In a recent bid protest at the Massachusetts Attorney General’s office, a low bidder had the misfortune of finding that its inadvertent use of “conditional” language on the bid form made its bid invalid, even though the item in question had an insignificant value and would not have changed the order of bidders. The issue involved repairs to a dam structure. It was a relatively small project in which the engineer’s estimate was $515,000. The low bid was approximately $371,000, with the second bid about $86,000 higher. (The bids ranged up to $829,000.) There were 18 bid items for the project which were primarily unit price, together with some lump sum items. Prior to the bid, an addendum was issued which deleted most of the work for one particular item, but retained some incidental work within the item with a value of less than $5,000. The low bidder mistakenly read the addendum as deleting all of the work for the item, and wrote in “Deleted per Addendum 1.” No price was given for the remaining work.
A protest was filed by the second bidder, claiming that the insertion of this “Deleted” language clearly meant that the low bidder was not intending to do the remaining scope of the work, which made its bid conditional – it was essentially telling the awarding authority that its stated price would not include the remaining work, however incidental, required by that item. After the bid, the low bidder stated that it had carried the remaining incidental work as part of another item, and that it would certainly perform all the work required by the contract for its bid price. This was acceptable to the Town, which notified the parties of its intent to award the contract to the low bidder. The protest was then filed, and a hearing was held at the Attorney General’s office.
At the hearing, the Town relied on cases involving missed addenda or omitted prices; it claimed that if the omitted price is insignificant, then the awarding authority can waive it. The Protestor argued that in those cases, there was never a clear affirmation that the bidder was not going to do the contract work; in this case, the bidder had expressly stated that the entire item was “Deleted per Addendum 1.” It was not an omission but an affirmative statement that it would not perform all of the work.
In its Decision, the AG noted that the Invitation for Bids in mandatory language said that “Conditional bids will not be accepted.” Accordingly, since the low bidder had affirmatively stated that it was not going to do the remaining incidental work for this item, its bid had to be rejected as conditional. Any claim that the bidder had placed the remaining work within another item could not be considered, because it was not apparent from the four corners of the bid document that it had done so.
Had the low bidder left the item blank or simply written zero, it could have been awarded the contract. The lesson here is that a contractor must be very careful with any language that it is putting on a bid form, especially with respect to the pricing of an item. Addenda have to be carefully read and understood; if the contractor is uncertain about the meaning, it should seek a clarification from the Engineer. Bidders must be careful not to write in any language which could have a similar unfortunate result such as happened in this case.