Transposed Digits, Missing Addendum, and a Bid Bond
You are estimating manager for a GC bidding a public school addition. Bid opening was Tuesday. Your bid of $1,860,000 was read as low; the second bid was $2,030,000 and the third $2,110,000. Wednesday morning you discover the masonry subcontractor's quote of $486,000 was transcribed into the bid summary as $468,000, and the error carried straight through. You also find that Addendum No. 3, issued six days before opening, which added $12,000 of door hardware, was received but never acknowledged on the bid form. The instructions to bidders state that failure to acknowledge any addendum may render a bid nonresponsive. The bid bond is 5%, or $93,000. Thursday the owner's attorney emails asking whether you intend to honor your bid.
1. Can you withdraw on the basis of mistake? What has to be true, and what is the realistic outcome?
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Mistake relief is not automatic and it is not a reformation remedy - you are asking to be released, not to have the bid raised to $1,878,000.
A court or hearing officer will typically look for: (a) a clerical or transposition error, provable by objective documentation, not a judgment error in pricing; (b) the error is material - $18,000 against a $1.86M bid is 1%; (c) prompt notice, before the owner accepts the bid or relies on it; and (d) most importantly, whether the error was palpable from the face of the bid. Here the spread to the second bidder is about 9%. That is noticeable but generally not enough, standing alone, to put the owner on constructive notice that the low bid is defective.
Show the sub's written quote at $486,000 side by side with the bid summary at $468,000, plus the takeoff and the bid-review log. If the cause was a keying error on a clean quote, the case is defensible. If the cause was the estimator "sharpening" the number, it is a judgment error and you will be held to the bid. Practical exposure: forfeiture of $93,000 plus prequalification damage far exceeding the $18,000.
2. Does the unacknowledged Addendum No. 3 make the bid nonresponsive, and does that help or hurt you?
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It depends on which way you want to go, and you cannot have it both ways.
- If you want out: a materially nonconforming bid - one that omits $12,000 of required scope - is generally rejected as nonresponsive in public work, and where no contract is formed the bond is not forfeited. This may be your cleanest exit, and it does not require you to prove anything about the transposition.
- If you want the job: you must argue the omission is a minor informality and that the $12,000 of hardware was already in your price. That argument is supportable only if your estimate backup actually contains the hardware - and note the tension: if the price already included it, the $18,000 shortfall stands and your bid is real but losing money.
Check the jurisdiction's procurement statute and the ITB language before choosing. Many public owners have no discretion: material nonconformity equals mandatory rejection. Ask the owner's attorney, in writing, whether the owner will waive the acknowledgment as an informality; the answer frames everything that follows.
3. Write the action plan for the next 72 hours.
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- Respond in writing within 24 hours - silence reads as acceptance. State that you are investigating a claimed clerical error and reserve all rights; do not yet concede or repudiate.
- Build the evidentiary file: the sub's original quote, the takeoff, the bid summary worksheet, the email trail, and the timestamps on Addendum No. 3's receipt.
- Notify your surety immediately. The surety has a financial stake in a $93,000 bond and will be far more helpful on day one than on day twenty.
- Do not contact the second-low bidder. Any suggestion of bid-shopping or collusion converts a mistake case into a debarment case.
- Prepare both paths in parallel: (a) a formal withdrawal request citing distinguishable clerical error and the nonresponsive addendum, and (b) a cost-recovery plan if you must perform - value-engineer $20,000–$25,000 out of the scope with the owner's written approval, or renegotiate the masonry package, and go find the money in self-performed work.
- Fix the process before the next bid: two-person bid review sign-off, an addendum log with a named owner, and a mandatory arithmetic-check five points against comparable past projects.