Protests: Accountability begins with transparency

A new procurement controversy on Guam involves a procurement protest and an agency attempt to keep the protest from the public eye, as this story in the Pacific Daily News reports:

Protest halts $100M borrowing plan

GEDA issued a press release yesterday afternoon that said a procurement protest had forced the agency to delay the pricing phase of the bond-borrowing.

The protest is challenging GEDA's decision to hire Wells Fargo Corporate Trust Service as the agency's bond trustee, but it's unclear who protested and what the basis of the protest is.

A Pacific Daily News reporter went to the GEDA office to pick up a copy of the protest, but office staff refused to release it.

Deputy Administrator Christina Garcia confirmed that GEDA would not release protest documents or name the protester.

Garcia said procurement policies require this information to stay private.

"We'd like to say more, but we have to respect the procurement process," Garcia said.

So, what does the Guam Procurement Act say about public access to the procurement process?

First, and most fundamentally, there is the bottom line, default requirement, specified as one of the principle purposes and policies of the Act:

"to require public access to all aspects of procurement consistent with the sealed bid procedure and the integrity of the procurement process." (5 GCA § 5001(b)(8).)

The entire procurement law and its regulations are required to be "construed and applied to promote" this fundamental policy. (5 GCA § 5001(a).)

Thus, unless there is an express requirement clearly prohibiting disclosure of protests, the protest should be available to public access.

So, what relevant restrictions do we find? Only one in the procurement law and another one or two in the Sunshine Law (Freedom of Information), and neither of them are on point. Let's first examine the Procurement Act for any prohibition on disclosure of protests.

This solicitation appears (based also on past practice) to be an RFP and not an IFB. It appears from the article that a selection of offeror has already been determined and award has already been made. After award, the accepted offer is supposed to be made public (2 GAR § 3114(h)(1)) as is the entire public record of the solicitation (5 GCA § 5251).

The only express exception is in the case of certain "proprietary data" and "trade secrets" that has been designated by an offeror, prior to negotiations, and independently confirmed by the agency, to be bona fide proprietary data or trade secret:

"If the offeror selected for award has requested in writing the nondisclosure of trade secrets and other proprietary data so identified, the head of the agency conducting the procurement or a designee of such office shall examine the request in the proposal to determine its validity prior to entering negotiations. If the parties do not agree as to the disclosure of data in the contract, the head of the agency conducting the procurement or a designee of such officer shall inform the offeror in writing what portion of the proposal will be disclosed and that, unless the offeror withdraws the proposals or protests under 5 GCA Chapter 5 Article 9 (Legal and Contractual Remedies) of the Guam Procurement Act, the proposal will be so disclosed." (2 GAR § 3114(h)(2).)

Since the "public access" policy must be "consistent with the sealed bid procedure and the integrity of the procurement process", it is also instructive to look to the same trade secret protection offered under competitive sealed bidding.

There, we find a similar regime in place, namely a burden on a party claiming non-disclosure to make that claim in the bid, and a confirmation process by the agency to verify the secrecy of the information. After designated information is confirmed to be non-public, the regulation specifically requires the bids to be opened to public inspections subject only to any continuing prohibition on the confidential data. (2 GAR § 3109(l)(3).) Similarly, information in RFPs, unless confirmed non-public, should be disclosed after award.

But we have so far looked to bid information only. Does the protest process change the character of what is public and what is not? I don't think so.

First, note that there is nothing specific in the law that either mandates public disclosure of the protest, or protects it from public disclosure. In that case, I believe you must "default" to the fundamental policy "to require public access". You should not infer any right in derogation of the express policy, to be construed and applied, to promote public access.

Looking to the regulatory scheme of protests, the consideration and resolution of protests is broadly sketched by requirements of the procurement regulations. (See 2 GAR § 9101, generally.)

The regulations allow an interested party, but pointedly do not prohibit anyone else, to obtain, by written request, "information submitted that bears on the substance of the protest except where information is proprietary, confidential, or otherwise permitted or required to be withheld by law or regulation." (2 GAR § 9101(f).) Again, it should not be inferred that others are denied that right given the express policy of public access.

It provides a similar regime to that noted above requiring designation and confirmation of non-public information: "Persons who wish to keep such information submitted by them confidential should so request by specifically identifying such information within documents submitted, and indicating on the front page of each document that it contains such information." (Id.)

