IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

September 2015 Term FILED 

November 10, 2015 

released at 3:00 p.m. 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS No. 15-0635 OF WEST VIRGINIA 

WISEMAN CONSTRUCTION COMPANY, INC.,
 

Defendant Below, Petitioner
 

v. 

MAYNARD C. SMITH CONSTRUCTION COMPANY, INC.,
 

Plaintiff Below, Respondent,
 

DAVID TINCHER, DIRECTOR OF THE PURCHASING
 

DIVISION OF THE DEPARTMENT OF ADMINISTRATION;
 

THE WEST VIRGINIA LOTTERY COMMISSION;
 

JOHN C. MUSGRAVE, DIRECTOR OF THE WEST VIRGINIA
 

LOTTERY; JASON PIZATELLA, CABINET SECRETARY
 

OF THE DEPARTMENT OF ADMINISTRATION;
 

AND ROBERT S. KISS, CABINET SECRETARY
 

OF THE DEPARTMENT OF REVENUE,
 

Defendants Below, Respondents
 

Appeal from the Circuit Court of Kanawha County
 

The Honorable Jennifer F. Bailey, Judge
 

Civil Action No. 15-P-157
 

AFFIRMED
 

Submitted: October 14, 2015
 

Filed: November 10, 2015
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

James M. Cagle, Esq. 

Charleston, West Virginia 

Attorney for Petitioner 

Wiseman Construction Company, Inc. 

Patrick Morrisey, Esq. 

Attorney General 

Kelli D. Talbott, Esq. 

Senior Deputy Attorney General 

Greg S. Foster, Esq. 

Assistant Attorney General 

Charleston, West Virginia 

Attorneys for State Respondents 

John Philip Melick, Esq. 

Nicklaus A. Presley, Esq. 

JACKSON KELLY PLLC 

Charleston, West Virginia 

Attorneys for Respondent 

Maynard C. Smith Construction 

Company, Inc. 

CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.
 

JUSTICE DAVIS, deeming herself disqualified, did not participate in the decision in this
 

case.
 

JUDGE JAMES H. YOUNG, JR., sitting by temporary assignment.
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “An unsuccessful bidder, who has been unlawfully deprived of a 

contract by agency action under the State purchasing statutes, W.Va. Code, 5A-3-1 et 

seq., has standing to prosecute an action in mandamus to require that the contract be 

awarded to him or for an injunction to enjoin violation of the requirement that contracts 

be awarded to the lowest responsible bidder. Syllabus pt. 2 of Pioneer Co. v. Hutchinson, 

[159] W.Va. [276], 220 S.E.2d 894 (1975) is overruled.” Syl. Pt. 1, State ex rel. E. D. S. 

Fed. Corp. v. Ginsberg, 163 W. Va. 647, 259 S.E.2d 618 (1979). 

2. “A de novo standard of review applies to a circuit court’s decision to 

grant or deny a writ of mandamus.” Syl. Pt. 1, Harrison Cty. Comm’n v. Harrison Cty. 

Assessor, 222 W. Va. 25, 658 S.E.2d 555 (2008). 

3. “‘“Mandamus lies to require the discharge by a public officer of a 

nondiscretionary duty.” Point 3 Syllabus, State ex rel. Greenbrier County Airport 

Authority v. Hanna, 151 W.Va. 479[, 153 S.E.2d 284 (1967)].’ Syllabus point 1, State ex 

rel. West Virginia Housing Development Fund v. Copenhaver, 153 W.Va. 636, 171 

S.E.2d 545 (1969).” Syl. Pt. 1, State ex rel. Williams v. Dep’t of Military Affairs, 212 

W.Va. 407, 573 S.E.2d 1 (2002). 

4. The Director of Purchasing may waive minor irregularities in bids or 

specifications pursuant to West Virginia Code of State Rules § 148-1-4 (2015) as part of 

i 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

the decision to award a government construction contract to the “lowest qualified 

responsible bidder,” as defined by West Virginia Code § 5-22-1(b)(1) (2015), so that the 

purchasing value of public funds is maximized to the fullest extent practicable. However, 

he or she may not treat substantive requirements of the public procurement laws, the 

advertisement for bids, or the bid forms as mere informalities in order to justify the 

decision to waive a deviation in a bid. 

