SE/Z Construction, L.L.C. v. Idaho State University

89 P.3d 848, 140 Idaho 8, 2004 Ida. LEXIS 60

Opinions

Chief Justice TROUT,

Dissenting:

Because I believe the bid documents for the ISU physical science building renovation are not ambiguous and clearly set forth the method by which ISU and the Department of Public Works would select the lowest responsible bidder, I must respectfully dissent from the Court’s opinion.

Section 5.3.2 of the bid documents reads as follows:

The Owner shall have the right to accept Alternates in any order or combination, unless otherwise specifically provided in the Bidding Documents, and to determine the low Bidder on the basis of the sum of the Base Bid and Alternates accepted.

Under section 16772 of the bid documents related to “Audio/visual system”, Part 2.1, B provides as follows:

The following Classroom Packages are included in the Base Bid in designated locations (see paragraph 2.2 below). However, the owner wishes to obtain unit prices for packages # 2 and # 3 in order to add them to classrooms indicated in Paragraph 2.2D below, should funds be available.

In other words, Classroom Packages 2 and 3 were competitively bid when SE/Z and Harris calculated their Base Bid. ISU simply wanted unit prices broken out of the Base Bid, so that if money were available, additional classroom packages could be purchased. The bid documents are very clear in indicating that the decision regarding the low bidder would be made based only upon the total of: (1) the Base Bid (including classroom packages 2 and 3 for certain designated classrooms), and (2) the total bid price for whichever Alternates (things like cleaning exterior brick, mobile storage system, and metal shelving) ISU chose to accept. When the bids were opened and the Base Bid and Alternates were calculated, SE/Z was narrowly the lower bidder. Thus, under the clear terms of the bidding documents, SE/Z should have been awarded the contract. To allow ISU to add to the bid amounts by picking certain additional classroom packages, has allowed ISU to control the party to whom the contract is awarded, in direct contravention of provision 5.3.2 of the bid documents. Therefore, I think the district court’s opinion should be reversed and the case remanded to determine what appropriate remedies SE/Z is entitled to, now that the construction is completed.