Responsivebility

This article, submitted by your blawgger, was published in the Marianas Business Journal. It is intended to untangle some of the tangled thinking about what is meant when it is said the award goes to the lowest "responsive and responsible" bidder.

Responsivebility

Most people know the procurement chant: the award is made to the lowest responsive and responsible bidder.

Most people, unfortunately are misinformed as to what that means. They tend to confuse and conflate the two concepts, responsiveness and responsibility, into one jumbled nonsensical hybrid, what I call “responsivebility”.

Responsiveness and responsibility are two entirely independent concepts, both in terms of their substance as well as to the manner in which each is determined. You can make an award if the low bid is both responsive and responsible, not one or the other.

So let’s break it down. Responsiveness is only concerned with the bid; responsibility is only concerned with the bidder. Bid, bidder. Two different things. Judge them separately. It is inaccurate to evaluate the bid in terms of the characteristics of the bidder.

The bid concerns what it is that you are offering to sell. The bidder concerns who it is that offering to sell. What, who. Again, two different things. It is inaccurate to compare what it is that the government wants against what it is the bidder is offering in terms of who the bidder is or might be.

The evaluation of responsiveness answers the question, what is it the government is asking to buy and does the bid unconditionally offer to provide it? The determination of responsibility, on the other hand, answers the question, does this person offering to provide it have the wherewithal to provide it and can the government reasonably rely on his person to actually provide it?

If you stick to that rubric, you will easily make your way through the thicket of the facially confusing language in the definitions of the law.

Hawaii’s procurement law defines responsive bid and responsible bidder the same way Guam’s does. A leading Hawaii Intermediate Court of Appeals case discussed further attributes distinguishing responsibility and responsiveness:

“Responsibility addresses the issue of the performance capability of a bidder, which can include inquiries into financial resources, experience, management, past performance, place of performance, and integrity. In contrast to responsiveness, a bidder may present evidence of responsibility after bid opening up until the time of award. Stated another way, the concept of responsibility specifically concerns the question of a bidder's performance capability, as opposed to its promise to perform the contract, which is a matter of responsiveness.”

Not everything in an IFB concerns responsiveness; much of the information asked for in an IFB is concerned with responsibility. Issues concerning responsibility, even though raised in the IFB, are not judged by the definition of responsiveness and not in the same manner or time. Thus, responsibility information asked for in the bid package can be provided later, without rendering the bid nonresponsive. A nonconforming bid is not always a nonresponsive bid.

The IFB does not, by requiring information about responsibility in the IFB, transform the determination of responsibility into a matter of responsiveness. Issues of responsiveness are determined by the substantively material matters submitted in the bid package and locked in at bid opening, but issues of responsibility are determined by reference to information outside the big package, including information that can be provided or gathered after bids are opened.

The Hawaii Intermediate Court reiterated that the definition of responsiveness is only concerned with the material nonconformity in the essential contract terms of price, quality, quantity and delivery of the product purchased (as well as any conditions of the contract by which the product is purchased):

“If there is material nonconformity in a bid, it must be rejected. Material nonconformity goes to the substance of the bid which affects the price, quality, quantity, or delivery of the article or service offered. ... Material terms and conditions of a solicitation involve price, quality, quantity, and delivery.”

The notion that materiality concerns price, quality, quantity, and delivery is at the heart of the definition of responsiveness. Our regulations say that “bidder prejudice” only involves material matters of price, quality, quantity, and delivery and the contractual terms of the promise to perform (not the terms of the IFB, but the contractual terms of the award).

All of this is confirmed in a Hawaii Supreme Court case which adopted the following
rationale:

“[A] bid that does not conform in all material respects to the Bid Solicitation is nonresponsive. However, this begs the question of what constitutes conformance "in all material respects.”

"[D]eviations [from advertised specifications] may be waived by the contracting officer provided they do not go to the substance of the bid or work an injustice to other bidders. A substantial deviation is defined as one which affects either the price, quantity, or quality of the article offered."

“In short, the requirement of responsiveness is designed to avoid a method of awarding government contracts that would be similar to negotiating agreements but which would lack the safeguards present in either that system or in true competitive bidding.”

Summing up, the substance of responsiveness, the “what” factor, involves the evaluation of price, quality and quantity of what is being provided, as well as when and on what contractual conditions it is being delivered. It does not involve issues of the bidder’s responsibility, the "who" factor.

To reject a bid as nonresponsive on the basis that the bid lacked information about a bidder’s capability or integrity is to wander into the Wonderland of “responsivebility.”