Based on this, there is no prohibition of protest information other than designated and confirmed proprietary data and trade secrets (the only information the procurement law protects). It would certainly seem that letters or other notices of protests would not be protected information, even if other deliberative information might be.

It is also instructive, when asking whether the protest itself should be public or non-public, to look to other review analogues. For instance, under 5 GCA § 5480(a), it is technically feasible to bring a protest straight to the Superior Court rather than an agency. That action would be a civil or writ action, but in either case would be filed with the public files of the court. If court actions are public, what makes the administrative process so special?

Likewise, appeals of protests to OPA are immediately posted on the public website. If the appeal of a protest is public, why would the protest itself be less so?

Finally, we must consider the Sunshine Law. As with the Procurement Law, its starting point is full disclosure: Every person has the right to inspect and take a copy of any public document on Guam, except as otherwise expressly prohibited in aw, and except as provided in § 10108 of this Chapter. ... Any segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law." (5 GCA § 10103(a) and (b).)

The Sunshine Law has provision requiring agencies to specify certain types of information they want to keep private, so the the Legislature can first vet it and approve or disapprove any such designated information. These exceptions are important because the law says "Such approved list shall be used as a guide for determination of non-disclosable records by agency employees". (5 GCA § 10106(b).)

In this case, the agency is GEDA. For GEDA, the Legislature has only allowed these additional exceptions: "For the Guam Economic Development Authority: (i) delinquency reports of loans issued by GEDA; (ii) credit reports on loan applications filed with GEDA." (5 GCA § 10108(r).)

Given that this involves an protest, mention must be made of one other exception in the Sunshine Law, for "pending litigation to which the agency is a party, until the pending litigation has been finally adjudicated or otherwise settled." (5 GCA § 10108.)

The pending litigation exception does not apply because the protest is a simple administrative dispute resolution proceeding. My very old Black's Law Dictionary defines "litigation" to mean "contest in a court of justice", and "a judicial controversy, a suit at law". Litigation is something altogether different from the protest proceeding.

If there is some other exception, I am not aware of it, and would welcome any comment to the contrary. So far as I can tell, if GEDA does indeed desire to respect the procurement process, it will disclose the protest, at the very least.

So what can be done when an agency withholds procurement information arguably intended for public access? There are at least two avenues of redress.

In the Procurement Act, 5 GCA § 5485 allows "any member of the public" to bring a court action to compel production of data wrongfully withheld. The public member is entitled to legal fees, if successful, and if the agency defies the Court, contempt charges may be applied.

The Sunshine Law also allows court action to obtain withheld information, and offers similar remedies. (5 GCA § 10111 and 10112.)


THE STORY CONTINUES ...

I see another article on this story in today's (April 7th) PDN, GEDA board to meet on procurement protest. The article clarifies the posture of the solicitation: it is still pre-award. As my original analysis indicated, I was under the impression the solicitation was at the post-award stage.

The pre-award posture has effect on information that should be withheld, but only insofar as it concerns information submitted in offers and proposals and the Register of Proposals. If the contents of any protest reveal that information, then of course that particular information must not be disclosed because the law very clearly requires nondisclosure of such information prior to award.

The article also said GEDA Director Karl Pangelinan sent PDN an email saying "... There is no law specific enough to address our exact situation, but to protect the integrity of the process, it is prudent for GEDA to interpret the law conservatively and not disclose any information in the record at the pre-award stage."

That statement is a very tempered stance, and not without some merit.

Taking a closer look at the regulation now, with knowledge that this is pre-award, the regulations for RFPs do differ from IFBs in one critical aspect: the bidders names in an IFB are disclosed at bid opening (that is, prior to award) on the Bid Abstract; however, the names of offerors in an RFP, which are kept on a Register of Proposals, are not not disclosed until after award. (2 GAR § 3114(h)(1).)

Still, the decision to indiscriminately withhold all information about the protest simply on the basis that it is in some unexplained way necessary "to protect the integrity of the process" is, I think, a close but debatable subject. The fact that both court protest actions and protest appeal actions are made public weighs, I think, against any absolute precious protection of protests at the agency level.

The demand that public access be available "consistent with ... the integrity of the procurement process" requires examination of what is meant by "the integrity of the procurement process".

To maintain integrity means to uphold all that is right and proper. It does not mean sweeping things that are not right and proper under the rug. Protecting the integrity of the procurement process is not intended to give cover to wrongdoing.

