In the February 205 case of Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc., 2015 Cal App Lexis 264 the Court of Appeals took on the question of whether a second-placed bidder on a public works job can state a cause of action for intentional interference with prospective economic advantage against the winning bidder if the winning bidder was only able to obtain the contract by illegally paying its workers less than the prevailing wage. The Appellate Courts answer was yes if it alleges that it was the second place bidder and would have been the lowest bidder and would have, without the winners failure to pay prevailing wages, been the winning bidder.

It is clear this case is based upon the factual circumstances of alleged wrongdoing on the part of the high bidder and the court made clear that it limited its ruling to instances where the party must allege it would have been the actual lawful low bidder. In the instant case while the plaintiffs were allowed to move forward it will be interesting to see whether they can actually prove that the defendant had the intent at the time of the bid to not pay prevailing wages.