Responsiveness vs. Responsibility

The words “responsiveness” and “responsibility” sound very similar, but in public works contracting, they means two entirely different things.

“Responsiveness” refers to whether a bid is responsive. In other words, did the bidder submit a bid that responded to and was in compliance with what was requested in the bidding documents?

Typical issues of responsiveness include the following:

• Was the bid submitted by the bid submittal deadline?
• Did the bidder sign the bid?
• Was a bid guaranty in the appropriate amount submitted with the bid?
• Did the bidder submit a bid on all required items?
• Did the bidder acknowledge all addenda issued?
• Was a list of subcontractors submitted with the bid, if required? For example, in Washington State, RCW 39.30.060 requires that the bidder submit a list of subcontractors with the bid who will be performing HVAC, electrical, and mechanical work if the project is estimated to cost $1 million or more.
  

A public agency should reject a bid as non-responsive that is materially different from the requirements of the bidding documents. A public agency may waive an irregularity in the bid as an informality if the irregularity is immaterial.

The test as to the materiality of a variance in a bid is whether it gives a bidder a substantial advantage or benefit not enjoyed by other bidders (Gostovich v City of West Richland, March 1969).

“Responsibility” on the other hand refers not to the bid, but to the bidder. The question asked regarding responsibility is whether the bidder is capable and qualified to perform the project.

In Washington State bidder responsibility on public works projects is governed by a law that became effective on July 22, 2008. RCW 39.04.350 defines certain mandatory bidder responsibility criteria and permits public agencies to also establish supplemental bidder responsibility criteria that are relevant to a specific project. Developing supplemental bidder responsibility criteria takes great care to ensure that the criteria are relevant to the project. The Capital Projects Advisory Review Board (CPARB) has developed Suggested Guidelines for Bidder Responsibility that many public agencies will find useful in understanding the State's bidder responsibility law.

Both responsiveness and responsibility have certain levels of subjectivity in making a determination and both are based on the particular facts of a situation. There are a number of court decisions that help shape how these issues are interpreted.

I have developed a training class addressing responsiveness and responsibility issues in public works contracting. Please contact me if you are interested in more information about the training.