When Can a Bidder Be Disqualified?

Public agencies are generally required to award public works projects to the bidder with the lowest responsive bid, who is also a responsible bidder.  How bidder responsibility is defined differs by different states.

Bidder Responsibility Criteria:  In Washington State, public agencies are required to award public works project to the responsible bidder submitting the lowest responsive bid.  Bidder responsibility is addressed in RCW 39.04.350, which states that a public agency may establish relevant supplemental bidder responsibility criteria that may be used in determining whether a bidder is responsible and eligible for award of a project.  

4 Things to Include in Bidding Documents:  In using supplemental bidder responsibility criteria, Washington state law requires that the following must be included in the bidding documents:

1. The supplemental bidder responsibility criteria
2. The documentation that the low bidder must submit to demonstrate that they meet the supplemental bidder responsibility criteria
3. The deadline by which the low bidder must submit the documentation
4. The deadline by which a bidder may appeal a preliminary determination that the bidder did not meet the supplemental bidder responsibility criteria.

Protest and Audit Risks:  I recently became aware of an agency that established contractor qualifications criteria in the technical specifications for years of experience of the contractor, but without including items 2 through 4 above in the bidding documents.  Attempting to disqualify the low bidder in such a situation may place the agency at risk for a protest from the low bidder.  In addition, a public agency is at risk of receiving an audit finding for not properly following the requirements of RCW 39.04.350.

Mandatory Bidder Responsibility Criteria:  In addition to the optional supplemental bidder responsibility criteria that a public agency may establish, all public agencies in the State of Washington must verify that the bidder to be awarded the project meets the mandatory bidder responsibility criteria of RCW 39.04.350.

Practical Tips:

1. Are you checking to make sure the low bidder meets the mandatory bidder responsibility criteria before awarding a public works project?
2. Are you maintaining documentation in your project file of your verification that the contractor meets the mandatory bidder responsibility criteria?
3. If you are using supplemental bidder responsibility criteria, are you including the four items listed above in your bidding documents?

Checklist:  As part of training that I provide to public agencies on establishing and managing supplemental bidder responsibility criteria, I've developed a checklist to help public agencies answer the key questions and address the important issues.  The checklist is available on my website (www.mpurdy.com) under the Resources tab, or by clicking here.

Questions:  Please contact me if you would like more information about how these requirements apply to your agency, or if you would like assistance in writing supplemental bidder responsibility criteria.  It can be complicated to write good criteria that are not overly restrictive of the bidding pool.

Mike Purdy's Public Contracting Blog© 2011 by Michael E. Purdy Associates, LLC  http://PublicContracting.blogspot.com