5. A state agency which awards a public contract to the lowest 

qualified responsible bidder under the West Virginia Fairness In Competitive Bidding 

Act, West Virginia Code §§ 5-22-1 to -2 (2015), is clothed with the presumption that it 

has properly discharged its duties. Accordingly, the burden of proof in an action 

challenging the award of a contract by an unsuccessful bidder or a taxpayer is upon the 

challenger, who must show the agency’s actions were arbitrary, capricious, or an abuse of 

discretion. In conducting a review of the competitive bidding process, courts should 

consider whether there is a rational basis for the administrative decision. This standard 

requires courts to examine the bidding procedures utilized to ensure they provided a fair 

process and incorporated sufficient controls to safeguard against abuses. 

ii 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Workman, Chief Justice: 

Respondent Maynard C. Smith Construction Company, Inc. (hereinafter 

“MCS”), the low bidder on a government construction contract, filed suit to rescind the 

contract awarded to the next low bidder, Petitioner Wiseman Construction Company, Inc. 

(hereinafter “Wiseman”). Following an evidentiary hearing, the Circuit Court of 

Kanawha County, West Virginia, made detailed findings of fact and conclusions of law 

finding that the determination to disqualify MCS “was not rational” and “was based upon 

an ambiguous ‘requirement’ set forth in the bid documents that was of no consequence” 

to the goal of the State to ensure the work was performed by the lowest qualified 

responsible bidder. The circuit court granted MCS’s petition for writ of mandamus and 

ordered that the contract be awarded to MCS. Wiseman appealed. 

The question before this Court is whether the public officials with the 

Purchasing Division of the Department of Administration and the Lottery Commission 

(hereinafter collectively the “Agency”)1 exercised reasonable discretion in determining 

Wiseman was the lowest qualified responsible bidder on the project. For the reasons that 

follow, we find the Agency did not, and we affirm the judgment of the circuit court. 

1 Respondents David Tincher, Director of the Purchasing Division of the 

Department of Administration, the West Virginia Lottery Commission, John C. 

Musgrave, Director of the West Virginia Lottery, Jason Pizatella, Cabinet Secretary of 

the Department of Administration, and Robert S. Kiss, Cabinet Secretary of the 

Department of Revenue, filed a joint summary response. 

1
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

I. FACTUAL AND PROCEDURAL HISTORY
 

The Agency initiated the competitive bidding process to procure 

construction work on the Lottery’s existing headquarters in Charleston, West Virginia. 

The Agency’s instructions to bidders stated that “Bidders shall use complete sets of 

Bidding documents in preparing Bids.” Six companies submitted bids on the approved 

bid form. MCS submitted the lowest bid at $7,630,800. Wiseman’s bid was secondlowest at $7,786,000. The Agency initially recommended that the project be awarded to 

MCS; by letter dated March 10, 2015, the Agency informed MCS that it was “the 

apparent successful bidder” on the contract.2 

On March 19, 2015, Wiseman e-mailed the Agency and requested that 

MCS’s bid be disqualified because MCS did not submit a “qualification statement” as set 

forth in the bid documents; bidders were directed to include at least three references from 

other projects consisting of door replacement and other related construction operations 

similar to those required on the project.3 The bid documents erroneously provided that 

2 In this letter, the Agency requested MCS provide performance, maintenance, and 

payment bonds, insurances, and a current contractor’s license. MCS submitted all of the 

items requested by the Agency. 

3 Specifically, the instructions to bidders provided: 

1.07 Qualification Statement 

A.	 The qualified Contractor shall have completed a minimum 

of three (3) projects consisting in part or in whole of 

building entrance and door replacement including 

(continued . . .) 

2
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“[t]he Proposal Form includes a section in which the references should be listed.” 

However, neither “Section I” nor “Section II” of the Agency’s bid form included a 

section in which the references could be listed. Furthermore, no information concerning 

references was among the specified “Required Documents” or was otherwise addressed 

in the Agency’s published requests for bids. Nevertheless, three of the six bidders 

(including Wiseman) submitted references on documents which were not part of the 

mandatory bid form.4 The three other bidders (including MCS) submitted their proposals 

on the bid form without attaching any documentation concerning references. 

