The vast majority of procurement by Virginia’s state and local public bodies occurs under the auspices of the Virginia Public Procurement Act (VPPA). This includes most purchases of goods, services and construction, which typically are procured by the competitive sealed bidding process. In that process, the award must be made to the lowest responsive and responsible bidder. In this legal update and at an upcoming webinar, we will take a look at what may constitute “responsive” and where that determination intersects with the VPPA’s concept of “informalities” in bids.
While the VPPA defines a “responsive” bidder as “a person who has submitted a bid that conforms in all material respects to the Invitation to Bid” and allows a public body to evaluate and disqualify bids on the basis of responsiveness, there is no particular process set forth in the VPPA for either making or challenging a determination of non-responsiveness. For a bidder who is determined non-responsive, the best avenue for a challenge is to protest the award or decision to award to another bidder and make an argument on the responsiveness determination in those proceedings.
Responsiveness most often comes into play when the apparent low bidder fails to supply a piece of information sought in the bid materials. A public body can waive an informality in a bid, which the VPPA defines as “a minor defect or variation of a bid or proposal from the exact requirements of the Invitation to Bid, or the Request for Proposal, which does not affect the price, quality, quantity or delivery schedule for the goods, services or construction being procured.” Determining whether the missing information is a minor, waivable informality, or a serious defect that affects responsiveness can be more art than science.
In preparing bid materials, public bodies should adhere to a few general principles to minimize the risk that they might have to make tough calls between what is non-responsive versus what can be waived as an informality:
- Do not ask for information that will not be considered in evaluating the bids. This might require adaptation of bid material forms on a project-by-project basis, but could avoid a protest and the risk of added time and costs later on.
- Carefully select phrasing. If an item “must” or “shall” be provided, then it may not be waivable, even if it ordinarily would fall into the informality category.