Due Process on Public Works Projects: The Rights of Contractors When They Are Found Ineligible to Perform the Work


September 8, 2003

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By Keith L. Slenkovich
Thelen Reid Brown Raysman & Steiner LLP

State and federal procurement laws seek to ensure that public monies are not wasted as a result of undue influence, favoritism or fraud. These rules rest on the belief that that all suitors for public works contracts should be treated fairly. Yet, an examination of any public procurement system reveals junctures at which subjective decisions are made by contracting authorities: Pre-qualification, exclusions from bidding lists, responsibility determinations, and suspensions or debarments from eligibility for government contracts. The element of subjectivity in these decisions creates an opportunity for abuses that can harm contractors.

Subjectivity in the public procurement has increased in recent years. More public entities are employing alternatives to the traditional, largely objective design-bid-build process, shifting to design-build, competitive negotiation and "best value" contracting procedures on more complex and challenging construction projects. This phenomenon has increased subjective decision-making in public contracting.

As a general matter, a public entity's exercise of discretion under such alternative procurement schemes will tend to favor more experienced and larger contractors because experience and size tend to be key discretionary factors in evaluating contractors. Many commentators have expressed concern that the expanding role of alternative procurement methods will have the effect of preserving the status quo by keeping up-and-coming contractors from breaking into the most complex and often most lucrative public works projects.

In addition, a negative finding on pre-qualification, responsibility, debarment or other suitability evaluation can have devastating impact on a contractor. The contractor inevitably will ask: What rights do I have to challenge this decision? Although these rarely are easy battles to win, contractors usually do have due process rights and remedies when public entities improperly disqualify them.

The Role of Due Process in Public Agency Contracting

Due process rights in public contracting originate from the 5th and 14th amendments to the U.S. Constitution. They prohibit the government from depriving a person of "life, liberty or property, without due process of law." Most states have comparable due process protections in their constitutions. See, e.g., California Constitution, Article I, §§7, 15.

There are two aspects to due process in American law: Procedural due process and substantive due process. Harrah Independent School District v. Martin, 440 U.S. 194, 197 (1979). Procedural due process requires use of an objectively fair procedure for arriving at governmental determinations. Howard v. Grinage, 82 F.3d 1343, 1348-1350 (6th Cir. 1996). The elements most commonly associated with procedural due process are: (1) notice of the criteria upon which a decision is being made; (2) an impartial tribunal before which the decision is made; (3) an opportunity to state one's case before an adverse decision; and (4) under some circumstances and in some jurisdictions, a right to appeal an adverse decision. See, e.g., Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985).

Substantive due process requires that a governmental decision be made on a rational basis, not arbitrarily or capriciously. Licari v. Feruzzi, 22 F.3d 344 (1st Cir. 1994). Substantive due process requires that a governmental decision be free from favoritism, bribery or other improper influences. Patel v. Penman, 103 F.3d 868, 874 (9th Cir. 1996).

Whether bidders for government contracts have any due process rights in the procurement process has been the subject of substantial litigation in recent years. Contractors have challenged adverse government procurement decisions under both the property and liberty provisions of the Due Process Clause. Contractors arguing that they have a property right to eligibility for public contracts have had mixed results. Most courts have held that there is no general property right to be awarded a government contract. See, e.g., Dentom Transportation, Inc. v. Human Resources Administration, 155 Misc.2d 31 (N.Y. Sup. Ct. 1992) ["the right to bid on a contract is not a property right"]; Stacy & Witbeck v. City and County of San Francisco, 36 Cal.App.4th 1074, n.6 (1986); DRT Mechanical Corp. v. Collin County, 845 F.Supp. 1159 (E.D. Tex. 1994) [no property interest in county contract; liberty interest not discussed].

Nevertheless, some courts have held that when the contracting agency's procurement rules specifically guarantees the contract will be awarded to the lowest bidder, a property interest may arise. Anderson-Meyers Co., Inc. v. Roach, 660 F.Supp. 106 (D. Kan. 1987); Three Rivers Cablevision v. City of Pittsburgh, 502 F.Supp. 1118 (W.D. Pa. 1980).

