Chapter 5 - Relief of Bidders

California Public Contract Code — §§ 5100-5110

Sections (9)

Added by Stats. 1982, Ch. 435, Sec. 2.

(a)“Public entity” means the state, Regents of the University of California, a county, city and county, city, district, public authority, public agency, and any other political subdivision or public corporation in the state.

(b)“Bid” means any proposal submitted to a public entity in competitive bidding for the construction, alteration, repair, or improvement of any structure, building, road or other improvement of any kind.

§ 5101

Amended by Stats. 1994, Ch. 726, Sec. 21. Effective September 22, 1994.

(a)A bidder shall not be relieved of the bid unless by consent of the awarding authority nor shall any change be made in the bid because of mistake, but the bidder may bring an action against the public entity in a court of competent jurisdiction in the county in which the bids were opened for the recovery of the amount forfeited, without interest or costs. If the plaintiff fails to recover judgment, the plaintiff shall pay all costs incurred by the public entity in the suit, including a reasonable attorney’s fee to be fixed by the

court.

(b)If an awarding authority for the state consents to relieve a bidder of a bid because of mistake, the authority shall prepare a report in writing to document the facts establishing the existence of each element required by Section 5103. The report shall be available for inspection as a public record. In the case of the University of California or a California State University, the report shall be filed with the regents and the trustees, respectively, and shall be available as a public record.

§ 5102

Added by Stats. 1982, Ch. 435, Sec. 2.

The complaint shall be filed, and summons served on the director of the department or the chief of the division or other head of the public entity under which the work is to be performed or an appearance made, within 90 days after the opening of the bid; otherwise, the action shall be dismissed.

§ 5103

Amended by Stats. 2005, Ch. 270, Sec. 2. Effective January 1, 2006.

The bidder shall establish to the satisfaction of the court that:

(a)A mistake was made.

(b)He or she gave the public entity written notice within five working days, excluding Saturdays, Sundays, and state holidays, after the opening of the bids of the mistake, specifying in the notice in detail how the mistake occurred.

(c)The mistake made the bid materially different

than he or she intended it to be.

(d)The mistake was made in filling out the bid and not due to error in judgment or to carelessness in inspecting the site of the work, or in reading the plans or specifications.

§ 5104

Added by Stats. 1982, Ch. 435, Sec. 2.

Other than the notice to the public entity, no claim is required to be filed before bringing the action.

§ 5105

Added by Stats. 1982, Ch. 435, Sec. 2.

A bidder who claims a mistake or who forfeits his or her bid security shall be prohibited from participating in further bidding on the project on which the mistake was claimed or security forfeited.

§ 5106

Added by Stats. 1982, Ch. 435, Sec. 2.

If the public entity deems it is for its best interest, it may, on refusal or failure of the successful bidder to execute the contract, award it to the second lowest bidder.

If the second lowest bidder fails or refuses to execute the contract, the public entity may likewise award it to the third lowest bidder.

On the failure or refusal of the second or third lowest bidder to whom a contract is so awarded to execute it, his or her bidder’s security shall be likewise forfeited.

§ 5107

Added by Stats. 1982, Ch. 435, Sec. 2.

In all actions brought under the provisions of this chapter, all courts wherein such actions are or may hereafter be pending, shall give such actions preference over all other civil actions therein, in the matter of setting the same for hearing or trial, and in hearing the same, to the end that all such actions shall be quickly heard and determined.

§ 5110

Added by Stats. 2003, Ch. 678, Sec. 2. Effective January 1, 2004.

(a)When a project for the construction, alteration, repair, or improvement of any structure, building, or road, or other improvement of any kind is competitively bid and any intended or actual award of the contract is challenged, the contract may be entered into pending final decision of the challenge, subject to the requirements of this section. If the contract is later determined to be invalid due to a defect or defects in the competitive bidding process caused solely by the public entity, the contractor who entered into the contract with

the public entity shall be entitled to be paid the reasonable cost, specifically excluding profit, of the labor, equipment, materials, and services furnished by the contractor prior to the date of the determination that the contract is invalid if all of the following conditions are met:

(1)The contractor proceeded with construction, alteration, repair, or improvement based upon a good faith belief that the contract was valid.

(2)The public entity has reasonably determined that the work performed is satisfactory.

(3)Contractor fraud did not occur in the obtaining or performance of the contract.

(4)The contract does not otherwise violate statutory or constitutional limitations.

(b)In no

event shall payment to the contractor pursuant to this section exceed either of the following:

(1)The contractor’s costs as included in its bid plus the cost of any approved change orders.

(2)The amount of the contract less profit at the point in time the contract is determined to be invalid.

(c)Notwithstanding subdivision (a), this section shall not affect any protest and legal proceedings, whether contractual, administrative, or judicial, to challenge the award of the public works contract and enforce competitive bidding laws, nor affect any rights under Section 337.1 or 337.15 of the Code of Civil Procedure.