To the extent the protest raises issues in the procurement process that are not right and proper, to me, to be consistent with the integrity of the procurement process, those allegations (redacted for nondisclosable information) should be made public, otherwise you are only impugning the integrity of the procurement process.

Yes, information required to be withheld and agency deliberative matter should be withheld for so long as required. But other information is not so preciously secret. Any statement refusing any disclosure of information in a protest should identify the particular character of the particular information that gives it cover. And it should disclose all other information not specifically protected by nondisclosure law and regulation.

There are penalties for wrongful withholding of information, and there are procedures for redacting and segregating information not intended for public disclosure, so there is no excuse to withhold information without particular justification. A blanket statement that no information can be disclosed because of the integrity of the procurement process is simply a conclusion, one that begs supporting justification.

Time will tell whether information here is properly being withheld. It will be a learning process for all of us.

Procurement Reform -- Nevada

The US State of Nevada appears ready to adopt procurement "reform" measures to improve performance and transparency, reforms that are, in some instances, already part of Guam (and ABA Model Code law) and others being considered for Guam, according to this article form the Nevada News Bureau:

Lawmakers Consider Bill To Improve Efficiency And Transparency Of Government Contracting

Among other provisions, Senate Bill 359 would require government contracts to be put out to bid rather than rolled over year after year to the same contractor. It would require all fees charged to the public in government contracts to be disclosed by the contractor. It would also require an annual report to the state on sole source contracting by agencies, which would then be provided to the Legislature’s Interim Finance Committee.

Senate Majority Leader Steven Horsford, D-Las Vegas, one of the sponsors of the bill, said the measure could result in savings to state and local governments because contracts would be subjected to competition.

Sen. Mo Denis, D-Las Vegas, a primary sponsor of the bill, said the legislation would also ensure fairness and opportunity for Nevadans seeking to provide contract services to the state and local governments.

India struggles to find right balance for sharing risk and reward in highway project procurement

New bidding norms for highways on the anvil

Build Operate and Transfer (BOT) (annuity) is one among the two Public-Private Partnership (PPP) modes on which the National Highways Authority of India awards projects. The other is BOT (toll).

Unlike the BOT toll model where the private operator takes the risk of toll collection, the government mitigates the risk of toll income in the annuity model by guaranteeing six monthly payments over the concession period, which normally goes up to 18 years.

The existing Engineering, Procurement and Contract (EPC) model for road highway contracts is being upgraded, to replace the annuity model. In the existing EPC model, a contractor builds the road and all the changes in the design and the cost of input cost is paid by the government. The current model also does not mandate the contractor to maintain the road.

“The current EPC norms make the contractor liable for any defect in the road only for a year after the road is complete, called the defect liability period,” said a senior NHAI official, on condition of anonymity.

The new model, being prepared by the Planning Commission, would have fixed total project costs and specifications.

“The total cost of the EPC projects will be fixed but will be subject to change only if the design is changed at a later period. In this new model, the contractor will also be asked to maintain the road project for five years after which it will be handed over to the National Highways Authority of India (NHAI),” said a government official, who did not want to be identified.

Allocation of risks and rewards in construction work is more art than science, more gazing into crystal balls than predetermined algorithms, because the nature of such work is that many of the issues of construction cannot be known before the work begins. And once you allow a contract price to be changed due to change orders arising from latent issues, you open the door to open-ended cost rises.

To get it as right as possible, the government must have engineers and contract managers of a caliber at least as competent as the contractors, preferably more so. The original specifications must be as comprehensive as technically feasible, contemplating most of the "normal" situations that result in change orders with formulas for price adjustments which reimburse the contractor but do not provide incentive to profit from more and more changes.

Incentive clauses might be included to encourage contractors to overcome changes rather than allow them to become obstacles.

It is a difficult but routine problem that has been around, I suspect, since before the Great Pyramids were constructed. Putting bureaucrats in charge of such matters is a waste of time and money. Hire professionals from accounting, legal and construction backgrounds who will be critical and unyielding in requiring timely contract performance, and most of the cost containment problems will be solved regardless which "model" one chooses.

Kenya cites need for procurement training

Train staff on procurement

The revelation that many government officials are ignorant of laws that govern public procurement is a matter of grave concern. Over 70 per cent of the government recurrent budget is spent on procurement, so it is worrying how such personnel will be of help to our usually cash-strapped ministries and agencies.

This situation calls for measures to ensure senior government officials are schooled on the correct procedures of purchasing goods and services. The taxpayers want to see goods delivered, health services provided, classrooms built, water reliably availed and within budget and in required quantities and quality.

