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Responsible Bidder Criteria on Public Works Projects
March 24, 2010 at 2:36 am #95769
I'm a member of a Washington state task force of industry stakeholders (public agencies, contractors, subcontractors) that will be meeting to discuss how public agencies are developing and implementing bidder responsibility criteria on public works projects, specifically evaluating concerns some contractors have raised that public agencies are developing responsibility criteria that are too restrictive of the bidding pool and anti-competitive in nature. The task force will look at how Revised Code of Washington 39.04.350 is being implemented.
I'm curious how other states and local public agencies are handling evaluation of a bidder's responsibility as part of the award process. Are there state laws that dictate how it is handled, local regulations, or is it open-ended? Have there been any court cases you are aware of where bidders have appealed being found not-responsible, or where other bidders have protested that the low bidder is not responsible?
The task force meets for the first time on March 24th. I am also scheduled to do a couple of training sessions in the next month on the subject, and would value the input and experiences of others on this topic. Thanks.
March 24, 2010 at 3:20 am #95779
Mike, Speaking for Frederick County, Maryland we rely very strongly on pre-qualification of bidders for building projects, other than for very simple smaller projects. One of the main criteria we look at is having previously built projects of similar size, scope and complexity. We believe it is only fare to let a contractor know in advance, that they would not be considered for award rather than allow them to go through the time consuming expensive process of putting a bid together only to be found not responsible post bid. I have used pre-qualification successfully the 5 yrs I have been with Frederick County and for twenty years in Palm Springs, CA. Examples of project specific prequals include convention center, airport terminal, nursing home, skate park, major remodels, new project infrastructure water and wastewater improvements etc. Good contractors love it because it allows them to bid only against peers. Projects are built on time and within budget so the agencies love it. Unqualified contractors rarely submit. They move on to spending their time bidding something else. We cannot use our process for federally funded projects. The federal rules do not provide for it. I have used a federal multi-step process for a new airport security system which accomplished the same thing.
March 24, 2010 at 3:28 am #95777
In Washington State, there are state laws that permit pre-qualification for the state Department of Transportation, and for public utility districts dealing with electrical generation and distribution systems. Most people interpret this to mean that pre-qualification is not authorized for any other type of government agency in the state.
Do you ever have any challenges from contractors who believe that they are being excluded from the bidding process because of how the pre-qualification criteria are written?
March 24, 2010 at 3:47 am #95775
Mike, Sometimes contractors have the requisite experience and qualifications and do a poor of submitting, We allow them to amend their submission. We also call them up to discuss what is lacking. In over 25 years experience with the process, no contractor has ever appealed to the elected officials. Since pre-qualification is done on a project specific basis, those who are not cleared to bid on a specific project usually become eligible to bidder on smaller and less complex projects. Not being found eligible to bid on a specific project does not mean we believe they are a poor contractor if they were found ineligible due to lack of project specific requirements. We allow them to "withdraw" so they do not have to state they were found ineligible on applications for future projects. Many agencies including us ask that question in their process.
March 24, 2010 at 1:19 pm #95773
Yesterday I shared some of my experience with Pre-qualification of bidders and I am sure my belief using that process was evident. This link: http://www.publiconstructionlaw.com/Prequalification.htm lists some of the pros and cons based on California's process. Personally, I believe California's process is excellent and indeed that is the model for what we are using. In my opinion it is very fair, it can be tweaked to fit a specific project or class of projects and it can be used on a project specific or "time" basis. The link to the model documents is: http://www.dir.ca.gov/od_pub/prequal/PubWksPreQualModel.doc Hope this helps!
March 24, 2010 at 1:31 pm #95771
Thanks, Hal. These look like good resources. There has been resistance in the State of Washington to permitting pre-qualification for all types of jurisdictions, and I suspect that given current contractor concerns with how bidder responsibility is being managed, the resistance to pre-qualification will not go away soon.
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