Code issues

The City of Morro Bay Municipal Code, Title 3, requires that contracts go to the “lowest responsible bidder”. However,  Morro Bay City staff have argued that sections 4526-4529 of chapter 10 of the California Government Code require local agencies to select applicable professional consultant services on the basis of demonstrated competence and professional qualifications.  

 

The staff have treated the State code content as though that code and the Morro Bay lowest-responsible-bidder requirement are mutually exclusive.

 

However, a large law firm, Nossaman LLP, which specializes  “infrastructure, healthcare, land use, environmental, real estate, water, eminent domain, public policy, employment, financial services, insurance coverage, corporate, and complex litigation matters"  has published the following legal opinion on its Web site:

 

“Local agencies in California are generally subject to a requirement to select design professionals based on qualifications (Gov. Code § 4526), and many agencies are required to award construction contracts to the low bidder. It is possible to meld these two requirements--with qualifications of the designer considered in a prequalification phase of the procurement, and with the contract awarded to the low bidder among the prequalified proposers that have submitted a technically acceptable proposal.”

 

The article where the above quote is found (in the footnotes section) is focused on highway building. However, this reference focuses on government code 4525, which covers “architectural, landscape architectural, engineering, environmental, land surveying, or construction project management”.

 

We believe, based upon the above, that the State and City codes are not mutually exclusive, and can both be applied to projects such as the WWTP Upgrade design. In the case of that project, since all bidders were considered by the evaluators to be competent and qualified, we believe that the lowest, not the highest bidder should have been selected.  This is our opinion.  We have not consulted Nossaman LLP with regard to this specific project.