Is Failure to Acknowledge Addenda a Material Irregularity?

If a bidder fails to acknowledge addenda on the bid form when submitting their bid to a public agency, is their bid automatically non-responsive or should it be evaluated on a case-by-case basis?

In short, it should be evaluated on a case-by-case basis. At the heart of determining whether a bid is non-responsive and should be rejected is whether the irregularity gives the bidder an advantage or benefit not enjoyed by other bidders.

When a bidder fails to acknowledge addenda on the bid form, public agencies must look at the nature of the addenda they failed to acknowledge. If the addenda deal with material issues related to the bid, such that failure to have reviewed the addenda would have an impact on the bidder's price, their understanding of the scope of work, or the schedule, then the bid should be rejected as non-responsive.

If, on the other hand, the addenda do not deal with material issues (perhaps just adding a new product as an approved equal), then the failure to acknowledge the addenda would be immaterial and the bid could be considered by the public agency.

One of the key issues to consider is whether the failure to acknowledge the addenda somehow would give the bidder an advantage not enjoyed by other bidders. If the bidder could, after bid opening, choose whether to accept the award of the contract or not based on their comfort level with their bid price, that would be an advantage.

Here are the two possible scenarios:

1. After reviewing all of the bid prices and realizing their bid was too low, can the bidder argue that their bid was non-responsive because they failed to acknowledge the addenda? This ability to choose would be an advantage.
   
   
2. After bid opening and determining their bid price is reasonable, can the bidder argue that their bid is responsive even though they failed to acknowledge the addenda because they did have the information available in the addenda? This ability to choose would be an advantage.

It is important for the public agency to be the one to decide whether a bid is responsive or not, based on the materiality (or importance) of the addenda that were not acknowledged.

Again, careful evaluation of the failure to acknowledge addenda is required on a case-by-case basis.