After receiving Wiseman’s protest, employees of the Lottery Commission 

reviewed the bidding documents and consulted with employees of the Purchasing 

Division. The employees believed they did not have the discretion to waive the 

qualification statement; they determined it was a mandatory requirement because the 

selective demolition, carpentry, installation of replacement 

door frames, door and door hardware, remedial room 

finishing, and other related construction operations similar 

to those required on this project. All bidders shall include 

at least three (3) references indicating their having 

completed the three projects as detailed above. References 

should include the name, location, ownership, and use of 

the building in addition to the name, address and 

telephone number of a contact person with the building’s 

owner familiar with the work completed by the 

Contractor. The Proposal Form includes a section in 

which the references should be listed. 

4 Wiseman included a list of references on a form not familiar to the Director of 

Purchasing but apparently taken from “page 6” of some other bid package. The other two 

contractors provided references on their own stationery. 

3
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

directions provided that bidders “shall include” a list of references on the proposal form. 

Ultimately, Respondent David Tincher, the Director of Purchasing, awarded the contract 

to Wiseman after disqualifying MCS for failure to include the references. MCS protested 

this decision and Mr. Tincher denied the protest without a hearing on April 21, 2015. 

On April 22, 2015, MCS filed a petition for writ of mandamus and 

complaint for declaratory and injunctive relief. At the April 30, 2015, hearing before the 

circuit court, the Agency called two witnesses, Mr. Tincher and Danielle Boyd, the 

Lottery’s general counsel. Mr. Tincher testified that the Agency did not believe it had the 

authority to waive the qualification statement: “We felt like our hands were tied.” Ms. 

Boyd testified that the Agency never contacted the references provided by Wiseman. She 

stated the architect on the project had experience working with both MCS and Wiseman 

and felt they were qualified bidders. The witnesses could not explain who specifically 

requested that the bidders list references or why references were requested for this 

project. 

By order entered June 22, 2015, the circuit court granted MCS’s petition for 

writ of mandamus and ordered the Agency to award the contract to MCS. The circuit 

court found that the Agency’s decision to disqualify MCS’s bid was not “rational” 

because the requirement that bidders submit references was ambiguous and served no 

purpose. The circuit court cited West Virginia Code of State Rules § 148-1-4.6 (2015), 

which permits the Purchasing Director to “[w]aive minor irregularities in bids or 

4
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

specifications when the Director determines such action to be appropriate[.]” The circuit 

court concluded, in part, that 

[i]t is fundamentally unfair for State agencies to pit qualified, 

sophisticated well-established businesses against one another 

to argue about the purpose of language in bid documents that 

no one in charge can explain where the language came from 

or why it was there or how vendors were supposed to furnish 

it, and even upon review of the bids, was never utilized or 

relied upon. It is indeed this conduct that is shocking to the 

conscience of the [c]ourt. 

Wiseman timely appealed this order. 

II. STANDARD OF REVIEW 

We are asked to review the circuit court’s order granting MCS’s petition for 

writ of mandamus. As a preliminary matter, we note that a disappointed bidder has 

standing to judicially challenge the award of a public contract to another bidder. In 

syllabus point one of State ex rel. E. D. S. Fed. Corp. v. Ginsberg, 163 W. Va. 647, 259 

S.E.2d 618 (1979), this Court held: 

An unsuccessful bidder, who has been unlawfully 

deprived of a contract by agency action under the State 

purchasing statutes, W.Va. Code, 5A-3-1 et seq., has standing 

to prosecute an action in mandamus to require that the 

contract be awarded to him or for an injunction to enjoin 

violation of the requirement that contracts be awarded to the 

lowest responsible bidder. Syllabus pt. 2 of Pioneer Co. v. 

Hutchinson, W.Va., 220 S.E.2d 894 (1975) is overruled. 

