Determining Responsive Bids
and Responsible Bidders and
Offerors
Presenter:
J. Peter Stamps, CPPO, VCO
VA Dept of General Services
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.
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.
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.
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.
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.
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.
Informality
The VPPA defines an informality and many
agencies have adopted a policy of not
rejecting bids when the deviation is not
considered material.
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).
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.
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.
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 only if
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.
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.
What happens if you
determine a bid as nonresponsive?
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.”
Can a proposal in response to an
RFP be determined nonresponsive?
The VPPA only defines a
“responsive bidder” as it relates to
a bid in response to an IFB.
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.”
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.
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.
Responsibility con’t
Factors to consider in determining
responsibility:
• Regular dealer
• Experience
• Integrity, Perseverance, and Reliability
• Capacity, Facilities, and Equipment
• Financial
Responsibility con’t
What do you need to do if you determine a
bidder or offeror is not responsible?
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:
Responsibility con’t
(i) notify the bidder in writing of the results
of the evaluation
(ii) disclose the factual support in its
determination, and
(iii) allow the bidder to inspect any
documents that relate to the
determination within five (5) business
days after receipt of the notice.
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.
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.
Responsibility con’t
May a vendor protest that
another vendor is not
responsible?
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.
Case Studies
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?
Case Studies
2. If a public entity rejects all bids due to
the fact that the lowest bid was nonresponsive and re-bids the project, can the
second low bidder on the first bid claim
rights to the contact?
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?
Case Studies
4. Can a public entity waive the
requirement for the agent’s signature on
the bid as informality?
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?
Questions