LEGAL GUIDE
Written by attorney George William Wolff | Aug 6, 2011

Bid Protests on Public Contracts and Public Works Construction Projects under California Law

Bid Protests Law on Government Public Works Projects In the State of California Bid Protests on Government Public Works Projects in the State of California Due to the competitive nature of most Government purchasing, services and Public Works Contracts in the current economy, fierce competition between bidders is now commonplace, as are Bid Protests by other bidders to the award of the job to a lower – or higher – bidder. Protest Procedures: The means and manner for protesting a bid on a government contract are typically set out in the Instruction to Bidders for Project, Request for Proposals, or in other Contract Documents. In some instances, the procedures may be set forth in a State or local ordinance or statute, which state to whom a protest must be submitted, what a protest must include, and when the protest must be submitted Before or immediately after you have submitted a bid, be sure to check these procedures, in case you need to make a bid protest, or in case you are required to respond to a protest from another bidder. Protest Deadlines: The Time period to submit a Bid Protest after the bid opening, or to respond to a Bid Protest from another bidder are typically very, very, very short, often as little as 3-5 days after bid opening, or possibly even less! Therefore, do not wait until the government formally awards the contract to another bidder, as that could well be too late. If you are late, the government and the other bidder may argue that your protest should be rejected, as they have been prejudiced since the contract may have been signed and mobilization has begun. If it is an important project for your company, attend the Bid Opening, and if you think you might want to protest, ask the public agency for a copy of their Tabulation of the Bids and a copy of the Bid(s) of the Bidder(s) you might want to protest, pursuant to the “California Public Records Act", they are usually required by this Act to give you these documents. Check their bids for math or clerical errors, and for non-conformance with the requirements of the Instructions to Bidders or Bid Specifications or Request for Proposals. Even if you do not have all the documents needed to evaluate the merits of your protest yet the time limits on protests may force you to file a protest now, and investigate the details later. You may also need to contact an attorney familiar with Government contracts to help you write your Protest and add appropriate legal arguments. Do Not Delay. If you are the apparent lowest responsible bidder and someone is Protesting your bid, it is also advisable to immediately get competent legal advice. Grounds for Bid Protests: There typically are two general grounds for protesting a bid:

(1) The bidder is not a “responsible" contractor, (2) The bid is not “responsive" to the Invitation for Bids or Instructions to Bidders, or the job specifications.

(1) A bidder’s “responsibility" may depend on whether it is properly licensed to do the work, has the experience required to do the work, or has subcontractors with the needed experience, or meets any special qualifications specified in the contract Documents as condition to the award of the contract. When a challenge is made to a bidder’s responsibility, the public agency may be required by law to hold a public hearing on that part of the Bid Protest. (2) A bid is “non-responsive", for example, when the bid form is not completely filled out and signed, as required by the Instructions to Bidders, or where there are other errors or omissions on the Bid Forms. A bid may also be non-responsive if for example, it does not have pricing for all alternates, does not list subcontractors performing more than 0.5% of the job, or if it does not meet the stated goals for LBE, SBE, DBE or other goals of the public entity and /or does not show good faith efforts to meet such goals, etc. On projects that are in part Federally Funded, the failure to meet such goals or demonstrate good faith efforts to meet them is often the basis for Bid Protests. In evaluating based on “responsiveness" of Bids or Bid Protests, a public agency has some degree of discretion or leeway to ignore “minor irregularities" in the bid, provided that those irregularities in the bid cannot have affected the price or given that bidder on unfair advantage over other bidders. However, if the “irregularly" is a material typographical or numerical error by the bidder in filling out the Bid Forms, then the Public Agency has no leeway to ignore that error, as that kind of mistake gives the bidder an unfair advantage as such errors likely would by legally good grounds for withdrawing its bid without forfeiting its Bid Bond per Public Contract Code § 5103. This gives that bidder unfair advantage over other bidders, because it could wait until after the bid opening, see what the others had bid, and them elect to withdraw its bid within 5 days if it wanted to. Sometimes the public agency makes a mistake or shows bias in evacuating the bids, and that also may be grounds for a bid protest. Examples of Bid Protests and Summaries of Rulings from Court Cases: For simple errors such as misspellings, errors in the exact address or name or trade of a subcontractor, or any other similar minor errors or omissions in the bid, the law is clear that such technical errors may be ignored by the public agency in determining the responsiveness of the bids it receives. “[A] bid which substantially conforms to a call for bids may, though it is not strictly responsive, be accepted if the variance cannot have affected the amount of the bid or given a bidder an advantage or benefit not allowed other bidders or, in other words, if the variance is inconsequential. [Citations.]" (47 Ops.Cal.Atty.Gen.129, 130 (1966), italics added, quoted with approval in Ghilotti, supra, 45 Cal. App.4th at pp. 904-905, Valley Crest, supra, at pp.1440-144, Konica, supra, 206 Cal.App.3d 449, 454, and National Identification Systems, Inc. V. State Bd. Of Control (1992) 11 Cal.App.4th 1446, 1453 [15 Cal.Rptr.2d 257].) “The rule of strict compliance with bidding requirements does not preclude the contracting entity from waiving inconsequential deviations." (Ghilotti, supra, at p. 908, italics added.)" MCM Const., Inc. v. City & County of San Francisco (1998) 66 Cal.App.4th 359, 373-374. These kinds of errors can ignored by a public agency, provided they give the bidder no advantage in price or otherwise over other bidders. The Public Agency may even allow such immaterial errors or omissions to be corrected, explained or ignored, even after the Bid Opening! In making such a determination and in deciding whether to accept a bid despite supposed immaterial non-responsiveness or a mere technical omission and the like, it is important to remember that the public bidding laws and requirements were adopted by the Legislature for the benefit of the public and the public agencies, and not for the financial benefit or gain of any of the bidders.

For further information on the subject of this article or for legal questions on Bid protests and other Government or Public Contracts Issues. please call George Wolff at (415)788-1881, x 222, or Contact Us via email, or see www.wolfflaw.com.

Additional resources provided by the author

State Contracting Manual for State of California Government Contracts; California Public Contract Code; City and County Ordinances; Instructions to Bidders.

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