On appeal, our standard of review is de novo. In syllabus point one of 

Harrison County Commission v. Harrison County Assessor, 222 W. Va. 25, 658 S.E.2d 

5
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

555 (2008), this Court held: “A de novo standard of review applies to a circuit court’s 

decision to grant or deny a writ of mandamus.” Under this standard, “‘we consider de 

novo whether the legal prerequisites for mandamus relief are present.’” McComas v. Bd. 

of Educ. of Fayette Cty., 197 W.Va. 188, 193, 475 S.E.2d 280, 285 (1996) (quoting State 

ex rel. Cooper v. Caperton, 196 W.Va. 208, 214, 470 S.E.2d 162, 168 (1996)). Therefore, 

we take note that 

“‘[m]andamus lies to require the discharge by a public officer 

of a nondiscretionary duty.’ Point 3 Syllabus, State ex rel. 

Greenbrier County Airport Authority v. Hanna, 151 W.Va. 

479[, 153 S.E.2d 284 (1967)].” Syllabus point 1, State ex rel. 

West Virginia Housing Development Fund v. Copenhaver, 

153 W.Va. 636, 171 S.E.2d 545 (1969). 

Syl. Pt. 1, State ex rel. Williams v. Dep’t of Military Affairs, 212 W.Va. 407, 573 S.E.2d 1 

(2002). With these principles in mind, we consider the merits of the parties’ arguments. 

III. DISCUSSION 

Wiseman seeks our reversal of the circuit court’s order granting MCS’s 

petition for writ of mandamus and directing the Agency to award the contract to MCS. 

Wiseman argues that the circuit court misapplied the standard of review articulated in 

Ginsberg and instead substituted its judgment for that of the Agency’s. MCS responds 

that the circuit court exercised its proper authority to correct the “irrational” 

disqualification of MCS and saved more than a hundred thousand dollars of scarce public 

funds. 

6
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Agency filed a summary response and conceded that the request for 

proposals used to solicit bids for the project contained a number of errors and those errors 

created confusion among the bidders. Although it argued below that it had no discretion 

to waive the qualification statement, the Agency has retreated from that position; it stated 

in its brief before this Court that it exercised appropriate discretion by not waiving that 

requirement. During oral argument, the Agency explained that it did not appeal the circuit 

court’s ruling, not because it agreed with the ruling, but because it needed to commence 

the renovation project immediately. The Agency acknowledged “the taxpayers of the 

State of West Virginia are best served” by allowing the circuit court’s order to stand.5 

5 Although it filed no motion to dismiss Wiseman’s appeal as moot, the Agency 

contends that the relief requested by Wiseman (to be awarded the contract) has been 

rendered moot considering MCS’s substantial completion of the construction project. 

Given the resolution of this case, it is not necessary for this Court to address what remedy 

would be available to Wiseman had it prevailed on appeal. Nonetheless, we address the 

legal issues raised by the parties herein consistent with the principles set forth in syllabus 

point one of Israel by Israel v. West Virginia Secondary School Activities Commission, 

182 W. Va. 454, 455, 388 S.E.2d 480, 481 (1989): 

Three factors to be considered in deciding whether to 

address technically moot issues are as follows: first, the court 

will determine whether sufficient collateral consequences will 

result from determination of the questions presented so as to 

justify relief; second, while technically moot in the immediate 

context, questions of great public interest may nevertheless be 

addressed for the future guidance of the bar and of the public; 

and third, issues which may be repeatedly presented to the 

trial court, yet escape review at the appellate level because of 

their fleeting and determinate nature, may appropriately be 

decided. 

7
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

This case involves two questions. We first address whether the Agency had 

the discretion to waive the qualification statement set forth in the bid specifications. We 

then address the appropriate standard of review courts should employ when examining 

challenges to an agency’s process in selecting the lowest qualified responsible bidder. 

Our analysis begins with a brief overview of our public procurement laws. 

