Determining Responsive Bids and Responsible Bidders and Offerors

1. Determining Responsive Bids and Responsible Bidders and Offerors Presenter: J. Peter Stamps, CPPO, VCO VA Dept of General Services

2. Definitions • Responsive VPPA § 2.2-4301. Definitions “Responsive bidder” means a person who has submitted a bid that conforms in all material respects to the Invitation for Bid.

3. Definitions con’t. • Responsible VPPA § 2.2-4301. Definitions “Responsible bidder” or “offeror” – means a person who has the capability, in all respects, to perform fully the contract requirements and the moral and business integrity and reliability that will assure good faith performance, and who has been prequalified, if required.

4. Definitions con‘t • Informality VPPA § 2.2-4301. Definitions “Informality” – means a minor defect or variation of a bid or proposal from the exact requirements of the Invitation to Bid, or the Request for Proposal, which does not affect the price, quality, quantity or delivery schedule for the goods, services or construction being purchased.

5. Responsive bids By definition, to be eligible for award, a bid must respond and conform to the requirements of the IFB. Examples of non-responsive bids: • A bid that fails to meet the essential requirements of the IFB. • A bid that does not conform to the specifications.

6. Responsive bids con’t • A bid that fails to conform to the delivery schedule or permissible alternatives set forth in the IFB. • A bid seeking to qualify the terms and conditions of the IFB, or otherwise seeking to limit contractor liability, or to limit the agency’s rights.

7. Responsive bids con’t • A vendor that qualifies its price in such a manner that the firm’s bid price cannot be determined. • Making a bid contingent upon also receiving awards on other bids currently under consideration.

8. Informality The VPPA defines an informality and many agencies have adopted a policy of not rejecting bids when the deviation is not considered material.

9. Informality, con’t. The rejection of a non-responsive bid has harsh consequences for the bidder and could deprive the agency of the advantage of the rejected bid (usually the low bid).

10. Informality, con’t. • An informality is a matter of form and not of substance or pertains to some immaterial or inconsequential defect or variation from the exact requirement of the bid. • The correction must not be prejudicial to other bidders.

11. Informality, con’t. The APSPM (Vendors Manual) states: “The procuring agency may, in its sole discretion, waive such informalities or permit the bidder/offeror to correct them, whichever procedure is in the best interest of the Commonwealth.

12. Informality, con’t. Examples of informalities: • Failure of bidder to return the requested number of copies of bids. • Failure of bidder to sign its bid, but onlyif the unsigned bid is accompanied by other material indicating the bidder’s intentions to be bound, such as a letter signed by the bidder indicating the bidder’s intentions.

13. Informality, con’t. • Failure of a bidder to acknowledge receipt of an addendum, but only if (a) the bid received clearly indicates that the bidder received the amendment; or (b) the addendum involves only a matter of form which has no effect upon price, quantity, quality, or delivery.

14. What happens if you determine a bid as non-responsive?

15. APSPM 3.21: “If a bid is found to be non-responsive, a notation as to why it is non-responsive shall be made, and signed by the buyer/contract officer and included in the contract file.”

16. Can a proposal in response to an RFP be determined non-responsive?

17. The VPPA only defines a “responsive bidder” as it relates to a bid in response to an IFB.

18. Responsibility • NIGP defines a responsible bidder or offeror as “A contractor, business entity or individual who is fully capable to meet all of the requirements of the solicitation and subsequent contract. Must possess the full capability, including financial and technical, to perform as contractually required. Must be able to fully document the ability to provide good faith performance.”

19. Responsibility con’t. • Allows for consideration of the management of the firm, financial strength, ethics and past performance as well as technical capabilities of the supplier. • Requires an objective (fact based) judgment versus a subjective (gut-feeling) judgment.

20. Responsibility con’t. The California Supreme Court determined that an awarding body may NOT declare a bidder non-responsible merely because another bidder is more responsible. The court sided with the rejected bidder over the City of Inglewood, CA concluding that contracts may not be awarded on the basis of relative superiority.

21. Responsibility con’t Factors to consider in determining responsibility: • Regular dealer • Experience • Integrity, Perseverance, and Reliability • Capacity, Facilities, and Equipment • Financial

22. Responsibility con’t What do you need to do if you determine a bidder or offeror is not responsible?

23. Responsibility con’t APSPM 11.2 c: If the public body determines that the apparent low bidder is not responsible, it shall proceed as follows: Prior to issuance of a written determination of non-responsibility, the public body shall:

24. Responsibility con’t • notify the bidder in writing of the results of the evaluation • disclose the factual support in its determination, and • allow the bidder to inspect any documents that relate to the determination within five (5) business days after receipt of the notice.

25. Responsibility con’t • Within ten (10) business days after receipt of the notice, the bidder must submit rebuttal information challenging the evaluation. • The public body shall issue its written determination of responsibility (including any rebuttal information) within five (5) business days of the date the public body received such rebuttal information.

26. Responsibility con’t • The notice issued by the public body shall be final unless the bidder appeals the decision within ten (10) days after receipt of the notice, buy invoking administrative procedures meeting the standards of the Code of Virginia, § 2.2-4365, if available, or in the alternative by instituting legal action as provided in the Code of Virginia, § 2.2-4364.

27. Responsibility con’t May a vendor protest that another vendor is not responsible?

28. Responsibility con’t VPPA § 2.2-4360 “ No protest shall lie for a claim that the selected bidder or offeror is not a responsible bidder or offeror.

29. Case Studies

30. Case Studies 1. Can a public entity award a contract to the apparent low bidder if this bidder fails to acknowledge an addendum as required in the bid specifications?

31. Case Studies 2. If a public entity rejects all bids due to the fact that the lowest bid was non-responsive and re-bids the project, can the second low bidder on the first bid claim rights to the contact?

32. Case Studies 3. Can a public entity decide to reject a bid if the bidder was encouraged to submit a bid by the project architect but failed to attend a mandatory pre-bid conference?

33. Case Studies 4. Can a public entity waive the requirement for the agent’s signature on the bid as informality?

34. Case Studies • 5. Can a public entity waive, as informality, the failure of a bidder to submit two alternative products as required in the bid specifications?

35. Questions