That is normally easier to state than apply and people are often confused by the substance and process in identifying the separate forks. The rubric is that responsiveness is meant to evaluate whether the bid offers the government exactly what it was that the government asked for in its specifications. Responsibility, on the other hand, is meant to determine whether the bidder has the integrity and capability to get the job done in the time and on the conditions the government required.
A bid's responsiveness is said to be determined based on what's in the bid envelope. That is, it is determined at bid opening and material deviations beyond the scope of the specifications are not allowed after bids are opened.
A bidder's responsibility, on the other hand, is determined after the proposed award winner is selected, but before the award is finalized. Indeed, some final proofs of bidder responsibility may not be required until after the award, up until the time of performance. The focus is on the capability of the bidder to perform, an expectation of performance, when required to do so. Determination of responsibility is not a guarantee of complete and perfect performance, but a reasonable expectation that the government can rely on the promise of performance. If the bidder does not perform, there will be contract liability, and a mark will be noted against any future bid, suggesting the bidder is not responsible.
Terminology is sometimes tricky, but these concepts tend to be universally observed. In Europe, Canada and elsewhere, rather than "bids" or "proposals", the terminology often is "tender", and the notions of responsiveness and responsibility are referred to, respectively, as "tender compliance" and "contract performance", as this following Canadian article describes.
Transfer station requirement sparks compliance dispute
The case dealt with a municipal tender call for waste-removal services. The tender call included the requirement of an in-town garbage transfer station. The winning bidder did not have an in-town transfer station but was awarded the contract. The plaintiff, a competing bidder, challenged the process, alleging that the contract was awarded to a non-compliant bidder. The town claimed that the selected tender was compliant.
At issue was whether the tender call requirement for an in-town transfer station was a tender compliance requirement or whether it was a contract performance requirement that needed to be met after contract award. The court ultimately found that the transfer station was a contract performance requirement rather than a tender compliance requirement:
It is important to note that Tantramar was the only party which already had a transfer station in the Town and that therefore, according to them it appears that nobody else in the world could have submitted a compliant bid. Their argument leaves no room for other bidders and does not allow the required period to obtain a permit and open a transfer station.
Tantramar’s bid was, for the five year period, $480,000.00 higher than PBS’s bid. For the year 2004 alone Tantramar’s bid was $82,350.56 higher than PBS’s bid. The Town had not budgeted for such an increase. The tax rate to realize such an additional amount would see an increase of between 1.5 and 2 cents per mill.
The main issue in this case is whether PBS’s bid was materially non-compliant. The British Columbia Court of Appeal said at paragraph 34 of its decision in Graham Industrial Services Ltd. v. Greater Vancouver Water District, [2004] B.C.J. No. 5:
“According to these definitions, in the context of the present case, material non-compliance will result where there is failure to address an important or essential requirement of the tender documents, and where there is a substantial likelihood that the omission would have been significant in the deliberations of the owner in deciding which bid to select.”
In the case at bar, PBS was compliant on the face of its bid.
There was no requirement to have been pre-approved for the permit. The Town knew that only Tantramar had a transfer station and that another bidder would have to obtain a permit and proceed to put one in place. The delay in obtaining the permit was beyond the control of the parties.
A transfer station is only a convenience and not a requirement that goes to the essence of this contract for garbage collection and disposal.
[Read more.]
The case above might be contrasted with the following dispute. It involves a solicitation in Arizona. The bidder did not submit proprietary confidential data required in a "bidder qualification" statement in its bid, but did say it was "available upon request" to the government. It's bid was rejected as nonresponsive.
Bidder qualification information is classic data going to a determination of bidder responsibility. The financial information sought is expressly referred to in the kinds of data described as "standards of responsibility" in the ABA Model Procurement Code. That data is not necessary to be included in the bid envelope, and is meant to be obtained by an "inquiry" after bid opening if the bidder's responsibility is called into question or unknown.
Cases generally hold that a bid solicitation cannot transform a matter of bidder responsibility into an issue of responsiveness by requiring responsibility information to be put in the bid package; that requirement is ignored and the information is presentable in the time and manner specified for the determination of responsibility. (This is all discussed in the Guam Procurement Process Primer if you want to have a look at it; click the link and follow instructions in the sidebar panel, top.)
Contractor files protest over rejected bid
B's Contractors has filed what may be an unprecedented formal protest with the Yavapai County Board of Supervisors after the three-member board threw out the company's low bid on a county construction project Thursday, citing missing information on the bid application.
The project is the County Facilities Office/Warehouse job. B's, a local company, submitted a bid of $1,449,000, which was the lowest. However, the forms sent with the bid included the phrase "available on request" on the Qualification Statement, which includes a financial statement.
District 2 Supervisor Tom Thurman acknowledged that B's might have submitted the form without the information on purpose. "They're all getting scared now about putting out this personal information."
That was precisely what B's had in mind, as the information would become public if submitted. "We don't like to put out financials - there's some information people don't need to see," said Brian Bombardieri of B's Contractors.
Jim Holst, county capital improvements coordinator, said that such information was needed to make decisions on whether a company was financially able to handle a job, and pointed out that other contenders for the job had supplied it.
The supervisors decided that the omission made the bid ineligible for consideration.
[Read more.]
No comments:
Post a Comment