Zero Unit Price Did Not Invalidate Bid to ODOT

Kegler Brown Construction Newsletter

ODOT is to award highway contracts to the "lowest, competent and responsible bidder." O.R.C. ยง5525.01.

In a recent bidding dispute, the low bidder apparently submitted a defective bid bond and failed to price the "clearing and grubbing" unit price line item. ODOT treated this blank as a zero cost item and the low bidder agreed to do the work for this price.

The Court of Appeals upheld the Trial Court's decision that these irregularities did not render the bid non-responsive because acceptance of the total cost bid (with zero for the omitted line item) was not a substantial error giving the low bidder a competitive advantage. The Court also ruled that any deficiency in the bid bond became moot once the low bidder agreed to perform the work.

This case demonstrates the considerable discretion that public owners have in waiving or curing bidding irregularities so long as the competitive nature of the bid is not disturbed. Smith & Johnson Construction Co. v. ODOT (1998), 134 Ohio App. 3d 521.