By Bruce Jervis
People have a tendency to want to explain themselves, even when not asked to do so. In the arena of public procurement, this can be disastrous. Unsolicited statements, references or explanations accompanying a bid submittal have ruined many a low bid. There are two recent examples.
A low bidder submitted a bid bond on the proper standard form and in the correct amount. The bond was accompanied, however, by a letter from the surety’s attorney-in-fact. The letter said the surety’s support for the bidder was contingent upon an indemnification agreement with a third party and other “certain conditions.” The procuring agency considered the bid bond defective and rejected the low bid as nonresponsive.
In the other case, a low bidder – apparently in an effort to be extremely thorough – referenced some representations and certifications it had used on previous contracts. Unfortunately, those representations involved the procurement of commercial items and purported to incorporate commercial clauses into the construction contract. This created ambiguity and conflict with regard to the construction contract clauses. The procuring agency rejected the low bid as nonresponsive.
When bidding public contracts, do you have procedures in place to ensure that no extraneous documents, correspondence, notes or comments accompany your bids? Are your personnel aware that once a bid has been opened, there can be no retractions, clarifications or explanations? I welcome your comments.
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