Are Your Instructions to Bidders Clear?

The "Instructions to Bidders" document in public works bidding specifications is an important tool to guide the bidding process and to prevent unnecessary bid protests or rejection of bids as non-responsive. 

In writing your Instructions to Bidders, don't impose more requirements on the bidders in the submission of their bids than is necessary.  For example, it's a good practice to limit what you require bidders to submit with their bid to the Bid Form and bid guaranty, plus any other documents that may be required by law or by a funding source or the terms of a grant.

Let's take a look at the following sentence from one agency's Instructions to Bidders and identify some of the problems with it:

"Improperly completed information, irregularities in security deposit, may be cause not to open the Bid Form envelope and declare the bid invalid or informal."

Here are some of the issues I see with this requirement:

• Whether the bid contains improperly completed information or irregularities in the security deposit (more generally known as a bid deposit or bid guaranty) won't be known until after you open the sealed bid envelope.  As written, it sets up an impossible situation.

• Bids are not declared "informal."  Immaterial irregularities in a bid may be waived by a public agency as an informality.  Thus, the more accurate language is not to discuss the bid being invalid or informal, but whether any irregularity is material or immaterial and whether the bid is responsive or non-responsive.  Material irregularities (those that give a competitive advantage or benefit to one bidder not enjoyed by other bidders) must be rejected as non-responsive.

• The sentence actually contains a double negative that requires the agency to not declare irregularities as non-responsive.  Here's how it reads:  "Improperly completed information, irregularities in security deposit, may be cause not to...declare the bid invalid or informal."  That's certainly an unintended consequence of less than clear and careful drafting of the sentence.

Review your Instructions to Bidders.  Are they clear?  Do they address all the necessary subjects?  Do they protect your agency in the event of irregularities in bids?  Do they help provide you with tools for managing potential bid protests?