Fundamental Issues in Competitive Bidding

Over the next few weeks this blog will discuss two key elements of competitive bidding: bidder responsibility and bidder responsiveness. Ensuring that public bids are awarded only to responsive responsible bidders is essential to fair competition and allowing the public to obtain the best price and service.

Bidder Responsibility

In this article we will begin by looking at the definition of responsibility and the difference between responsibility and responsiveness. One of the primary purposes of public bidding is to allow the people to receive their money’s worth of whatever they are contracting for. Awarding bids only to responsible bidders is one way to guard against default. There are others such as performance bonds and excellent contract administration which are beyond the scope of today’s blog.

The South Carolina Consolidated Procurement Code (Procurement Code) at 11-35-1410 provides the following definition:

(6) “Responsible bidder or offeror” means 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 which may be substantiated by past performance.

The federal statutes give a lengthier definition that expressly touches on adequate financial resources, ability to comply with the schedule, prior performance record, integrity, organizational controls, skills and experience, adequate facilities, etc. See 41 USC 403(7). The Federal Acquisition Regulation is essentially the same.

Bidder Responsiveness Distinguished

Bidder responsibility and responsiveness are not the same thing. Where bidder responsibility concerns whether the bidder is capable of performing the job, bidder responsiveness refers to the terms of the bid offering to provide exactly what the owner wants to have performed. Sometimes the two concepts can seemingly apply to the same set of facts. For example if the solicitation requires site management by a person with ten years experience and the bid offers a person with five years experience, then the bid could be seen as no-responsive because the bid did not provide what the offeror sought but it could also be viewed as not responsible because the minimum amount of experience was not offered.