Opinion
G031220.
10-29-2003
C.W. POSS, INC., Plaintiff and Appellant, v. COUNTY OF ORANGE et al., Defendants and Respondents.
Hartnett & Hayes, Patrick M. Hartnett and Mary E. Lockington for Plaintiff and Appellant. Benjamin P. de Mayo, County Counsel, and Jeffrey M. Richard, Deputy County Counsel, for Defendant and Respondent County of Orange. Manatt, Phelps & Phillips, Scott R. Baugh and Donald R. Brown for Defendant and Respondent Reyes Construction, Inc.
C.W. Poss, Inc., (Poss) appeals the denial of its petition for an alternative writ of mandate and order to show cause to set aside the award of a construction contract by the County of Orange (County) to Reyes Construction, Inc. (Reyes). Poss argues Reyess bid was not responsive, and the County abused its discretion by accepting it. For the reasons set forth below, we affirm.
I
Facts and Proceedings Below
The County required bidders on public construction projects to accept the terms of its Construction Stabilization Program Agreement (the Agreement) reached with various local unions. The Agreement covered a list of existing and potential projects, including the Santiago Canyon Landfill (Santiago Project), and required the public contractors on these projects to employ only those unions listed in the Agreement.
On May 8, 2002, the County invited sealed bids on the Santiago Project. The notice required each bidder to certify it would be bound by the Countys Agreement, and warned that failure to submit the certification would automatically disqualify the bidder. The County also reserved the right to waive bid irregularities.
Poss and Reyes offered the lowest bids — Poss was the second-lowest bidder at $11,642,103.68 and Reyes was the lowest bidder at $11,437,177.51. Reyess bid did not include the Agreement certification. Posss bid erroneously was written as $1 million instead of $11 million. The County waived Posss error, evaluated both bid proposals and accepted the lower Reyess bid. Three weeks later, at the Countys request, Reyes provided the certification for the Santiago Project.
Poss objected to the Countys decision, arguing Reyess bid was not responsive because it did not include the Agreement certification. At a County Board of Supervisors meeting, the Board explained it was waiving the certification omission in Reyess bid because the omission was immaterial: Reyes already had been a party to the Agreement since September 2001 because it had submitted an identical certification in July 2001 for another project it was handling for the County. The Agreement identified all County projects to which it pertained, including the Santiago Project. Thus, Reyes was bound by the Agreement when it was selected for the Santiago Project. Accordingly, the Board rejected Posss objections and awarded the contract to Reyes. Poss petitioned for a writ of mandate. After briefing and argument, the trial court rejected Posss petition, concluding the County properly waived an immaterial irregularity in Reyess bid. This appeal followed.
II
DISCUSSION
Standard of Review
In a mandamus action under Code of Civil Procedure section 1085, our inquiry is limited to reviewing the record for substantial evidence — examining "the proceedings to determine whether the [Countys] actions were arbitrary, capricious, entirely lacking in evidentiary support, or inconsistent with proper procedure. There is a presumption that the [Countys] actions were supported by substantial evidence, and [Poss] has the burden of proving otherwise. We may not reweigh the evidence and must view it in the light most favorable to the [Countys] actions, indulging all reasonable inferences in support of those actions. [Citations.]" (Ghilotti Construction Co. v. City of Richmond (1996) 45 Cal.App.4th 897, 903-904 (Ghilotti ).)
Bid Was Responsive
Poss argues Reyess bid should have been automatically disqualified because it failed to include the Agreement certification. We disagree. Substantial evidence supports the Countys decision to treat the omission as inconsequential because Reyess earlier certification on another project covered the Santiago Project.
