Capital Construction Bids
Reference Guide #D.4
Under certain circumstances, it is possible for a contractor who has made an error in bidding on a public works project to withdraw his bid without having to forfeit his bid bond or other bid security. Chapter 491 of the Laws of 1991 adds paragraph 11 to Section 103 of the General Municipal Law. That paragraph reads as follows:
Bid mistake; public projects.
- In all contracts governed by this section, where a unilateral error or mistake is discovered in a bid, such bid may be withdrawn after a showing of the following:
- The mistake is known or made known to the public agency, board, officer, or subdivision prior to the awarding of the contract or within three days after the opening of the bid, whichever period is shorter; and
- The price bid was based on an error of such magnitude that enforcement would be unconscionable; and
- The bid was submitted in good faith and the bidder submitted credible evidence that the mistake was a clerical error as opposed to a judgment error; and
- The error in the bid is actually due to an unintentional and substantial arithmetic error or an unintentional omission of a substantial quantity of work, labor, material, or services made directly in the compilation of the bid, which unintentional arithmetic error or unintentional omission can be clearly shown by objective evidence drawn from inspection of the original work paper, documents, or materials used in the preparation of the bid sought to be withdrawn; and
- It is possible to place the public agency, board, officer, or subdivision in status quo ante.
- Unless otherwise required by law, the sole remedy for a bid mistake in accordance with this section shall be the withdrawal of that bid and the return of the bid bond or other security, if any, to the bidder. Thereafter, the public agency, board, officer, or subdivision may, in its discretion, award the contract to the next lowest bidder or rebid the contract. Any amendment to or 32 reformation of a bid or a contract to rectify such an error or mistake therein is strictly prohibited.