Material Deviations - 1404.3

Wording That Indicates a Requirement or Condition

The State has established certain requirements with respect to bids to be submitted by prospective contractors.  The use of "shall," "must," or "will" (except to indicate simple futurity) in solicitations, indicates a requirement or condition from which a deviation, if not material, may be waived by the State.  A deviation from a requirement is material if the deficient response is not in substantial accord with the solicitation requirements, provides an advantage to one bidder over other bidders or has a potentially significant effect on the delivery, quantity or quality of items bid, amount paid to the supplier or on the cost to the State.  Material deviations cannot be waived.

Wording That Indicates Desirable Attributes and Conditions

The words "should" or "may" in solicitations indicate desirable attributes or conditions, but are non-mandatory in nature.  A deviation from or omission of a desirable attribute or feature will not in itself cause rejection of the bid.

State Options

The State may reject any or all bids and may waive any immaterial deviation or defect in a bid.  The State's waiver of any immaterial deviation or defect shall in no way modify the solicitation documents or excuse the bidder from full compliance with the solicitation specifications if awarded the contract.

Determining Responsive-ness

Bid responses should be evaluated by first determining that each response is clearly responsive to the bid requirements.  If a response does not appear to be responsive, the following questions will help to determine the materiality of the requirement:

• Is the response in substantial accord with the requirement?  If no, the deviation is material.
• Does the response provide the bidder an advantage over other bidders?  If yes, the deviation is material.
• Does the response have a potential significant effect on the delivery, quantity, or quality of the items bid?  If yes, the deviation is material.
• Does the response have a potentially significant effect on the amount paid to the supplier or cost to the State?  If yes, the deviation is material.

Click here for a sample Deviation Worksheet.

Waiving Mandatory Requirements is Prohibited

Material deviations of mandatory requirements cannot be waived and the bid must be rejected.  All such deviations must be thoroughly documented in the procurement file to support the rejection.

Examples of Deviation Types

Immaterial Deviation:  A deviation can be accepted by the State when it is determined to be of such a minor concern that it carries little or no importance, has not affected the amount of the bid, has not given the bidder an advantage or benefit not allowed to other bidders.  In other words the variance is inconsequential, and by accepting it, it doesn’t provide the bidder with any material advantage over other bidders.

Example:
A bidder referenced the wrong page in their supporting technical literature.  The bidder directed the evaluator to page 4 and the correct page should have been page 5.

Material Deviation: A deviation in the bid response that is so substantial it cannot be accepted by the State because by accepting it, the response will provide the bidder with an advantage not allowed to other bidders; or the deviation is so significant it may affect the cost, quantity or quality of the proposed goods or services to be provided to the State.

Example:

The solicitation required a system that would serve 500 users and the bidder only offered a system that would serve 250 users.