In Court
InCourt
by Brian Morrow
Low Bid?
A case of responsiveness
and balance in a contract
A
recent case regarding the Army Corp of
can be invalidated at any time at the election of the
Engineers’ improper rejection of a low
bidder or the government.
bid — Matter of W. B. Construction and
An “unbalanced bid” is a unit price bid that conSons, Inc. (Jan. 4, 2012) — highlights
tains abnormally low unit prices for some items,
important rules regarding bid
and abnormally high unit prices for
responsiveness and unbalother items. The government may
anced bids.
reject an unbalanced bid as nonUnbalanced bids
Government contracts —
responsive because of the potential
federal, state and local — may
risk the unbalanced bid would
typically result
only be awarded to contracnot result in the lowest total cost.
from the bidder’s Unbalanced bids typically result
tors who submit bids that are
“responsive” to the material
from the bidder’s discovery of apdiscovery of
requirements of the invitation
parent discrepancies between estifor bids (IFB). The responmated unit price quantities in the
apparent
siveness of a bid focuses on
IFB and the bidder’s own estimated
discrepancies
the mandatory requirements
quantities; the bidder’s desire to
of the IFB and any governing
the payment
between estimated “front-endorload”bidder’s mistaken
statutes. Minor deviations may
schedule; the
be waived, but material deviabid. An unbalanced bid is not
unit prices
tions may not. A deviation is
necessarily illegal, but must be ana“material” if it gives the bidlyzed to confirm it is the low bid
der a competitive advantage and
and will not materially unbalance
prevents other bidders from competing on the same
the payment schedule.
footing. A materially non-responsive bid gives the
In a recent decision by the Comptroller General,
bidder “two bites at the apple” because the contract
Matter of W. B. Construction and Sons, Inc., the
9a May 2012 Better Roads
Better Roads February 2012 9