A third consideration in determining bidder responsibility is the bidder’s experience. A poor performance history or lack of experience could cause the bidder to be non-responsible.

The SC Consolidated Procurement Code allows the procurement officer to issue a request for qualifications (RFQ) before issuing the bids. The RFQ “must require information concerning the prospective bidders’ product specifications, qualifications, experience, and ability to perform the requirements of the contract.”

In negotiated procurements, the use of past performance data plays a heightened role. Recent changes to FAR Part 15 require the evaluation of contractor past performance in most negotiated procurements. Interestingly, performance history is considered twice: first in determining whether the bidder is responsible and then in evaluating his proposal.

A Procurement officer’s determination concerning whether experience is adequate will be upheld if it is reasonable.

Past performance and experience are easily confused. Past performance focuses on the quality of the contractor’s work in prior jobs while experience focuses on the type of work the contractor has performed.

Finally, in order to avoid the conundrum set up by an inexperienced contractor being barred form contracting because of a lack of experience and never being able to gain experience because of his lack of experience, the FAR provides: “A prospective contractor shall not be determined responsible or non-responsible solely on the basis of a lack of relevant performance history, except as provided in FAR 9.104-2.
FAR 9-104-1(c)

Bidder Responsibility

In this article we will begin by looking at the definition of responsibility and the difference between responsibility and responsiveness. One of the primary purposes of public bidding is to allow the people to receive their money’s worth of whatever they are contracting for. Awarding bids only to responsible bidders is one way to guard against default. There are others such as performance bonds and excellent contract administration which are beyond the scope of today’s blog.

The South Carolina Consolidated Procurement Code (Procurement Code) at 11-35-1410 provides the following definition:

(6) “Responsible bidder or offeror” means 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 federal statutes give a lengthier definition that expressly touches on adequate financial resources, ability to comply with the schedule, prior performance record, integrity, organizational controls, skills and experience, adequate facilities, etc. See 41 USC 403(7). The Federal Acquisition Regulation is essentially the same.

Bidder Responsiveness Distinguished

Bidder responsibility and responsiveness are not the same thing. Where bidder responsibility concerns whether the bidder is capable of performing the job, bidder responsiveness refers to the terms of the bid offering to provide exactly what the owner wants to have performed. Sometimes the two concepts can seemingly apply to the same set of facts. For example if the solicitation requires site management by a person with ten years experience and the bid offers a person with five years experience, then the bid could be seen as no-responsive because the bid did not provide what the offeror sought but it could also be viewed as not responsible because the minimum amount of experience was not offered.