Volume: 21, Issue: 18 - 10/02/2023


The rejection of a low bid due to concerns with the bidder’s capabilities, resources, or past performance history frequently prompts a dispute. One question that arises is whether all bidders are held to the same standard.


A Mississippi appeals court recently reversed the rejection of a low bid. The procuring agency had reasonable concerns regarding the bidder’s performance history. But in going to the second-low bid, the agency neglected to conduct any investigation or evaluation of that bidder’s performance history.


The other case in this issue involved the admissibility of expert testimony on project delays. The expert analysis did not utilize the same methodology required by the contract for measuring work progress and delay. Would this be grounds for excluding the expert testimony?


A public project owner that rejects a low bid due to concerns with the bidder’s past performance must also evaluate the performance history of the second-low bidder. State procurement statutes required contract award to the “lowest and best bidder.”


Proffered expert testimony about delay was excluded under Federal Rule of Evidence 403 because the method of delay analysis differed from the scheduling methods stipulated in the construction contract.

Volume: 21, Issue: 17 - 09/15/2023


Prevailing wage statutes mandate payment of stipulated minimum “prevailing” wage rates on public works projects. State labor departments establish labor categories and determine rates that will apply to workers performing the same function on the same project. However, the wage rate coverage is not always as uniform as one might think.


The highest court in Massachusetts addressed a situation in which highway field surveyors employed by construction contractors were paid more than highway field surveyors employed by an engineering services contractor. The surveyors performed the same functions on the same projects. The construction contracts had been competitively bid and the engineering contract had been procured under a procedure pertaining to professional services. Were the different wage rates permissible?


The second case in this issue involved an architect’s grant to a client of a nonexclusive license to use preliminary design schematics prepared by the architect. Did the right to “reproduce” the schematics give the project owner, then working with a different architect, the right to use the schematics to create a derivative work?


The third case arose under a federal road construction contract. Did the government-furnished information have to establish the presence of rock as a known fact in order to defend the contractor’s differing site condition claim? Or, were indications that made the presence of rock reasonably foreseeable sufficient?


A state prevailing wage act did not apply to professional services contracts. Highway field surveyors employed by an engineering contractor to the state were not entitled to the same wages as highway field surveyors employed by construction contractors to the state, even though they performed the same functions on the same public works projects.


An architectural services agreement to produce preliminary design schematics for a project granted the client a license to “reproduce” the schematics. A federal appeals court interpreted this to confer the right to create derivative works from the copyrighted drawings.


Although a government geotechnical report may not have established the presence of rock as a known fact, the report provided ample indication that the presence of rock was reasonably foreseeable. Additionally, the report’s clause recommending a contingency placed the risk of rock squarely with the bidder.

Volume: 21, Issue: 16 - 08/31/2023


The Architectural Works Copyright Protection Act (AWCPA), enacted by Congress in 1990, created important protections for the intellectual property of architects. It protects their design documents and the appearance of the buildings that are the physical embodiment of those drawings. But the AWCPA also considered the legitimate concerns of property owners. An owner may alter or destroy a structure without violating the copyright protections of the design architect.


A federal appeals court recently addressed a situation in which the original developer of a building went bankrupt. The new owner wanted to complete the building, and the design architect, who had not been paid in full by the original developer, sought to block completion without the architect’s consent. Is the property owner’s right to complete a building encompassed by the statutory right to alter or destroy a building?


The other case in this issue involved a public project owner’s reservation of the statutory right to reject any and all bids. Is this right absolute? Or would that approach condone graft and bid rigging?


The purchaser of a partially completed building could complete the building without the design architect’s consent. The rights created by the Architectural Works Copyright Protection Act are limited—while the building completed in accordance with the architect’s design documents would be a tangible embodiment of those documents, the new owner could complete the building using new design documents generated by a different architect.


A municipality did not have sovereign immunity from a suit by a disappointed bidder and did not have an absolute statutory right to reject any and all bids. However, the municipality did have broad discretion when rejecting a low bidder as not responsible.

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