Tuesday, September 16, 2014

When Should You Notify a Bidder of a Non-Responsive Bid?

Bidders often make mistakes in not submitting all required documents or filling out forms properly.  So when should a bidder be notified that their bid is non-responsive?

Options for notification:  A public agency could notify the bidder of a non-responsive bid at the following points in time:
  • Sooner:  As soon as the irregularity is identified and a decision has been made that the bid is non-responsive.
  • Later:  When the public agency recommends an award of the contract to another bidder
Sooner is better:  Generally, it is better to notify a bidder of a non-responsive bid as soon as the determination has been made that the bid is non-responsive. One of the advantages of doing this is that it helps to protect the project's schedule.  In other words, if a public agency waits until the time of an award recommendation, and a protest is made then, the protest could end up delaying award and the start of the project.  By notifying the bidder early, if they do protest the non-responsive determination, it provides the public agency with more time in which to address the protest, and hopefully keep the project's schedule.

What bids are non-responsive?  If the irregularity in the bid is material, the bid should be rejected as non-responsive.  If the irregularity is immaterial, public agencies have discretion whether to accept the bid as responsive or reject it as non-responsive.  The test as to the materiality of an irregularity is whether it gives one bidder a substantial advantage or benefit not enjoyed by other bidders. 

Case-by-case determination:  Talk with your attorneys and evaluate potential non-responsiveness issues on a case-by-case basis.  It is important to maintain the fairness and equity of the competitive bidding process, and so material irregularities should not be waived and those bids should be rejected as non-responsive.

Mike Purdy's Public Contracting Blog
© 2014 by Michael E. Purdy Associates, LLC

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