On July 26, 2018, the Washington Supreme Court issued a new decision addressing public bidding in Specialty Asphalt & Constr., LLC v. Lincoln County. Specialty Asphalt was the winning bidder on a paving project for Lincoln County. After not requiring a performance bond typically required by statute in the bid, the County asked that Specialty post one as part of the contract award. Specialty refused and the project was delayed, resulting in damages to Specialty. Later, the County dropped the bond requirement, but Specialty decided not to perform and sued for damages based on breach of contract and discrimination. Specialty argued that it was entitled to pursue monetary damages for its breach of contract claim, analogizing its case to Scoccolo Construction, Inc. v. City of Renton, 158 Wn.2d 506, 145 P.3d 371 (2006).
The Court of Appeals and the trial court instead relied on Skyline Contractors, Inc. v. Spokane Housing Authority, 172Wn. App. 193, 289 P.3d 690 (2012). The Supreme Court agreed with the Court of Appeals. In Scoccolo, the contractor completed the project. Specialty did not, nor did it even begin performance. Therefore, injunctive relief was the exclusive remedy even if the successful bidder was impacted by the delays.
The rationale was affirmed with the following quote:
[W]hile equitable, extraordinary, or declarative relief may serve the public interest by preventing the award and execution of a contract for an excessive amount, permitting damages in such cases serves the bidder’s interest alone, and is contrary to the public interest the competitive bidding laws were designed to protect, further burdening a treasury already injured by paying too high a price for the goods or services.
Id. at 591 (emphasis omitted)(quoting James L. Isham, Annotation, Public Contracts: Low Bidder’s Monetary Relief against State or Local Agency for Nonaward of Contract, 65 A.LR.4th 93, § 2[a] (1988)).
In summary, if a contractor seeks damages before breach of contract to perform a public contract, they need to perform the work. Otherwise, the contractor is left with only seeking declaratory or injunctive relief.