ODOT Permits Defective Bid Bond & Blank Unit Price

Kegler Brown Construction Newsletter

In this bidding dispute, the low bidder made two significant mistakes. First, he submitted a bid bond that was defective. Second, he described a zero dollar unit price for grubbing and clearing work. ODOT was quick to treat the bid as providing that grubbing and clearing would be done for free and awarded the contract to the low bidder.

Both the trial court and the Franklin County Court of Appeals ruled that the question of the defective bid bond was moot because the low bidder voluntarily agreed to enter into the contract with ODOT and stated that the defect in the unit price for grubbing and clearing was immaterial given the fact that the true value of this item ($100,000) was less than the difference ($165,700) between the two lowest bidders. Smith & Johnson Construction v. Ohio Dept. of Transportation, No. 97APE-1401, June 30, 1998.

The Court of Appeals emphasized that not every variation from the bid instructions or specifications will destroy the competitive nature of the bid and that defects can only render a bidder non-responsive when they give a competitive advantage to that bidder over another.