City of Atlanta v. J. A. Jones Construction Co. , 260 Ga. 658 ( 1990 )

Fletcher, Justice,

dissenting.

“Statutes requiring the letting of contracts to the lowest bidder are designed for the benefit and protection of the public, and not that of the bidders.” Peeples v. Byrd, 98 Ga. 688, 692 (3) (25 SE 677) (1896). Consequently, in resolving the issues presented in a case such as this, the lodestar is the interest of the public and not that of an aggrieved, unsuccessful bidder.

The letting of public works contracts through a competitive bidding process has essentially two objectives: First, it is intended to ensure that public works projects will be constructed by a qualified or responsible bidder at the lowest possible price, see Ga. Branch &c. Contractors v. City of Atlanta, 253 Ga. 397, 399 (2) (321 SE2d 325) (1984); and, second, it is intended to ensure that government agencies and contractors do not engage in fraud, collusion, or corruption in the letting of public contracts. See Garrison v. Perkins, 137 Ga. 744, 756-757 (74 SE 541) (1912).

Consequently, Georgia cases have held that after a government agency has solicited competitive bids for a public works project, it cannot make material changes in the plans and specifications without renewed notice to prospective bidders. Glynn County v. Teal, 256 Ga. 174 (345 SE2d 347) (1986); Manly Building Co. v. Newton, 114 Ga. 245 (3) (40 SE 274) (1901). Georgia cases have also held that the government agency is vested with discretion in determining whether the lowest bidder is qualified or responsible. Peeples v. Byrd, 98 Ga. at 693 (3), supra. It has also been held that the government agency is not authorized to reject the lowest bid without making this determination. Hilton Constr. Co. v. Rockdale County Bd. &c., 245 Ga. 533, 537 (1) (266 SE2d 157) (1980). These holdings serve to ensure that when public works contracts are let, the public interest, in both the competitive bidding process and the awarding of an individual contract, will be served.

Just as is found in most local government invitations to bid, here the city reserved the right to (1) waive informalities in bids, (2) accept any bid submitted, and (3) reject any or all bids. Although Georgia courts have not addressed questions in regard to whether a government agency is authorized to waive an irregularity in the bidding process, courts in other states have addressed such questions.

Consistent with the public interest being the overriding concern in cases such as this, courts in other states have held that where the lowest qualified bidder has failed to submit its bid in strict complianee with the time limits within which such bids are required to be submitted, the government agency, acting honestly and in good faith, may, in exercise of its discretion, waive this irregularity, at least where the untimely bidder has not been given a substantial advantage or benefit not enjoyed by other bidders. See Gostovich v. City of West Richland, 452 P2d 737, 740 (3) (Wash. 1969); Townsend v. McCall, 80 S2d 262 (10) (Ala. 1955); Hewitt Contracting Co. v. Melbourne Regional Airport Auth., 528 S2d 122 (Fla. App. 1988); William Young &c. Co. v. West Orange Redevelopment Agency, 311 A2d 390 (3) (N.J. App. 1973).

Decided December 5, 1990 — Reconsideration denied December 19, 1990. Marva Jones Brooks, Bruce P. Johnson, Michael L. Smith, Joe W. Harris, for appellant. Sumner & Hewes, William E. Sumner, Nancy Becker Hewes, Stephen J. Anderson, David A. Webster, Garrett, McManus & Grubb, Bowman S. Garrett, Jr., for appellees. Bruce L. Bromberg, amicus curiae.

Where, as here, the breach of the time requirement was clearly de minimis, and there is no evidence that the lowest qualified (albeit untimely) bidder was thereby given a benefit or advantage, the law in this area thus allows the government agency to exercise its discretion and award the contract to the lowest bidder. This holding serves the public interest. A contrary holding does not.

While I do not agree with the majority’s holding that the appellee’s bid was unfairly rejected, I am of the opinion that the measure of damages in an action against a governmental body in any case involving the issue of improper rejection of a bid should be limited to the reasonable costs of bid preparation. To hold otherwise would punish the public, not the offender. If public officials are guilty of fraud, collusion, or corruption in the bidding process, let them be prosecuted and punished through our criminal justice system.

I respectfully dissent.