Fear Not Law Articles: D.H. WILLIAMS CONSTRUCTION, INC. v. CLOVIS UNIFIED SCHOOL DISTRICT

D.H. WILLIAMS CONSTRUCTION, INC. v. CLOVIS UNIFIED SCHOOL DISTRICT

Filed 1/10/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

D.H. WILLIAMS CONSTRUCTION, INC.,

Plaintiff and Respondent,

CLOVIS UNIFIED SCHOOL DISTRICT,

Defendant and Appellant;

EMMETT'S EXCAVATION, INC.,

Real Party in Interest and Appellant.

F049526 & F049632

(Super. Ct. No. 05CECG 01045MBS)

OPINION

APPEAL from a judgment granting writ of mandate. M. Bruce Smith, Judge.

Lozano Smith, Jerome M. Behrens, Christine A. Goodrich and Stephen A. Mendyk for Defendant and Appellant.

Coleman & Horowitt, Darryl J. Horowitt and Karel G. Rocha for Real Party in Interest and Appellant.

No appearance for Plaintiff and Respondent.

This is an appeal from a judgment granting a petition for writ of mandate. The issue before us is whether a bid on a public agency contract can be declared nonresponsive by the pubic agency when the bidder has listed an unlicensed subcontractor on the bid forms. We agree with the trial court that such a bid, in the circumstances of the present case, could not be declared nonresponsive. However, the appropriate remedy is for the agency to conduct a due process hearing before awarding the contract to determine whether the bid is responsible. Accordingly, we reverse the judgment, which simply directed the awarding of the contract to the bidder in question.

Facts and Procedural History

Appellant Clovis Unified School District (the District) is building a $126 million educational center. Instead of soliciting bids for a single prime contract, the District is using the services of a construction manager and is soliciting bids for multiple prime contracts for various phases of the project. The bids involved in the present case were for the concrete and fencing work at the educational center.

The District solicited bids pursuant to a project manual that contains instructions to bidders, general conditions of bidding, and a mandatory form for listing of subcontractors. Bids were due by March 3, 2005. Five bidders submitted proposals. The bid submitted by respondent D.H. Williams Construction, Inc. (Williams), was the lowest, at $4,419,000. The bid submitted by appellant Emmett's Excavation , Inc. (Emmett), was next lowest, at $4,439,724.

On its form for designation of subcontractors, Williams listed Patch Master of Central California as the subcontractor for â€

Description	Bid on a public agency contract cannot be declared nonresponsive by the public agency on the ground that the bidder has listed an unlicensed subcontractor on the bid forms; nothing in statutes requires that subcontractors be licensed as of the time of the submission of the prime bid. Where agency erroneously declared plaintiff's bid nonresponsive, trial court's order canceling contract and requiring agency to contract the remainder of the work to plaintiff based on its bid was error; correct remedy was to require agency to conduct a due process hearing to determine whether plaintiff was a responsible bidder.
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