A. West Virginia Public Procurement Laws 

The Purchasing Division within the Department of Administration 

oversees and provides purchasing services to the various State agencies. W.Va. Code § 

5A-3-1 (2015). The goal is to “ensure the fair and equitable treatment of all persons” 

who deal with the procurement system of the State of West Virginia. W.Va. Code § 5A3-1(a)(6). Public procurement laws protect the citizens and businesses of this State by 

safeguarding the purchasing system to “obtain in a cost-effective and responsive manner 

the commodities and services required[.]” W.Va. Code § 5A-3-1(a)(10). These laws were 

enacted to ensure that tax dollars for public works are spent wisely and to guard against 

public officials entering into contracts because of favoritism. See generally SE/Z Constr., 

L.L.C. v. Idaho State Univ., 89 P.3d 848, 853 (Idaho 2004) (holding purpose of 

competitive bidding statutes is to safeguard public funds and prevent favoritism, fraud 

and extravagance in their expenditure). One of the overriding purposes of our 

procurement laws is “to maximize to the fullest extent practicable the purchasing value of 

public funds[.]” W.Va. Code § 5A-3-1(a)(7). The essential safeguard of competitive 

8
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

bidding is to maintain quality and integrity in the procurement system. W.Va. Code § 5A3-1(a)(9). 

With respect to government construction contracts, the Legislature has 

specifically prescribed the conditions upon which it will permit such work to be done in 

the West Virginia Fairness In Competitive Bidding Act. W.Va. Code §§ 5-22-1 to -2 

(2015). The State must solicit competitive bids for every construction project exceeding 

$25,000 in total cost. Id. § 5-22-1(c).6 All bids shall be open in accordance with the 

provisions set forth in West Virginia Code § 5-22-2, except design-build projects which 

are governed by West Virginia Code § 5-22A-1 to -16.7 “Following the solicitation of 

6 West Virginia Code § 5-22-1 provides four exceptions not applicable here. 

7 The Design-Build Procurement Act, West Virginia Code 5-22A-2, provides the 

following definitions: 

(3) “Design-build” is defined as providing 

responsibility within a single contract for design, construction 

or alteration of a building or buildings, together with 

incidental approaches, structures and facilities to be 

constructed, in which services within the scope of the practice 

of professional engineering or architecture, as defined by the 

laws of the State of West Virginia, are performed by an 

engineer or architect duly licensed in the State of West 

Virginia and in which services within the scope of 

construction contracting, as defined by the laws of the State 

of West Virginia, are performed by a contractor qualified and 

licensed under the applicable statutes. The design-build 

method of construction may not be used for any other 

construction projects, such as highway, water or sewer 

projects. 

9
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

bids, the construction contract shall be awarded to the lowest qualified responsible 

bidder who shall furnish a sufficient performance and payment bond.” W.Va. Code § 5­

22-1(d) (emphasis added). However, the State “may reject all bids and solicit new bids on 

the project.” Id. 

Under the plain language of the statute, an agency has two options 

following the solicitation of bids; it may reject all bids and solicit new bids on the project 

or award the construction contract to the lowest qualified responsible bidder. The “lowest 

qualified responsible bidder” is the bidder that bids the lowest price and meets the 

requirements in connection with the bid solicitation. W.Va. Code § 5-22-1(b)(1).8 When 

awarding the contract, the Director of Purchasing may “[w]aive minor irregularities in 

bids or specifications” when he or she “determines such action to be appropriate[.]” W. 

Va. Code R. § 148-1-4.6. 

In this case, the Agency elected to award the contract based on the bids 

submitted even after it learned of the defect in the bid form because it wanted to move 

8 West Virginia Code § 5-22-1(b)(1) further provides that:
 

The bidder must certify that it:
 

(A) Is ready, able and willing to timely furnish the 

labor and materials required to complete the contract; 

(B) Is in compliance with all applicable laws of the 

State of West Virginia; and 

(C) Has supplied a valid bid bond or other surety 

authorized or approved by the contracting public entity. 

10 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

forward with the renovation project. Therefore, the pivotal question before it was whether 

MCS was the lowest qualified responsible bidder. Had the bid form contained a section 

for the contractors to list appropriate references, the Agency would have considerable 

leeway to determine whether a bidder was the best contractor for the job. The Agency 

had the prerogative to establish objective prequalification standards premised upon a 

contractor’s technical competence and experience constructing similar facilities in order 

to determine if the bidder was qualified and responsible. 

