Colorado § 31-15-712 - Public improvements by contract - cities.

§ 31-15-712. Public improvements by contract - cities.

All work done by the city in the construction of works of public improvement of five thousand dollars or more shall be done by contract to the lowest responsible bidder on open bids after ample advertisement. It shall be unlawful for any person to divide a works of public improvement construction into two or more separate projects for the sole purpose of evading or attempting to evade the requirement that works of public improvement construction costing five thousand dollars or more be submitted to open bidding, unless the total cost of any such project would be less if divided into two or more projects than if submitted to open bidding as one project. If no bids are received or if, in the opinion of the city council, all bids received are too high, the city may enter into negotiations concerning the contract. No negotiated price shall exceed the lowest responsible bid previously received. The city is not required to advertise for and receive bids for such technical, professional, or incidental assistance as it may deem wise to employ in guarding the interest of the city against the neglect of contractors in the performance of such work.

Source: L. 75: Entire title R&RE, p. 1120, § 1, effective July 1. L. 79: Entire section amended, p. 1186, § 1, effective May 18.

Editor's note: This section is similar to former § 31-15-103 as it existed prior to 1975.

ANNOTATION

Annotator's note. Since § 31-15-712 is similar to former § 31-15-103 prior to the 1975 repeal and reenactment of this title, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

And is not unconstitutional because not germane to the title of the act. Dalby v. City of Longmont, 81 Colo. 271, 256 P. 310 (1927).

Public policy. The general assembly has by this mandatory section declared as public policy of this state that all work in the construction of public improvements, without reference to its character shall be by express contract, upon open bids, and that the superintending of the construction of a public building is not an exception. City of Colo. Springs v. Coray, 25 Colo. App. 460, 139 P. 1031 (1914).

Intent of the general assembly was to require competitive bidding for only the construction work done in public improvement contracts. Gude v. City of Lakewood, 636 P.2d 691 (Colo. 1981).

This section refers to all cities. Dalby v. City of Longmont, 81 Colo. 271, 256 P. 310 (1927).

This section provides for a contract to be let to the lowest responsible bidder on open bids after advertisement. Deti v. City of Durango, 136 Colo. 272, 316 P.2d 579 (1957).

And a public improvement to be paid out of revenues derived from taxes must be constructed and the contract let to the lowest responsible bidder. Deti v. City of Durango, 136 Colo. 272, 316 P.2d 579 (1957).

For protection of public. This section was not made for the benefit of the city council, nor of contractors, but for the protection of the public against both. City of Colo. Springs v. Coray, 25 Colo. App. 460, 139 P. 1031 (1914).

Secures competition. It cannot be doubted that the true intent of the act is to secure to the city the benefit and advantage of fair and just competition between bidders, and at the same time close, as far as possible, every avenue to favoritism and fraud in its varied forms. City of Colo. Springs v. Coray, 25 Colo. App. 460, 139 P. 1031 (1914).

Mandatory. A provision in a charter, statute, or ordinance requiring a contract to be let by competitive bidding is mandatory. City of Colo. Springs v. Coray, 25 Colo. App. 460, 139 P. 1031 (1914).

A broad discretion in the selection among bidders is included within a reasonable construction of this section as to "responsible" bidders, because the word "responsible" is not limited to the meaning of pecuniary liability or responsibility, but includes as well skill, experience, and integrity; and if the character of the work be such that only one person can be found competent to perform the services, there is no reason to believe that the courts will interfere with the exercise in good faith by a city council of its selection upon the bids submitted. City of Colo. Springs v. Coray, 25 Colo. App. 460, 139 P. 1031 (1914).

Unless this section is complied with, the contract is void. City of Colo. Springs v. Coray, 25 Colo. App. 460, 139 P. 1031 (1914).

Where there is no opportunity afforded for submitting competitive bids on a common standard of comparison, both as to quantities and qualities of the many and varied types of materials called for, there is a violation of this section. Colo. Cent. Power Co. v. Mun. Power Dev. Co., 1 F. Supp. 961 (D. Colo. 1932).

Nontechnical employment contract void for lack of bidding. Under this section a contract of a city to employ a person for nontechnical work is invalid where no bids are asked for. Dalby v. City of Longmont, 81 Colo. 271, 256 P. 310 (1927).

Lack of formalities cuts off action against municipality. Services rendered in the construction of a public improvement under a contract entered into without the formalities required by this section afford no action against the municipality, no matter how valuable such services may be, and through the corporation retains the results thereof. City of Colo. Springs v. Coray, 25 Colo. App. 460, 139 P. 1031 (1914).

There is no apparent necessity for exempting superintendents of construction from the statutory rule, because it is a matter of common knowledge among people who deal in such matters that architects and engineers of unquestioned ability and high reputation frequently, if not usually, offer their services as superintendents of construction — upon a percentage of the contract price, or upon some other basis. Johnson-Olmsted Realty Co. v. City & County of Denver, 89 Colo. 250, 1 P.2d 928 (1931).

This section has no application to such work as is performed by salaried officers under a statute or charter which provides that such officers as the city engineer or his assistants and deputies shall supervise and superintend, because the statute and charters are coexistent and not conflicting. City of Colo. Springs v. Coray, 25 Colo. App. 460, 139 P. 1031 (1914).

Nor to certain technical, etc., jobs. The general assembly did not intend, by the enactment of this section, that a municipality should advertise for and receive bids for such technical, professional, or incidental assistance as it may deem wise to employ in guarding the interest of the city against the neglect of contractors in the performance of their undertakings. City of Colo. Springs v. Coray, 25 Colo. App. 460, 139 P. 1031 (1914)(concurring opinion).

By this section the general assembly did not contemplate as coming within its provisions as to competitive bidding after advertisement, any person employed by the city to render services calling for special skill, knowledge, or experience. City of Colo. Springs v. Coray, 25 Colo. App. 460, 139 P. 1031 (1914)(concurring opinion).

Contracts with legal counsel, financial advisors, and banks are not subject to the competitive bidding requirement. Gude v. City of Lakewood, 636 P.2d 691 (Colo. 1981).

Procurement violative of section. Where a city adopted without question the very sketchy and incomplete specifications submitted by a development company and the development company was in reality the only bidder and obtained the contract, such procedure not only violates this section requiring the work to be given to the "lowest responsible bidder" after "ample advertisement", but is contrary to the plainest dictates of public business practice. Colo. Cent. Power Co. v. Mun. Power Dev. Co., 1 F. Supp. 961 (D. Colo. 1932).

Effect of Denver charter provisions. Under pertinent Denver charter provisions, contracts for architectural services in connection with the erection of public buildings must be awarded under competitive bidding, otherwise they are void, and the contractor cannot recover for services rendered either under his contract or on quantum meruit. City & County of Denver v. Moorman, 95 Colo. 111, 33 P.2d 749 (1934).

Award of contract when a mistake in the formation of the contract exists. This section does not by its terms require a municipality to award a construction contract to the lowest bidder when such bidder inadvertently makes a substantial computational error. Powder Horn Constructors v. City of Florence, 754 P.2d 356 (Colo. 1988).

No private cause of action for the recovery of damages by a disappointed bidder exists where such bidder failed to show that it was within the class of persons for whose benefit the statute was created and where there is no indication in the statutory language that the general assembly intended to create a private cause of action. L & M Enters. v. City of Golden, 852 P.2d 1337 (Colo. App. 1993).

Applied in Corn Constr. Co. v. Aetna Cas. & Sur. Co., 295 F.2d 685 (10th Cir. 1961).