Contractors also have relied on U.S. Supreme Court holdings that the liberty interests guaranteed by the 5th and 14th amendments extend far beyond freedom from bodily restraint and include "the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those provisions long recognized at common law as essential to the orderly pursuit of happiness by free men." Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Board of Regents v. Roth, 408 U.S. 564, 572 (1972).

Under this broad interpretation of the liberty interest, most courts have determined that at least some due process is required when governments make eligibility determinations for public contracts. Some courts have even found it to be a fundamental principle of government procurement that contracting officers treat all bidders or offerors equally and consistently apply the evaluation factors listed in the solicitation. TLT Construction Corp. v. United States, 50 Fed.Cl. 212, 216 (2001). However, most jurisdictions have not gone this far in announcing standards for how far the liberty interest extends.

The factors that have influenced courts to find a sufficient liberty interest to warrant due process protections include:

Esposito v. Metro-North Commuter R.R. Co., 856 F.Supp. 799, 804 (S.D.N.Y. 1994); Huntley v. Community School. Board, 543 F.2d 979, 985-86 (2d Cir. 1977).

After evaluating these factors, the courts have developed a variety of formulations for the due process test.

Due Process in Debarments or Suspensions from Government Contracts

The most serious eligibility determination a public entity can make is suspension or debarment. Almost all jurisdictions appear to recognize some form of due process rights in connection with a suspension or debarment determination.

Debarment from Federal Projects

Federal procedural due process requires that before a debarment determination, a federal agency must provide the contractor with notice and an opportunity to be heard. 48 CFR §9.406-3 (2003). Federal agencies also must afford the contractor an opportunity to appear with counsel, to submit documentary evidence to contest the debarment allegations, to present witnesses and to confront any person the agency presents regarding a proposed debarment. Id. at §9.406-3 (b) (2) (i).

As for substantive due process, federal regulations specify criteria upon which a debarment determination may be based. A contractor or subcontractor may be debarred upon a finding of non-responsibility based on such factors as a conviction for a criminal offense, violation of federal or state antitrust statutes, fraud, embezzlement, forgery, lack of business integrity, and unsatisfactory performance of one or more public contracts. 24 CFR §24.305 (2003). In addition, the federal regulations contain a catch-all provision permitting debarment for "any other cause so serious or compelling in nature that it affects the present responsibility of a person." Id. This broad category invites subjectivity.

Suspension from Federal Projects

Suspensions occur when a contractor is barred from bidding on public works projects, often while the agency is investigating a possible debarment. A contractor facing suspension of its eligibility for federal projects has clearly defined procedural due process rights. Sloan v. Department of Housing and Urban Development, 231 F.3d 10, 18 (D.C. Cir. 2000). When a party is suspended, immediate notice must be given. 24 CFR §24.411 (a) (2003). The party affected may contest the suspension by submitting an opposition in writing or in person within 30 days. Id. §24.412. If the suspension is not contested within 30 days, it becomes final. Id. at §24.412 (a) (2).

In terms of substantive due process, a federal contractor may be suspended only when there is adequate evidence of wrongdoing and immediate action is necessary to protect the public interest. Id. at §24.400 (b). The evidence required to justify suspension of such a contractor has been analogized to the probable cause necessary for an arrest, search warrant or preliminary hearing in a criminal case. Horne Bros., Inc. v. Laird, 463 F.2d 1268, 1271 (D.C. Cir. 1972). Thus, the federal government needs more than a mere accusation to suspend a contractor from working on federal projects.

Debarment or Suspension from State and Local Projects

Due process rights for contractors bidding on state or local projects vary from jurisdiction to jurisdiction. Some states simply do not allow due process claims from contractors on public works projects. See, e.g., Grand Canyon Pipelines, Inc. v. City of Tempe, 168 Ariz. 590, 593 (Ariz. Ct. App. 1991) [contractors have no procedural due process rights when bidding for public works projects]; Ewy v. Colorado State Forest Service, 962 P.2d 991 (Colo. App. 1998) [because public bidding process is designed to protect the public, not bidders, bidders have no standing to challenge awards to another bidder].

