By way of review, in order for one’s bid to be considered it must be responsive and the bidder must be responsible. In order to be considered responsible, as discussed above, the bidder must have integrity and the proper licenses. Another factor in determining whether the bidder is responsible is the contractor’s experience and past performance.

PAST PERFORMANCE

11-35-1410 (6) defines a “Responsible bidder …” [as] 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 Procurement Code made past performance as a key basis for determining responsibility. Similarly the FAR makes “a satisfactory performance record” a necessary element in the determination. See FAR 9.104-1 (c ). Based upon a reading of decisions on this issue, the contracting agency is unlikely to use just one example of poor performance as enough to find a bidder non-responsible. Most frequently, the agency will cite 5 or more instances of poor performance.

EXPERIENCE

Experience is different from past performance although they can be easily confused. Past performance focuses on the quality of the contractor’s past work where experience focuses on the nature or type of the contractor’s past experience. A contractor’s experience requirement might be stated in terms such as “3 years providing commercial plumbing service.” The word experience appears five times in the South Carolina Consolidated Procurement Code.

One issue that is a limitation on use of the experience criteria in judging bidder responsibility has to do with access to work. The experience requirement will not be used to bar a firm from entry into a new business area unless the solicitation specifically sates a particular amount or type of experience. If the agency fails to justify the reason for its requirement, the requirement may be set aside.