Poll #1. Evaluating Responsiveness of Bids Victor Leamer, CPPB Contracting Officer State of Alaska

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1 Victor Leamer, CPPB Contracting Officer State of Alaska Presenter: Victor Leamer, CPPB Contracting Officer State of Alaska Juneau, Alaska Poll #1 How many years of procurement experience do you have? a. Less than one year b. One to ten years c. Ten to twenty years d. Twenty years +

2 Poll #2 How many road tests did it take to get your driver s license? a. One (King of the Road) b. Two (practice makes perfect) c. Three or more? (try, try, try again) Objectives After this training, learners will be able to: Identify the legal standard of a responsive bid Determine what constitutes a fair evaluation of a bid Distinguish between responsive and nonresponsive bids Assess the responsiveness of a supplier Encourage responsiveness

3 Responsiveness What is it? The quality or state of being responsive Responding especially readily and sympathetically to appeals, efforts, influences, etc Making answer," from Middle French responsif and directly from Late Latin responsivus "answering" NIGP Dictionary of Procurement Terms Responsive Bidder/Offeror A contractor, business entity or individual who has submitted a bid or proposal that fully conforms in all material respects to the Invitation for Bids (IFB) or Request for Proposal (RFP) and all of its requirements, including all form and substance. NIGP Dictionary of Procurement Terms Non-Responsive (Bid) A response to a Bid or offer that does not conform to the mandatory or essential requirements contained in the Invitation for Bids (IFB.)

4 Responsiveness A responsive bid is one that: Meets the acceptability requirements of the Invitation to Bid (ITB); Conforms in all material respects; and Does not contain a material variance Responsiveness Questions Was the bid submitted at the correct location identified in the bid documents at the right time? Was the bid form signed? Does the bid include a bid price for all items identified on the bid form? Were all blanks on the bid form filled out completely? Were all amendments acknowledged on the bid form?

5 Minor Informalities Matters of form rather than substance that have no effect on material items. Legal Requirement What are the top reasons why responsiveness is a legal requirement in public bidding? Levels Playing Field Protects Bidders Responsiveness vs. Responsibility What is the difference between responsiveness and responsibility?

6 Alaska Statutes (AS) Award of Contract The procurement officer shall award a contract under competitive sealed proposals to the responsible and responsive offeror whose proposal is determined in writing to be the most advantageous to the state taking into consideration price and the evaluation factors set out in the request for proposals. Responsibility Relates to the qualifications of a bidder Evidence is sometimes obtained after bid opening Determining responsibility involves discretion and judgment Analyzing Responsibility What materials might you ask for to analyze a supplier s responsibility?

7 Analyzing Responsibility What materials might you ask for to analyze a supplier s responsibility? Financial resources Ability to meet performance/delivery schedule Past performance Qualified to receive award under applicable laws Unprofitable Bid If a bid is submitted in response to an ITB that is obviously going to be unprofitable or even result in a loss to the bidder, should you find the bidder non-responsible and reject their bid? Withdrawal vs. Rejection 2 Alaska Administrative Code (AAC) (a) A bid may be corrected or withdrawn by written request received by the office designated in the invitation for bids before the time and date set for opening.

8 Example Bid schedule listing several mandatory widgets is received with no price listed for Widget A. Bidder realizes before opening that they forgot to list the price for Widget A. Example Bidder may submit a written request before bid opening to correct the bid schedule and give their price for Widget A or withdraw their entire bid. Bid Defects A bid MUST be rejected if it: Does not comply with applicable law Does not provide what the contracting agency seeks to acquire i.e. alternate bid Contains a material defect

9 Analyzing Responsiveness Does the bid comply with legal requirements? Does the bid provide what the state seeks to acquire? Does the bid contain an error or defect? Analyze whether error or defect is material or minor informality Notify the bidder of procedures for withdrawal (2 AAC (a)) Exercise For each scenario, decide whether the bid: 1. Must be rejected as non-responsive; 2. May be accepted because the defect is not material; or 3. Must be accepted as responsive. Scenario #1 A volcano is erupting in the Aleutians, grounding flights. Your ITB has closed and you begin opening responses. You receive a call from an out-of-state supplier whose response, which was guaranteed to be on time, is stuck on a plane in Seattle. This bid is a. Non-responsive b. Non-material c. Responsive

