S C Bid Protests

Changes to bids after the bids have been opened

The state of South Carolina launched into uncharted territory when it disallowed the protest of the second low bidder in the case of Martin Engineering, Inc. v. Lexington School District One, 365 S.C. 1, 615 S.E. 2d 110 (2005).

The school District put a school renovation project out for bid. Sharpe was the low bidder and Martin was second. When the bids were opened Sharpe asked to add $613,000 to its $16MM bid saying it had forgotten to include the built up roofing.

Martin protested saying that the School District procurement policy only allowed bid correction when the mistake was clearly evident from the face of the bid, the correction does not cause the bidder to have the low bid and it would not be prejudicial to fair competition.

The Supreme court found that the mistake was not apparent from the face of the bid but said “the mistake is clear, and the amount Sharpe intended to bid for the roof is evident, by examining the roofing sub’s sub-bid….” Furthermore, the Court found that allowing the upward correction was not prejudicial to fair competition.

The contrary view is that allowing the after the fact upward correction encourages unscrupulous contractors to play games with the bidding process. A contractor can deliberately leave out 10% of his price, as was the case in Martin Engineering, become the low bidder and then ask to correct saying that it is obvious he made a mistake. Then he can have his cake and eat it too. Such gamesmanship is almost impossible to prevent in the bid protest arena where there is no discovery and the case must usually be made in ten days or less.

Bryan Barnes
barnes@rtt-law.com