Published in the Educational Procurement Journal of NAEP (Fall 2016)
If your responsibilities include requesting and managing bids or proposals for goods, services or construction you have likely received submissions that did not comply with your expectations and documented requirements. They may have been received late, were missing required information or contained some other irregularity that rendered the submission non-responsive. When your objective is to run a fair and equitable process that ultimately selects a fully compliant and responsive bidder, then the process you utilize matters.
The consequences of poor process and documentation can be expensive and time consuming. These consequences go beyond the obvious potential for protests and lawsuits. Your credibility with the suppliers and contractors you depend on to bid to your organization can be damaged.
A notable example of a case where poor process resulted in both damaged credibility and a lawsuit arose in Laboratory Corp. of America v. United States (2012 U.S. Claims LEXIS 1741). The facts revolve around a determination of whether an attempted bid submission was actually late based upon the actions (or inaction in this case) of an employee of the defendant. In the judgement the Court describes the actions of the defendant as “… worthy of the Mad Hatter …”. The concluding statement reads, “Unlike someone on good terms with the Mad Hatter’s Time, the officials at the VA could not whisper a hint to Time and make the clock on this procurement go round, in a twinkling, to a time different than that listed in the solicitation. There is nothing on this side of the looking glass to support the VA’s rejection of plaintiff’s offer. It is time, via an injunction, for defendant to return to reality.” An excellent synopsis of this case and others like it can be found on the blog of the law firm Albo & Oblon LLP.
Every day bidders are faced with the challenge of deciding which opportunities are worthy of spending their time and money on. Preparing submissions can cost many thousands of dollars and is not a decision many bidders take lightly. If your process is onerous, your requirements are unclear or your decisions to award are inconsistent with the bid documents you face many potential challenges.
Many organizations today are considering the use of bid event management platforms to streamline their operations. Assuming your organization is not interested in having your process described as being “worthy of the Mad Hatter,” here are a few thoughts about things you may wish to consider to ensure it is effective and credible.
Post your solicitation documents in one location only. There are many examples of situations when a bidder relied on information from another site that was incomplete or incorrect. It is great if you have an open public opportunity to get the broad exposure to increase competition but there should only be one official site of record for the opportunity. It needs to be clearly stated in your advertisement and invitation to bid which location is the official one.
Use templates to avoid drafting errors. It is not difficult to find numerous instances of solicitation documents that contain inconsistencies between the advertisement, the Instructions to Bidders and the opportunity specifications. Review your standard solicitation documents for consistency and then, to the extent that it is practical, utilize non-editable templates to ensure the correct language and references are used.
Get a confirmation of receipt from bidders that they received addenda or amendments. Many obvious problems occur when a bidder misses an addendum. It is simpler to take a passive approach and make it the responsibility of the bidder to identify what addenda are included in their submission. That works of course but if they did miss one then the bid is most likely non-responsive and needs to be disqualified. It is far better to actually receive fully compliant submissions and know that you can accept a bid if it meets your business requirements rather than reject it due to an omission. Simply posting the addendum to a site is not good enough if you want to avoid this problem. Use a site that requires the bidders to acknowledge receipt and have it recorded in the audit trail.
Maintain a complete and accurate audit trail. A log of all the activities required to complete the process is essential to assist in avoiding and resolving issues of non-compliance with the bid requirements or claims arising from missing or incomplete information. Knowing exactly who saw what and when it happened helps avoid many of the problems that arise following submission of the bids. Modern e-bid event management solutions offer this type of functionality and require virtually no effort to implement.
If you have the capability to receive submissions online do not run a parallel paper based process. There is little to support the need for doing this and the costs and risks of a dual process need to be considered before engaging in one.
- The work to create the two required bid forms and supporting documents doubles the administrative effort for that task.
- The inherent differences in the submission process significantly increases the risk of post tender complaints and problems as bidders may claim that one process provided an unfair advantage over the other.
- There will be two closing locations and potentially two clocks governing the closing time. Synchronization of the clocks is difficult to impossible and can result in one process accepting bids later than the other increasing the risk of a claim and its resulting law suit.
- The time and effort to evaluate results is increased in order to collate the paper bids with the online bids into a single tabulation that can be evaluated. The risk of transposition or other errors is increased.
When considering a move to online bid submission it is critical that you fully assess the capabilities of the system you are considering. Ebidding has been actively used for ten or more years now and the modern systems available to procurement professionals today can assist is eliminating virtually every challenge identified in this article.
Submission compliance is essential to maintaining credibility with your contractors and suppliers as well as supporting your efforts towards efficient and effective contracting practices.