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John E. Bugg, Esquire <br />Page 2 <br />January 13, 1998 <br />N.C. Gen. Stat. § 143-129.1. The facts and circumstances <br />surrounding the O.C. Mitchell bid would not entitle O.C. Mitchell <br />to withdraw its bid on this project. The error in question, the <br />failure by O.C. Mitchell to indicate its receipt of addenda on <br />its bid document, was technical. The mistake was not a <br />"substantial error" and, O.C. Mitchell could not have submitted <br />credible evidence that it had not received the addenda in <br />question. <br />Orange County has received documentation from O.C. Mitchell <br />demonstrating that it had received both addenda before it <br />submitted its bid and that it included the addenda in its <br />pricing. Furthermore, Orange ,County has received information <br />from its project architect indicating that the two addenda <br />combined were worth approximately $9,000 in the pricing. Even if <br />O.C. Mitchell had not received the addenda, there is a serious <br />question in my mind as to whether O.C. Mitchell could have <br />withdrawn its bid without forfeiting its bid deposit. However, <br />since Orange County has more than credible evidence that O.C. <br />Mitchell did receive the addenda prior to the bid opening and <br />that they were included in the O.C. Mitchell pricing, there is no <br />basis for O.C. Mitchell to withdraw its bid under North Carolina <br />General Statutes § 143-129.1. <br />I have also reviewed case law discussing common law equity <br />principles in cases involving public bidding laws. It is my <br />conclusion that O.C. Mitchell would have no equitable basis to <br />withdraw its bid under the facts and circumstances surrounding <br />the bidding of this project. Since it received the addenda and <br />since it used the addenda in its pricing and since the amount in <br />question is considerably less than substantial (approximately 10 <br />of the total O.C. Mitchell single-prime bid?, there seems to me <br />little doubt that O.C. Mitchell would not be permitted by a <br />court, on equitable grounds, to withdraw its bid. Since the O.C. <br />Mitchell bid is not, as you've characterized it an "optional <br />bid," but one that binds O.C. Mitchell to perform or lose its bid <br />bond, the O.C. Mitchell bid cannot be disqualified by Orange <br />County. <br />I have also considered your contention that Orange County <br />cannot consider what actually happened in making the decision to <br />disqualify or not O.C. Mitchell. That is, you contend that the <br />County cannot receive information after the fact about whether <br />the addenda were received and whether they were included in the <br />pricing. I do not find this contention persuasive. Both North <br />Carolina General Statutes § 143-129.1 and the court decisions all <br />demonstrate to me that consideration of all of the facts leading <br />to the bidding question are not only relevant but material to <br />