Even if a bidder submits the lowest bid and is responsible, the bidder may still not be awarded the contract if its bid is not responsive, or does not comply with the bid instructions. Strict compliance with bid instructions is crucial when bidding on a publicly owned project, or on any construction project. It is often wise for a bidder to not only bid on the primary contract, but on any and all alternate contracts as well, as public project owners are not automatically required to prioritize alternate contracts or award a contract exclusively on the base bid. In Sicoli & Massaro, Inc. v. Grand Island Cent. School Dist. (2003), a school district’s award of a public improvement contract to a bidder who had a higher base bid would not be disturbed by the court because the bidder had bid on an alternate project that the school district decided to accept. The court concluded that absent a showing that the award was a result of favoritism, fraud, or something similar, the school district had a plausible explanation for not awarding the bid to the lowest base bidder, concluding that the lowest base bidder had notice that, by not bidding on the alternate contract, its bid would be rejected as irregular.
Public owners cannot waive a material noncompliance with a bid specification. In LeCesse Bros. Contracting, inc. v. Town Bd. of Town of Williamson (1978), it was held that a municipality may decline bids which fail to comply with specifications or it may waive technical noncompliance if the defect is a mere irregularity. However, where the variance between the bid and the specifications is material or substantial, the defect may not be waived and the municipality must reject the bid.
Technical noncompliance or mere irregularities may be waived if the waiver does not give the bidder a substantial competitive edge and it is in the best interest of the public project owner. In Willets Point Contracting Corp. v. Town Bd. of Town of Oyster Bay (1988), it was held that a town may waive a bid’s technical noncompliance with specifications if the defect is a mere irregularity, but not for material or substantial noncompliance.
Determining whether noncompliance is material is a question within the owner’s discretion. Matters which have been upheld as technical noncompliance and may be waived include: failure to include a certificate of non-collusion; failure to supply bid security as required by the specifications; or substitution of equipment.