This is one in a continuing series of posts on the basic tenets of public bidding in Pennsylvania. The subject of today’s post is bidder responsibility.
“Responsibilty” refers to the qualifications, including competence and experience, of a bidder to perform a public contract. Whether a bidder is responsible or qualified to receive a contract award is ordinarily left up to the discretion of the government officials in charge of awarding the contract. The courts are extremely reluctant to overrule government decisions to disqualify a bidder as non-responsible.
The standards for bidder responsibility have been established for many years. The criteria include financial responsibility, integrity, efficiency, industry, experience, promptness, and ability to successfully perform and complete the contract. While some may believe that the ability to secure and post a bond is proof of their responsibility, a bond is not a substitute for the failure of a bidder to satisfy qualification criteria. Furthermore, a bidder cannot be rejected as non-qualified unless the government officials have also first conducted an investigation into all bidders’ respective qualifications.
Bidder responsibility can be determined before bids are received, via a pre-qualificaiton process, or after the bids are received. All bidders must be judged according to the same criteria. A pre-qualification process may be used only if one is mandated or allowed by statute or ordinance. Where there is no prescribed pre-qualification process, a municipal official may not exclude certain persons from bidding under the guise of a pre-qualification program.
In Harris v. City of Philadelphia, 299 Pa. 473, 149 A. 722 (1930), the Supreme Court of Pennsylvania had this to say about responsibilty determinations:
We again lay down the rule that all bidders on a municipal contract must be accorded the same treatment, for not otherwise can the requirements of the statute be complied with. The city may … accept and schedule all bids, and then, if acting in good faith, refuse to award the contract to one who is the lowest bidder, because he is not the ‘lowest responsible bidder.’ Or she may … determine in advance who are responsible bidders, and refuse to receive bids from those who, after treating all alike, she determines are not in that class. But she may not impose conditions on one prospective bidder, which are not imposed upon all; nor may she enforce a method by which, through favoritism, one person may be conclusively authorized to bid on a pending contract, while another, equally as responsible and perhaps more so, is wholly excluded from even submitting a bid.
This rule of public bidding is as applicable today as it was in 1930.
Christopher I. McCabe, Esq.
