In summary, W.B.’s low bid was missing a price for one line-item and determined to be unbalanced. The COE rejected W.B.’s bid on these grounds. However, that is not the end of the inquiry. Prior to rejecting a low bid as non-responsive, the government must make more than this minimal showing. The government must also show negative consequences, including that the missing price is more than a minor deviation and the unbalanced bid poses an unacceptable risk. Here, the Army Corps failed to make this second showing of negative consequences. Therefore, its rejection of W.B.’s low bid was itself determined to be unbalanced.

For contractors, this case highlights the importance of making sure that bids are responsive to all bidding requirements, or with the right showing, a public entity may reject your bid (even if it is the lowest). For public entities, this case highlights the importance of how unbalanced bids need to be rejected. Specifically, there must be a showing the bid is unbalanced and that negative consequences result.

Brian Morrow is a partner in Newmeyer & Dillion LLP, a law firm in California. He is a licensed California Civil Engineer, and specializes in the field of construction law, including road and heavy construction. Contact him at brian.morrow@ndlf.com