Contractor Entitled To Due Process Hearing Before Its Bid Is Rejected As Nonresponsive

In D.H. Williams Construction Inc., v. Clovis Unified School District (Emmett's Excavation, Inc.), (C.D.O.S. 401 (January 10, 2007)), the California Court of Appeals held that a public agency could not reject the lowest bid as nonresponsive based upon the lowest bidding contractor listing an unlicensed subcontractor on bid forms. Plus, the court distinguished between "responsible" bidders and "responsive" bids, stating that the lowest bidding contractor was entitled to a due process hearing to determine whether it was responsible under these facts.

Clovis Unified School District, through a construction manager, solicited bids for multiple prime contracts to build a $126 million educational center. With respect to one contract, D.H. Williams Construction was the lowest bidder, and Williams listed Patch Master of Central California as a subcontractor. However, Patch Master's contractors' license had expired before Williams listed it. Moreover, Patch Master's license still had not been renewed before bid opening.

The district notified Williams that Patch Master did not have a current license, and Williams responded with a letter from Patch Master by which Patch Master refused the subcontract and released all claims. Additionally, Williams invoked Cal. Pub. Cont. Code section 4107(a)(3), stating that it would perform Patch Master's work with Williams' own forces. Nevertheless, the district notified Williams that it rejected Williams' bid as nonresponsive and awarded the contract to the second-lowest bidding contractor.

In its decision, the appellate court noted that the law requires public agencies to award construction contracts to the "lowest responsible bidder" (Cal. Pub. Cont. Code section 20111). However, agencies have discretion to determine whether a low bidder is "responsible," that is, whether the bidder has the fitness, quality and capacity to perform the proposed work satisfactorily. In addition to determining whether a bidder is...