We therefore reject MCS’s argument that when specified construction 

services are sought from licensed, bonded contractors, an agency must make the award to 

the low cost bidder pursuant to West Virginia Code § 5-22-1(d). We agree that a bidder 

holding the requisite contractors’ license is “qualified.” However, the statute has the 

phrase “lowest qualified responsible bidder.” Id. If MCS’s argument were adopted, then 

the word “responsible” would be read out of the statute.9 See Syl. Pt. 4, Osborne v. 

United States, 211 W. Va. 667, 668, 567 S.E.2d 677, 678 (2002) (stating each word of 

statute should be given some effect and undefined words will be given their common, 

ordinary and accepted meaning). Given the common meaning of the word, “responsible” 

relates to more than a showing that the bidder holds the requisite license. A “responsible 

9 MCS questions the efficacy of any reference requirement because it could tilt the 

playing field against startup construction companies even when they are properly 

licensed and bonded. We do not question the wisdom of this legislative enactment 

especially when both contractors in this case are experienced. This Court does not issue 

advisory opinions. See State ex rel. Morrisey v. W.Va. Office of Disciplinary Counsel, 

234 W. Va. 238, 246, 764 S.E.2d 769, 777 (2014). 

11
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

bidder” is a contractor “who possesses the requisite skill, judgment, and integrity 

necessary to perform the contract requested, and who has the financial resources and 

ability to carry the task to completion.” Black’s Law Dictionary 1506 (10th ed. 2014). 

We now return to the Agency’s decision to award the contract to Wiseman. 

The witnesses stated they had no choice but to disqualify MCS because they could not 

waive the qualification statement because it was a material requirement in their eyes. 

However, the Agency’s behavior contradicts this position; it did not rely upon the 

qualification statement at all. Furthermore, the Agency offers no legal support for its 

argument that it could not waive this irregularity. As discussed above, the Director of 

Purchasing may waive minor irregularities in bids or specifications pursuant to West 

Virginia Code of State Rules § 148-1-4 (2015) as part of the decision to award a 

government construction contract to the “lowest qualified responsible bidder,” as defined 

by West Virginia Code § 5-22-1(b)(1) (2015), so that the purchasing value of public 

funds is maximized to the fullest extent practicable. However, he or she may not treat 

substantive requirements of the public procurement laws, the advertisement for bids, or 

the bid forms as mere informalities in order to justify the decision to waive a deviation in 

a bid.10 

10 It is well settled that an agency cannot waive substantive requirements and is 

required to reject bids which vary materially from the specifications set forth in the 

published request for proposal. W.Va. Code §§ 5-22-1(g) and 5-22-2(b); see e.g., Entech 

(continued . . .) 

12
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

In the present case, the irregularity in the bids was caused by the Agency’s 

error. The bid documents mistakenly provided that the form included a section in which 

the qualification statement should be listed. Technically, no bidder could meet that 

requirement without going outside the bid form. In fact, the bid solicitation was so flawed 

that half of the contractors who responded ignored the instruction as an obvious mistake. 

We therefore find that the Agency had the discretion to waive the bid requirement of a 

qualification statement. Importantly, Wiseman does not assert its bid would be any 

different or that MCS could not provide a list of references. Therefore, MCS would not 

gain any competitive advantage if the requirement was waived. Moreover, any such 

waiver would work no prejudice to the rights of the public for whom the Agency serves. 

B. Judicial Review of an Agency’s Decision to Award a Contract 

Corp. v. City of Newark, 798 A.2d 681, 691 (N.J. Super.Ct. Ch. Div. 2002) (“To be 

accepted, bid proposals must not materially deviate from the specifications set forth by 

the contracting agency.”); accord Gunderson v. Univ. of Alaska, Fairbanks, 922 P.2d 

229, 235 (Alaska 1996). “A variance is material if it gives the bidder a substantial 

advantage over other bidders and thereby restricts or stifles competition. ” Chris Berg, Inc. 

v. State, Dep’t of Transp. & Pub. Facilities, 680 P.2d 93, 94 (Alaska 1984). 

