Determining Responsive Bid and Responsible Bidder - 1404.2

Responsive and Responsible Definition

Responsive Bid:  A bid is considered responsive if it indicates compliance without material deviation from the requirements of the solicitation and the terms and conditions of the proposed contract.

Responsible Bidder: A bidder is responsible if they possess the experience, facilities, reputation, financial resources and are fully capable of performing the contract.

Determining Effective Competition

Competition requires the act of seeking responses from qualified suppliers consistent with the size and nature of the procurement.  To determine that “competition” has been effective, responsive bids must be received from at least two responsible bidders, unless the solicitation is advertised.  A response of “no bid” or “no response” is not considered as receiving a bid.

No Responsive Bids Received from Responsible Bidders

When competition results in no responsive bids from responsible bidders, there are three options that may be taken:

Option 1

The solicitation may be cancelled and re-bid, modifying any possible restrictive requirements.  In addition, methods to broaden the number of potential suppliers should be considered.

OR

Option 2

If a second solicitation would not result in a different outcome, the solicitation may be canceled and procurement made with an NCB.  To determine which supplier should be selected as the source, the proposed supplier’s bid must be substantially technically compliant/responsive with the specifications and the supplier must be deemed responsible.

OR

Option 3

During the multi-step solicitation process, in the event that Final Bid Proposals from all bidders contain material deviations, the buyer may declare the Final Bid Proposals as an additional draft and call for a new final bid proposal in order to continue the bid process.  If this occurs, an addendum shall be issued and a confidential discussion should be held with each bidder that submitted a flawed final proposal.

Multiple Bids Received, Only One Responsive Bid from Responsible Bidder

When competition results in only one responsive bid from a responsible bidder even though multiple bids were received, competition may be declared as being achieved if the solicitation was advertised or under the following conditions after carefully considering all factors of the situation (risk, urgency, and impact to the program):

Non-participation due to the State’s socio-economic requirements.  The procurement file must be documented with the reasons why only one responsive bid was received.  The information will likely need to be requested from bidders who initially responded to the solicitation announcement.

Non-participation due to the State’s statutory requirements.  If non-participation was due to the State’s statutory requirements, such as DVBE, Small Business, etc., this information shall be incorporated into the documentation. The file must also be documented with the evaluation of other bidders who were determined to be non-responsive/responsible.

After carefully documenting the rationale, the award may be made.

Non-participation Due to Concerns with Bid Specifications

If non-participation occurs due to concerns with the bid specifications, the buyer must consider three options:

Option 1

If the specification(s) in question are not unnecessarily restrictive, award may be made after documenting the file with the rationale used for determination.

OR

Option 2

If the specification(s) in question is determined to be unnecessarily restrictive to one supplier’s product, the solicitation may be cancelled and a new solicitation developed modifying the specification(s) as necessary to facilitate fair competition.

OR

Option 3

If the specification(s) and or requirement(s) in question is determined to be unique to one supplier’s product and it is determined that only that product meets the department’s needs, then an NCB is required the procurement file must be documented that the solicitation has been determined to be an NCB and then an award may be made.

Award to other than low bidder for Non-IT Goods

Informal:

If a buyer determines that the low bidder will not be awarded the contract and the solicitation is being conducted as an informal solicitation, the buyer will document the procurement file in sufficient detail to justify the determination of the lowest bidder being non-compliant then award the purchase to the next lowest bidder.

Formal:

Per Public Contract Code, Section 10306, whenever a contract is not to be awarded to the lowest bidder, the bidder shall be notified 24 hours prior to awarding the contract to another bidder. Upon written request by any bidder who has submitted a bid, notice of the proposed award shall be posted in a public place specified in the solicitation document by the department, that may include an electronic location or Internet Web site, at least 24 hours prior to awarding the contract.  The procurement official must include documentation explaining why the department recommends rejecting the lower bid.

This does not apply if any bidder submits a lower bid that is compliant, but will not receive the award because another bidder (i.e. small business) has a lower bid after application of a preference.