Although the court invited further review by the Supreme Court, and the issue is an important one that definitely warrants further review, it may be foolhardy for the DOT to actually seek such review.
Cape may have lost the argument on the proper legal standard to apply, but still won on the merits. The DOT won the legal argument, but lost anyway.
Were DOT to seek review, however, the issue on which it would need to prevail is not the proper legal standard to apply – an important issue worthy of Supreme Court review – but the factual question whether Capes error was not inexcusable. However, this is not an important issue worthy of review; it is, as the court of appeals found, easily governed by the Krasin decision.
The trial court, the court of appeals, and an advisory opinion by the Attorney General have all agreed that the statute creates a three-tiered standard, depending on whether the bid has yet been opened, and whether a contract has yet been awarded.
That interpretation is the most reasonable one, as the court concluded, lest the second sentence of the statute be rendered a nullity. In addition, there are sound policy reasons for a contractor to have to meet a higher burden once the contract has been awarded to it.
If the DOT can read the writing on the wall, it will realize it has far more to lose by seeking further review than it has to gain. For as long as the Supreme Court does not review the issue, the DOT benefits from an interpretation that, however unreasonable it may be, is the law of the land and gives it an advantage over contractors.
Thus, it may be that some other contractor will be needed to provide the case leading to ultimate review by the Supreme Court. Trial courts and the court of appeals may be bound by the interpretation of the court of appeals in this case, but contractors should continue to raise the issue, in order to preserve it for review by that court.
– David Ziemer
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David Ziemer can be reached by email.