Chris Berg, Inc. v. State, Department of Transportation & Public Facilities

OPINION

PER CURIAM.

In October 1983, the State of Alaska, Department of Transportation and Public Facilities (DOT/PF), issued an invitation for bids for the construction of an addition to the Anchorage International Airport. On November 2, 1983, Chris Berg, Inc. (Chris Berg) submitted the low bid for the project. All the bids were opened immediately after the deadline and checked by a DOT/PF engineer, Mr. Rhode. The checking process led to the discovery that Chris *94Berg had not entered any price information for one line item.

By examining the bid, Rhode determined that the price information for that line item had mistakenly been written one line below. Using the total bid price, which was not mistaken, as well as some elementary mathematics, Rhode was able to discern the nature of the mistake and the intended price for the line item.

Rhode then contacted Chris Berg and asked a representative of the corporation to read him the intended bid for the mistaken portion. The intended bid corresponded to Rhode’s interpretation. Accordingly, Rhode stated to the Chris Berg representative that no further documents were necessary and that the bid would be accepted.

On November 15, 1983, the DOT/PF reversed its initial determination to award Chris Berg the project. Chris Berg was informed that its bid was rejected as “non-responsive” and that correction of the bid was “beyond the flexibility” of the Department.

Chris Berg filed an administrative appeal which was summarily denied. Chris Berg also filed suit in superior court, on November 18, seeking injunctive relief. By memorandum decision dated January 20, 1984, the superior court, Judge Shortell presiding, denied Chris Berg’s request for a permanent injunction. This appeal followed. Expedited review was granted by order of February 1, 1984.

A material variance from a bid specification requires rejection of the bid.1 A variance is material if it gives the bidder a substantial advantage over other bidders and thereby restricts or stifles competition.2 Under this standard, the bid variance in the present case does not compel rejection since Chris Berg did not and could not gain any competitive advantage as a result of it.

The determination by a public agency of the responsiveness of a bid is within the agency’s discretion, subject, on judicial review, to an ascertainment that there was a reasonable basis for the agency’s action.3 In the instant case, we conclude that even if the DOT/PF’s rejection of Chris Berg’s bid is interpreted as an exercise of such discretion, the rejection was an abuse of that discretion and invalid. A minor technical defect or irregularity which does not and could not affect the substance of a low bid in any way does not justify the rejection of that bid on the ground that it is not responsive,4 when the agency is required by law to award the contract to the “lowest responsible bidder.” 5 We believe that the bid error in the present case falls within this category, since the mistake and the bid actually intended are reasonably ascertainable from the invitation to bid and the bid itself, and the mistake was discovered immediately by the agency. Thus, any rejection of Chris Berg’s bid on the basis of the bid error would constitute an abuse of discretion as a matter of law.6

The decision below is REVERSED and this case is REMANDED to the superior court with direction to remand to the *95DOT/PF for action consistent with this opinion.

. King v. Alaska State Housing Authority, 512 P.2d 887, 892 (Alaska 1973).

. State v. Bowers Office Products, Inc., 621 P.2d 11, 14 n. 6 (Alaska 1980); King v. Alaska State Housing Authority, 512 P.2d at 892.

. State v. Bowers Office Products, Inc., 621 P.2d at 13; Kelly v. Zamarello, 486 P.2d 906, 917-18 (Alaska 1971).

. See Otter Tail Power Co. v. Mackichan, 270 Minn. 262, 133 N.W.2d 511, 519 (1965); Foley Brothers, Inc. v. Marshall, 266 Minn. 259, 123 N.W.2d 387, 391 (1963); Faist v. Mayor of City of Hoboken, 60 A. 1120, 1121 (N.J.1905); Centric Corp. v. Barbarossa & Sons, Inc., 521 P.2d 874, 877-78 (Wyo.1974).

. AS 35.15.050. Here, we are not concerned with the separate requirement that the bidder be "responsible.” The only issue is whether the bid was “responsive."

. We note that Chris Berg’s bid error would not have enabled it to withdraw its bid, as was the case with the bid variance in Bowers. See 10 E. McQuillin, The Law of Municipal Corporations § 29.67, at 383 (3d ed. 1981) (withdrawal requires, among other things, that the mistake be material).