Combination Bid Wins Out
Kegler Brown Construction Alert July 2, 2002
A recent case out of Warren County, Ohio involving a sewer project for the County Commissioners has raised an interesting and novel issue concerning the recent 1995 amendments to the multi-prime contracting statute here in Ohio. At that time, amendments were made so that combination bids could be received and an award could go to the lowest combination bidder if the combination bid was lower than the collective multiple prime bids in the aggregate.
A County is permitted to award the contract to the "lowest and best" bidder and Warren County in this case determined that the "lowest and best" bidder would be the combination bid which was only about $7,000 or .24 percent higher than the multiple prime bids in the aggregate. The County found such a price difference advantageous (in its opinion) because it could potentially avoid "finger pointing" between multiple prime contractors and additional paperwork.
One of the multiple prime contractors sued the County and sought a restraining order against the award to the combination bidder with the higher price arguing that the combination can only be considered if it were lower than the multiple prime bids in the aggregate. The Magistrate hearing the matter struggled with the perceived inconsistencies between Revised Code 153.52(B) which states that as between a combination bid and an aggregate of individual prime bids the "lowest and best" wins the contract and 153.52(A) which states that no contract for the entire job shall be awarded unless the combination bid is lower than the separate bids in the aggregate. The Magistrate then went on to dodge that important issue and state that the disappointed multiple prime contractor had not proved that the actions of the Commissioners were "unreasonable, arbitrary or unconscionable." Therefore, at the moment, the decision of the County Commissioners stands, but it is likely that this matter will be appealed further.
Many groups, including those in favor of multiple prime contracting, are greatly concerned about the import of this decision if it is somehow construed to authorize awarding to a higher combination bid because the public authority thinks it is "best" to avoid the perceived costs or lack of coordination potentially involved in multiple prime contracts.