Informalities and Irregularities

In bidding and consultant selection, contractors and consultants often submit bids and proposals that contain irregularities or errors in their submissions. To the extent that such irregularities are not material, a public agency may waive the irregularity and still consider the bid or proposal.

The general rule of thumb as to whether the irregularity is material or immaterial is whether it gives one company an advantage not enjoyed by others. If it provides one company with an advantage not enjoyed by others, the irregularity would be considered material and the bid or proposal should be rejected. If, on the other hand, the irregularity is immaterial, then the public agency may waive the irregularity as an informality.

Frequently, I see language in public agency documents such as the following: "The public agency reserves the right to waive any minor informalities or irregularities contained in any bid." It seems to me that one doesn't waive "informalities," but only "irregularities." Whether something is an informality is a decision made by the public agency, while an irregularity is the error that the bidder or proposer makes. It may be more accurate to state that "The public agency reserves the right to waive as an informality any irregularities contained in any bid."

Take a look at the language in your bidding and solicitation documents to see how they describe the rights of public agencies. Are you waiving "informalities" or waiving "as an informality any irregularities"? It's something to think about...