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Oklahoma Association of Municipal Attorneys

CLARIFICATION OF SUBMITTED BIDS

Jon Miller

Tue, Sep 21, 2021 1:06 PM

Counselors:

City receives several bids in response to construction project. The city has opened the bids, and would like to ask the lowest three bidders to explain how they arrived at their numbers on two alternates to alleviate any concern about the disparity between pricing on those alternative. My initial thought was that the time for bidders to seek clarification has past and the City should assume they each understood the bid requirements. However, I also understand that if a disparity causes the City to believe that a bidder may have misunderstood the bidding documents then the bidder may not be bound by his bid. Also, if it is learned that one bidder made a mistake, would that bidder be allowed to withdraw its bid? I would recommend the bid not be allowed to be modified and considered. Would the city reject all bids and start over? It would not seem fair to the multiple bidders who submitted proper bids to require them to start over.

Anyone have a similar occurrence or have thoughts you would share?

Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721

This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments. If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others. Sharing this email may result in a loss of the attorney-client privilege.

Counselors: City receives several bids in response to construction project. The city has opened the bids, and would like to ask the lowest three bidders to explain how they arrived at their numbers on two alternates to alleviate any concern about the disparity between pricing on those alternative. My initial thought was that the time for bidders to seek clarification has past and the City should assume they each understood the bid requirements. However, I also understand that if a disparity causes the City to believe that a bidder may have misunderstood the bidding documents then the bidder may not be bound by his bid. Also, if it is learned that one bidder made a mistake, would that bidder be allowed to withdraw its bid? I would recommend the bid not be allowed to be modified and considered. Would the city reject all bids and start over? It would not seem fair to the multiple bidders who submitted proper bids to require them to start over. Anyone have a similar occurrence or have thoughts you would share? Jonathan E. Miller City Attorney City of Mustang 1501 N. Mustang Road Mustang, Oklahoma 73064 Telephone: (405) 376-7746 Facsimile: (405) 376-7721 This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments. If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others. Sharing this email may result in a loss of the attorney-client privilege.

Jon Miller

Tue, Sep 21, 2021 1:33 PM

Counselors:

I think I have answered my question. It appears the City should proceed with consideration of the bids as submitted and make an award. If the apparently successful bidder later refuses to complete its bid, then the City would be entitled to recover its damages from the bid bond (damages being the costs of any republication, out-of-pocket costs, difference between the lowest bid and the next lowest bid, etc.). In JD Graham Construction v. Pryor Public Schools, a bid was awarded to the apparently successful bidder even though its bid had a $100,000 error and that bidder requested that it be allowed to withdraw its bid before the contract was awarded. The school awarded the contract to the lowest bidder and, when it refused to perform, the court allowed the school to recover damages from the bid bond, including the difference between the lowest bid and the next successful bid.

If anyone has a difference thought, please let me know your experience/thought.

Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721

From: Jon Miller JMiller@cityofmustang.org
Sent: Tuesday, September 21, 2021 8:06 AM
To: oama (oama@lists.imla.org) oama@lists.imla.org
Subject: [CAUTION: SUSPECT SENDER] [Oama] CLARIFICATION OF SUBMITTED BIDS

Counselors:

Anyone have a similar occurrence or have thoughts you would share?

Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721

Counselors: I think I have answered my question. It appears the City should proceed with consideration of the bids as submitted and make an award. If the apparently successful bidder later refuses to complete its bid, then the City would be entitled to recover its damages from the bid bond (damages being the costs of any republication, out-of-pocket costs, difference between the lowest bid and the next lowest bid, etc.). In JD Graham Construction v. Pryor Public Schools, a bid was awarded to the apparently successful bidder even though its bid had a $100,000 error and that bidder requested that it be allowed to withdraw its bid before the contract was awarded. The school awarded the contract to the lowest bidder and, when it refused to perform, the court allowed the school to recover damages from the bid bond, including the difference between the lowest bid and the next successful bid. If anyone has a difference thought, please let me know your experience/thought. Jonathan E. Miller City Attorney City of Mustang 1501 N. Mustang Road Mustang, Oklahoma 73064 Telephone: (405) 376-7746 Facsimile: (405) 376-7721 This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments. If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others. Sharing this email may result in a loss of the attorney-client privilege. From: Jon Miller <JMiller@cityofmustang.org> Sent: Tuesday, September 21, 2021 8:06 AM To: oama (oama@lists.imla.org) <oama@lists.imla.org> Subject: [CAUTION: SUSPECT SENDER] [Oama] CLARIFICATION OF SUBMITTED BIDS Counselors: City receives several bids in response to construction project. The city has opened the bids, and would like to ask the lowest three bidders to explain how they arrived at their numbers on two alternates to alleviate any concern about the disparity between pricing on those alternative. My initial thought was that the time for bidders to seek clarification has past and the City should assume they each understood the bid requirements. However, I also understand that if a disparity causes the City to believe that a bidder may have misunderstood the bidding documents then the bidder may not be bound by his bid. Also, if it is learned that one bidder made a mistake, would that bidder be allowed to withdraw its bid? I would recommend the bid not be allowed to be modified and considered. Would the city reject all bids and start over? It would not seem fair to the multiple bidders who submitted proper bids to require them to start over. Anyone have a similar occurrence or have thoughts you would share? Jonathan E. Miller City Attorney City of Mustang 1501 N. Mustang Road Mustang, Oklahoma 73064 Telephone: (405) 376-7746 Facsimile: (405) 376-7721 This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments. If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others. Sharing this email may result in a loss of the attorney-client privilege.