I remember being new to federal procurements and reading the words “responsive and responsible bidder” over and over, trying to figure out the difference between “responsive” and “responsible”. To be honest, I still have to pause and think about it. The words are just so similar!
Federal regulations require that a vendor be both a responsive and responsible bidder prior to issuing them an award.
This applies to both small and formal purchases, so be sure you’re checking that vendors meet these standards whether they’re submitting quotes, bids, or proposals.
In this article, I’ll define both parts of being a responsive and responsible bidder and give examples where vendors would not meet the standard.
Responsive
Responsive refers to how a bidder responds to the contract. Whenever you’re asking for quotes, bids, or proposals, the vendor submits a response. If their response meets all the requirements you outlined, they are “responsive”.
If they didn’t meet the requirements you outlined in your solicitation, they are deemed “non-responsive” and ineligible for award even if they end up being the lowest cost.
Knowing this, you want to make your instructions very clear to vendors. The instructions should be plainly worded and not overly complicated.
Reasons vendors are not responsive
Here are some reasons vendors may be deemed non-responsive:
- Not attending a required pre-bid meeting
- Submitting their response late
- Not following directions
- Missing or incomplete forms in their submission
- Bidding items that aren’t equal
- Not bidding on the minimum number of items or services outlined
- Adding unallowable contract terms
Depending on how you’ve written your solicitation, there may be some discretion on what is considered non-responsive. When in doubt, consult an authority, such as a state representative and/or legal counsel.
In particular, you want to be careful with the words “must” and “cannot”. Anytime you tell them they “must” do something, or they “cannot” do something, you’re not giving yourself (or them) any wiggle room. You’ll probably be forced to deem them non-responsive if they don’t meet that requirement.
Example #1: Adding Contract Terms
Let’s say you issued a solicitation for ice cream delivery. When you get responses back, a vendor notes that there is a $50 order minimum. If they had said $200, that might be an issue, but you don’t find $50 a problem, so you want to accept those terms.
You probably have a case that this is a minor, non-material change and that they should still be deemed responsive. HOWEVER, if you wrote in your solicitation:
“Bidders cannot submit with their response any of their own contract terms.”
…then you should deem this vendor non-responsive for not following your solicitation instructions. This is only fair to the other vendors who read that statement and followed your directions.
Since it’s common for vendors to submit additional language, you might consider updating your solicitation language to something like:
“Any additional contract terms the bidder submits with their response will be considered on a case-by-case basis. Only terms that do not create a material change and are mutually agreed upon will be accepted.”
This will allow more vendors to be considered a responsive and responsible bidder.
Example #2: Not Following Directions
Here’s another example. Our multi-line contracts used to state something like:
“Vendors cannot bid the same item more than once on the bid.”
If a vendor missed this instruction and bid the same item twice, they were automatically deemed non-responsive and disqualified (per our state guidance at the time).
We were noticing a lot of vendors accidentally doing this, so we updated the language to say “should” instead, which is not as absolute as “must” or “cannot”. The updated language said something like:
“Vendors should only bid a product once. If the vendor bids a product more than once, it will count for the line item that most accurately matches the description, and all other line items for which that product was used will be counted as a ‘no bid’.”
We then had language for limits on how many items they could “no bid”. Therefore, the impact on our bid list was not affected – items aren’t counted twice. However, our vendors were given a little more leeway so that if they missed that instruction, they weren’t automatically disqualified.
We still deemed them responsive. However, they were still penalized by counting it as a “no bid” and limiting the number of “no bids” they could have.
Vendors do have the responsibility of following your directions, but you have the ability to make it easier on them to be considered a responsive and responsible biddre by making it clear and avoiding any absolute language that could be softened.
Responsible
A responsible vendor is one that can successfully perform your contract and meet its terms and conditions. This means they have to be able to meet any performance standard you put in your contract. Their ability to meet this is usually discovered either through questions you ask them to answer in their response or by checking their references (which you ask for in the solicitation, right?).
Reasons vendors are not responsible
Here are some reasons vendors may be deemed not responsible:
- Not able to meet your delivery requirements
- Not able to meet your ordering/invoicing requirements
- Doesn’t have the experience required to perform successfully
- Doesn’t carry the minimum level of insurance, bonding, or licensure required
- Debarred or suspended by the federal government
- Currently in default on another contract
- Filed for bankruptcy in recent years
- Has been sanctioned for environmental violations
- Has been involved in a risky merger, acquisition, or takeover that could adversely affect their ability to carry out the contract
Their mom still does their laundry
Keep in mind that many of the above factors are red flags but alone may not be enough to consider them not responsible.
Example #1: Bankruptcy/Acquisition
As an example, my district once had a vendor respond to our solicitation for a service and state yes, they had recently filed for bankruptcy in the last year and yes, they were then acquired by a larger holding company.
However, this didn’t automatically mean they couldn’t successfully perform our contract. We just had to dig a little deeper to make sure we wouldn’t be left stranded later. They provided us financial data and a letter from their parent company reassuring schools that the subsidiary’s operations would be unaffected, so we deemed them to be a responsive and responsible bidder.
Example #2: Service Capacity
Let’s look at another example.
Your RFP for equipment repair services specifies that a technician must respond to a regular work order within 24 hours and an emergency work order within 2 hours.
You ask each vendor to submit how many employees they have and their estimated response time to a work order. One of the vendors who responds states he has one employee and that he will do his best to respond to the work order schedule in the contract.
You reach out to him for clarification. It turns out he doesn’t employ any other employees: he is the only employee. When you start questioning whether he could really meet your required response times, it becomes clear that one person could not handle the volume of work orders you need.
You would deem this vendor not responsible since they can’t perform the contract as outlined.
It doesn’t matter if the vendor responded to the solicitation perfectly. The vendor has be be both a responsive AND responsible bidder.
A Note on References:
When checking with references as part of a solicitation, you are trying to determine if the company can carry out the contract’s terms and conditions as outlined. If you find any other unpleasant information during this process, you can’t use it against them.
Let’s say during a reference check, you find out the following information:
You: How is this vendor in providing you invoices as outlined in your contract?
Reference: We don’t have any problem with them providing the invoices we need, but their accounts payable lady is a nightmare. If we’re just one day late with the payment, she calls me and acts really rudely. I’ve explained it’s my purchasing department that’s slow, but she does it every time. It’s so excessive.
The extra information the reference is providing really points to more of a customer service issue than a performance issue. It is unlikely that the vendor is violating any performance standard you would have written into your contract, so this information can’t be used to determine if the vendor is responsible for carrying out your contract. Instead, you could address this concern with the vendor one-on-one if they win the contract.
Summary
So there you have it, a responsive and responsible bidder. Hopefully the next time you hear “responsive and responsible”, you’ll (pause, think about it, then…) know the difference.