In a bid for a construction project, not every variation 

from the instructions or specifications will destroy the 

competitive character of the bid. . . . To have that effect, the 

variation from the instructions or specifications must be 

substantial, and to be substantial, it must affect the amount of 

the bid and must give the bidder an advantage or benefit not 

allowed to other bidders. 

Wilson Bennett, Inc. v. Greater Cleveland Reg’l Transit Auth., 588 N.E.2d 920, 925 

(Ohio Ct.App. 1990). 

13
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

In Ginsberg, we discussed the breadth of discretion that courts should give 

an agency when awarding a government contract to the lowest qualified responsible 

bidder. See Syl. Pt. 3, Ginsberg, 163 W.Va. at 647, 259 S.E.2d at 620 (“A State agency 

which awards a public contract upon criteria other than price is clothed with a heavy 

presumption that the contracting agency has properly discharged its duties and exercised 

discretionary powers in a proper and lawful manner; accordingly, the burden of proof in 

any action challenging the award of a contract by an unsuccessful bidder or a taxpayer is 

upon the challenger who must show fraud, collusion, or such an abuse of discretion that it 

is shocking to the conscience.”). 

We are cognizant that Ginsberg involved the challenge of an unsuccessful 

bidder to an agency’s decision to award a design-build contract for a new computer 

system.11 In Ginsberg, we declined to second guess the agency’s decision considering the 

complexity and subjective nature of that assessment. Important to our analysis herein, this 

Court distinguished between court intervention into the substantive, as opposed to the 

11 West Virginia Code 5-22A-2, provides: 

(4) “Design-build contract” means the contract 

between an agency and a design-builder to furnish the 

architecture, engineering, and related services as required, for 

a given public project, and to furnish the labor, materials and 

other construction of services for the same public project. A 

design-build contract may be conditional upon subsequent 

refinements in scope and price, and may permit the agency to 

make changes in the scope of the project without invalidating 

the design-build contract. 

14
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

procedural, parts of a government body’s decision making process. As recognized by the 

United States District Court in Mid Atlantic Storage System, Inc. v. City of Milton, 903 

F.Supp. 995 (S.D. W.Va. 1995), Ginsberg admonishes courts to “not substitute their 

judgment” for that of the agency in cases in which subjective factors beyond price come 

into play.” Id. at 997 (emphasis added). Therefore, when evaluating bids on design-build 

contracts, agencies “are not required to accept the lowest price where service, delivery 

dates, continuity in supply, and other factors not directly related to cost are involved, 

particularly where these elements have a far greater impact upon the efficiency of State 

government than minor differences in price.” Ginsberg, 163 W.Va. at 659, 259 S.E.2d at 

626. 

The Lottery building renovation at issue in this case was not a design-build 

project. Rather, the Lottery hired its own architect to design and specify the renovation. 

Contractors submitted fixed-price bids to complete the work after reviewing the 700-page 

project manual prepared by the architect and the 70-page bid solicitation documents. 

MCS did not file suit to challenge the substantive aspect of the Agency’s decision making 

process; the parties agree that both contractors are well respected in the construction 

industry and could do the work required for the project. MCS challenged the rationality 

of the Agency’s bid process and alleged its low bid was disqualified for an 

inconsequential reason. 

15
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Therefore, in this appeal we are asked to review the Agency’s decisionmaking process that lead to the disqualification of MCS’s bid when the Agency 

acknowledged procedural defects in the bid solicitation. In Ginsberg, we emphasized that 

an agency’s process of making decisions should be rational. “There is no question that a 

bidder who goes to the expense of preparing a complex proposal has the right to rely 

upon both the contracting authority’s integrity and intelligent use of discretion.” Id. at 

657, 259 S.E.2d at 625. It is clear from Ginsberg that West Virginia follows the general 

rule of vesting an agency with discretion subject to judicial review and this tenet applies 

to fixed-price government construction contracts. See generally, Rochester City Lines, 

Co. v. City of Rochester, 868 N.W.2d 655, 660 (Minn. 2015) (applying unreasonable, 

arbitrary, or capricious standard of review to competitive bidding process requires courts 

to examine bidding procedures to ensure they provide fair process and incorporate 

sufficient controls to safeguard against abuses”); Chris Berg, Inc., 680 P.2d at 94 (stating 

determination by public agency of responsiveness of bid is within agency’s discretion, 

subject, on judicial review, to ascertainment there was reasonable basis for decision). 

