Bidding Process and Award of Contract

1. Law
2. Georgia Code
3. Highways, Bridges, and Ferries
4. Department of Transportation
5. Exercise of Power to Contract Generally
6. Bidding Process and Award of Contract

1. Except as authorized by Code Sections 32-2-79 and 32-2-80, the department shall award contracts to the lowest reliable bidder, provided that the department shall have the right to reject any and all such bids whether such right is reserved in the public notice or not and, in such case, the department may readvertise, perform the work itself, or abandon the project.
2. If only one bid is received, the department shall open and read the bid. If the bid is at or below the department's cost estimate for the project as certified by the chief engineer, such cost estimate shall be read immediately and publicly. If the bid exceeds the department's cost estimate for the project, the department may negotiate with the bidder to establish a fair and reasonable price for the contract, provided that the resulting negotiated contract price is not greater than the bid and that the department's cost estimate is disclosed to the bidder prior to the beginning of the negotiations. For purposes of this Code section, posting of a bid on the department's website shall be equivalent to having read the bid.
3. If the department made errors in the bidding documents which resulted in an unbalanced bid, the department may negotiate with the lowest reliable bidder to correct such errors, provided that the lowest reliable bidder is not changed.
4. If the lowest reliable bidder is released by the department because of an obvious error or if the lowest reliable bidder refuses to accept the contract and thereby forfeits the bid bond, the department may award the contract to the next lowest reliable bidder, readvertise, perform the work itself, or abandon the project.
5. The signed, notarized affidavit required in subsection (b) of Code Section 13-10-91 shall be submitted to the department prior to the award of any contract.
6. The department shall provide by rule and regulation for a procedure to appeal the rejection of any bid for contracts the department is authorized to enter into under this Code section.

(Code 1933, § 95A-810, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1986, p. 153, § 1; Ga. L. 1994, p. 591, § 7; Ga. L. 2003, p. 905, § 3; Ga. L. 2012, p. 1343, § 3/HB 817; Ga. L. 2018, p. 372, § 3/SB 445; Ga. L. 2020, p. 371, § 2/HB 1098.)

The 2018 amendment, effective July 1, 2018, added subsection (f).

The 2020 amendment, effective July 29, 2020, substituted "award contracts" for "award the contract" in the beginning of subsection (a); added the last sentence to subsection (b); deleted former subsection (e), which read: "For the purposes of this Code section, posting a bid on the department's website shall be equivalent to having read the bid."; redesignated former subsection (f) as present subsection (e); and added subsection (f).

Law reviews.

- For note on the 2003 amendment to this Code section, see 20 Ga. St. U. L. Rev. 170 (2003).

JUDICIAL DECISIONS

Forfeiture of bid bond.

- Contractor's bid bond was required to be forfeited after the contractor first attempted to withdraw the contractor's bid after all bids submitted were opened and then declined to execute the contract awarded to the contractor. DOT v. American Ins. Co., 268 Ga. 505, 491 S.E.2d 328 (1997).

Department of Transportation was not obligated to release a bidder from the bidder's contractual obligations due to an obvious error in the bid. DOT v. American Ins. Co., 268 Ga. 505, 491 S.E.2d 328 (1997).

Reliable bidder.

- Even if a contractor's claim that a state transportation department violated the contractor's U.S. Const., amend. 14 equal protection rights by subjecting the contractor's paving work to testing and by preventing the contractor's lowest bid for a repaving project from being accepted was cognizable as a class of one claim, the contractor's complaint did not meet the tightened Fed. R. Civ. P. 8 requirements for 42 U.S.C. § 1983 claims; the contractor did not identify similarly situated contractors who were treated more favorably with regard to defect testing, and the comparator cited by the contractor with regard to the failure to facilitate acceptance of the contractor's repaving bid was not properly alleged to have been similarly situated in the absence of an allegation of performance problems, particularly when O.C.G.A. § 32-2-69(a) did not require that the lowest bidder be chosen, but that the lowest reliable bidder be chosen. Douglas Asphalt Co. v. Qore, Inc., 541 F.3d 1269 (11th Cir. 2008).

OPINIONS OF THE ATTORNEY GENERAL

Letting one-bid projects, limited negotiation with certain bidders, and letting to second-low bidders are now legal under O.C.G.A. § 32-2-69 and can be included in the "advertised specifications," whether that term can be applied to the standard specifications themselves or whether the three identified circumstances must be specifically referenced in the actual advertisement of the project. 1986 Op. Att'y Gen. No. 86-21.

RESEARCH REFERENCES

ALR.

- Public contracts: authority of state or its subdivision to reject all bids, 52 A.L.R.4th 186.

Public contracts: low bidder's monetary relief against state or local agency for nonaward of contract, 65 A.L.R.4th 93.

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