How should a municipality proceed when it receives identical low bids?

State law does not address the possibility of identical bids. When the competitive bidding statute is silent on an issue, courts are inclined to allow the municipality discretion. See D.M.K., Inc. v. Town of Pittsfield, 2006 WI App 40, 290 Wis. 2d 474, 711 N.W.2d 672, 679 n.2. A reviewing court will only interfere with a bidding authority’s discretionary act if it is arbitrary or unreasonable. Id. This is in line with the policies behind Wis. Stat. § 62.15 which allow municipalities to deal with problems in a practical, sensible way to achieve the statutory goals of preventing fraud, favoritism, and improvidence in the administration of public business and ensuring that the public receives the best work at the most reasonable price. Power Systems Analysis, Inc. v. City of Bloomer, 197 Wis. 2d 817, 541 N.W.2d 214 (Ct. App. 1995). Accordingly, League counsel has opined that in the rare event identical low bids for a public construction project are submitted, the municipality may accept the bid determined to be most advantageous to the municipality, elect to choose the successful low bidder by lot, or rebid. See Contracts # 317.

(rev. 6/22)