held that Arco breached no duty by choosing not to
seek the enforcement of the B&A contract, Arco offered no evidence
that the contract price was not the best price obtainable or that it
could not have obtained that price for Holloway. And although the
price Arco obtained for Holloway's gas may have been the best price
obtainable in the area, summary judgment was not proper without
evidence of that fact, and was therefore improperly granted.
=====
MANTECH TELECOMMUNICATIONS AND INFORMATION SYSTEMS CORP., Plaintiff,
v. THE UNITED STATES, Defendant, v. LOCKHEED MARTIN SERVICES, INC.,
Intervenor.
No. 00-579C
UNITED STATES COURT OF FEDERAL CLAIMS
49 Fed. Cl. 57; 2001 U.S. Claims LEXIS 53
February 15, 2001
[regulatory definition of 'best value']:
...The Federal Acquisition Regulation (FAR) defines "best value" as
"the expected outcome of an acquisition that, in the Government's
estimation, provides the greatest overall benefit in response to the
requirement." 48 C.F.R. § 2.101 (2000).
=====
NCNB NATIONAL BANK OF NORTH CAROLINA, Plaintiff, v. BRIDGEWATER STEAM
POWER COMPANY; G2S BRIDGEWATER, INC.; TREEBROOK, INC.; PJC, INC; and
PAUL J. CAVICCHI, Defendants
No. C-C-87-302-P
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH
CAROLINA, CHARLOTTE DIVISION
740 F. Supp. 1140
June 25, 1990
[discussion of the meaning of 'best efforts'...note especially the
ference to the meaning being appropriate to the context in which it is
used, rather than a legally fixed definition]:
The parties have not cited any controlling authority for the
definition of the term "best efforts." One federal district court has
recognized, however, that the parties to a contract may choose to
include in the contract itself a definition of the term "best efforts"
or the standard against which a party's performance is to be measured.
Pinnacle Books, Inc. v. Harlequin Enter., 519 F. Supp. 118, 121
(S.D.N.Y. 1981). Federal courts also have acknowledged that the term
"best efforts" "cannot be defined in terms of a fixed formula . . .
[but] varies with the facts and the field of law involved" and is a
"term which necessarily takes its meaning from the circumstances."
Triple-A Baseball Club Assoc. v. Northeastern Baseball, Inc., 832 F.2d
214, 225 [**33] (1st Cir. 1987), cert. denied, 485 U.S. 935, 99 L.
Ed. 2d 272, 108 S. Ct. 1111 (1988); Bloor v. Falstaff Brewing Corp.,
454 F. Supp. 258, 267 (S.D.N.Y. 1978), aff'd, 601 F.2d 609 (2d Cir.
1979) (quoting Perma Research & Dev. v. Singer Co., 308 F. Supp. 743,
748 (S.D.N.Y. 1970)); see Pinnacle Books, 519 F. Supp. at 121 (noting
that performance required under best efforts clause may be implied
from circumstances of case).
...In construing the term "best efforts," courts may consider a
party's experience, expertise, financial status, opportunities, and
other abilities. See Triple-A Baseball Club Assoc. v. Northeastern
Baseball, Inc., 655 F. Supp. 513, 540 (D. Me.), aff'd in part, rev'd
in part, and [*1152] remanded, 832 F.2d 214 (1st Cir. 1987), cert.
denied, 485 U.S. 935, 99 L. Ed. 2d 272, 108 S. Ct. 1111 (1988); Bloor,
454 F. Supp. at 267. The requirement that a party use its best efforts
necessarily does not prevent the party from giving reasonable
consideration to its own interests. Bloor v. Falstaff Brewing Corp.,
601 F.2d 609, 614 (2d Cir. 1979). One federal district court has
recognized, however, that a duty to exercise best efforts ordinarily
requires a party to perform "in good faith and to the extent of its
own total capabilities." [**34] Bloor, 454 F. Supp. at 267.
...In the case before the Court, the parties failed to define the term
"best efforts" in the Engagement Letter and failed to establish the
standard against which to measure NCNB's performance. The Court,
however, believes that because Bridgewater Steam's goal in engaging
NCNB, and NCNB's goal in accepting Bridgewater Steam as a client, was
to obtain financing for the construction and development of the
Facility, the meaning of the term "best efforts" can [**35] be
determined from the circumstances.
