CHAPTER 717
An Act to amend and reenact § 2.2-4330 of the Code of
Virginia, relating to the Virginia Public Procurement Act; process for
withdrawal of bid due to error.
[S 1425]
Approved March 26, 2011
Be it enacted by the General Assembly of Virginia:
1. That § 2.2-4330 of the Code of Virginia is amended and
reenacted as follows:
§ 2.2-4330. Withdrawal of bid due to error.
A. A bidder for a public construction contract, other than a
contract for construction or maintenance of public highways, may withdraw his
bid from consideration if the price bid was substantially lower than the other
bids due solely to a mistake in the bid, provided the bid was submitted in good
faith, and the mistake was a clerical mistake as opposed to a judgment mistake,
and was actually due to an unintentional arithmetic error or an unintentional
omission of a quantity of work, labor or material made directly in the
compilation of a bid, which unintentional arithmetic error or unintentional
omission can be clearly shown by objective evidence drawn from inspection of
original work papers, documents and materials used in the preparation of the
bid sought to be withdrawn.
If a bid contains both clerical and judgment mistakes, a bidder
may withdraw his bid from consideration if the price bid would have been
substantially lower than the other bids due solely to the clerical mistake,
that was an unintentional arithmetic error or an unintentional omission of a
quantity of work, labor or material made directly in the compilation of a bid
that shall be clearly shown by objective evidence drawn from inspection of
original work papers, documents and materials used in the preparation of the
bid sought to be withdrawn.
B. One of the following procedures for withdrawal of a
bid shall be selected by the public body and stated in the advertisement for
bids:
(i) the 1. The bidder shall give notice in
writing of his claim of right to withdraw his bid within two business days after
the conclusion of the bid opening procedure and shall submit original work
papers with such notice; or
(ii) 2. Where the public body opens the bids one day
following the time fixed for the submission of bids, the bidder shall
submit to the public body or designated official his original work papers,
documents and materials used in the preparation of the bid within one day
after the date fixed for submission of bids at or prior to the time
fixed for the opening of bids. The work papers shall be delivered by the
bidder in person or by registered mail. at or prior to the time fixed
for the opening of bids. In either instance, the work papers, documents and
materials may be considered as trade secrets or proprietary information subject
to the conditions of subsection F of § 2.2-4342. The bids shall be opened one
day following the time fixed by the public body for the submission of bids.
Thereafter, the The bidder shall have two hours after the opening of
bids within which to claim in writing any mistake as defined herein and
withdraw his bid. The contract shall not be awarded by the public body until
the two-hour period has elapsed.
The Under these procedures, the mistake shall be
proved only from the original work papers, documents and materials delivered as
required herein. The work papers, documents and materials submitted by the
bidder shall, at the bidder's request, be considered trade secrets or
proprietary information subject to the conditions of subsection F of §
2.2-4342.
B C. A public body may establish procedures for
the withdrawal of bids for other than construction contracts.
C D. No bid shall be withdrawn under this
section when the result would be the awarding of the contract on another bid of
the same bidder or of another bidder in which the ownership of the withdrawing
bidder is more than five percent.
D E. If a bid is withdrawn in accordance with
this section, the lowest remaining bid shall be deemed to be the low bid.
E F. No bidder who is permitted to withdraw a
bid shall, for compensation, supply any material or labor to or perform any
subcontract or other work agreement for the person or firm to whom the contract
is awarded or otherwise benefit, directly or indirectly, from the performance
of the project for which the withdrawn bid was submitted.
F. G. The public body shall notify the bidder in
writing within five business days of its decision regarding the bidder's
request to withdraw its bid. If the public body denies the withdrawal of a
bid under the provisions of this section, it shall notify the bidder in
writing stating state in such notice the reasons for its decision
and award the contract to such bidder at the bid price, provided such bidder is
a responsible and responsive bidder. At the same time that the notice is
provided, the public body shall return all work papers and copies thereof that
have been submitted by the bidder.
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