10 Scenario #2 The low bid on a fuel ITB does not contain a signed copy of the final amendment document acknowledging receipt. The amendment adjusted estimated quantities in several locations. The face of the bid does not show whether the additional quantities have been incorporated into the bid price. This bid is a. Non-responsive b. Non-material c. Responsive Scenario #3 The ITB specifies a 120 day schedule for the proposed project. The low bidder offered a substantially lower price on the project with a modified schedule showing completion in 240 days. The project manager indicates that the longer schedule is acceptable. This bid is a. Non-responsive b. Non-material c. Responsive Scenario #4 The ITB specifically required one original signed bid and five copies. The bidder only provides one original copy. This bid is a. Non-responsive b. Non-material c. Responsive

11 Scenario #5 A mandatory ITB amendment was issued that decreased delivery time from 90 days to 45 days. The low bidder failed to acknowledge receipt of the mandatory amendment. This bid is a. Non-responsive b. Non-material c. Responsive Scenario #6 Same scenario as before, but the mandatory amendment increased the delivery time from 90 days to 120 days. This bid is a. Non-responsive b. Non-material c. Responsive Scenario #7 The bid schedule asks for delivery time in days. The bidder completes the bid schedule and enters three weeks as the delivery time. The bid schedule is correctly filled out in all other respects. This bid is a. Non-responsive b. Non-material c. Responsive

12 Case Studies Case Study #1 Bid Submission Deadlines 1. Should DNR accept Kalen s proposal? Yes/No Why or why not? 2. Is Kalen s proposal responsive? Yes/No 3. Should DNR consider DHL s assurances to Kalen that the proposal would be delivered by noon in their decision? Yes/No Wording Rules for Solicitations Use shall or must to express something that is mandatory and binding on the contractor (the contractor shall provide all necessary equipment...) Use will to indicate future requirements, or future actions, or when certain conditions are met (the State of Alaska will compensate ) Avoid using may or should as they leave the decision for action up to the contractor (or use them for nonmandatory provisions) Avoid using any, or either, or and/or unless you want the contractor to choose what must be done Avoid using etc. - the reader has no idea of what is missing

13 Case Study #2 Alternate Bids 1. Is Thermo Bond s original quote responsive? Yes/No 2. Is Thermo Bond s agreement to deliver the first shelter in 45 days applicable? Yes/No Everybody Wins NIGP White Paper By not allowing alternate responses, the agency was in the position of only considering outdated solutions that could lead them to miss out on potential cost savings and efficiencies because they ignored the potential on-line platform option. Had the county permitted alternate responses or held a presolicitation meeting, the auction company could have made the case for the agency to consider multiple solutions and use both on-line and live auctions, depending on the materials to be sold, the location of those materials, and other factors. NIGP White Paper: Everybody Wins (page 22)

14 Case Study #3 Form vs. Substance 1. Is the failure to address all the items under Proposal Submission Content in Response to the RFP in the order reflected a basis for non-responsiveness? Yes/No 2. Should the two offerors that failed to include the new cost item required by mandatory amendment be declared nonresponsive? Yes/No Case Study #4 Pre-Proposal Meetings 1. Was Universal s bid responsive? Yes/No 2. Was the tour given to H&S improper? Yes/No 3. Should the pre-proposal meeting and tour have been mandatory? Yes/No

15 Case Study #5 Minimum Requirements Was the three-year minimum experience requirement reasonable? Was the prohibition on joint ventures or subcontracts in order to meet the minimum experience requirement flawed? Was DOC required to hold a pre-proposal conference? Final Thoughts What can we do to increase the likelihood of receiving a responsive bid? Pre-bid conference Limit minimum qualifications (MQs) Provide a checklist (see Attachment A) Ask why? if the supplier is not responsive Be clear in the solicitation The Legal Aspects of Public Procurement Online Course: Starts 2/16/16 Face to Face Course Offerings: State=&DateFacet=&SortOrder=ASC&Cate gories=2b1288c1-be ff000097fdb4

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