Other states recognize at least some form of due process rights for contractors bidding on public works projects. For example, a California court held that a contractor seeking work from a public agency had a due process right to a fair hearing in a debarment determination. Golden Days Schools, Inc. v. State Department of Education, 83 Cal.App.4th 695 (2000), as modified at 2000 Cal.App. LEXIS 752 (Sep. 27, 2000). This right was violated when a department employee who recommended the debarment sat as a member of the panel that made the debarment decision and, therefore, could not be considered impartial. Id. at 711. Even this due process right is limited. One California court held that due process is not offended when a contractor is denied the opportunity to cross-examine witnesses before debarment is imposed. Stacy & Witbek, Inc., supra, 36 Cal. App.4th at 1988.

Due Process in Adverse Responsibility Determinations and Bid Protests

All public procurement systems require that only responsible bidders qualify for the contract award. 1/ "Responsibility" generally refers to the concepts of trustworthiness, fitness, capacity and experience to perform the contract being considered. See, e.g., California Public Contract Code §20101 (2003). Even under traditional design-bid-build procurement systems, the determination of whether a contractor is responsible is inherently subjective and, therefore, may implicate due process concerns.

The first line of attack for a contractor aggrieved by a responsibility determination usually is filing a bid protest with the contracting officer. Bid protests typically are filed by a low bidder that has been determined not to be a responsible bidder, resulting in award to the second low bidder, or by a second low bidder that believes the responsibility criteria, if fairly applied, would have rendered the low bidder ineligible because of a non-responsive bid. 2/ If the bid protest is not successful, a contractor may turn to the courts for a determination that its due process rights were violated.

Adverse Responsibility Determinations on Federal Projects

In deciding procedural due process issues, federal courts have given a fair amount of deference to awarding agencies in making responsibility determinations. For example, in Harvard Interiors Manufacturing Co. v. U.S., the contractor challenged the sufficiency of the agency's notice of non-responsibility determination. 798 F.Supp. 565 (E. D. Mo. 1992). Under FAR, when an offer that otherwise would be accepted is rejected because the prospective contractor is found to be non-responsible, the contracting officer must make, sign and place in the contract file a determination of non-responsibility, which must state the basis for the determination. Id. at 573; 48 CFR §9-105.2. Although the statement prepared in Harvard Interiors was brief, the court determined that it did identify the basis of the finding of non-responsibility. 798 F.Supp. at 573. The court also held that the regulation merely required that such a notice be left in the contract file and did not mandate that the notice be given to the affected contractor. Id. The court found no procedural irregularities in the disqualification for non-responsibility. Id.

Adverse Responsibility Determinations on State and Local Projects

In states recognizing contractor due process rights, courts have developed criteria for the process to which a contractor is entitled before its bid is rejected on responsibility grounds. These criteria generally are less rigorous than the legal process followed in the courts.

In California, when a bid is rejected on responsibility grounds, the public entity must: (1) Notify the low monetary bidder of any evidence reflecting upon its responsibility received from others or adduced as a result of independent investigation; (2) Afford the aggrieved bidder an opportunity to rebut such evidence; and (3) Permit the aggrieved bidder to present evidence that it is qualified to perform the contract. City of Inglewood-Los Angeles County Civic Center Authority v. Superior Court, 7 Cal.3d 861, 870-871 (1972).

In New York, the pre-requisites to rejecting a bid based on responsibility are: (1) The awarding authority must notify the affected contractor in writing of its reasons for the preliminary determination of irresponsibility; (2) The contractor must be given an opportunity to appear and present information or evidence to rebut the bases for the nonresponsibility determination although the agency is not required to provide a formal adversarial hearing; and (3) An informal record must be compiled of these proceedings. New York State Asphalt Pavement Assn., Inc. v. White, 532 N.Y.S.2d 690, 695 (1988).

In Louisiana, a public agency must satisfy a four-part test before a contractor's bid can be rejected on responsibility grounds: (1) The bidder must be given formal written notice that it is being considered for disqualification; (2) The bidder must be given an opportunity to respond to the charges in writing, and, when feasible, an opportunity to meet with the agency to discuss the charges; (3) The bidder must be given formal written notice that it has been disqualified before the project is awarded; and (4) The records of the disqualification hearing must be preserved so the bidder can receive an appropriate judicial review of that decision. Haughton Elevator Division v. State of Louisiana, 367 So.2d 1161, 1166 (La. 1979).

