Bid Irregularities - Material or Immaterial?

A public owner should reject a bid as non-responsive that is materially different from the requirements of the bidding documents.

An owner may waive an irregularity in the bid as an informality if the irregularity is immaterial.

That begs the question: What constitutes whether an irregularity is material or immaterial?

In a well established Washington State Supreme Court decision from March 1969 (Gostovich v. City of West Richland), the court wrote that “The test as to the materiality of a variance is whether it gives a bidder a substantial advantage or benefit not enjoyed by other bidders.”

How this test of materiality gets applied to particular situations is very much dependent on the specific facts of a case.

Some issues on a public works bid that may result in a non-responsive bid include, but are not limited to the following:

• Was a Subcontractor's List submitted as required?
  
• Was a Bid Guaranty in the proper amount and type submitted with the bid?
  
• Was the bid submitted and received by the owner by the deadline?
• Was the bid form signed?
• Did the bidder submit a bid price on all required bid items?
• Did the bidder attend a mandatory pre-bid site meeting?
• Were all addenda acknowledged?
• Did the bidder submit documents required by the bidding documents to be submitted with the bid?

Again, depending on the facts, there may be surprising answers to these questions. If you have specific questions about these or any other responsiveness questions, please let me know.