Washington Construction Law Blog

CPARB -- the Capital Projects Advisory Review Board created in 2005 -- has released its suggested guidelines for implementing the new legislation (HB 2010) on public works bidder responsibility.  A copy is available here.

Following up on Wednesday's entry, here's another example of how technical merit in a proposal -- this one for the replacement of the collapsed highway bridge in Minnesota -- lead to the award of the contract to the more expensive bidder.

For a good example of how the low bidder can nonetheless be denied contract award due to proposal flaws in the context of a best value procurement, check out this recent case involving a dredging job on the Columbia River.

In a case of first impression, Division 1 yesterday held there is no right to a jury trial under the Washington Constitution for a claim based on the theory of promissory estoppel.  This theory is commonly invoked by general contractors under the Arango case in damage claims against subcontractors who fail to honor bids which the GC has relied on in binding itself to the owner in its prime bid.  The Court appears to have left unchanged a 1998 decision holding that claims for unjust enrichment are legal in nature and therefore do give rise to a right of trial by jury.

Once in a while, a disappointed bidder seeking to contract with a state or local government agency -- or in this case the actual contractor who received the award but then wanted to enjoin the local government from terminating the contract -- goes to federal court in search of a TRO. The normal theory is that the contractor has been deprived of its due process rights under the 14th Amendment. And the contractor ordinarily loses.

This 7th Circuit case is no exception. But given that (1) it arises out of a bitter Chicago contract dispute and (2) the facts and law are whipped up in a colorful Posner-ian souffle, it is worth a look. And you will learn something about how the 14th Amendment applies to state and local construction contract and bid processes. Who says construction law isn't sexy???

The only Washington case to have examined similar issues is Quinn Construction v. Fire Protection District, 111 Wn. App. 19 (2002).

In Washington, a disappointed bidder has a recognized right to sue to enjoin the execution of a public works contract in a situation where such execution would violate the principles of competitive procurement. By contrast, the bidder has no statutory right to collect damages such as bid & proposal (B&P) preparation expenses or lost profits.

In Alaska, a disappointed bidder does have a statutory right to seek B&P costs under AS 36.30.585. This new case from the Alaska Supreme Court makes it clear, however, that recovery of B&P costs under that statute requires strong proof of causation between the expenses incurred and the alleged violation of the procurement rules. It is not enough, for example, to establish the rules were breached by the agency. Instead, according to this decision, the claimant must also demonstrate the amount of B&P costs specifically incurred due to the specific violation. And because the claimant here failed to make that connection, the Court rejected the claim for B&P costs recovery even as it assumed the agency had in fact violated state procurement law.

Idaho's selection of the Washington Group/CH2M Hill team for program administration in connection with the state's ambitious highway redevelopment plan has triggerred a federal lawsuit by Parsons Brinckerhoff, according to ENR. PB (teamed with HDR Engineering) alleges in the suit that Idaho violated federal law by weighting the selection process with in-state preferences.