Due Process and the Expansion of Subjectivity in Public Procurement Programs: Pre-Qualifications and Best Value Determinations

Increasing Use of Best Value and Other Subjective Forms of Government Procurement

The last decade has seen a profound change in public contracting as design-build, competitive negotiation and best value have become common contracting methods. Historically, public entities were limited to design-bid-build procurement systems, which require separate contracts between the owner and the designer on the one hand and between the owner and the contractor on the other. In such systems, contracts are awarded to the lowest responsible bidder, regardless of the relative quality or experience of the competing bidders. Statutory bond requirements help reduce the risk that the low bidder cannot perform the project or will not pay its subcontractors.

The design-bid-build system employees a dual envelope system in which the bidders deposit two envelopes: The first provides the contractor's monetary bid for the work; and the second contains specified information regarding the contractor's experience, bonding capacity and responsibility. When the bid envelopes are opened, a low bidder is determined. The public entity then opens the responsibility envelope to determine if the low bidder meets the pre-set responsibility criteria. If so, the low bidder is awarded the contract. If not, the public entity opens the responsibility envelope for the second low bidder and repeats this process until a responsible bidder is found.

This traditional design-bid-build method does not allow for a qualitative comparison of the bids submitted by contractors, such as the relative experience or successful project history. When public projects are highly complex or have critical schedule needs, demonstrated contractor performance and technical expertise may be factors a public entity desires but cannot, under the traditional design-bid-build method, consider in making an award determination. So, while traditional design-bid-build remains the predominant procurement method for less complex public works projects, public entities increasingly have utilized alternative procurement systems, such as design-build or best value contracting on large and complex projects.

Under a design-build or best value process, procurement generally proceeds in two phases. In Phase 1, the pre-qualification phase, the government agency narrows the field of offerors to a finite list, usually no more than five of the best qualified. During Phase 2, the government agency selects the design-build contractor that is likely to provide the best value, considering all appropriate factors, including price. This best value determination necessarily contains a subjective component. For example, the Federal Acquisition Regulations permit the government agency to consider the following in evaluating a contractor's past performance:

[T]he contractor's record of conforming to contract requirements and to standards of good workmanship; the contractor's record of forecasting and controlling costs; the contractor's adherence to contract schedules, including the administrative aspects of performance; the contractor's history of reasonable and cooperative behavior and commitment to customer satisfaction; and generally, the contractor's business-like concern for the interest of the consumer.

48 CFR §42.1501 (2003).

Contractors that miss the cut in the pre-qualification phase will be interested in learning why they missed out and may want to challenge the pre-qualification criteria and the fairness of the contracting officer's application of them. Most courts recognize that a contractor is entitled to at least some due process protection in such circumstances, though the specifics vary.

Due Process in Connection with Adverse Pre-Qualification Determinations

Conceptually, an adverse pre-qualification decision is no different than rejection of a bid on responsibility grounds except that the determination is made before accepting bids from the contractor instead of after. Procedurally, though, the two situations differ. In an adverse responsibility determination, the contractor's first line of attack likely will be a bid protest, followed by court action if the protest is unsuccessful. In an adverse pre-qualification decision, there is no bid to protest, and the contractor may be left with no choice but an immediate court action to challenge the determination.

Contractors' rights to due process during pre-qualification have become controversial in recent years, especially because of the increasing use of design-build procurement. Although case law is not fully developed in this area, some form of procedural safeguard for the government contractor generally is required during the pre-qualification process.

In Sciaba Construction Corp. v. Massachusetts Turnpike Authority, the court held that a Massachusetts agency seeking to utilize pre-qualification must include a meaningful appellate process with procedural safeguards, similar to Massachusetts appellate court procedures. This affords an aggrieved bidder the opportunity to appeal an adverse finding and to submit evidence regarding its qualifications. 591 N.E.2d 190, 193 (Mass. 1992).

In contrast, courts in New York have found that status as a prequalified bidder is not constitutionally protected and may be revoked at the discretion of the agency. Accordingly, there is no right to an appeal of a prequalification determination. John Gil Construction, Inc. v. Milo Riverso, 72 F.Supp.2d 242 (S.D.N.Y. 1999). There, a contractor sued city officials alleging that suspending its status as a prequalified bidder for public contracts deprived the contractor of property and liberty interests in violation of the Due Process clauses of the U.S. Constitution. Id.

