If a public owner mandates that all bidders use PennBid, an electronic bidding system used by public owners in Pennsylvania, for receipt and tabulation of their bid prices, but also inexplicably requires each bidder to write out its base bid price in words and numbers, what bid form controls? The PennBid tabulation, or the handwritten bid form?
Suppose the PennBid tabulated base bid price is $100,000, but the bidder writes out $100,001? Which is the controlling bid price? Why, for that matter, would any public owner require two forms of bid pricing which only invites confusion and the possibility of conflicting prices?
PennBid’s website describes its service as follows:
The PennBid Program efficiently matches buyers and sellers of goods and services, providing significant cost and time savings for public agencies, private companies, and their vendors. PennBid is used by over 400 public agencies and private sector firms for material purchases, skilled craft and professional services, and construction projects.
Recently, a contractor was indisputably the low bidder on a public project where all bidders were mandated to use PennBid. The bid instructions also required bidders to write out their base bid price (but not the individual unit prices) in words and numbers. The low bidder wrote the words, “See PennBid,” in order to avoid any discrepancy between the PennBid automatic tabulation and its written base bid price. Apparently, this notation perplexed the public owner, even though the PennBid system automatically tabulated the bidder’s unit prices, and extended the unit prices by the estimated quantities, to arrive at an arithmetically correct base bid price. In fact, the client’s base bid price was shown on the PennBid system as the lowest price received. Nonetheless, the public owner rejected the low bid as “non-conforming,” apparently because of the written words,”See PennBid,” even though there was no question as to the amount of the base bid price as shown on the PennBid system.
PennBid even touts on its website that a benefit of using PennBid is “Elimination of Arithmetic Errors! Automatically calculated line extensions and base bid totals,” which makes the bid rejection even more puzzling.
In my view, the public owner’s decision to reject the low bid was gross error, due in all likelihood to faulty and poor advice from its solicitor. The contractor’s price was indisputably the lowest, as per the mandated PennBid tabulation. The public owner could easily have waived any “defect” in the low bid, and awarded the contract to the low bidder, thereby saving the taxpayers thousands of dollars. Instead, the public owner awarded the contract to the second low bidder, prompting a bid protest. Then, realizing the error of its ways, the public owner decided not to correct itself, but instead to reject all bids and a conduct a re-bidding. This was a terrible disservice to the taxpayers, as well as the bidders who participated in the bid, not to mention that it imposed an added and unnecessary expense for the public owner, and may result in a higher price in the end.
Needless to say, I suspect that this kind of conduct goes on more than we can know, much of it hidden from public view and influenced by bad advice from the solicitors for the public owners. If a bidder should encounter a similar bid like this one, the bidder should immediately complain that the requirement both to use PennBid and to write out the bid price could lead to confusion and ambiguity and that only PennBid should be used.
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Christopher I. McCabe, Esq.