...Having reviewed the evidence introduced at trial, the Court
believes that based on its experience, expertise, financial status,
opportunities, and other abilities, NCNB performed its services in
good faith and exercised its best efforts to arrange financing for the
Facility.
=====
THE CITY OF CHICAGO and DONALD SMITH, in his official capacity as
Commissioner of the Chicago Department on Aging, Plaintiffs, v.
MARALEE LINDLEY, in her official capacity as Director of the Illinois
Department on Aging, Defendant.
No. 92 C 4666
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS,
EASTERN DIVISION
1994 U.S. Dist.
August 2, 1994
[meaning of 'best available data'...see also the related comment from
expertlaw-ga, below]
...IDoA's state plan, approved by the AoA, defines "best available
data," in part, as data that characterizes at least 5 percent of the
state's elderly population. On its face, the 5 percent rule does not
violate the Act, [*27] n14 but, as a criteria for selecting the
"best available data," it may not minimize the significance of clearly
defined population segments enumerated in the definition of "greatest
social need." See note 10. IDoA argues that less than 5 percent of the
state's elderly population have language barriers, that most of these
are Latinos and Asians included in the Minority Factor, and that PSAs
can, therefore, adequately address their needs without a Language
Factor in the distribution formula, since the formula factors do not
determine how each PSA spends Title III funds.
=====
OVERSTREET ELECTRIC CO., INC., Plaintiffs, v. THE UNITED STATES OF
AMERICA, Defendant, and WALLACE L. BOLDT GENERAL CONTRACTOR, INC.,
Defendant-Intervenor.
No: 03-2510C
UNITED STATES COURT OF FEDERAL CLAIMS
59 Fed. Cl. 99
December 19, 2003
[meanign of 'best value']
This section defines the criteria of "best value" as the:
most advantageous offer, price and other factors considered,
consistent with the Government's stated importance of evaluation
criteria. This may result in [an] award being made to a higher-rated,
higher priced offeror when the Contracting Officer determines that the
past/present performance of the higher-priced offeror outweighs the
price difference. To arrive at a best value decision, the Contracting
Officer will integrate the evaluation of past performance and price.
=====
IN RE PHARMACEUTICAL INDUSTRY AVERAGE WHOLESALE PRICE LITIGATION; THIS
DOCUMENT RELATES TO: State of Nevada v. American Home Products Corp.,
et al., Civil Action No. 02-12086-PBS and State of Montana v. Abbott
Labs, Inc., et al., Civil Action No. 02-12084-PBS
MDL NO. 1456, CIVIL ACTION NO. 01-12257-PBS
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
321 F. Supp. 2d 187
June 10, 2004
[what is meant by the 'best price' in regard to Medicare prices paid for drugs]
...Several aspects of the Statute are relevant to this case. First,
the Statute provides an express and lengthy definition of "Best
Price." After excluding the prices given to certain drug purchasers
from the definition and including others explicitly, the Statute
states:
the term "Best Price" -
(I) shall be inclusive of cash discounts, free goods that are
contingent on any purchase requirement, volume discounts, and rebates
(other than rebates under this section);
(II) shall be determined without regard to special packaging,
labeling, or identifiers on the dosage form or product or package; and
(III) shall not take into account prices that are merely nominal in amount.
...Emphasizing that the state law claims depend entirely on
obligations that flow from contracts with the federal government, that
federal law defines "Best Price," and that HHS establishes the
rebates, [*200] Defendants argue that the administrative burden on
manufacturers and HHS would be onerous if the term "Best Price" had
fifty different meanings.
...Defendants place too much weight on these documents that do not
discuss states bringing suits, and seem to deal with accounting
matters (number of units, late payments, etc.) rather than the
definition of "Best Price." One release does discuss the permissible
bases for disagreement [**29] with calculations, stating that
manufacturers may challenge only the utilization data and not the
rebate amounts. However, in context this release deals with
manufacturers' rights, not states', and expressly disclaims being
comprehensive.
