7.12 Withdrawal of Bids

• Library: Virginia Construction Law Deskbook (Virginia CLE) (2019 Ed.)

7.12 WITHDRAWAL OF BIDS

7.1201 In General. In the rush to pull together a bid on bid day, it is not uncommon for a contractor to find out when the bids are opened that it miscalculated the dollar amounts of its bid, resulting in the bid being significantly lower than the intended number. Public bodies are prohibited from relieving a bidder from the consequences of an error in its bid. ²¹³ The contractor's only recourse when it finds a mistake in its bid after the bid submission deadline is to withdraw its bid.

7.1202 Withdrawal Permitted for Clerical Error Only. The circumstances under which a contractor may withdraw its bid are limited. On construction projects other than construction or maintenance of public highways, a bidder may withdraw its bid from consideration if:

1.

The price bid was substantially lower than the other bids due solely to a mistake in the bid, provided the bid was submitted in good faith and the mistake was a clerical mistake as opposed to a judgment mistake; and

2.

The clerical mistake was actually due to an unintentional arithmetic error or an unintentional omission of a quantity of work, labor or material made directly in the compilation of a bid, which unintentional arithmetic error or unintentional omission can be clearly shown by objective evidence drawn from inspection of original work papers, documents and materials used in the preparation of the bid sought to be withdrawn. 214

If a bid contains both clerical and judgment mistakes, a bidder may withdraw its bid from consideration if the price bid is substantially lower than the other bids due solely to the clerical mistake. This must be clearly shown by objective evidence drawn from inspection of original work papers, documents, and materials used in the preparation of the bid sought to be withdrawn. ²¹⁵ The mistake must be proved only from the original work papers, documents, and materials delivered as required by section 2.2- 4330(A) of the Virginia Code.

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The strict limitations on the withdrawal of bids are deemed important to preserving the integrity of the bidding process. Given the statutory scheme regulating state bidding, to allow the bidder to correct its bid after the bid submission deadline would seriously jeopardize the sanctity of the system for bidding on public contracts and lead to uncertainty and unreliability of bids. ²¹⁶ As one court reasoned,

[t]he concern for preserving the integrity of the bidding process is still preeminent, even where, as here, the bids had not yet been opened. Otherwise, the possibility for duplicitous behavior on the part of contractors in the interval of time between the bid submission deadline and the moment of the actual bid opening is present. It is best to draw a bright line at the moment of the bid submission deadline. After that deadline has passed, bidders must live...