With alternative bidding, a public project owner lists bid alternatives that add or deduct items of work. The project owner, having seen the bids and bid prices, can select the most advantageous scope of work that fits within the available budget. The project owner, having seen the bids and bid prices, can also craft a scope of work that directs the contract to a particular bidder. Consequently, alternative bidding receives careful judicial scrutiny.

A public project owner recently took alternative bidding a step further. The owner solicited bids for separate trade work bid packages and then, as alternatives, bundled the trade packages in a variety of combinations. A California court said this was a clear manipulation of the selection process. The project owner knew the identity of each bidder and could easily favor or exclude bidders simply by selecting a bid package.

Other cases this week involved differing subsurface site conditions and the application of a statute of repose to a demand for arbitration. A differing site condition was encountered by the contractor, but the condition was not the cause of the contractor’s problems. And, the arbitration clause never referenced the statute of repose. The project owner’s warranty claim was not extinguished.