ConstructionPro Week, Volume: 1 - Issue: 15 - 08/13/2012

The Right to Waive Bid Irregularities: A License to Manipulate?

By Bruce Jervis


Public project owners commonly reserve the right to waive irregularities in bids and award a contract despite flaws or discrepancies in the bid. The rationale is that the taxpaying public should not be deprived of the lowest offered price due to a minor bid mistake – particularly if correction of that mistake will not affect the relative competitive standing of the bidders.


But what is an “irregularity,” and how far does the right to waive irregularities extend? This is not always clear. Some public project owners treat their right to waive as a license to do as they please when evaluating and comparing bids. This can be detrimental to the integrity of the competitive bidding process.


In a recent Mississippi case, a municipal project owner amended the bid solicitation, replacing the original bid form which called for a 15-inch sewer line with a new bid form calling for a 16-inch line. The low bidder on the contract never acknowledged receipt of the addendum and submitted its bid on the original form. The municipal engineer treated this as a clerical error and simply transposed the prices from the obsolete form onto the proper form.


What is your opinion? Should the right to waive bid irregularities be narrowly proscribed in order to avoid manipulation? Or is it more important to maintain flexibility for public project owners, enabling them to obtain the lowest price on the contract? I welcome your comments.



Refer to rationale to the taxpaying public. Little dumb things like acknowledging the addendum on the bid but then not including it in its entirety is just asinine.

Not including a bond, not signing signature forms, not acknowledging addendums...those items should not be allowed to be waived.

People just need to stop sweating the small stuff!

Posted by: Chris - Thursday, August 16, 2012 7:12 PM

At our municipality, this is a regular issue at bid opening time. Unsigned bids, unacknowledge addendums, bid amounts filled out incorrectly, disclaimers written on the bid form, you name it we've seen it. In an attempt to be fair to all bidders we often choose to reject all bids and start over. That's not always in the best interest of the taxpayer though. When a contractor reinvented the english language to contest how unit prices should be calculated as part of the bid amoount, it cost us $35,000 in engineering and printing fees to rebid the project. We've tried simplyfing the bid forms, clarifying the instructions - I don't expect much to change until contractors aren't filling out bid forms in their trucks 5 minutes before they are due.
Posted by: Steve - Thursday, August 16, 2012 9:52 PM

The types of bid problems discussed here would cause some agencies to deem the bids as "non-responsive." Allowing such bids to have any impact on the bidding process only incentivizes more non-responsive bids. Agencies that summarily eliminate non-responsive bids very rarely see such bids.

In addition, allowing non-responsive bids to have any impact on the bidding process will likely create enough doubt with contractors about fairness of the owner's actions to ensure that the owner will not be able to create a level playing field.
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