The competitive bidding process is extremely structured. This is intended to produce the lowest price for the public by preventing fraud and favoritism. It is also designed to provide competing bidders with a fair, level playing field. Sometimes these goals work at cross purposes.
A low bid may contain a minor deviation or irregularity. Waiver of that deviation and acceptance of the low bid could save the public a great deal of money. But if requirements of the bid solicitation or construction contract are waived, where is the fairness and consistency in the procurement process? And when does an irregularity cease to be minor and start to become substantive? In a recent case, the solicitation required bidders to initial any changes or corrections. The low bidder failed to do so, yet there was no ambiguity or uncertainty regarding the intended bid price. Waiver of the irregularity would save the public money, but the state procurement statutes prohibited waiver of mandatory solicitation provisions.
I invite your comments on the waiver of bid irregularities . . .
How rigid should the procurement process be? When does a minor irregularity become a substantive deviation?
In next Monday's issue of Construction Claims Advisor:
- Lack of Drawing Detail Did Not Negate Contract Requirement
- Violation of Price Confidentiality Did Not Affect Technical Evaluations
- Contractors Bound by Attorneys’ Inadvertent Release of Project Owner