4. Unbalanced bids are risky business
Contractors are annoyed when the owner retain their payments, while the owners are used to act like this. However, as we can see, more and more state legislatures are trying to help them out by putting limitations on the amount and length of time that retainage can be held.
The contractors and sub-contractors are not content to just sit back idly when the owners and upper-tier contractors hold their money, so they have engaged in all means to make up for the withholdings by using the front-loading and by disproportionately pricing individual bid items.
More owners are catching on to the risk of accepting an unbalanced bid or paying on an unbalanced schedule of values: If the contractors margin is paid out early in the job, insufficient funds may remain to be paid for the rest of the work (this can also lead to problems for an owner with a contractors surety too). For public work, more statutes and regulations are being passed to try to deal with the situation.
Here are two examples of the risk a contractor runs by disproportionately pricing its various items of work:
In Matter of L.W. Matteson Inc., a federal contractor protested the rejection of his bid under Federal Acquisition Regulation 14.404-2(g), which allows a bid to be rejected if the prices for any line items are materially unbalanced (meaning overstated or understated). The regulation notes that the agency is not required to reject the bid, but the contracting officer is required 'to consider the risks to the government associated with the unbalanced pricing in making the award decision, and whether a contract will result in unreasonably high prices for contract performance.'
Even assuming that, as Matteson asserted, its inclusion of later work in an earlier bid item was inadvertent, its 'pricing approach created the potential that [Matteson] could recover a disproportionate share of the contract price early in the performance period' and for this reason, the General Accounting Office supported the agencys decision to reject the bid and award the project to the second low bidder.
In M. J. Paquet Inc. v. New Jersey Department of Transportation, 794 A. 2d 141 (N.J. 2002), the contractor was a little luckier. Paquet submitted what was admittedly (but again, 'inadvertently') an unbalanced bid, and then protested when the DOT (Department of Transportation) proposed to delete the profitable work from contract for unrelated reasons. Paquet sought an equitable adjustment to make up for what it would lose, and the DOT rejected it, based on a spec section that said that the department would not consider 'any claim for additional compensation arising from the bid on an item ... inaccurately reflecting the cost of such work or containing a disproportionate share of the bidders anticipated profit, overhead or other costs.'
Because Paquet wasnt claiming additional compensation--or it least the phrasing was ambiguous, the court refused to use the clause to bar Paquets claim. The court went on to give a discussion of the evils of front-end loading and unbalanced bidding, and cautioned that its decision was 'limited to the unique facts of this appeal.' Had the spec section been worded a little more artfully, Paquet could have found itself deeply out of pocket.
The lessons taught by both of these decisions are similar. A contractor who chooses to submit an unbalanced bid takes several risks: Firstly, that he might be violating a statute, regulation or contract provision, which might get him disqualified or terminated if discovered (as in the first example). Secondly, if the lower-priced item is increased or the higher-priced item decreased, he may suffer financially (as in the second example). And thirdly, if the owner is public and has a False Claims Act (or equivalent), the contractor might find him in criminal court.
So the contractor should be very careful when applying the unbalanced bidding method.
5. How to avoid the risks
There is risk here that depends on your judgment and decision-making. Although you may judge correctly, the owner may try to reduce the quantity, or even modify the design. So it requires the experience and skills, and also the ability to communicate with others during the construction. However, unbalanced bidding should not be carried out unreasonably. For example, for a project of about $10,000,000, it is unreasonable to charge $5,000,000 as soon as the fundamental construction is finished. The unit price should be adjusted in a certain scale, normally 20%-30% more. And it is acceptable to the owner, also, you can explain for it that you have to bring in facility and order for the material. This is not only the problem of funds, but also the claim: if the contractors are forever under such a situation that his income is more than his expenditure, according to the FIDIC Contract Conditions Items 65, 66, 69, when the other party violates the contract, it is to the contractor to claim to the consultant.
When bidding according to the B.Q. offered by the owner in the inviting documents, many contractors think that the quantities are all given already, so it is only to quote the unit price. And also some other contractors have little time to check the quantity given in the schedule, and bid with the lowest unit price in the market. However, they may lose a good chance to make a great profit, and sometimes even lose money.
The principle of bidding according to the B.Q. is to pay strictly with the quantities and the unit prices quoted. However, a lot of the projects are modifying the design while constructing, so the actual quantity of the project will be greatly different with what is on the B.Q.. If the contractor is able to judge the inaccuracy of the quantity of the items to be taken out, he/she holds the chance to make an extra profit.
There is one thing should b
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4. Unbalanced bids are risky business
不平衡报价是有风险的行为
Contractors are annoyed when the owner retain their payments, while the owners are used to act like this. However, as we can see, more and more state legislatures are trying to help them out by putting limitations on the amount and length of time that retainage can be held.
当业主扣留他们的款项时，承包商会恼火，而业主们却是习惯于这样的做的。然而,正如我们可以看到,越来越多的州立法机构正在试图帮助承包商通过限制工程量和工程时间的方式结清尾款。
The contractors and sub-contractors are not content to just sit back idly when the owners and upper-tier contractors hold their money, so they have engaged in all means to make up for the withholdings by using the front-loading and by disproportionately pricing individual bid items.
承包商和分包商不满足于只是坐下来聊聊，况且此时他们的钱还在业主和上层承包商手中，所以他们会采取的一切手段来弥补损失，通过调整不成比例的定价个别投标项目。
More owners are catching on to the risk of accepting an unbalanced bid or paying on an unbalanced schedule of values: If the contractors margin is paid out early in the job, insufficient funds may remain to be paid for the rest of the work (this can also lead to problems for an owner with a contractors surety too). For public work, more statutes and regulations are being passed to try to deal with the situation.
