Public agencies in the State of Washington have the option on public works projects of establishing Supplemental Bidder Responsibility Criteria to help them determine if the low bidder is a responsible bidder capable of performing the project.
State Law Authorizes Criteria: The Supplemental Bidder Responsibility Criteria are authorized by RCW 39.04.350, and are in addition to certain mandatory bidder responsibility criteria applicable for all public works projects (also in RCW 39.04.350).
Industry-Wide Debate on Compliance: In evaluating whether a bidder meets the Supplemental Bidder Responsibility Criteria, there has been a discussion over the course of the last year as to whether the low bidder must meet all of the criteria in order to be responsible, or if the public agency has discretion to determine that the low bidder substantially meets the criteria.
The Two Approaches: Below is a discussion of the advantages and disadvantages of each approach:
- Meet All Criteria: In 2007, when the legislation for bidder responsibility criteria was being developed, I understood that the intent of the parties was clearly that a low bidder would have to meet all of the criteria in order to be determined responsible. This recollection is supported by the actual language in RCW 39.04.350 (2) that requires the bidder to meet the criteria:
"...the state or municipality may adopt relevant supplemental criteria for determining bidder responsibility applicable to a particular project which the bidder must meet." [emphasis added]
Maintaining a bright line of compliance with the bidder responsibility criteria provides a clear and transparent process for contractors contemplating bidding on a public works project. Without this clarity, it is more difficult for a contractor to decide whether to bid on a project, because they don't know if their qualifications are good enough, and if they will be determined to be responsible.
- Discretionary Compliance With Criteria: The State Department of General Administration (GA) has been the main proponent of this position and has included the following language in their Instructions to Bidders:
"...the Owner shall consider an overall accounting of the attached supplemental criteria for determining bidder responsibility.
While this discretionary approach does provide more flexibility for public agencies in determining whether a bidder is responsible, it does not promote predictability in the public bidding process, and leaves a lot to the discretion of the public agency in determining how close is close enough. With many contractors already concerned about the inappropriate application of Supplemental Bidder Responsibility Criteria by some public agencies, allowing for this discretion makes the entire process even more subjective than it already is.
Training: The two positions for determining compliance (meet all criteria or the discretionary approach) were one of the subjects addressed in March 2011 training sponsored by the Capital Projects Advisory Review Board (CPARB) along with industry associations.
Guidelines: CPARB is currently revising the Suggested Guidelines for Bidder Responsibility and will be discussing whether both approaches should be addressed in the Guidelines. Currently, the Guidelines suggest that bidders must meet all of the Supplemental Bidder Responsibility Criteria in order to be determined to be responsible.
Guidelines: CPARB is currently revising the Suggested Guidelines for Bidder Responsibility and will be discussing whether both approaches should be addressed in the Guidelines. Currently, the Guidelines suggest that bidders must meet all of the Supplemental Bidder Responsibility Criteria in order to be determined to be responsible.
Mike Purdy's Public Contracting Blog© 2011 by Michael E. Purdy Associates, LLChttp://PublicContracting.blogspot.com
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1 comment:
Nice post which In evaluating whether a bidder meets the Supplemental Bidder Responsibility Criteria, there has been a discussion over the course of the last year as to whether the low bidder must meet all of the criteria in order to be responsible, or if the public agency has discretion to determine that the low bidder substantially meets the criteria.Maintaining a bright line of compliance with the bidder responsibility criteria provides a clear and transparent process for contractors contemplating bidding on a public works project. Thanks a lot for posting.
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