J. NORMAN STARK, ATTORNEY-AT-LAW

JURIS DOCTOR, B. ARCHITECTURE, B.F.A

PUBLIC BID CONTESTED

UB, the unsuccessful bidder on a publicly bid state contract filed suit to recover profits it would have made, but for the wrongfully awarded contract to the successful bidder ("SB"). UB contended that SB had failed to include a spec sheet required by the pre-bid instructions, with separate prices. The Judge of the (Ohio) Court of Claims held that such failure did not render the bid nonresponsive. Lewis & Michael, Inc. v. Ohio Dept. of Adm. Serv. (1999), 103 Ohio Misc.2d 29, 31.

Although a state agency has broad discretion to award bids based upon its own rules, applicable law requires an agency to award to the lowest responsive bidder, as defined in Section 9.312 Revised Code of Ohio. This law provides that "[a] bidder on the contract shall be considered responsive if his proposal responds to bid specifications in all material respects and contains no irregularities or deviations from the specifications which would affect the amount of the bid or otherwise give him a competitive advantage."

A statute that confers upon a governmental body the authority to make a contract with the lowest responsible bidder confers upon the governmental authority discretion with respect to the contract. See: Hardrives Paving & Constr., Inc. v. Niles (1994), 99 Ohio App.3d 243, 246.

Generally, courts are reluctant to substitute their judgment for that of government officials in determining which party is the lowest responsible bidder; the presumption is that governmental officials have acted in a lawful manner. Cedar Bay Constr., Inc. v. Fremont (1990), 50 Ohio St.3rd 19, 21.

Not every variation from the instruction or specifications will destroy the competitive character of a bid. Natl. Eng. & Constr. V. Cleveland (C.P. 1957), 76 Ohio Law Abs. 303; Johnson Constr. V. Ohio Dept. of Transp. (June 30, 1998) Franklin App. No. 97APE10-1401.

Bidder (SB) on a public contract was not improperly allowed to change its bid after bids were opened, even though purchasing officer had contacted bidder by telephone after opening bids, where officer called simply to confirm that bid price, which did not include second-phase specifications required by pre-bid instructions, was bidder’s price for the entire project. SB attributed omission of second phase specifications to a clerical error and faxed specifications to public officer within minutes of the telephone call.

Public bidding is governed by statutory law, administrative law, and is also subject to the broad discretion of the public authority. The assistance of experienced legal counsel may assist the construction contractor to avoid costly, undesirable litigation and adverse results.

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