=====
[I also looked at the 'best price' definition on the HHS website]
http://www.cms.hhs.gov/medicaid/drugs/rebate.pdf
REBATE AGREEMENT
Between
The Secretary of Health and Human Services
(hereinafter referred to as "the Secretary")
and
The Manufacturer Identified in Section XI of this Agreement
(hereinafter referred to as "the Labeler")
(d) "Best Price" means, with respect to Single Source and Innovator
Multiple Source Drugs, the lowest price at which the manufacturer
sells the Covered Outpatient Drug to any purchaser in the United
States in any pricing structure (including capitated payments), in the
same quarter for which the AMP is computed. Best price includes prices
to wholesalers, retailers, nonprofit entities, or governmental
entities within the States (excluding Depot Prices and Single Award
Contract Prices of any agency of the Federal Government). Federal
Supply Schedule prices are included in the calculation of the best
price.
The best prices shall be inclusive of cash discounts, free goods,
volume discounts, and rebates, (other than rebates under Section 1927
of the Act).
It shall be determined on a unit basis without regard to special
packaging, labeling or identifiers on the dosage form or product or
package, and shall not take into account prices that are Nominal in
amount. For Bundled Sales, the allocation of the discount is made
proportionately to the dollar value of the units of each drug sold
under the bundled arrangement. The best price for a quarter shall be
adjusted by the manufacturer if cumulative discounts, rebates or other
arrangements subsequently adjust the prices actually realized.
=====
DOMAR ELECTRIC, INC., Plaintiff and Appellant, v. CITY OF LOS ANGELES,
Defendant and Respondent; BAILEY CONTROLS COMPANY, Intervener and
Respondent.
No. B073387.
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION ONE
41 Cal. App. 4th 810; 48 Cal. Rptr. 2d 822
December 28, 1995
[explicit discussion of the meaning of 'best', but no reference to three-or-more]
...Public works contracts awarded under state law must generally be
let to the "lowest responsible bidder." (See, e.g., Pub. Contract
Code, § 20128, 20162.) Similarly, the City's charter requires that its
contracts "be let to the lowest and best regular responsible bidder."
n1
n1 The term "lowest responsible bidder" generally means the lowest
bidder whose offer best responds in quality, fitness, and capacity to
the particular requirements of the proposed work. As used in this
definition, the word "best" does not connote relative superiority.
Rather, it permits a bidder to be rejected only if its product or
workmanship has been found to be unsatisfactory. ( City of
Ingelwood-L.A. County Civic Center Auth. v. Superior Court (1972) 7
Cal. 3d 861, 867-868, fn. 5 [103 Cal. Rptr. 689, 500 P.2d 601].)
...The parties have not suggested that there is any significance to
the charter's addition of the words "and best regular" to the
statutory definition.
=====
The People of the State of New York, Plaintiff, v. Ralph Campbell and
Ronald Campbell, Defendants
Criminal Court of the City of New York, Queens County
69 Misc. 2d 808
April 7, 1972
[meaning of 'best evidence']
...To this end they invoke the functional definition of the best
evidence rule as requiring "that whenever a party seeks to prove the
contents of a writing, he must produce the original of the writing or
satisfactorily account for its absence."
...The best evidence rule applies only when a party seeks to prove the
contents of a writing. It has no application where a party seeks to
prove a fact which has an existence independently of any writing, and
this is true even though a writing exists evidencing that fact
(Richardson, Evidence [9th ed.], § 549). "The real reason for the
rule," says Wigmore (4 Wigmore, Evidence [3d ed.], § 1181), "shows why
it has come to be generally accepted that only documents, or things
bearing writing, can be within the purview of the rule. In the first
place, it is in the terms and construction of language that the
special risk of error lies. * * * In the second place, it is chiefly
in respect to language that slight inaccuracies are likely to be of
important legal consequence. A mistake, for example, in counting the
number of bushels in a bin of wheat can hardly lead to serious
consequences, but a mistake in a few letters of an ordinary deed may
represent it as giving to Jones instead of to Jonas or as giving five
hundred instead of four hundred acres."
