ConstructionPro Week, Volume: 1 - Issue: 25 - 10/22/2012

Should Bidder Responsibility Documents Be Required upon Bid Submittal?

By Bruce Jervis

Bid responsiveness relates to a bidder’s commitment to perform the work in accordance with the contract documents, without deviation or exception. Bidder responsibility relates to a bidder’s ability -- financial, technical and otherwise -- to perform the work.


Bid responsiveness is determined at the time of bid opening. Generally, a nonresponsive bid cannot be corrected or supplemented; it must be rejected. Bidder responsibility can be established after bid opening and prior to contract award.

A project owner may, however, under the terms of the bid solicitation itself, convert “definitive responsibility criteria” into a matter of bid responsiveness. That occurred in a recent Delaware case. A state bid solicitation required bids to be accompanied by contractor and subcontractor certifications of competency from an industry trade group.

The Delaware Supreme Court upheld rejection of a low bid as nonresponsive because the bidder’s certification was submitted several days after bid opening. The court acknowledged late submittal could probably be waived as a minor informality. But omission of the certification indicated the intention to deviate from the specified method of performance.


Why do public project owners require submittal of certifications and other evidence of bidder responsibility with the bid itself? Shouldn’t this information be furnished after bid opening? After all, late submittal is commonly waived as a minor informality. Doesn’t this practice unduly complicate the bidding process and lead to more bid protests? I invite your comments.



I think that whatever the main focus is for the Owner at the time of bid opening should be the main focus at the time of bid opening for the contractors. Most commomly that would be price. That could be better accomplished by haveing other less focused items submitted after the bid by the bidding companies, thus having the bidding companies better focus on the price to be submitted, rather than both at the same time. The results could lead to better bids for the Owner. All other certifications and responsibility type documents should and could be submitted in a 24hr period after the bid. Why complicate the system and for what benefit?
Posted by: David Webster - Tuesday, October 23, 2012 1:58 PM

Late submissions are rarely determined to be minor informalities. Bidder responsiveness pertains to documents submitted in accordance with Bidder Instructions.
Posted by: william grant aia - Tuesday, October 23, 2012 2:01 PM

A Bid Bond with the bid is a good and reasonable requirement for establishing responsibility. Based upon many years of experience, both public and private it is best to not burden the bidded with other than getting a correct bid amount with one exception. That exception in order to stop sub-bid shopping, require all major or important sub-contractors names be submited with the bid as a binding part of the bid proposal.
Posted by: H. Maynard Blumer, FAIA, FCSI - Tuesday, October 23, 2012 2:44 PM

Public owners can require contractor certification of financial ability, safety record and experience in performing public works projects. Various states have this provision in statute. The reasoning could be a particularly sensitive project or a project with very unique characteristics requiring expertise not commonly available in the contracting community. Establishing the qualifications before awarding a contract should be a key rationale as well, after award seems to be ineffective in establishing bidder responsibility. Certifications should be limited to the prime contractor, since a public works contract is typically awarded to the prime and not the subcontractors, who should remain the prime's responsibility entirely.

Establishing a responsibile contractor and a bidder's responsivness to the solicitation or Bidder Instructions seem to be two distinctly criteria. If a bidder does not submit his bid on the awarding bodie's bid proposal form, his bid may be rejected for not being responsive to the solicitation.

Pre-qualification can complicate the bid process, but if the importance justifies the effort then it makes sense.

Posted by: Doug Brenning - Tuesday, October 23, 2012 3:05 PM

While the law varies from state to state, responsiveness generally relates to proper completion of a bid form and submission of required items with the bid form. In most cases, responsiveness can and be determined from the contents of the bid envelope. While the owner does have discretion to waive minor irregularities, it usually cannot waive errors that affect the bid price or that would provide a bidder with a competitive advantage over other bidders. Additionally, in most states, the owner's discretion is to be exercised for the benefit of the owner (and, in a public bid, the taxpayers) and to provide a level playing to all the bidders. Usually, the owner's discretion is not supposed to be exercised for the benefit of a single bidder.

Responsibility relates to the capabilities of a bidder to perform the contract. For many projects a serious examination of a bidder's capabilities takes more time and effort than can be accomplished by simply reviewing the contents of a bid envelope. It requires either investigation and interview of all prospective bidders, i.e., a detailed pre-qualification process, or investigation and interview of the lowest responsive bidder and its bid. By addressing responsibility after bid opening, only a bidder who has a realistic chance of winning the contract is required to submit to investigation and interview, saving the time and resources of all other bidders and the owner. It also reduces the amount of information that must be included in the bid envelope and reduces the likelihood that something will be forgotten or that other errors will be made. Finally, it allows an analysis focused on the particular abilities of a bidder to meet the specific needs of the project and its schedule.

Ultimately, different contracts, projects and legal requirements may require different approaches to determining responsiveness and responsibility. In all cases, however, the process should be open and fair and should be as easy as possible to comply with and administer.
Posted by: Stan Dobrowski - Tuesday, October 23, 2012 6:27 PM

Our projects are for private owners, but we restrict bidders to "qualified" bidders. To be qualified, we require completion of AIA Contractor Qualifications form with supporting data prior to issuing Request for Bids. Instructions for Bidders spells out the requirement to be pre-qualified. Why waste everybody's time by allowing unqualified bidders to spend time making a bid? When we open the bids, it's helpful to know that all the bids are being submitted by companies that are qualified to execute the project.
Posted by: tom clark - Wednesday, October 24, 2012 9:10 AM


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