By Bruce Jervis
Sealed bidding in the public sector demands strict adherence to the requirements of the bid solicitation. Failure to do so may result in rejection of a bid as “nonresponsive.” But not all requirements are “material.” Not all aspects of a bid solicitation relate to the bidder’s commitment and ability to perform in accordance with the terms of the contract. How does one make this distinction?
The West Virginia Supreme Court recently provided one example. A bid solicitation required bidders to provide references from prior, similar projects. The references were to be listed in a designated section of the mandatory bid form. Yet, the bid form contained no such section.
The public project owner rejected the low bid for failure to list references and awarded the contract to the second low bidder, who had attached a listing of references to the bid form. The owner never contacted any of the references.
The court overturned this action. The discrepancies in the bid documents made the requirement for references ambiguous. Worse yet, how could the project owner treat the requirement as material when the owner never relied on or utilized the information? The low bidder’s omission should have been waived as a minor informality.
Have you seen instances where seemingly inconsequential bid requirements have been treated as very important for purposes of advancing one bid over another? How can one distinguish material requirements from the immaterial? Your comments are welcomed.