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1999 Construction & Equipment Forecast

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1999 Construction & Equipment Forecast
March 8, 1999

Some tips on how to handle bid disputes

By ROBERT S. MARCONI
Stanislaw Ashbaugh

Dog eat dog is a phrase that is often used to describe the construction industry. Shrinking profit margins and increased competition are a fact of life for most contractors. Against that backdrop, it is no wonder that bid protests and disputes have been and continue to be an all too familiar piece of the public bidding puzzle.

On most public jobs in Washington, the law requires that projects be awarded to the lowest responsive and responsible bidder. In other words, if a company submits the lowest price, meets the bidding requirements contained in the solicitation, and is an experienced and reliable contractor, it should get the job.

The problem is, the rules and regulations have become so complicated that mistakes and oversights frequently occur when bids are submitted. Some of the more common over the past few years relate to minority and women's business enterprise requirements, the 10 percent subcontractor listing requirement, and the failure to submit or sign all necessary bid forms.

As a result, second, third, or even fourth place bidders are now routinely scrutinizing the bids below them in an effort to find mistakes or other reasons why those bids should be thrown out by the public owner.

Whether you are the low bidder trying to protect your position, or intend to challenge someone else's bid, you should keep several strategies in mind. Each of these strategies is designed to put you in the best position to influence a public owners decision before it is made. This is critical, because once government officials make up their minds, the chances of convincing them otherwise is, at best, an uphill battle.

First, act fast. This is by far the most critical element of any successful bid challenge or defense. The time to act begins after the bid results are read at the bid opening. Public owners start to make decisions concerning the award of the contract immediately following bid opening. You must quickly become a part of that decision-making process.

Second, get a complete copy of the low bidders proposal. The only way to determine if a bid is nonresponsive is to review the entire bid. This includes all attachments required by the public owner to be included in the bid package. A bid is a public document, and you are absolutely entitled to get a complete copy. The easiest and most efficient way to get a copy of the bid is to ask the contracting officer. If that doesn't work, you can make a formal Public Disclosure Act request for the bid.

Third, identify the true decision-makers. There is little value in attempting to influence a person who is outside of the decision-making loop. Find out if the decision to award will be made by one person or a group of people. Often final decisions to award contracts are made by a political group, for example a city or county council. In many instances, no final decision is made until public owners consult with their attorneys. If that is the case, it is generally a good strategy to have your attorney speak directly with the public entity's lawyer. In any event, immediate efforts should be made to influence all potential decision-makers.

Bid disputes and protests are a regular part of a public bidders life. If you have an interest in the outcome of an award, it is critical not to sit back on your heels.

Acting quickly and effectively can be the difference between signing a contract or unhappily thinking about the job that got away. The old adage the early bird catches the worm is especially true in the public contracting arena.


Robert S. Marconi is a partner at Stanislaw, Ashbaugh LLP. Marconi concentrates his practice in construction law, with an emphasis on public procure.

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