Lowest Responsible Bidder
Prof. Steve Goldblatt JD
Univ. of Washington
31 May 02
Statutes
RCW 28A.335.190(4) (L 1961+): “The contract for the work or purchase shall be awarded to the lowest responsible bidder as defined in RCW 43.19.1911....”
RCW 43.19.1911(9) (L 1959+): “In determining ‘lowest responsible bidder’, in addition to price, the following elements shall be given consideration: (a) The ability, capacity, and skill of the bidder to perform the contract or provide the service required; (b) The character, integrity, reputation, judgment, experience, and efficiency of the bidder; (c) Whether the bidder can perform the contract within the time specified; (d) The quality of performance of previous contracts or services; (e) The previous and existing compliance by the bidder with laws relating to the contract or services; (f) Such other information as may be secured having a bearing on the decision to award the contract....”
Prequalification: not for K-12 unless GC/CM
DOT RCW 47.28.070 (L 1937+): “... In order to obtain a contract proposal form, a person, firm, or corporation shall have all of the following requirements: (1) Adequate financial resources or the ability to secure such resources; (2) The necessary experience, organization, and technical qualifications to perform the proposed contract; (3) The ability to comply with the required performance schedule taking into consideration all of its existing business commitments; (4) A satisfactory record of performance, integrity, judgment, and skills; and (5) Be otherwise qualified and eligible to receive an award under applicable laws and regulations....” [Ch 468-16 WAC]
GC/CM RCW 39.10.061(6) (L 2001-): “ ... [T]he owner and general contractor/construction manager may determine subcontractor bidding eligibility using the following evaluation criteria: (a) Adequate financial resources or the ability to secure such resources; (b) History of successful completion of a contract of similar type and scope; (c) Project management and project supervision personnel with experience on similar projects and the availability of such personnel for the project; (d) Current and projected workload and the impact the project will have on the subcontractor's current and projected workload; (e) Ability to accurately estimate the subcontract bid package scope of work; (f) Ability to meet subcontract bid package shop drawing and other coordination procedures; (g) Eligibility to receive an award under applicable laws and regulations; and (h) Ability to meet subcontract bid package scheduling requirements.... Subcontract bid packages shall be awarded to the responsible bidder submitting the low responsive bid....”
Statutes’ purpose: protect public interest
Edwards v. Renton, 67 Wn. 2d 598 (1965)
Mottner v. Mercer Island, 75 Wn. 2d 575, 578 (1969): “[The municipal statute similar to K-12’s] mantle of protection was not intended to benefit the unsuccessful contractor seeking a public work contract, but rather the tax paying public from arbitrary, capricious, fraudulent conduct on the part of public officials who would favor, without legitimate cause, someone other than the low bidder. The statute, therefore, affords [the disappointed bidder] no remedy in damages.”
Gostovich v. W. Richland, 75 Wn. 2d 583, 587 (1969): “[T]he requirement of public bidding is for the benefit of property holders and taxpayers, and not for the benefit of the bidders; and such requirements should be construed with the primary purpose of best advancing the public interest.... [A]nother purpose is to provide a fair forum for those interested in undertaking public projects.”
Savage v. State, 75 Wn. 2d 618 (1969)
Equitable Shipyards v. State, 93 Wn. 2d 465 (1980)
“Arbitrary or capricious”
Lillions v. Gibbs, 47 Wn. 2d 629, 633 (1955): “Arbitrary and capricious action of administrative bodies means willful and unreasoning action, without consideration and in disregard of facts or circumstances. Where there is room for two opinions, action is not arbitrary or capricious when exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached.”
State ex rel. Cosmopolis S.D. v. Bruno, 59 Wn. 2d 366 (1962)
Miller v. Tacoma, 61 Wn. 2d 374 (1963)
State ex rel. Cosmopolis S.D. v. Bruno, 61 Wn. 2d 461 (1963)
State ex rel. Dawes v. State, 63 Wn. 2d 34 (1963)
Deaconess Hosp. v. State, 66 Wn. 2d 378, 405, 406 (1965): “By what test should the court gauge administrative decisions? Here are the principal standards: Did the agency proceed in accordance with and pursuant to constitutional and statutory powers? Were the agency’s motives honest and intended to benefit the public? Were they honestly arrived at—that is, free from influence of fraud and deceit? Were they free of any purpose to oppress or injure—even though injury and damage to some may be inherent in accomplishing the particular public benefit? Did the administrative agency give notice, where notice is due, and hear evidence where hearings are indicated? Did the agency make its decision on facts and evidence? Were its actions in the last analysis rational, that is, based upon reasonable choice supported by facts and evidence? If the answer to all of these queries are in the affirmative, then the decision of an administrator, unless placed under complete judicial review by law, cannot be held arbitrary, capricious, unreasonable or oppressive by the courts. That the courts may have reached a decision, made a choice or conclusion different from that of the administrative agency, or taken wiser or more sensible action, does not empower them to do so.... If the administrative agency has acted honestly, with due deliberation, within the scope of and to carry out its statutory and constitutional functions, and been neither arbitrary, nor capricious, nor unreasonable, there is nothing left for the court to review.”
