Construction Law

    This article was contributed by R. Bryan Barnes of my law firm.

    The State of South Carolina launched into uncharted territory when it disallowed the bid protest of the second low bidder in the case of Martin Engineering, Inc. v. Lexington School District One, 365 S.C. 1, 615 S.E.2d 110 (2005). The school district put a school renovation project out for bid. Sharpe Construction was the low bidder and Martin Engineering was second. When the bids were opened, Sharpe Construction asked to add $613,000 to it $16,000,000 bid saying that it had forgotten to include the built-up roofing.

    Martin Engineering protested saying that the school district procurement policy only allowed bid correction when the mistake was clearly evident from the face of the bid, the correction does not cause the bidder to have the low bid, and it would not be prejudicial to fair competition.

    The South Carolina Supreme Court found that the mistake was not apparent from the face of the bid but said, "the mistake is clear and the amount Sharpe Construction intended to bid for the roof is evident, by examing the roofing sub's sub-bid...." Furthermore, the Supreme Court found that allowing the upward correction was not prejudicial to fair competition.

    The contrary view is that allowing the after the fact upward correction encourages unscrupulous contractors to play games with the bidding process. A contractor can deliberately leave out 10% of his price, as was the case in Martin Engineering, become the low bidder and then ask to correct saying that it is obvious he made a mistake. Then he can have his cake and eat it too. Such gamesmanship is almost impossible to prevent in the bid protest arena where there is no discovery and the case must usually be made in ten days or less.

    Click here to read the case.