There’s been a lot of discussion recently about mistakes in bids for federal contracts. Mistakes can happen, particularly when bidders are rushed (and who isn’t rushed when preparing and submitting a bid?). Mistakes can be minor and waivable at the government’s discretion; they can be subject to correction in certain situations; or they can result in the mandatory rejection of a bid as non-responsive. Knowing the difference, and whether a particular error can be fixed, is crucial.
After all, many mistakes arise from the omission or the addition of even a single character, an error that can present a significant difference between what was intended to be communicated and what was actually communicated, especially if the error is in a number. A bidder who omits a digit from a bid price could find himself or herself in quite a predicament if awarded the contract based on an incorrect price. Other mistakes made in the structure of the bid can also cause potential problems.
Fortunately, bidders in this situation have some recourse. The Federal Acquisition Regulation (FAR) allows the correction of an error in a bid in two situations. In the easier case, a clerical mistake can be fixed so long as the contracting officer has reason to know, independent of information from the bidder, that the bid submitted was not what was actually intended. A bidder can prove that the contracting officer had reason to know by pointing to the range of other bids, incongruence with the government estimate, the inclusion of the correct bid number elsewhere in the proposal, the custom of the trade, or the fact that only one reasonable interpretation can be made from the face of the bid.
A second type of mistake, which often results from a calculation error and is not a simple typo, can be more difficult to fix. The higher standard for granting a bidder’s request to change the overall bid price after bid opening serves to protect the integrity of the bid process. If a bidder finds himself or herself in this situation, he or she needs to show by clear and convincing evidence that there was a mistake in the bid and that the bid presented was not an accurate reflection of the intended bid. This “clear and convincing” standard is much higher than the “reason to know” standard for clerical errors. But even this correction will not be allowed if it displaces even one lower bid.
If a mistake is made and the bidder is allowed to correct it, the bidder should expect a protest. Those who failed to obtain the contract will take advantage of that mistake in their attempt to demonstrate that the award was undeserved. But so long as the mistake was corrected in accordance with the criteria set forth by the FAR, the bidder should be safe from an unfavorable protest decision.