Chapter 5. Relief Of Bidders of California Public Contract Code >> Division 2. >> Part 1. >> Chapter 5.
(a) "Public entity" means the state, Regents of the
University of California, a county, city and county, city, district,
public authority, public agency, and any other political subdivision
or public corporation in the state.
(b) "Bid" means any proposal submitted to a public entity in
competitive bidding for the construction, alteration, repair, or
improvement of any structure, building, road or other improvement of
(a) A bidder shall not be relieved of the bid unless by
consent of the awarding authority nor shall any change be made in the
bid because of mistake, but the bidder may bring an action against
the public entity in a court of competent jurisdiction in the county
in which the bids were opened for the recovery of the amount
forfeited, without interest or costs. If the plaintiff fails to
recover judgment, the plaintiff shall pay all costs incurred by the
public entity in the suit, including a reasonable attorney's fee to
be fixed by the court.
(b) If an awarding authority for the state consents to relieve a
bidder of a bid because of mistake, the authority shall prepare a
report in writing to document the facts establishing the existence of
each element required by Section 5103. The report shall be available
for inspection as a public record. In the case of the University of
California or a California State University, the report shall be
filed with the regents and the trustees, respectively, and shall be
available as a public record.
The complaint shall be filed, and summons served on the
director of the department or the chief of the division or other head
of the public entity under which the work is to be performed or an
appearance made, within 90 days after the opening of the bid;
otherwise, the action shall be dismissed.
The bidder shall establish to the satisfaction of the court
(a) A mistake was made.
(b) He or she gave the public entity written notice within five
working days, excluding Saturdays, Sundays, and state holidays, after
the opening of the bids of the mistake, specifying in the notice in
detail how the mistake occurred.
(c) The mistake made the bid materially different than he or she
intended it to be.
(d) The mistake was made in filling out the bid and not due to
error in judgment or to carelessness in inspecting the site of the
work, or in reading the plans or specifications.
Other than the notice to the public entity, no claim is
required to be filed before bringing the action.
A bidder who claims a mistake or who forfeits his or her bid
security shall be prohibited from participating in further bidding on
the project on which the mistake was claimed or security forfeited.
If the public entity deems it is for its best interest, it
may, on refusal or failure of the successful bidder to execute the
contract, award it to the second lowest bidder.
If the second lowest bidder fails or refuses to execute the
contract, the public entity may likewise award it to the third lowest
On the failure or refusal of the second or third lowest bidder to
whom a contract is so awarded to execute it, his or her bidder's
security shall be likewise forfeited.
In all actions brought under the provisions of this chapter,
all courts wherein such actions are or may hereafter be pending,
shall give such actions preference over all other civil actions
therein, in the matter of setting the same for hearing or trial, and
in hearing the same, to the end that all such actions shall be
quickly heard and determined.
(a) When a project for the construction, alteration, repair,
or improvement of any structure, building, or road, or other
improvement of any kind is competitively bid and any intended or
actual award of the contract is challenged, the contract may be
entered into pending final decision of the challenge, subject to the
requirements of this section. If the contract is later determined to
be invalid due to a defect or defects in the competitive bidding
process caused solely by the public entity, the contractor who
entered into the contract with the public entity shall be entitled to
be paid the reasonable cost, specifically excluding profit, of the
labor, equipment, materials, and services furnished by the contractor
prior to the date of the determination that the contract is invalid
if all of the following conditions are met:
(1) The contractor proceeded with construction, alteration,
repair, or improvement based upon a good faith belief that the
contract was valid.
(2) The public entity has reasonably determined that the work
performed is satisfactory.
(3) Contractor fraud did not occur in the obtaining or performance
of the contract.
(4) The contract does not otherwise violate statutory or
(b) In no event shall payment to the contractor pursuant to this
section exceed either of the following:
(1) The contractor's costs as included in its bid plus the cost of
any approved change orders.
(2) The amount of the contract less profit at the point in time
the contract is determined to be invalid.
(c) Notwithstanding subdivision (a), this section shall not affect
any protest and legal proceedings, whether contractual,
administrative, or judicial, to challenge the award of the public
works contract and enforce competitive bidding laws, nor affect any
rights under Section 337.1 or 337.15 of the Code of Civil Procedure.