This post is one in a continuing series on the basic tenets of public bidding in Pennsylvania. The subject of today’s post is the bid bond.
A bid bond is a form of bid security and is typically required to be submitted with all bids for public contracts in Pennsylvania. The instructions on public bids will ordinarily describe the bid bond requirements for the bid in question. These instructions should be followed lest the bid security is insufficient and the bid is rejected for that reason. A bid bond is essentially a guarantee, backed by a surety company, that the bidder will execute the contract if it is awarded to the bidder.
The failure of a bidder to execute an awarded contract will expose the surety on the bid bond to liability. That liability is typically 10% of the bid price. The bidder’s failure to execute an awarded contract may also subject the bidder itself to additional liability if the bid bond amount does not cover the spread between the bidder’s price and the next lowest price. Of course, the public entity must strictly adhere to the bidding requirements and award requirements before it can seek to enforce the bid bond. The failure to do so will likely invalidate any attempt to forfeit the bid bond.
Thus, the Commonwealth Court held in Travelers Indem. Co. v. Susquehanna County Comm’rs, 17 Pa.Cmwlth. 209, 331 A.2d 918, 920 (1975), that where a public entity failed to give written notice of its acceptance and provide the contract documents for execution there could be no forfeiture of the bid bond. Likewise, in Hanover Area School District v. Sarkisian Brothers, Inc., 514 F.Supp. 697 (M.D.Pa.1981), the federal district court held that a public entity’s failure to provide the lowest bidder with all the documents necessary to finalize the transaction as required by the bid instructions precluded recovery on the bid bond.
If you are bidder faced with a forfeiture of a bid bond for failure to execute a public contract you may have an out if the award was not made in accordance with the bidding instructions. As always, you should consult with an experienced attorney for assistance.
Christopher I. McCabe, Esq.
