Massachusetts Attorney General’s Bid Protest Decisions Finds No Violation of Public Construction Bidding Laws Where Low Bidder Included Minor Deviation on Bid Form
In a recent decision, In re: Town of Danvers; Thorpe School Library Project (October 8, 2015), the Massachusetts Attorney General’s Bid Unit rejected a protest from the second low sub-bidder, on the grounds that the low bidder’s notation on the bid form was a clerical error that gave it no unfair advantage.
The town’s bid form included a line requesting the proposed contract price “without alternates.” The low bidder’s form listed a price on that line and added the notation that its price included three alternates. However, the price of each alternate was listed separately, making the mistake easy to ascertain, and the awarding authority accepted it as the low bid.
The second lowest bidder filed a protest, claiming the notation was “an addition not called for” in violation of the public bidding statutes, mandating rejection. The Bid Unit disagreed, deeming this a “clerical error,” a well-established exception to the otherwise strict statutory bid requirements.
The Bid Unit further analyzed whether there was any way in which the low bidder gained an unfair advantage over other bidders by allowing this notation and decided it did not. Finding no prejudice to the other bidders is central to one of the statutory purposes of the bid laws; that is, putting all bidders on equal footing.
While the low bidder ultimately survived this protest, it should serve as a reminder to all bidders to use great caution when adding any words to a statutory bid form. You can read the full decision below.
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