ConstructionPro Week, Volume: 4 - Issue: 49 - 12/18/2015

Do Project Owners Manipulate Bid Requirements?

By Bruce Jervis


Sealed bidding in the public sector demands strict adherence to the requirements of the bid solicitation. Failure to do so may result in rejection of a bid as “nonresponsive.” But not all requirements are “material.” Not all aspects of a bid solicitation relate to the bidder’s commitment and ability to perform in accordance with the terms of the contract. How does one make this distinction?


The West Virginia Supreme Court recently provided one example. A bid solicitation required bidders to provide references from prior, similar projects. The references were to be listed in a designated section of the mandatory bid form. Yet, the bid form contained no such section.


The public project owner rejected the low bid for failure to list references and awarded the contract to the second low bidder, who had attached a listing of references to the bid form. The owner never contacted any of the references.


The court overturned this action. The discrepancies in the bid documents made the requirement for references ambiguous. Worse yet, how could the project owner treat the requirement as material when the owner never relied on or utilized the information? The low bidder’s omission should have been waived as a minor informality.


Have you seen instances where seemingly inconsequential bid requirements have been treated as very important for purposes of advancing one bid over another? How can one distinguish material requirements from the immaterial? Your comments are welcomed.



We recently bid a project for the Pa. county. The project was 3 apartments. Hi bid was 2,100,000. we were 2nd at 2,360,000. Option 1 was different windows & option 2 was . The low bidder inserted a price for changing walls from block to wood framed which was supposed to be for windows. Upon our inquiry to the county they said they weren't taking the alternates so the low bid was accepted. The low bidder was sued last week for a wrongfull death for 32,000,000 which the jury awarded to the family. Dosn't seem to be a responsible bidder. He has been taking government projects 50% below other bidders.
Posted by: ziggy - Friday, December 18, 2015 11:50 AM

You should not be giving potential bidders the impression that references are an inmaterail or inconsequential to a bid if requested. And especially if it is noted as required. This case was decided on poor management of the bid documents, both before and after bid opening. It was NOT decided on the merits of providing references. Also, the lack of the form could not be construed as alleviating the bidders of the responsibility of providing the information. If the owner had checked even one reference, or could prove they have checked it prior, then the judgment could not possibly be the same.

Most Owners will not be this sloppy, and good references are quite material to the award of your contract, wether they are provided before or after bid opening. Generally, if something is listed as "required", you must provide it or risk rejection. Most Owners will not want to deal with you if you cannot even fill out the bid documents properly. Especially when the second lowest bidder did.
Posted by: Tom - Monday, December 21, 2015 9:19 AM


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