* You will be able to describe what makes a particular law a bidder preference law.
* You will be able to identify different types of bidder preference statutes.
* You will be able to recognize when a bidder preference law has exceeded the constitutional and statutory authority.
* You will be able to review the legal issues relating to bidder preference statutes.
Gain an understanding of bidder preference laws necessary to navigate the evolving world of public works bidding.
The public policy of awarding a public works contract to the lowest, responsible, and responsive bidder is to provide a level playing field for all qualified contractors, to promote competition, to conserve public funds, and to avoid corruption. Other standards of award have similar public policies. Despite these public policies, meeting the standard of award may not be enough to win the award of a public works contract due to the widespread enactment of bidder preference laws.
Bidder preference laws give certain classes of bidders a competitive advantage over other classes of bidders for reasons not tied to performance of the contract being bid. The federal government, almost every state government, and many local governments have enacted a large number of bidder preference laws to promote nonperformancebased causes that often appeal to voters.
Bidder preference laws are by nature discriminatory. They favor one or more classes of bidders over other classes of bidders for nonperformancebased reasons. In addition, some local governments have exceeded their statutory authority in enacting bidder preference laws. As a result, bidder preference laws are subject to constitutional and statutory limitations that may result in legal challenges. Understanding the conflicting public policies behind standards of award and bidder preference laws and the limitations imposed by law could affect the awards of billions of dollars of public works projects annually and the rights of those who bid such projects.
This material will provide you with knowledge of the conflicting policies behind standards of award and bidder preference laws, the different types of bidder preference laws, and the legality of bidder preference laws. This information is critical to anyone whose rights may be affected by bidder preference laws.
ï What Is a Preference Law?
ï Public Policies of Preference Laws
ï Preferences in Private Contracting
ï Preferences in Public Contracting
Standards of Award
ï In General
ï Most Qualified Bidder With Reasonable Price
ï Lowest, Responsible, Responsive Bidder
ï Most Advantageous to Public
ï Public Policies of Standards of Award
Types of Preferences
ï Bidder Status
Types of Preference Laws
ï First of Refusal
Limitations on Bidder Preference Laws
ï Constitutional Limitations
ï Statutory Limitations
ï Policy Limitations
ï Questions and Answers
Scott D. Cahalan with Smith, Gambrell & Russell, LLP