Should Agencies Send Non-Responsive Letters to Bidders Not Under Consideration for Award?

What should a public agency do with a non-responsive bid when the bidder is not the low bidder?  Should the agency send the bidder a letter informing them they submitted a non-responsive bid or remain silent?

Send the Letter:  While there are clearly arguments on both sides of the question, I would suggest that it is better to send the bidder a letter informing them that their bid is non-responsive.  Here are the advantages and disadvantages of such an approach:

Disadvantages of Sending a Non-Responsive Letter

• It Takes Time:  Writing a letter describing the reasons why a bid has been declared non-responsive takes time, something in short supply, especially as many public agencies are faced with significant cuts in staffing.  Some argue that if the bidder has no chance of being awarded the project, it's a better use of time for public employees to not take the time to craft such a letter.

• The Risk of a Protest:  By highlighting a non-responsive bid through a letter declaring a firm non-responsive, a public agency does pick up limited risk that the bidder might choose to file a protest, even though their bid is not low.  Protests take time for public agencies and may delay award of a project.

Advantages of Sending a Non-Responsive Letter

• Transparency:  One of the fundamental concepts of public contracting is that the process should be transparent and open, with all facts disclosed to all parties.  This has the impact of increasing the public's confidence in the process.  Sending a non-responsive letter to a bidder, even one not under consideration for award, helps increase the transparency of the process.

• Education:  Perhaps the most important reason why a public agency should send a non-responsive letter to a bidder, even one not under consideration for award, is that it helps to educate that bidder what they did wrong.  While they weren't the low bidder on this project, if they bid on another project where they submit the low bid, but are not aware of the irregularity in their bid, they may make the same mistake on future projects.  That may result in protracted disputes and challenges to the bidding process.  By addressing the non-responsive issue now when the stakes are low, a public agency helps ensure an educated bidder pool so that future projects don't have as many non-responsiveness issues arise.

Bottom Line:  Take the time to send the non-responsive letter to the bidder, educating them why their bid is non-responsive.  It will help the next time they bid a project not to make the same mistake, increasing their confidence in the public bidding process.

Mike Purdy's Public Contracting Blog 

© 2011 by Michael E. Purdy Associates, LLC 

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