Capital Construction Bids (4/92) - Reference Guide #D.4
Under certain circumstances,
it is possible for a contractor who has made an error in bidding 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. (a) 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where a unilateral error or mistake is discovered in a bid, such bid may be withdrawn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: (1) 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 (2) the price bid was based on an error of such magnitude that enforcement
would be unconscionable; and (3) the bid was submitted in good faith and the
bidder submits credible evidence that the mistake was a clerical error as opposed
to a judgment error; and (4) 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 he preparation of the bid sought
to be withdrawn; and (5) it is possible to place the public agency, board, officer,
or subdivision in status quo ante. (b) Unless otherwise required by law, the
sole remedy for a bid mistake in accordance with this section shall be 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.