Tuesday, February 19, 2013

Massachusetts Court Affirms Agency Right to Determine Bidder Responsibility

The Massachusetts Supreme Judicial Court has affirmed that public agencies have a right to conduct an investigation into whether the low bidder on a public works construction project is a responsible bidder.

Negative reference checks lead to not-responsible decision:  The Town of Holliston checked the references of the low bidder on a new police station project.  They received several negative reference checks and concluded that the low bidder (Barr) was not a responsible bidder.  Barr sued the town, arguing that the town had gone beyond just checking the standard state certification files for contractors, and that such action was not authorized.  

Massachusetts definition of responsibility:  Massachusetts state law notes that a bidder is responsible if they possess "the skill, ability and integrity necessary to faithfully perform the work called for by the particular contract, based upon a determination of competent workmanship and financial soundness."
Court ruling:  The court ruled that it is up to each agency to make a determination of responsibility, and that a disappointed bidder always has the right to challenge a decision of not responsible in court.  Click here for a summary of the court case.

Washington State bidder responsibility:  In Washington State, RCW 39.04.350 governs bidder responsibility.  There are a half-dozen or so mandatory bidder responsibility criteria that must be met and documented by all public agencies in the state before awarding any public works contract.  In addition, public agencies have the option of developing and including in the bidding documents "supplemental bidder responsibility criteria."  It is a fine art to write appropriate supplemental criteria that are clear, fair, and that meet the agency's objectives of ensuring that the low bidder is qualified to perform the work.

Mike Purdy's Public Contracting Blog 
© 2013 by Michael E. Purdy Associates, LLC 

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