Concerned about the track record of a particular contractor, county officials in Florida have taken steps to establish a prequalification process for public works contractors, rather than relying on evaluating the qualifications of the low bidder after bids have been received.
Current County Practice: Prequalification would allow Lee County to determine what contractors are permitted to bid County road projects. Currently, any contractor can bid on the County's projects. The County then evaluates the low bidder's responsibility based on the firm's past job history, its financial strength, its payment record to subcontractors, environmental compliance, and history of litigation.
On November 1, 2010, the County commissioners voted to move ahead with establishing a prequalification process.
County Concerns with Contractor: Although the County maintained that the move toward prequalification was not targeting any contractor, the County has had a number of problems with Michigan-based Posen Construction. The County's concerns with Posen include the following:
- Asbestos was identified on Posen's projects.
- Posen has a history of not paying subcontractors.
- Additional County time to oversee Posen's projects. County commissioner Tammy Hall complained that "if we have to spend twice as much staff time, it's not really a low bid."
When Should Contractor Qualifications Be Determined? Prequalification and bidder responsibility essentially rely on the same criteria for determining whether a contractor should be awarded a public works project. The difference is in the timing. Under prequalification, the decision about a contractor's qualifications is made prior to bidding and limits what contractors can submit a bid. Under bidder responsibility, the decision about a contractor's qualifications is made after bids have been submitted, and the low bidder is evaluated to determine if they are qualified and meet pre-established criteria.
Bidder Responsibility in Washington State: In Washington State, RCW 39.04.350 allows public agencies to develop bidder responsibility criteria to be used in evaluating whether the low bidder is qualified to perform a project. The 2007 law has been the source of significant controversy in the state, with some contractors complaining about overly restrictive criteria that limits their ability to be responsible. A task force with public agencies, contractors, and subcontractors is currently meeting to develop common ground in understanding how bidder responsibility should be implemented.
Prequalification in Washington State: Only a few types of public agencies in Washington State are specifically authorized to prequalify contractors, including the following:
- Washington State Department of Transportation - WSDOT (RCW 47.28.070)
- Public Utility Districts (RCW 54.04.085)
- Cities and town owning an electrical utility (RCW 35.92.350)
Mike Purdy's Public Contracting Blog (© 2010 by Michael E. Purdy Associates)
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