DuPont-Fort Lewis S.D. v. Bruno, 79 Wn. 2d 736 (1971)
RCW 34.05.570(3)(i) (L 1959+): “... The court shall grant relief from an agency order in an adjudicative proceeding only if it determines that: (i) The order is arbitrary or capricious.”
Aggrieved bidder’s remedy: injunction
Times v. Everett, 9 Wash. 518 (1894): “The generally accepted rule is, that the courts will not, by mandamus, compel a municipal corporation to enter into a contract with one who shows himself to have been the lowest bidder....”
Bellingham Am. Pub. v. Bellingham Pub., 145 Wash. 25, 28 (1927): “[I]f the action of the city council was an abuse of discretion and arbitrary, the appellant would have the right to maintain an action prohibiting the council from awarding the contract to its competitor, but it would not have the right to compel the award of the contract to itself.”
Peerless Food v. State, 119 Wn. 2d 584, 591, 595-97 (1992): “The policy consideration for the general rule disallowing damage actions for nonaward of public contracts is protection of the public teasury before protection of bidders. Whether the contract was wrongfully awarded to a third party when the low bidder is unsuccessful has no bearing on the function of a no-damages action rule based on such a policy. This policy seeks not to make the public suffer twice: first, for the award of an excessive contract to one not the lowest bidder; and second, for the additional payment of lost profits to an unsuccessful bidder who is not performing the contract.... [S]tatutory language which limits the discretion of the government to reject bids, while it operates to protect against arbitrary and capricious government action, does not create a new cause of action previously unrecognized in this state or contractually obligate the government to the lowest bidder upon entry of the lowest bid.... Bidders who are mistakenly or wrongfully denied contracts have every incentive under our current law to move quickly in seeking an injunction.... Bond requirements upon bidders seeking to enjoin performance of a contract by a third party are not an unfair burden upon a party with a meritorious claim.... Allowing damages to a low bidder when that bidder is denied a public contract and the contract is awarded to a higher cost bid is a remedy inherently conflicting with the primary purpose behind public bidding law: the protection of the public purse. The remedy of injunctive relief allows a bidder recourse while still within the bounds of protecting both the bidder’s and the public’s mutual interests.”
Injunction bonds
RCW 7.40.080 (L 1854+): “No injunction or restraining order shall be granted until the party asking it shall enter into a bond, in such a sum as shall be fixed by the court or judge granting the order, with surety to the satisfaction of the clerk of the superior court, to the adverse party affected thereby, conditioned to pay all damages and costs which may accrue by reason of the injunction or restraining order....”
RCW 7.40.085 (L 1974): “In determining the amount of the bond required by RCW 7.40.080 ..., with respect to an injunction or restraining order that will delay or enjoin a notice to proceed or the performance of work under a construction contract for a public contracting body among the factors regarded in the exercise of its discretion, the court shall consider: (1) All costs and liquidated damages provided for in the contract or otherwise that may result from such delay; (2) The probable costs to the public in terms of inconvenience, delayed use of the proposed facilities, and escalation of costs of delayed construction of the proposed facilities that may be incurred as a result of a delay subsequently found to be without good cause; and (3) The procedures for consideration of objections to proposed construction and the opportunity the one seeking the injunction had for objecting prior to the letting of the contract.”
RCW 60.28.080(1) (L 1973+): “... If any delay in issuance of notice to proceed or in construction following an award of any public construction contract is primarily caused by acts or omissions of persons or agencies other than the contractor and a preliminary, special or permanent restraining order of a court of competent jurisdiction is issued pursuant to litigation ..., the appropriate contracting body will issue a change order or force account directive to cover reasonable costs incurred by the contractor as a result of such delay. These costs shall include but not be limited to contractor’s costs for wages, labor costs other than wages, wage taxes, materials, equipment rentals, insurance, bonds, professional fees, and subcontracts, attributable to such delay plus a reasonable sum for overhead and profit....”
Highline CC and 2002 bill
ESSB 6528 (2002): “An act relating to the selection of responsible contractors bidding on public works” [history; 
Senate report; House report]
Design and construction law