Public bidding statutes serve dual purposes. They are designed to protect the public purse by preventing fraud and favoritism. They also are intended to assure bidders that there is a fair, consistent, transparent process for the award of contracts – a level playing field upon which all can compete.
There is a tension between these two purposes. For the public to get the lowest price, it may be advantageous to waive a minor irregularity in the low bid. But if bid flaws are waived, where is the consistency and predictability in the process?
In a case reported this week, a low bidder failed to follow the bid instructions and did not initial certain numerical changes it made on its bid form. There was no ambiguity regarding the intended prices, as the same amounts were also expressed in words. Waiver of the failure to initial and acceptance of the low bid would save the public money. But, the state bidding statutes prohibited waiver of mandatory solicitation provisions.
Other cases this week addressed a condominium association’s ability to recover from a construction contractor’s performance bond and an offeror’s right to consolidate work requirements and accelerate the schedule. A Florida court delivered a surprising opinion that is sure to cause concern in the surety industry. In the other case, the creative offeror was told it could not gain a competitive advantage by altering the work description.
