Construction Bidding Court Case #3 – Forms

Post in Blog

An essential requirement to ensure you are conducting a fair and equitable bidding process is making certain that all bidders receive the same information and documentation in an equal and timely manner. Doing so will ensure a successful bid process and minimize costly risks that could result in the loss of the low bidder to clerical error and/or a coinciding court claim by one of the bidders.  While it sounds basic and obvious, the nature of a paper-based bidding process is such that control over what documentation is in the public domain is out of the bid authority’s hands and an unintentional error by one of the bidders could cost the owner a low bid’s disqualification, as the following Court decision illustrates:

The Bid Documents:

  • The Owner issues Addendum 1 which has a bid form with non-negotiable prices for pre-selected materials and a $400,000 contingency – Pre-Printed on the form.
  • Subsequently Addendum 2 is issued:
  1. The Owner was able to negotiate lower prices for pre-selected materials and that was reflected on an amended bid form – containing pre-printed contingency allowances.
  2. Instructions to bidders made use of the addendum 2 bid form mandatory.

The Bid Submission:

As a result of the issuance of Addendum 2, bidders had 2 paper bid forms in their possession.

  • Contractor 1 used the Addendum 1 bid form for its submission and Contractor 2 used the Addendum 2 bid form.  If Contractor 1 had used the Addendum 2 bid form it would be bidding case bid forms
  • The Owner sought declaration that Contractor 1’s bid  was “materially compliant”
    • It was obvious what Contractor 1’s new price would be given the pre-printed form.
  • The price of the pre-selected material was not one over which the bidders had any control.  This fixed price was a mandatory component of the total bid price.