The School Construction Authority had authority under New York law to prescreen and prequalify contractors. It issued guidelines for denying and revoking prequalification. Id. Under the guidelines, if the authority concluded there was sufficient evidence to deny or revoke prequalified status, the authority had to notify the contractor of the proposed denial/revocation of prequalification status, the reasons for denial/revocation and the period of disqualification. Id.

The contractor could request a hearing at which it could present evidence that might result in reconsideration of the authority's preliminary conclusion. Id. The guidelines required the authority to give the contractor a final written notification of its determination, but they did not include an appeal process. Id. at 246-247. The court held that the guidelines sufficiently provided due process to contractors seeking clarification of their prequalification status. Id.

In California, most state and local public agencies are allowed to pre-qualify contractors, provided they follow a standardized questionnaire and model guidelines for rating bidders. Local agencies are allowed to develop their own pre-qualification questionnaires so long as they are based on objective criteria. The model pre-qualification questionnaires and the associated rating system seek to objectify the ratings process during the pre-qualification phase by assigning a uniform schedule of points for pre-set criteria and requiring that contractors achieve a minor threshold of points to make the pre-qualified list. If the public entity chooses to pre-qualify bidders, it must "establish a process that will allow prospective bidders to dispute their proposed pre-qualification rating prior to the closing time for receipt of bids." California Public Contract Code §20101.

Even when a contractor is prequalified, a public agency may re-evaluate the contractor's responsibility before making an award. In Crest Construction Corp. v. Shelby County Board of Education, a pre-qualified low bidder argued that the government's inquiry regarding the bidder's responsibility should have ended once the bidder was pre-qualified. 612 So.2d 425, 428 (Ala. 1992). However, the Alabama Supreme Court held that the pre-qualification process did not preclude the county board from re-evaluating the low bidder's responsibility after pre-qualification. Id. at 430. Pre-qualification does not necessarily represent a finding of responsibility. Id.

Remedies for Improper Adverse Eligibility Determinations

Most public contracting schemes provide at least some form of notice and opportunity to contest an adverse eligibility determination. Under the Federal Administrative Procedure Act, a contractor facing suspension or debarment is entitled to notice of the basis for the proposed action and an opportunity to appear at a hearing to contest the charges. 5 USC §706 (2003); see also Gonzalez .v. Freeman, 334 F.2d 570, 578 (D.C. Cir. 1964).

Similarly, states may provide some form of procedural due process before a suspension, debarment or even negative pre-qualification determination can be made. See, e.g., California Public Contract Code §20101; Golden Day Schools, supra, 83 Cal.App.4th 695. Although these procedures generally provide an opportunity to challenge the contracting authority's decision, the remedies available to the aggrieved contractor may be limited.

Injunctive Relief

Absent an overriding public interest, most courts are reluctant to grant declaratory or injunctive relief in bid protests. Baird Corp. v. United States, 1 Cl.Ct. 662, 664 (1983). Courts generally will not overturn a pre-award procurement decision unless the aggrieved bidder establishes that there was no rational basis for the agency's determination. Id. Despite this general rule, some states, such as Kansas, give a low bidder the opportunity for immediate injunctive relief to enforce its entitlement to the contract. Anderson-Meyers, supra, 660 F.Supp. 106.

However, when the government's offending act is a serious sanction, such as debarment or suspension, rather than a one-time rejection of a bid, the chance of obtaining injunctive relief increases.

A government contractor's primary remedy for unlawful debarment is an injunction. The court may issue an injunction when the contractor establishes that: (1) it will suffer irreparable injury absent such relief; (2) there is a substantial likelihood that it will prevail on the merits; (3) the issuance of an injunction would not substantially harm other parties interested in the proceedings; and (4) the public interest will be furthered by the injunction. Art-Metal USA v. Soloman, 473 F.Supp. 1, 3 (D.D.C. 1978).

In Art-Metal, the court issued a preliminary injunction halting debarment of a contractor when the contractor demonstrated it would suffer irreparable harm without an injunction because most of its business for more than 20 years had been supplying furniture to the government. Id. at 4. The court also issued a preliminary injunction in MCI Constructors, Inc. v. NASA when the contracting officer improperly considered the contractor's tendency to file claims in its determination of non-responsibility. 1991 WL 251858 at *4 (D.D.C. Nov. 12, 1991). In Leslie & Elliott Co. v. Garrett, the court went so far as to issue a permanent injunction when the plaintiff was not given adequate notice of the charges against it and was not afforded an opportunity to defend against the charges before it was debarred. 732 F.Supp. 191, 198 (D.D.C. 1990).