=====
PALATINE NATIONAL BANK, as Trustee, et al., Plaintiffs-Appellants, v.
THE VILLAGE OF BARRINGTON, Defendant-Appellee
No. 2-88-0164
Appellate Court of Illinois, Second District
177 Ill. App. 3d 839
December 28, 1988
[discussion of 'highest and best use']
...Collins' definition of highest and best use was "that use
calculated to develop the greatest net return to the owner over a
given period of time, provided that such use is an appropriate use,
that it represents the best interests of the community, as well as the
owner, and that no undue depreciation accrues to the adjoining
property owners." In his opinion, the highest and best use of the
property would be for a density of approximately 10 dwelling units per
acre, developed in a residential category.
=====
Elmer Kraegel et al., Plaintiffs-Appellees, v. The Village of Wood
Dale, Defendant-Appellant
No. 71-314
Appellate Court of Illinois, Second District
10 Ill. App. 3d 486
March 15, 1973
[and another...]
Another expert for plaintiffs, Mr. Don Neuses, testified the highest
and best use of the subject property would be a planned unit
development for multiple family residences. His definition of highest
and best use included the greatest net return in property value as
well as net return to the community and general need in the community
for the proposed use.
=====
FIRST NATIONAL BANK OF LAKE PARK, Appellant/Cross-appellee, v. LUELLA
GAY, as Trustee of the Charles L. Gay and Luella Gay Trust,
Appellee/Cross-Appellant.
CASE NO. 95-1231
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
694 So. 2d 784
May 7, 1997
[extended discussion of 'best effort'...Note the reference to the
dictionary definition of 'best' at the very end]
...We can locate no definition of "best efforts" in Florida law. It
appears that the proposed instruction took its words from In re Heard,
6 Bankr. 876, 883 (Bankr. W.D. Ky 1980), which in turn credits its
observations of the meaning of "best efforts" to lectures on economics
and law by Professors Charles Geotz and Robert Scott of the University
of Virginia. However, the bankruptcy judge also admits that "best
efforts" has been rejected by some courts as a meaningless and
unprovable standard.
...One of the only cases dealing with the rejection of a jury charge
on "best efforts" is United Telecommunications, Inc. v. American
Television & Communications Corp., 536 F.2d 1310 (10th Cir. 1976). The
appellant/defendant requested the following proposed instruction
defining "best efforts":
...A "best efforts" obligation does not require ATC to accomplish a
given objective; i.e., register United's stock. Rather, it requires
ATC to make a diligent reasonable [**8] and good faith effort to
accomplish that objective. The obligation takes into account
unanticipated events and the exigencies of continuing business and
does not require such events or exigencies be overcome at all costs.
It requires only that ATC exercise all reasonable efforts within a
reasonable time to overcome any hurdles and accomplish the objective.
The fact that the objective is not accomplished [*788] is no
indication that the party has not utilized its "best efforts."
...Instead, the trial court gave an instruction which set forth the
parties' various contentions about the meaning of "best efforts," as
both parties had introduced evidence regarding the negotiations and
performance of the contract bearing on the intended meaning of the
term.
...The definition of "best efforts" may vary depending upon the
factual circumstances surrounding the transaction and the intent of
the parties in entering into the transaction.
...In contracts between commercial parties, however, a best efforts
clause is not an ordinary provision. When it does appear, it
represents conscious bargaining by the parties and is obviously
intended to impose a duty beyond mere good-faith, duly diligent
performance of the contract. Indeed, the very adjective "best"
obviously connotes a level of performance quite beyond the ordinary.
...n4 The AHD offers, among many others, the following appropriate
definitions of best: "surpassing all others in excellence,
achievement, or quality; . . . most . . . advantageously; to the
greatest degree or extent; . . . the supreme effort one can make . . .
." AMERICAN HERITAGE DICTIONARY, (3rd ed.) at 178.
===============
Once again, the work that I've done is no assurance that such a case
as you asked about does not exist...it's simply too hard to prove a
negative in this sort of work. However, some extensive searching has
not turned up anything to suggest that the courts have ever explicitly
considered the question of whether 'best' can only be used in the
context of comparing three or more entities.
Let me know what you think of all this.
paf
