Saying Yes to Responsive & Responsible Bids
When evaluating and reviewing bids, what types of information confirm that “Yes,” a bid is responsive, and that the bidder is responsible? This blog will discuss definitions and one approach to separate and identify the concepts of responsive and responsible criteria for local government agencies in Washington State.
Guidance in Statute
Despite not having its own statutory definition, the phrase “responsive bid” always seems to be paired with other bid requirements for local government agencies in statute, one being RCW 35.23.352 regarding publishing notice, and another, a guest appearance in the definition of “award” in RCW 39.04.010.
For state agencies, a responsible bidder, as defined in RCW 39.26.160 for goods and services, must meet different criteria, although that criteria is also sometimes adopted by local government agencies.
I won’t go into all the criteria laid out in the statutes. Instead, let’s further define these terms and explore an approach to remembering where each of these fit for a bid and bidder.
Considering if a bid is “responsive” or a bidder is “responsible” are unique concepts which are analyzed and occur in a competitive bid process separately. To better understand the terms, let’s look at these definitions:
Responsive bid: A bid response that is consistent with the specifications and fully conforms to the mandatory submittal requirements.
Non-responsive bid: A bid response that is not consistent with the specifications and does not fully conform to the mandatory submittal requirements.
Responsible bidder: A bidder with the capability and reliability as well as documented financial and technical capacity to perform the requirements of the solicitation and subsequent contract.
Not a responsible bidder: A bidder without the capability and reliability or without documented financial and technical expertise to perform the requirements of the solicitation and subsequent contract.
In other words, “responsive” applies to bids, while “responsible” applies to bidders. With the definitions in mind, let’s look at how/when the concepts of responsive and responsible exist separately both for the bid and the bidder.
How/When Responsive Bid and Responsible Bidder Exist
Determining if a bid is responsive occurs first. As the initial step to determine a responsive bid, I verify that the bid is sealed and submitted on time before the deadline.
Next, the bid should meet the characteristics that were required as part of the bid submittal, such as:
- Bid guarantee is in correct amount in the form of bond, check, or money order;
- Unit, lump, and total prices are listed in all spaces on the bid form;
- Bidder has verified attendance at pre-bid meeting (if mandatory);
- Amendments/addenda have been acknowledged;
- Non-collusion affidavit has been completed; and
- Bidder responsibility questionnaire has been completed.
If any of the items make me say “No” during the bid review, I need to decide whether the error or irregularity in the application gives the applicant a substantial advantage or benefit not enjoyed by other applicants and, if so, should the bid be deemed non-responsive. For instance, when the bid document has a specific bid bond amount, and the bid guarantee submitted was a lower amount, this can be seen as an advantage over other bidders and this irregularity should not be waived: I should deem it a non-responsive bid, and the bid should be rejected.
Here is my final step in determining a responsive bid: Right after the bid opening, I make sure I have received the following for public works projects (if required):
- A list of all subcontractors for HVAC, plumbing, or electrical work (RCW 39.30.060): This must be included within one hour after the bid opening or at the time the bid is submitted for projects that cost an estimated $1 million or more; and
- A complete supplemental bidder responsibility criteria questionnaire: This must be submitted within 72 hours after bid opening by the apparent low bidder and the next two lowest bidders.
With a “Yes” to all the elements of my bid review and receipt of all required bid submittal documents, I have a responsive bid and can determine whether the apparent low bidder is a responsible bidder that can meet the requirements of the specific job or project.
Now I must determine whether I have a responsible bidder. I can say that I have a responsible bidder when I can confirm:
- Bidder meets mandatory criteria as defined in RCW 39.04.010 and 39.04.350 for a public works project; or
- Bidder meets mandatory criteria adopted from RCW 39.26.160 for goods and services.
If I say “No” it would be because the bidder failed to supply information requested concerning mandatory criteria for responsible bidder within the time and manner specified in the bid. I then consider the bidder not responsible, as noted in 39.04.350. Once I determine the applicant is not responsible, I will need to follow the process of written notice outlined in 39.04.350 (3)(d) before moving forward on a contract with a different bidder.
However, when I have determined that I have a responsible bidder, I have answered “Yes” to each separate concept in the competitive bid process: I have both a responsive bid and a responsible bidder and can now move forward and award the contract to the low bidder!
In short, when reviewing and evaluating bids, responsive relates to the bid document and responsible relates to the bidder.
Here are some additional resources:
- Suggested Guidelines for Bidder Responsibility: The Washington State Capital Projects Advisory Review Board (CPARB) has published these guidelines to assist public agencies in developing and implementing the bidder responsibility criteria.
- Mandatory Bidder Responsibility Checklist: This MRSC resource may be used by agencies in documenting that a bidder meets the mandatory bidder responsibility criteria.
MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.