Reasonable Dogs and Public Bids

Open bidding for construction projects should be easy.  A company submits the lowest bid, it is automatically awarded the construction agreement for the public project, right?  But municipal and federal contracts are routinely the subject of bid protests by aggrieved bidders.

In most jurisdictions, the lowest responsible bidder is the party awarded the contract.  Responsible bidder is one of those great legal catch all (mush?) words such as reasonable, or fair.  These sorts of words drive non-lawyers crazy because everyone understands their own sense of what is reasonable, but never seem to understand why someone else seems to have a different standard.  But that is what

judges are for, and attorneys to advocate their own clients’ version of reasonable.  It also leads to cases about what a reasonable dog would do.

In Illinois at least, in order for an aggrieved bidder to successfully protest a bid, it needs to show first that it was a responsible bidder.  Responsible bidder usually means it met all of the qualifications of the bid, bid the project exactly as requested and can successfully complete the project, as determined by the public body.  The awarding entity can consider both the bidder's financial responsibility and its ability to perform satisfactorily under the contract.  In some circumstances, a public body can consider public interest and social responsibility when determining what a responsible bidder means.  The next hurdle to overcome is a showing that the aggrieved bidder was unjustifiably prevented by the awarding entity from being awarded the contract.

While a public entity does not have free reign to define its own reasonable dog standard, courts often defer to the discretion of public officials.  Exceptions exist where one can show fraud, corruption, unfair dealing or favoritism, gross injustice, illegality, palpable abuse of discretion, or arbitrary, capricious action.  If you suspect one of these scenarios in your public bid, contact an attorney to discuss how best to prove it.  If you can’t prove it, your protest will be all bark and no bite.

Would you like to have your construction contract reviewed for free? Send us your contract here.