更多的业主已经意识到了接受不平衡报价或支付值不平衡的进度风险：如果承包商的保证金在工作的初期支付，资金不足仍然是剩下的工作报酬（这也能导致与承包商的担保问题）。对于公共工作，更多的法律和规定，通过尝试处理这些情况。
Here are two examples of the risk a contractor runs by disproportionately pricing its various items of work:
这里是不成比例的定价诸项工作中的两个例子，承包商经营风险：
In Matter of L.W. Matteson Inc., a federal contractor protested the rejection of his bid under Federal Acquisition Regulation 14.404-2(g), which allows a bid to be rejected if the prices for any line items are materially unbalanced (meaning overstated or understated). The regulation notes that the agency is not required to reject the bid, but the contracting officer is required 'to consider the risks to the government associated with the unbalanced pricing in making the award decision, and whether a contract will result in unreasonably high prices for contract performance.'
在马特森公司，联邦承包商抗议他的投标被拒绝。根据联邦采购条例14.404-2，它允许的一个投标是，如果任何商品价格不平衡了（意思是夸大或低估），规定指出，该机构并不需要拒绝出价，但需要考虑风险与在作出裁决决定的不平衡报价相关的政府承包人员，是否将导致合同不合理的高价格。
Even assuming that, as Matteson asserted, its inclusion of later work in an earlier bid item was inadvertent, its 'pricing approach created the potential that [Matteson] could recover a disproportionate share of the contract price early in the performance period' and for this reason, the General Accounting Office supported the agencys decision to reject the bid and award the project to the second low bidder.
即使这样假定，正如马特森断言言，在早期的投标项目以后的工作包是没有不平衡的，其定价方法能恢复合同价格不成比例，为此，总会计办公室支持机构的决定，拒绝投标和授予项目第二低的投标人。
In M. J. Paquet Inc. v. New Jersey Department of Transportation, 794 A. 2d 141 (N.J. 2002), the contractor was a little luckier. Paquet submitted what was admittedly (but again, 'inadvertently') an unbalanced bid, and then protested when the DOT (Department of Transportation) proposed to delete the profitable work from contract for unrelated reasons. Paquet sought an equitable adjustment to make up for what it would lose, and the DOT rejected it, based on a spec section that said that the department would not consider 'any claim for additional compensation arising from the bid on an item ... inaccurately reflecting the cost of such work or containing a disproportionate share of the bidders anticipated profit, overhead or other costs.'
M. J.帕克特公司诉新泽西运输部，794的2D 141（新泽西州2002），承包人有点幸运。分组提交什么是公认的（但是，“无意”）的不平衡报价，然后提出抗议，当（交通部）提出了从无关的原因合同删除有利可图的工作。分组寻找一个公平的调整来弥补它会失去，和拒绝它，基于规范的部分，表示该部不会考虑“额外补偿从一个项目投标所产生的任何索赔hellip;不准确地反映该工程的费用或含有投标人的预期利润不成比例，费用或其他费用。
Because Paquet wasnt claiming additional compensation--or it least the phrasing was ambiguous, the court refused to use the clause to bar Paquets claim. The court went on to give a discussion of the evils of front-end loading and unbalanced bidding, and cautioned that its decision was 'limited to the unique facts of this appeal.' Had the spec section been worded a little more artfully, Paquet could have found itself deeply out of pocket.
因为分组不要求额外补偿——或者至少是含糊不清的措辞，法院拒绝使用条款禁止分组的要求。法庭继续给一个前端装载不平衡报价的弊端的讨论，并警告说，它的决定是“有限的这一诉求的独特的事实。有规格方面是措辞更巧妙，分组可以发现自己口袋鼓了。
The lessons taught by both of these decisions are similar. A contractor who chooses to submit an unbalanced bid takes several risks: Firstly, that he might be violating a statute, regulation or contract provision, which might get him disqualified or terminated if discovered (as in the first example). Secondly, if the lower-priced item is increased or the higher-priced item decreased, he may suffer financially (as in the second example). And thirdly, if the owner is public and has a False Claims Act (or equivalent), the contractor might find him in criminal court.
So the contractor should be very careful when applying the unbalanced bidding method.
由这些决定所教的课都是相似的。承包商选择提交不平衡报价需要几方面的风险：首先，他可能违反法律，法规或合同的规定，这可能会让他取消或终止，如果发现（如第一个例子）。其次，如果价格较低的项目增加或价格较高的项目减少，他可能会遭受经济上的（如在第二个例子）。再次，如果业主是公共的，有一个虚假索赔法（或同等学历），承包商可以在刑事法庭发现他。
因此,承包商应该非常小心应用不平衡时招标方法。
- How to avoid the risk
如何避免风险
There is risk here that depends on your judgment and decision-making. Although you may judge correctly, the owner may try to reduce the quantity, or even modify the design. So it requires the experience and skills, and also the ability to communicate with others during the construction. However, unbalanced bidding should not be carried out unreasonably. For example, for a project of about $10,000,000, it is unreasonable to charge $5,000,000 as soon as the fundamental construction is finished. The unit price should be adjusted in a certain scale, normally 20%-30% more. And it is acceptable to the owner, also, you can explain for it that you have to bring in facility and order for the material. This is not only the problem of funds, but also the claim: if the contractors are forever
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