that federal contracting officers have a positive duty to examine all bids for mistakes." If the contracting officer knows, or should know, that the successful bidder has made a mistake but awards the contract without notifying the bidder of same, the bidder may be able to subsequently obtain increased compensation for the work on a reformation theory of recovery. IS TIMING IS CRUCIAL All bidders should analyze the owner's "bid spread" immediately after the bid opening. If analysis leads a bidder to suspect an error but it is not readily apparent from the bid itself he should promptly notify the owner in writing that a mistake may have been made; that he will promptly investigate his bid to determine whether a mistake has been made; and that the owner should defer award and release of other bidders pending conclusion of the investigation. The purpose of such efforts is to prevent a change in the slaills qllo. Thereafter the bidder should comprehensively review his
G.A. Tomlinson P.E. 8425 So. 73rd East Ave.
EXPERT WITNESS
Tulsa, OK 74133
GRADUATE MECHANICAl ENGINEER 32 years
(918) 252-1905
expeoenat 10 design. I8StIOg. manulaetunng. super-
Born 2-12-24. Amaril'o. Tnas: U.S avy. 1943-1946: Ol:.la~ Stale: University. 1946-1949, B S. Mech. Engineering: Unit Rig &
Equlpmcnl Co.. Tulsa. 1949-1982: Responsible for all engi~nng functions 1957-1975: Fonncd Com· pany for Unit Rig in Brazil 1976:
Gc=ncral Manager. CanlMJian Operatiuns. 1977: In charge of Unit Rig Product LiliJl,3lion 1977·1982.
bid for typographical mistakes, errors or omissions in computation and subcontractor/materialmen errors. If the bidder has satisfied the owner or court that each of the elements discussed previously have been proven prior to award (acceptance), then he should be allowed to withdraw his bid and either the return of his bid security or the cancellation of his bid bond. If a bidder discovers a mistake after the owner has awarded the contract but before the work has begun he may still be entitled to rescission but - in addition to the four elements discussed previously - he must now
\/tSO'l and operatJon 8XecutJVe experience.
01 eQUlPlTll!fl1 Also ex1en5lVe
0uaIiIied as an
8ll:pert 10
many
fields. induding: • FOfIditl & HoIsts • Malerial Harding Eqpc. • Construction ECl"JIPffillOI • T rudo.S 01 aI types • Heavy Vehicles
• Airline Ground Handling EQPC. • Electric Vehicles
• DQching Machines • Manufacturing Machinery
9 YEARS COURTROOM EXPERIENCE
prove a fifth element: that the owner knew or should have known at the time of award, that the bid was a mistaken one. I. After the work has begun, rescission is generally no longer available, however, reformation may be available in the federal field. J7 SUBCO TRACTOR OR SUPPLIER MISTAKES Subcontractor or supplier mistakes present special problems. The principal issue is whether the mistaken subcontractor or supplier must perform under the terms of his mistaken bid (or be liable for damages) on a theory of promissory
Memphis Bar Association Approved ... Mississippi State Bar Association Endorsed ••• Management consulting to attorneys in the Mid-South provided by Legal Management Services of Memphis. Programs: Profit Improvement Analysis Administrative/Financial Analysis Practice Management Analysis Other Consulting Services FOR ADDITIONAL INFORMATION CONTACT:
Jerry Schwartz Legal Management Services P.O. Box 341459 Memphis. TN 38184-1459 (901) 385-1185
4 0
ARKANSAS
LAWYER
JULY
1991