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Low Bid Does Not Always Get the Award: Bidder Preference Laws


Gain an understanding of bidder preference laws necessary to navigate the evolving world of public works bidding.

The public policy of awarding a public works contract to the lowest, responsible, and responsive bidder is to provide a level playing field for all qualified contractors, to promote competition, to conserve public funds, and to avoid corruption. Other standards of award have similar public policies. Despite these public policies, meeting the standard of award may not be enough to win the award of a public works contract due to the widespread enactment of bidder preference laws.
Bidder preference laws give certain classes of bidders a competitive advantage over other classes of bidders for reasons not tied to performance of the contract being bid. The federal government, almost every state government, and many local governments have enacted a large number of bidder preference laws to promote non-performance-based causes that often appeal to voters.
Bidder preference laws are by nature discriminatory. They favor one or more classes of bidders over other classes of bidders for non-performance-based reasons. In addition, some local governments have exceeded their statutory authority in enacting bidder preference laws. As a result, bidder preference laws are subject to constitutional and statutory limitations that may result in legal challenges. Understanding the conflicting public policies behind standards of award and bidder preference laws and the limitations imposed by law could affect the awards of billions of dollars of public works projects annually and the rights of those who bid such projects.
This material will provide you with knowledge of the conflicting policies behind standards of award and bidder preference laws, the different types of bidder preference laws, and the legality of bidder preference laws. This information is critical to anyone whose rights may be affected by bidder preference laws.



Scott D. Cahalan

Scott D. Cahalan

Smith, Gambrell & Russell, LLP

Scott Cahalan

  • Partner in the construction law and litigation section of Smith, Gambrell and Russell, LLP, an AmLaw 200 firm
  • Part-time instructor of graduate courses in Design and Construction Law and Real Estate Development Law at the Georgia Institute of Technology
  • General counsel to the Georgia Utility Contractor’s Association
  • Practice includes all aspects of design and construction law from drafting and negotiating prime contractors, subcontracts, and purchase orders to mediating, arbitrating, and litigating construction disputes
  • Drafted form construction contracts for the Associated Owners and Developers, a national organization
  • Recognized by Chambers USA, The Best Lawyers in America, and Georgia Super Lawyers
  • Frequent author and lecturer on construction law
  • Member of the State Bar of Georgia, Northern District of Georgia, and 11th Circuit Court of Appeals
  • J.D. degree, with honors, University of Georgia; B.S. degree in construction engineering, Iowa State University
  • Contact information [email protected], [email protected], or (404) 815-3711

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