Missouri Rejects Low Bid Not Submitted Electronically

The Missouri Highways and Transportation Commission rejected on June 2, 2010, as irregular the bid of low bidder, Steve & Associates, who failed to submit their bid electronically as required in the Missouri Department of Transportation (MoDOT) standard specifications.  

Instead the Commission awarded the contract to the second low bidder, Sam Gaines Construction, at a cost of $1.659 million, or $83,000 more than the low bid.

Specs Required Electronic Bidding Only:  At issue is the provision of section 102.3 of the standard specifications that states the following:

Any bid exceeding a monetary value of $250,000 shall be submitted electronically using the BidExpress website.  For any bid less than $250,000, bidders will be allowed to submit paper bids or submit bids electronically using the BidExpress website.  Any paper bids submitted with a bid exceeding $250,000 will be considered irregular in accordance with Sec 102.8.

Specs Defined Irregular Bids:  Section 102.8, Irregular Bids, of MoDOT's standard specifications states that:

"Bids that are not completed in accordance with the bidding documents, that show any omissions, false statements or certifications, alterations of form, additions not called for, conditional or alternate bids unless called for, irregularities of any kind, or that are not responsive to the request for bids may be rejected." 

The Irregularity in the Bid Was Immaterial:  Only bids that have a material irregularity must be rejected as non-responsive.  The test as to the materiality of an irregularity is whether it gives one bidder an advantage or benefit not enjoyed by other bidders.  

It seems to me that the low bidder in this instance did not gain any advantage by submitting a paper bid.  Thus, the irregularity in Steve & Associates' bid appears to be immaterial.  

A public agency has discretion whether to accept or reject a bid with an immaterial irregularity, while a material irregularity must be rejected as non-responsive.  In this instance, the Commission chose to reject the bid with an immaterial irregularity as non-responsive, at a cost to the public of $83,000.

Should the Bid Have Been Rejected as Non-Responsive?  While I don't have all of the documents related to the bids submitted to MoDOT, Section 102.8.2 of MoDOT's standard specifications would tend to support the fact that the Commission should not have rejected the bid as non-responsive.  It states the following: 

"A bid submitted on the "Request for Bid" document and that is otherwise complete and fully executed, will not be deemed an irregular bid and will not be subject to rejection by the Commission."

Presumably, Steve & Associates submitted their bid on the "Request for Bid" form, and perhaps their bid should not have been rejected.  

Bid Protest Coming?  Steve & Associates is considering filing a bid protest, arguing that they were twice told by MoDOT personnel that it was acceptable to submit a paper bid.

For More Information:

•  Click here to read a news article in The Fulton Fun newspaper.

• I have requested MoDOT to send me documents related to this bid and the Commission's action.  If there are additional facts that surface, I will be sure to report those in a future blog entry.