02-2817 James Cape & Sons Company v. Mulcahy, Secretary

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Even though notice of the error in Nelson had been given prior to the commission’s awarding of the contract, the court nevertheless deemed the inexcusable neglect standard to apply, implicitly ratifying the commission’s actions in refusing the contractor’s request to amend its bid, awarding the contract on the original bid and declaring a forfeiture of the bid bond.

Although we agree with the trial court that the language of Wis. Stat. sec. 66.0901(5) could be interpreted to mean that because Cape notified the department of the error before the department had awarded the contract to Cape, the “free from…inexcusable neglect” standard did not apply, we hold that the ruling in Nelson precludes this interpretation.

However, we conclude that any carelessness on Cape’s part was excusable within the meaning of the statute. “It is undisputed that the sole error committed by Cape was its failure to incorporate a last-minute price increase transmitted by one of its subcontractors during the final hour of bid assembly. The error had nothing to do with a misjudgment or omission in determining the cost of items necessary to the bid.”

Affirmed.

Dist IV, Dane County, Kreuger, J., Deininger, P.J.

Attorneys:

For Appellant: Frank D. Remington, Madison

For Respondent: Brian W. Mullins, Madison; Carl A. Sinderbrand, Madison