The Bid That Skipped an Addendum
You are the architect on a 42,000 sf tenant improvement for a credit union. Bid documents went to five prequalified contractors; the low bid is $6.18M against a $6.4M budget. Three days before bid opening you issued Addendum 3, which changed the roof membrane from TPO to modified bitumen and added a parapet detail - roughly a $180,000 cost increase. At bid opening, four bids acknowledge Addendum 3. The lowest bid, $6.02M, acknowledges only Addenda 1 and 2, and its roof line item matches the original TPO scope. Its bid bond is in order. The owner wants to award tomorrow to hold the schedule.
1. Can you recommend award to the $6.02M bidder? What is the correct procedural response, and what risk does each alternative carry?
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No - not on the bid as submitted. A bidder who fails to acknowledge an addendum that changes price is ordinarily nonresponsive. Awarding it signals to the other four bidders that the rules were optional.
Two tempting shortcuts both fail:
- Treat it as a minor informality. That treatment is reserved for omissions that cannot affect price or competition - a missing signature that can be cured, an obvious typo in a unit price. Here the unacknowledged addendum is worth about $180,000 on the roof alone.
- Let the bidder 'confirm' the roof scope at its number. That is a post-opening modification of price or scope. It is prejudicial to the four compliant bidders and is a textbook protest.
Recommended path: reject the $6.02M bid as nonresponsive, then verify that the next-low responsive bid's roof line reflects modified bitumen rather than taking responsiveness for granted. Tell the owner the realistic award figure is in the $6.2–6.4M range - still inside budget. Write a bid-evaluation memo citing the specific addendum, the line-item comparison, and the governing instruction-to-bidders clause, so the decision is defensible if challenged.
2. The owner says: 'Just have them sign something saying they'll do the modified bitumen for the same money - it's only a roof.' How do you respond, and what else should you check before award?
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Decline, and explain the exposure in the owner's terms: a post-bid side letter changes the terms on which the other four bid, converts a public-looking competition into a negotiation with one party, and hands the losing bidders a documented basis to protest or sue. It also creates a scope gap you would own at closeout - nothing in the contract documents would obligate that contractor to install modified bitumen.
Then check the addendum itself. Issuing a price-affecting addendum three days before opening may violate the instructions to bidders or state/local procurement rules on minimum addendum lead time. If it did, the cleanest cure may be to reject all bids and re-bid with adequate notice - which simultaneously removes the protest risk created by the late addendum and resets the schedule expectation honestly. If the lead time was compliant, proceed with rejection of the nonresponsive bid and award to the next responsive bidder.
Do not let the schedule drive the procurement decision; put the recommendation and the reasoning in writing to the owner so the decision is theirs, informed.
3. Assume the owner insists on awarding to the $6.02M bidder anyway. What is your role and what do you document?
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The owner may accept the risk, but you should not certify a process you believe is improper. Distinguish two things:
- Your professional recommendation - reject as nonresponsive. Put it in a written recommendation memo with the addendum, the bid form, the line-item comparison, and the ITB clause quoted.
- The owner's decision - record it. A written direction from the owner acknowledging the nonresponsive bid, the protest exposure, and the added cost risk (the roof delta) protects the record without making you the author of the decision.
If you remain engaged, insist the contract documents be conformed before execution: a formal change order or contract exhibit adding the modified bitumen scope at no additional cost, signed by the contractor, and a written acknowledgment that the addendum is part of the contract. Otherwise the owner will discover at first roof inspection that it bought TPO. Document all of it contemporaneously - memory reconstructs in the owner's favor.