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Construction Law Authority / Procurement  / Common Bidding Mistakes – Part 1

Common Bidding Mistakes – Part 1

To be considered for an award of a public contract, it is critical that your bid or proposal contain all required information and forms. There are some common mistakes that may result in rejection of a bid and loss of a business opportunity. Avoiding these common mistakes will help ensure that you have an opportunity to compete for the award.

Since there are a number of issues that should be pointed out, we will break this subject out into two postings. Bidders should bear in mind that while public agencies often reserve the right to waive technicalities or minor irregularities, material irregularities from the requirements of the advertisement are generally not permitted. If the public agency finds that a bid  contains a material irregularity, it will likely result in the bid or proposal being rejected as "nonresponsive".

While there is no exhaustive list of mistakes that will be considered material irregularities, we have identified a "top ten" list. The first five are summarized below.

First, the advertisement will set a deadline for submittal of bids. The advertisement may also provide that the bid must be delivered to a particular room and by a particular time. Failure to deliver the bid by the deadline and to the right location will likely result in a rejection of the bid.

Second, bidders must carefully review the advertisement to see if there are minimum qualifications and license requirements. For construction projects, Florida law requires that the public agency obtain evidence of appropriate licensure at the time the bids are submitted. Thus, it is important to include evidence of proper licensure with the bid, and as may be required by the advertised terms and conditions.

Next, the agency must be able to determine the bidder’s pricing. If forms are provided, then they should be filled out carefully and completely. Close attention should also be paid to the math. Generally speaking, if an error in the mathematical calculation is made, the public agency may force the bidder to proceed with the project, even if it results in a loss. So whether it is to make sure that the bid is not rejected, or to protect against having to perform a contract at a loss, careful attention needs to be paid to pricing.

Additionally, public projects typically require bidders to submit a bid bond, or other bid security. The failure to submit the bid bond or security will generally result in a rejection of the bid. Bidders should also pay careful attention to the specific requirements for the bid bond or security. For example, the terms of the advertisement may require that the bid bond be supplied by a surety with a particular minimum rating.

Finally, remember to sign the bid. The advertisement may supply a bid form with a signature section, or it may call for the submission of a cover letter or other signed form to be created by the bidder. Remember, a bid is an offer, and must be signed by a person with authority to bind the bidder to perform the contract if awarded.

As stated, there are other common bidding mistakes that we will cover in our next posting. In the meantime, to continue with the theme of "dotting the i’s and crossing the t’s", paying attention to the above may be the difference in the award of a contract or rejection of a bid as nonresponsive.

William Cea

As a Board Certified Construction Attorney, Mr. Cea has handled multi-million dollar construction disputes, including defect cases on behalf of community associations, individual property owners, contractors, design professionals and developers.

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