b'Select Bids Fairly, or Bid FarewellJeffrey A. Wieland612-877-5261|Jeff.Wieland@lawmoss.com addenda. It is important to analyze every addendum issued, as"Bid Farewell" Continued from Page 6LawMoss.com/people-jeffrey-a-wieland the addenda typically amend the bid requirements. On or before Jeff practices in Construction Law and Litigation. Licensed in statethe bid due date included in the instructions, bidders submit aShould a contractor desire to protest a bid, time is of the essence.Permanent Injunction.and federal court in Minnesota and North Dakota, he representssealed bid, frequently through an online portal.The contractor or contractors counsel should, as soon as possible,After the temporary restraining order is granted, the contractor contractors, subcontractors, suppliers, and owners. put the public entity on notice that its bid process and award ofthen will move the court for a motion for a permanent injunction. Then, the public entity will read and tabulate the bids aloud. Allcontract is not legal under Minnesota competitive bidding law. AtThrough a permanent injunction, the court is able to label the Madeline E. Davis bidders are able to, and should, watch (online or in person) as bidsthis stage, the public entity may re-bid the project or award thepublic entitys actions illegal and require the public entity to begin 612-877-5338|Madeline.Davis@lawmoss.com are read. Minnesota competitive bidding law requires the publicproject to the low, responsive, responsible bidder. The contractorthe bidding process again or abandon the project. The contractor LawMoss.com/people-madeline-e-davis entity to award the project to the lowest, responsible, responsivecannot start a lawsuit challenging the award until it has exhaustedcan only recover its bid preparation costs. The contractor may bidder. The lowest responsive bidder must be determinedits administrative remedies. not recover any damages, aside from the bid preparation costs, Madeline practices in Construction Law and Litigation. Sheimmediately at bid opening. represents contractors, subcontractors, and insurers in residentialthrough a permanent injunction order. and commercial projects, in both the public and privateBid Protest Lawsuit.construction sectors. Responsive and Responsible Bidders. The public entity may decide to move forward with the bidder itViolation of the Courts Orders.Anytime a road is renovated, a public school is built, or a cityA responsive bid is one that conforms substantially to theselected, even if that bid was not responsive or the bidder is notShould the court order the public entity to stop work and the storage shed is constructed, that construction project likely beganadvertised plans and specifications issued by the public entity.responsible. If this is the case, the contractor may continue to protestpublic entity does not, the contractor may bring a motion asking through a process called competitive bidding. Despite its frequentA bid may be considered non-responsive if it fails to, for example,the bid and contract award through legal action with a summonsthe court to find the public entity in contempt.use, the requirements and intricacies of competitive bidding canacknowledge all addenda or include required companies thatand complaint and motion for temporary restraining order. be a surprise to project owners and contractors alike.qualify as a part of the Disadvantaged Business EnterpriseRecently, a public entity ignored a Minnesota courts order that it Program. A bid that is not responsive cannot be awardedTemporary Restraining Order. stop work on its public project and stop payments to the bidder What is Competitive Bidding? the project. In a motion for a temporary restraining order, the courtto which it illegally awarded the contract. The public entity did not A responsible bidder is one who is financially able andwill consider:stop work and, as a result, the trial court held the public entity The Purpose. in contempt of court, advising the public entity that it would be Minnesota competitive bidding laws were enacted by thecompetent to complete the work. The specific requirements to(a)the harm to be suffered by the contractor if the order issanctioned. The public entity appealed the trial courts permanent legislature to ensure that all contractors have an equal opportunitybe a responsible bidder include compliance with various statedenied, compared with the harm to the public entity if theinjunction order before the trial court could issue sanctions. The to bid on projects and to ensure that the taxpayers are getting theand federal requirements, including tax, workers compensation,order is granted;ruling from the Court of Appeals will be helpful as no public entity best bargain possible. Minnesota courts require rigid adherence towage, and safety requirements. Public entities also require biddershas been sanctioned for violating a permanent injunction related to the requirements of public bidding to ensure that public entitiesto submit a bid bond to verify the bidders financial qualifications(b)the contractors likelihood of success on the merits;Minnesota competitive bidding. This is an evolving area of the law.act transparently and economically. To achieve those purposes,and abilities. (c)public policy considerations; public officials must follow their own designated procedures andBid Protests and Consequences for Public(d)the nature and history of the parties relationship; andMoss & Barnetts Construction Law Teams have limited discretion in selecting bidders outside of the low,Entities. Competitive Bidding Experience.responsible bidder. If a public entity rejects a low bid, that decision(e)any administrative burdens to enforce the order.The Construction Law team at Moss & Barnett is experienced in must be based upon a substantial reason.A bidder or a taxpayer may bring a bid protest action against thePut plainly, the contractor must show that it is likely that thequickly putting together bid protest letters, complaints alleging public entity that is the owner of the project in various instances.public entity violated Minnesota competitive bidding law, thepublic entities violated Minnesota competitive bidding laws, The Bidding Process. The two most commons instances are: public entitys actions will harm the contractor and the public,motions for temporary restraining orders, and motions for Public entities must use competitive bidding for projects with(1) by the low bidder that was not awarded the project becauseand the violation of Minnesota law will frustrate the legal process.permanent injunctions. The Construction Law team has argued an estimated price of over $175,000.00. Competitive biddingthe public entity deemed the bidder to not be responsible or The purpose of a temporary restraining order is for the court todozens of motions for temporary restraining orders and motions for applies to construction, alteration, repair, and maintenance of realresponsive; ormaintain the status quo and prevent any further wrongdoingpermanent injunctions stemming for competitive bidding violations.or personal property as well as for the sale or rental of supplies,while the legal system resolves the dispute.materials, and equipment. (2) by another bidder when the selected bidders bid was not To begin the process, a public entity issues a solicitation withresponsive to the solicitation.If you believe your bid was low, responsive, and responsible and you should have been issued a public project, contact the instructions for bidders. The instructions may be amended byConstruction Law team at Moss & Barnett for immediate assistance.6 "Bid Farewell" Continued on Page 7 7#'