In the area of government contracts, federal courts have developed 

standards to guide the exercise of judicial review over procurement decisions by federal 

agencies. See, e.g., Impresa Construzioni Geom. Domenico Garufi v. U.S., 238 F.3d 

1324, 1332-33 (Fed. Cir. 2001) (recognizing bid award may be set aside if procurement 

official’s decision lacked rational basis; reviewing courts must determine whether 

contracting agency provided coherent and reasonable explanation of its exercise of 

16
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

discretion and disappointed bidder bears heavy burden of showing award decision had no 

rational basis). Because the federal standards have the same basic objectives of 

eliminating favoritism and fraud in procurement decisions and ensuring the good-faith 

conduct of agency officials in securing public contracts, they are instructive in 

determining whether the decision of an agency was unreasonable, arbitrary, or capricious. 

We hereby hold that a state agency which awards a public contract to the 

lowest qualified responsible bidder under the West Virginia Fairness In Competitive 

Bidding Act, West Virginia Code §§ 5-22-1 to -2 (2015), is clothed with the presumption 

that it has properly discharged its duties. Accordingly, the burden of proof in an action 

challenging the award of a contract by an unsuccessful bidder or a taxpayer is upon the 

challenger, who must show the agency’s actions were arbitrary, capricious, or an abuse of 

discretion. In conducting a review of the competitive bidding process, courts should 

consider whether there is a rational basis for the administrative decision. This standard 

requires courts to examine the bidding procedures utilized to ensure they provided a fair 

process and incorporated sufficient controls to safeguard against abuses. 

To properly analyze whether there was a rational basis for an agency’s 

determination, courts should weigh two important principles. When an agency acts in a 

fair and legal manner and within the reasonable exercise of a sound discretion, then 

courts should not interfere with its decision to award a contract. “Public administration 

would be hamstrung if courts were free to second-guess reasonable administrative 

17
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

decisions.” Hous. Auth. of City of Opelousas, La. v. Pittman Const. Co., 264 F.2d 695, 

697-98 (5th Cir. 1959). On the other hand, and no less important, “is the public interest of 

the state in securing honest competition and in protecting taxpayers from the evils of 

favoritism and high prices in the letting of contracts for public works.” Id. Our decision 

depends on accommodating these two principles. 

On the unique facts presented in this case, we find the public interest of 

ensuring that tax dollars for public works are spent wisely predominates over the 

Agency’s stringent adherence to faulty bid specifications. See Boh Bros. Const. Co. v. 

Dep’t of Transp. & Dev., 698 So.2d 675, 678 (La. Ct. App. 1997) (“To deny a public 

entity the power to waive insignificant deviations in order to select a low bid on every 

public works project is contrary to the interests of the taxpaying citizens of this state.”). It 

is difficult for this Court to avoid the conclusion that the Agency showed a complete lack 

of intelligent use of its discretion. Employing the agency’s analysis, MCS’s failure to 

attach a separate sheet of references to the bid form was fatally dispositive yet, at the 

same time, utterly meaningless; this factor was the sole basis to disqualify MCS’s bid 

even though the Agency readily admitted that it would not have contacted those 

references because the architect knew the contractors. Not only was the Agency’s 

decision nonsensical, it was contrary to the underlying policy of the public procurement 

laws. By any reasonable standards, such action offends one’s sense of fair play and was 

an arbitrary abuse of discretion inconsistent with the letter and the spirit of our public 

procurement laws. Therefore, this Court rejects the argument that the Agency 

18
 
 

 

 

 

 

 

 

appropriately exercised its discretion when it awarded the construction contract to 

Wiseman. 

IV. CONCLUSION 

For the reasons explained above, we find no error in the June 22, 2015, 

order of the Circuit Court of Kanawha County granting MCS’s petition for writ of 

mandamus. Accordingly, we affirm that order. 

Affirmed. 

19