Wednesday, November 13, 2013

Why Bidders Are Never Non-Responsive

Why are bidders never non-responsive?  It's somewhat of a trick question, but it illustrates an important point. 

Responsiveness vs. Responsibility:  Responsiveness in public bidding always relates to a bid, while responsibility relates to a bidder.  To be responsive, a bid must be in compliance with the requirements of the bid documents.  To be responsible, a bidder must be capable and qualified to perform the work.  In other words, a bidder is never responsive or non-responsive.  It's their bid that is either responsive or non-responsive. 

Responsiveness questions:  Here are some of the common questions that should be asked about whether a bid is responsive and in compliance with all of the requirements of the bid documents, or whether a bid is non-responsive:
  • Bid submission location:  Was the bid submitted at the correct location identified in the bid documents?
  • Timeliness of bid submission:  Was the bid submitted prior to the deadline established in the bid documents?
  • Signed bid form:  Was the bid form signed?
  • Bid guaranty:  Was a bid guaranty or bid deposit (bid bond, cashier's check, certified check, cash) in the appropriate amount submitted with the bid?
  • Bid prices:  Does the bid include a bid price for all items identified on the bid form?
  • Bid form blanks:  Were all blanks on the bid form filled out completely?
  • Addenda:  Were all addenda acknowledged on the bid form?
  • Bid exclusions:  Did the bid include any exclusions or conditions different from the requirements of the bid documents?
Material vs. Immaterial Irregularities:  Should all bids with irregularities automatically be rejected as non-responsive?  Not necessarily.  There's a difference in the type of bid irregularities.  Some are material and others are immaterial.  In other words, a material irregularity in a bid is one that is significant and gives a competitive advantage or benefit to one bidder not enjoyed by other bidders.  Material irregularities in a bid should result in the bid being rejected as non-responsive and not considered further.  On the other hand, an immaterial irregularity in a bid does not give one bidder a competitive advantage or benefit not enjoyed by other bidders.  A bid with an immaterial irregularity may be accepted as responsive, or at the discretion of the public agency, may be rejected as non-responsive.

Is the bidder responsible?  While responsiveness relates to whether the bid complied with the requirements of the bid documents, responsibility assesses whether the bidder is capable and qualified to perform the work.  

Different laws on responsibility:  Laws differ regarding the amount of discretion a public agency may have in determining that the bidder with a low responsive bid is or is not a responsible bidder.  There is a spectrum of authority for public agencies in establishing bidder responsibility:
  • Significant discretion:  Some public agencies have broad discretion and judgment in making the determination of responsibility
  • Limited discretion:  Some public agencies permit a bidder responsibility analysis within certain bounds.  For example, in the State of Washington, all bidders on public construction projects must meet a half-dozen mandatory bidder responsibility criteria before being awarded a project.  In addition, agencies in Washington are permitted to establish additional relevant bidder responsibility criteria on a project-by-project basis to be used in making a responsibility analysis.  RCW 39.04.350 governs bidder responsibility in the State of Washington. 

  • Almost no discretion:  Some public agencies must almost always award to the bidder with the low responsive bid, regardless of capability or past performance concerns. 
Check your language:  I often see language in bid documents that notes the intent of a public agency to award the project to the "lowest responsive and responsible bidder."  This type of language blurs the important distinction between responsiveness and responsibility.  Instead, bid document language should reflect that the agency will award to the "responsible bidder with the lowest responsive bid," or something similar. 

Case by case:  Evaluating whether a bid is responsive and whether a bidder is responsible are determined on a case by case basis, dependent on the specific facts and the language of the bid documents.  It's important to involve the public agency's attorney in making these determinations, and in assessing how defensible a particular position is to a protest or lawsuit.  

The question:  "Why are bidders never non-responsive?"  Bidders are never non-responsive, even though their bid may be non-responsive.  A bidder, however, may be determined to not be a responsible bidder, making them ineligible to be awarded a project. 
Mike Purdy's Public Contracting Blog
© 2013 by Michael E. Purdy Associates, LLC

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