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
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
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.
* * *
Author: J. NORMAN STARK is an Attorney-at-Law,
a Registered Architect, (AIA, NCARB) Registered Landscape Architect, Interior
Designer, Planner and Senior Appraiser (ASA), admitted to practice law before
the Bar of Ohio, the US District Courts, Ohio and Illinois (Central Dist.),
the US Court of Appeals, and the United States Supreme Court. He has had
experience in business, Construction, Real Property, Litigation and Construction-Legal
Project and Crisis Management.