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.
