Earlier this year, South Carolina’s Chief Procurement Officer for Construction (CPOC) determined that Instructions to Bidders for competitively bid projects are part of the contract documents and are therefore binding on both bidders and agencies. Tyler Construction Group, Inc. v. University of South Carolina, http://www.procurementlaw.sc.gov/webfiles/OSE_main/Protests/
Tyler_v_USC.pdf. This decision had the effect of requiring USC to award the contract to the higher bidder on the actual scope of work to be performed.

Bids were solicited for a renovation project, including a base bid and an alternative bid for additional work. The bid documents included Standard Supplemental Instructions to Bidders (Form 00201-OSE). Section 5.4.2 of the Instructions stated that the contract would be awarded to the “apparent low bidder,” the bidder with the lowest total base plus alternative bids.

After receiving the bids, USC determined that their budget would only allow for the work in the base bid, and awarded the contract to the bidder with the lowest base bid. However, another bidder had offered a lower combined bid and was therefore the apparent low bidder. When the apparent low bidder protested, the CPOC found that they should have been awarded the contract and directed USC to award the contract according to the terms of the Instructions.

Not surprisingly, the standard form has been modified since this determination was made. http://www.mmo.sc.gov/webfiles/OSE_manual/Appendices/
0201_OSE_Standard_Supplemental_Instructions_to_Bidders.pdf. The instructions now call for bids to be in the form of “Alternate Base Bids” rather than a base bid plus alternatives, such that contracts will be awarded on the basis of the lowest bid for the alternative that is actually to be used. The alternate base bids are treated as separate bids. This means that a low bidder on one alternative may be awarded a contract for that alternative, notwithstanding that their bid was not the lowest for, or even responsive to, other alternatives.