Monetary Damages

Contractors seeking monetary damages for rejection of their bids generally face a steep uphill battle. As explained in Garling Construction, Inc. v. City of Shellsburg, 641 N.W.2d 522, 523 (Iowa 2002):

Although a public contractor whose low bid is wrongfully rejected by a government entity is often held to have standing to prosecute an action for injunction, mandamus, or declaratory judgment, it is less frequently held that there is a remedy for damages in such cases, the basic reasoning being that while 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 goods and services.

The Garling court thus held that an unsuccessful bidder lacked standing to sue for monetary damages. Id.

Similarly, New York courts have barred a low bidder from recovering damages from municipality that rejected its bid. A.F.C. Enterprises, Inc. v. New York City School Construction Authority, 1999 WL 1417210 at *10 (E.D.N.Y. June 29, 1999), citing Termite Control Corp. v. Horowitz, 28 F.3d 1335, 1343 (2d. Cir. 1994)).

The mere appearance of impropriety in the government agency's review of bids is not grounds to disturb the agency's finding, absent fraud or actual favoritism. In re Conduit & Foundation Corp. v. Metropolitan Transportation Authority, 495 N.Y.S.2d 340, 342 (1985). But, when actual fraud, corruption or favoritism has influenced the conduct of officials or when the very object and integrity of the competitive bidding process is defeated by the conduct of officials, a contractor may have standing to sue in the public interest as a private attorney general. Spinello Construction Co. v. Manchester, 189 Conn. 539, 544 (1983); Unisys Corp. v. Department of Labor, 220 Conn. 689, 694 (1991).

The contractor must bring its action timely to recover damages. A contractor may not recover damages after the project has been completed. Gulf Oil Corp. v. Clark County, 94 Nev. 116, 119 (1978). The Nevada Supreme Court reasoned: "A timely challenge is compatible with the pubic interest since it serves to force compliance with the purpose of the bidding procedure. After the project is completed, however, it is difficult to perceive how the public interest is served by investing the low bidder with a cause of action for damages. The public has already paid the difference between the lowest bid and the bid that was accepted. The taxpayer should not be further penalized." Id. at 119.

Conclusion

Contractors need to be aware of state and federal laws concerning their due process rights in government procurement. With the growing use of design-build and prequalification procedures, contractors are subject to discretionary or subjective conduct by government agencies. Armed with knowledge about their due process rights and remedies, government contractors can successfully land profitable public projects. Because this area of law still is developing, contractors that stay abreast of legal developments will be best equipped to protect their rights.

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For more information about the issues covered in this report, please contact Keith L. Slenkovich in our Silicon Valley office at 408-282-1821 or at kslenkovich@thelen.com or contact your Thelen attorney. For more information about Thelen's Construction and Government Contracts Department, click here.





ENDNOTES

1/ For example, the Federal Acquisition Regulations ("FAR") mandate that federal contracts be awarded to "responsible" contractors only. FAR's responsibility standards require that prospective contractors have adequate financial resources to perform the contract or the ability to obtain such resources; be able to comply with the required delivery or performance schedule; have a satisfactory performance record; have a satisfactory record of integrity or business ethics; have the necessary organization, experience, accounting and operational skills; have the necessary production, construction and technical equipment and facilities; and otherwise be qualified and eligible to receive an award under applicable laws and regulations. 48 CFR §9.104-1 (2003).

2/ Aggrieved bidders also may file protests regarding bids rejected on responsiveness grounds, i.e., that a bid does not meet the requirements called out in the invitation for bid. Responsiveness generally can be determined from the four corners of a bid, and contractors whose bids are rejected on responsiveness grounds generally have fewer due process rights than those denied award on responsibility grounds. For example, in California, "a bidder determined to be nonresponsive is entitled to notice of that fact and is entitled to submit materials, in a manner defined by the [public entity], concerning the issue of responsiveness. The [public entity] is not required to conduct a hearing, however, and need not produce findings." Taylor Bus Service, Inc. v. San Diego Board of Education, 195 Cal.App.3d 1331, 1343 (1987).


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