It is important that staff tasked to oversee public procurement cultivate the culture of honesty and avoid conflicts of interest. We expect them to refrain from using their positions for their own gain or that of their associates.

Short of that, we have cases where procurement officers inflate prices of goods and services, which is the same thing as robbing the government or indeed, the taxpayer.

Procurement provides ethical challenges because decisions and choices that the relevant officers make affect the entire public sector. In public procurement, the value for money entails more than just getting the best price – ethics are of great importance as well.

Reports that there is little understanding of procurement procedures among many of our public officials should be addressed as a matter of utmost urgency.

Procurement controversies -- UK and Toronto

There have been some light bulbs going off in the UK and Canada. Suddenly, proper procurement practices seem like a good idea.

Ministry of Defence paid £22 for a 65p light bulb

A soldier who works in stores in an army base here in Britain contacted the Sun newspaper and said “You’re talking about a fortune for these bulbs. If I order 100, that’s over two grand. But you can pick them up for 65p each, the exact same ones. There must be thousands of lightbulbs across the MoD. If people paid attention to simple things like this, they could save a lot of money – and maybe jobs.”

Defence Secretary Dr Liam Fox told the Sun “We are already tackling the procurement problems we inherited head-on. When money is tight and we need to protect the front line, waste is inexcusable.

“This is classic evidence of how Labour wasted taxpayers’ money and shows a complete lack of common sense. No wonder the last government left the MoD with a budget deficit of £38 billion.”

Read more: http://www.economicvoice.com/ministry-of-defence-paid-22-for-a-65p-light-bulb/50017095#ixzz1Fqk8JScM

MoD rows back on '£22 for 65p light bulb' denial

The MoD at first insisted the bulbs were highly specialised parts for a radar system, but later said the thrust of the Sun's story was correct. An MoD spokeswoman had earlier said of the bulb: "It was a lamp filament for the Watchman radar. The MoD uses about five per year."

Reacting to the story earlier, Defence Secretary Liam Fox had described it as "inexcusable" and evidence of a waste of taxpayers' money by the previous Labour government.

This highlights the situation that procurement housekeeping seems to take place under new management. As further proof of the observation is this article, leading off with the light bulb affair.

Fighting waste

Today's revelations about waste at the Ministry of Defence underline the need for a thorough review of its procurement procedures. It has, for example, admitted paying £22 each for light bulbs that cost 65p. This is only the tip of the iceberg. Last month a Commons Public Accounts Committee report found that the Government's defence review alone will lead to waste of nearly £5 billion, largely because of the way contracts were drawn up. Meanwhile a National Audit Office last October found a £36 billion black hole in the MoD's procurement budget.

It's not just jolly old UK. Toronto, Canada has its own illuminating experiences.

Former TCHC board member calls for resignations

Among the findings by Auditor General Jeff Griffiths were that the board approved policy and procedures on procurement were routinely ignored.

As a result there were incidents of single-tendering [sole sourcing] of contracts, including one totalling $25 million, conflicts of interest weren’t documented properly and purchase orders totalling millions were split to avoid requiring directors’ approval.

The auditor also questioned why a single $415,000 purchase for light bulbs from a Chinese supplier in 2006, evolved into nearly $5 million in goods, including toilets, sinks, faucets and tiles with little documentation except the approval of TCHC’s former chief financial officer.

“The Chinese stuff never came to the board,” Mammoliti said. “Nobody on the board would have agreed to bring in all those toilets from China without a contract.”

As for the $200,000 in inappropriate expenses flagged by the auditor that included meetings at spas, massages at picnics, chocolates and boat cruises, Mammoliti said those wouldn’t have come to the board for approval.

Who's Responsible Here?

Who’s Responsible Here?

Today's topic for discussion in the Pacific Daily News was, what can GovGuam do to make sure road projects are completed on time? Its editorial is Ensure: DPW must do much better job overseeing island road projects.

Much of the related comment, including the editorial, mentioned the need to make sure bidders were capable. The point was often made that we just cannot take the low bidder and hope for the best.

Under competitive bidding procedures, the contract award does not go to the low bidder unless the bidder is determined to be both responsive and responsible. Any award made to a bidder who is determined to be nonresponsible is illegal.

So let’s look at the question, who is responsible?

