WITHDRAWL OF PUBLIC WORKS CONTRACT BIDS AFTER DATE OF OPENING

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Page 3 Opinion No.74-4 January 16, 1974 Further, recission is generally not permissible if the mistake is purely an error of judgment, such as the underestimation of the cost or amount of materials required, rather than mere mechanical or clerical errors made in tabu- lating or transcribing figures. M.F. Kemper, supra. However, recission may be granted even if the mistake is partly due to an error of judgment, if the underestimation of costs is due to a preliminary mistake of fact. White v. IIerenda, supra. In the present case, Mr. Coyle's letter suggests that the mistaken bid was due entirely to the inadvertant omission of a cost item in the tabulation of the total amount. The cases have uniformly allowed recission in such circumstan- ces. M.F. Kemper, supra; Elsinor Union Elementary School District v. Kastorff (Supreme Court, 1960) 6 Cal Rptr. 1. Such a mistake is considered to be the type that will occasionally occur and not to involve any error of judgment. The City has no evidence to support a contention that the mistake was actually due to an underestimation by Mr. Coyle of the amount or expense of the materials. Rather, the promptness of his notification suggests that he is acting in good faith. It is therefore concluded that O.K. Coyle is entitled to cancel his bid because he has a legal excuse for refusing to enter into a contract with the City. It also follows that he is entitled to a return of the bid bond. To hold otherwise would be to work a forfeiture upon the contractor, which the courts would not enforce even if it were called for by the City Charter. M.F. Kemper, supra. In the present case, it is all the more clear that the bond must be returned since there is no provision for its forfeiture in the Charter or municipal law, but only in the notice inviting bids, and then only after the contract has been awarded. II It is also concluded that the City cannot enter into a contract with O.K. Coyle at an amount equal to the original bid plus the omitted costs. In the first place O.K. Coyle has not requested any such upward revision of the bid; he has only requested com- plete cancellation of the bid. In the absence of Coyle's consent to the increased figure there would be no contract because there would be no mutual agreement. An award of the -10-