Californias competitive bidding statutes require a county to award its contracts to the lowest responsible bidder who will perform the work in accordance with project plans, specifications, and requirements. (Pub. Contract Code, § 20128; all further statutory references are to the Public Contract Code.) A responsive bid is defined as meeting all the specifications set forth in the request for bid proposals. (Taylor Bus Service, Inc. v. San Diego Bd. of Education (1987) 195 Cal.App.3d 1331, 1341.) "`A basic rule of competitive bidding is that bids must conform to specifications, and that if a bid does not so conform, it may not be accepted. [Citations.] However, it is further well established that a bid which substantially conforms to a call for bids may, though it is not strictly responsive, be accepted if the variance cannot have affected the amount of the bid or given a bidder an advantage or benefit not allowed other bidders, or, in other words, if the variance is inconsequential. . . ." (Konica Business Machines U.S.A., Inc. v. Regents of University of California (1988) 206 Cal.App.3d 449, 454 (Konica).) Thus, the Board of Supervisors may waive inconsequential deviations from the bid specifications. (Menefee v. County of Fresno (1985) 163 Cal.App.3d 1175, 1180.)
Here, substantial evidence supported the Countys conclusion that Reyess failure to sign the certification was an inconsequential omission. According to the Countys Manager of Procurement, John Chen, the certification requirement ensured the County hired contractors who were aware of the Agreement, agreed to be bound by it, and would consider its impact on their bid proposal. The Countys intent was to disqualify those bidders who declined to be bound by the Agreement. According to Chen, Reyes satisfied the certification provision when it signed the Agreement in September 2001 for another project with the County. Indeed, Reyes presented evidence its bid on the Santiago Project was calculated based on the provisions of the Agreement.
Posss reliance on Valley Crest Landscape, Inc. v. City Council (1996) 41 Cal.App.4th 1432 (Valley Crest) is misplaced. Valley Crest held a bid irregularity could be waived only if it did not give the contractor an unfair advantage by allowing it to withdraw its bid without forfeiting its bid bond. In Valley Crest, the contractors estimated percentage of subcontractor work would have allowed it to avoid the contract on the grounds of mistake under section 5103: "North Bay had an unfair advantage because it could have withdrawn its bid. Misstating the correct percentage of [subcontractor work by 33 percent] is . . . a typographical or arithmetical error. It makes the bid materially different and is a mistake in filling out the bid. . . . North Bay had a benefit not available to the other bidders; it could have backed out. Its mistake, therefore, could not be corrected by waiving an `irregularity." (Valley Crest, supra, 42 Cal.App.4th at p. 1442.) Reyes did not have the option to withdraw, however. Unlike the bid in Valley Crest, Reyess bid did not contain a numerical or mathematical error. The County legally could have rejected any attempt by Reyes to avoid the contract on the ground of mistake.
Relying on Ghilotti, Poss argues the County must evaluate the responsiveness of bid proposals without reference to extrinsic evidence, and that "contracts awarded without strict compliance with bidding requirements will be set aside." (Ghilotti, supra, 45 Cal.App.4th at p. 907; see Konica, supra, 206 Cal.App.3d at p. 456.) But Ghilotti also noted that "[i]n determining whether a bid is responsive . . . and whether a deviation . . . may be disregarded as insubstantial, the contracting entity must provide the bidder with notice and allow it to submit materials concerning the issue of responsiveness." (Ghilotti, supra, 45 Cal.App.4th at p. 904.) Thus, there was nothing improper in the County taking note that Reyes had signed the Agreement for another project.
Because it previously had submitted a certification and was a party to the Agreement under another project with the County, Reyess omission in its Santiago Project bid proposal was immaterial. Indeed, as noted earlier, the Agreement signed by Reyes in September 2001 listed the Santiago Project. "`Competitive bidding provisions must be read in the light of the reason for their enactment, or they will be applied where they were not intended to operate and thus deny municipalities authority to deal with problems in a sensible, practical way." (Domar Electric, Inc. v. City of Los Angeles (1994) 9 Cal.4th 161, 173.) With this admonition in mind, we conclude the County properly exercised its reserved right to waive inconsequential irregularities in Reyess bid. The Countys decision was not arbitrary, capricious, or lacking in evidentiary support. Accordingly, the trial court did not err in denying the writ petition.
The judgment is affirmed. Respondents are entitled to costs.
We concur: RYLAARSDAM, ACTING P. J. and OLEARY, J.