The procurement regulations provide guidelines, but no bright line test (2 GAR § 3116). The test of responsibility is not a check list. It is to be judged against many “standards of responsibility”. No particular standard is determinative. The test is not “one size fits all”. And, it is situational: a bidder may be responsible in the context of one project but nonresponsible for another.

The important thing is that the procurement officer is given a great deal of latitude in making the determination of responsibility. A procurement officer has very little discretion to determine if a bid is responsive because responsiveness is determined by the specifications. On the other hand, a procurement officer is given very much discretion to determine if a bidder is responsible because it is fundamentally a judgment call.

The legal definition of a responsible bidder is “a person who has the capability in all respects to perform fully the contract requirements, and the integrity and reliability which will assure good faith performance.” (5 GCA § 5201(f).) Looking at this closely and in a nutshell, responsibility requires two showings: capability and reliability.

First, the bidder must be capable to perform the contract. No matter how reliable the bidder may be, with the highest integrity, if the bidder does not have the capacity to perform the particular contract, the bidder is, in the context of the particular bid, nonresponsible. That is not a reflection on the bidder’s character or honesty; it is a simple assessment of ability to perform that particular task.

Second, the bidder must be reliable. There must be some calculable expectation that the bidder will do what it takes to get the job done as required. Note that this does not mean that the determination of reliability must be so tight as to be a guarantee of performance. But it must be based on reasonable expectations of performance.

So, what does a procurement officer look at as evidence of capability and reliability? He or she must look to a variety of factors, any or all of which indicate “standards of responsibility”. There is no comprehensive list of such factors, but the regulation does point to these for starters:

(i) available appropriate financial, material, equipment, facility, and personnel resources and expertise, or the ability to obtain them, necessary to indicate its capability to meet all contractual requirements;
(ii) a satisfactory record of performance;
(iii) a satisfactory record of integrity;
(iv) qualified legally to contract with the territory; and
(v) supplied all necessary information in connection with the inquiry concerning responsibility.

The determination of responsibility is not intended to take place at bid opening, nor is the information that may be required to be supplied in the bid packet. The procurement officer is empowered, indeed expected, after bid opening, to make appropriate inquiries, not just of the bidder, but of any other source which could supply information relevant to the various factors affecting the standards of responsibility.

But, before a contract is awarded, “the Procurement Officer must be satisfied that the prospective contractor is responsible”. It is interesting to note that the procurement officer is not required to make any record of the determination of responsibility. As mentioned, that determination is given discretion and it may at times be difficult to articulate. On the other hand, if the determination is made that the bidder is nonresponsible, there must be a reasoned and written determination of that finding placed in the procurement record, and the bidder found nonresponsible would have a right to contest such a finding, to protect honor and professional standing.

So is that the end of it then? No, not by a long shot. The “procurement process” is intended to include the entire contract performance of the contractor, not just the assessment of the bidders. The Procurement Law provides a process whereby irresponsible contractors can be suspended or disbarred from bidding for contracts for, among other reasons, “a recent record of failure to perform or of unsatisfactory performance in accordance with the terms of one or more contracts, provided, that failure to perform or unsatisfactory performance [is] caused by acts beyond the control of the contractor”. (5 GCA § 5426.)

The PDN editorial puts its finger on this issue when it says,

The agency needs to do a much better job at ensuring that bidders for road projects are capable. Those who do bad work need to be prevented from bidding on future projects. Once a contract is awarded, regular and routine checks must be made to ensure the work being done meets standards and is on track to meet completion deadlines.

You might consider that “any member of the public” can petition GovGuam to take such action against a contractor. So, if the government is not enforcing satisfactory performance standards, you can.

The capability and reliability of the contractor should be determined every day on the job. That requires diligent and intelligent contract oversight by the government. In my judgement, that is also where the system tends to break down most. By the nature of solicitation, new and unknown potential contractors are often popping up, thank goodness, to provide competition. Their capability and reliability may not be fully known before job performance. If, however, they are allowed to complete the job in the face of observable deficiency of material, incompetent personnel or whatever else, that is the failure of the contract administrator, not the solicitation process.

And if irresponsible contractors are thereafter allowed to get another award (without strong showing of mending its ways), it is a failure of both contract administrators and solicitation.

But, it should be pointed out, that unfortunately happens everywhere. Just search the terms “GAO contractor oversight” to see that this is a billion dollar problem with the Federal government, too. Just as the Feds are taking steps to try to deal with their problems, so should we on Guam.

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.”