A Colorado statute requires that all work done by...[cities] 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.
But the statute later states that advertisement and public bidding are not required for technical, professional or incidental assistance employed "...in guarding the interest of the city against the neglect of contractors in the performance of such work."
Do those statutory requirements mean that contracts for full-service architectural arrangements are to be competitively bid?
A challenge by residents of Lakewood to an award of contract for architectural services on that municipality s proposed city hall project was rejected by the Colorado Supreme Court. The court ruled that competitive bidding is not required by cities in contracting for architectural services even though the services involve more than "guarding...against the neglect of contractors..."
If that decision was the result intended by the Colorado General Assembly, its intention can only be determined by its future conduct. The Supreme Court has opted to construe the statutory use of the word "construction" very narrowly and to broaden the technical-professional exception beyond its "neglect of contractors" scope.
1 Section 31-15-712,ColoradoRevisedStatutes.
2 Gude v. City of Lakewood, 636 P.2d 931 (Colo 1981).
The General Assembly is free to reverse the Supreme Court if it intended to require competitive bidding for design service contracts with Colorado cities.
Unless the legislative body makes that change, we can expect that Colorado courts will limit the competitive bidding requirements to actual construction work only. Thus, related contracts for professional services, technical services and whatever the legislature intended to be included in the phrase "incidental assistance" can be awarded by city governments without regard to any competitive bidding requirements.
In the case under consideration the Supreme Court also concluded that the contracts with the city's legal counsel, financial advisor and trustee bank were similarly not subject to the competitive bidding requirements.
Aside from determining the basic legal principal involved, the case under consideration also demonstrates the interrelationships between the legislative and judicial branches of government. The state legislature could ave been more explicit in declaring precisely what it intended to include within the competitive bidding requirement insofar as professional service contracts were involved. Certainly, a portion but not necessarily all usual architectural services are directed toward "guarding the interest of the city against the neglect of contractors." Since that limitation did not apply to the full panorama of architectural services, the courts were forced to make a choice which more precise language could have avoided.
The real question: Should design professional service contracts with public entities be awarded on the basis of competitive bidding?