Responsiveness and Responsibility: Two Different Failures
A bid can fail because of what it says or because of who submitted it. The first defect is fixed at the moment of opening and cannot be repaired. The second can be answered right up to award, and a small business has a further route after that.
The rule in short
Responsiveness asks whether the bid complies in all material respects with the invitation, judged from the face of the bid as of the opening. A nonresponsive bid cannot be made responsive afterward. Responsibility asks whether the bidder has the resources, record, integrity and capability to perform, judged as of award and provable with information submitted after opening. A small business found nonresponsible must be referred to the small business agency for a certificate of competency.
Two questions decide whether a bid can win, and they are answered at different times by different evidence. Is the bid what the government asked for? That is responsiveness, and it is fixed forever at the moment of opening. Can this company perform? That is responsibility, and it stays open until award.
The bid, judged on its face
To be considered for award, a bid must comply in all material respects with the invitation for bids. Compliance is assessed from the four corners of the bid as submitted, at the time of opening. Nothing offered afterward can supply what the bid lacked, because allowing it would let a bidder decide after seeing the other prices whether to be bound.
A deviation is material if it affects price, quantity, quality or delivery, or if it otherwise gives the bidder an advantage not available to others. Taking exception to a term, conditioning the bid, omitting a required price line, failing to acknowledge a material amendment, or qualifying the delivery schedule all make the bid nonresponsive. The government has no discretion to accept it, however low the price.
Minor informalities and irregularities
Not every imperfection is fatal. A minor informality or irregularity is one that is merely a matter of form, or an immaterial variation having no effect or a negligible effect on price, quantity, quality or delivery, and the correction or waiver of which would not prejudice other bidders. The contracting officer may waive it or give the bidder an opportunity to cure it.
The line is drawn by consequence rather than by category. A missing signature can sometimes be cured where other documents in the bid package bind the bidder. A failure to furnish required information about a matter of responsibility is not a responsiveness problem at all. Anything that would let the bidder escape or improve its obligation cannot be waived.
The only route to changing a bid after opening runs through the mistake procedures, and it is deliberately hard. A clerical error apparent on the face of the bid may be corrected. Any other alleged mistake requires clear and convincing evidence of both the error and the intended bid, and correction that would displace a lower bidder demands proof that the intended bid can be established from the bid documents themselves. Where the proof falls short, the choice is to perform at the price offered or withdraw and face the consequences.
The company, judged as of award
No purchase may be made from an offeror the contracting officer has not affirmatively determined to be responsible. The general standards require adequate financial resources or the ability to obtain them; the ability to comply with the delivery or performance schedule; a satisfactory performance record; a satisfactory record of integrity and business ethics; the necessary organization, experience, accounting and operational controls and technical skills; the necessary equipment and facilities; and being otherwise qualified and eligible under applicable laws.
Because responsibility concerns the offeror rather than the offer, it may be established with information supplied after opening and right up to award. A bidder whose financial capacity is questioned can produce a credit facility. A bidder whose performance record is questioned can explain. The contracting officer must obtain sufficient information, and a determination made on an inadequate record is vulnerable.
| Question | What is examined | Time of judgment | Curable after opening | Review route |
|---|---|---|---|---|
| Responsiveness | The bid document itself | The moment of bid opening | No, except minor informalities | Protest of the acceptance or rejection |
| Responsibility | The offeror's capacity, record and integrity | Before award | Yes, with later information | Referral for a certificate of competency; limited protest review |
| Definitive responsibility criteria | Specific stated qualifications such as experience thresholds | Before award | Yes, by producing the evidence | Protest that the criteria were not applied |
| Eligibility | Debarment, suspension or set-aside status | Continuously | No; it is a status | The exclusion proceeding, or a size protest |
| Technical acceptability | The proposal against stated evaluation factors | During evaluation | Only through discussions | Protest of the evaluation |
When the offeror is a small business
A contracting officer who finds a small business nonresponsible on capacity or credit grounds cannot simply move to the next offeror. The matter must be referred to the small business agency, which may issue a certificate of competency. The certificate is conclusive on the question of responsibility, and the agency has a defined period after receiving the referral to act on it.
That referral is a genuine second chance and it is frequently overlooked by the business itself. A small business told informally that it will not receive an award for capacity reasons should ask directly whether a referral has been made, because the certificate process operates on a short clock and the record it builds is the business's own submission rather than the contracting officer's file.
What can be protested, and what cannot
Rejection of a bid as nonresponsive is reviewable, and so is acceptance of a bid a competitor says was nonresponsive. Affirmative determinations of responsibility are reviewed only in narrow circumstances, chiefly where definitive responsibility criteria stated in the solicitation were not applied, or where the contracting officer ignored information that by its nature would have had a significant effect. The forums and deadlines are set out in the bid protest framework.
The method of procurement changes which of these questions arises at all, as described in the comparison of sealed bidding and negotiated procurement. Where the award is set aside, an offeror's status can be challenged separately through a size protest, and the winner's performance obligations under the limitations on subcontracting begin immediately on award.
Points to carry away
- Responsiveness is determined from the face of the bid as of the time of opening.
- A material deviation affecting price, quantity, quality or delivery cannot be waived.
- Minor informalities having negligible effect may be waived or cured after opening.
- Responsibility is determined as of award and may rest on information supplied later.
- No contract may be awarded unless the contracting officer affirmatively finds the offeror responsible.
- A nonresponsibility finding against a small business must be referred for a certificate of competency.
Questions readers ask
Is a bid nonresponsive if it omits an acknowledgment of an amendment?
It depends on what the amendment did. Failure to acknowledge an amendment that materially affects price, quantity, quality or delivery renders the bid nonresponsive, because the bidder is not bound to the terms the government actually solicited. Failure to acknowledge an amendment that changed nothing material, or whose substance the bid otherwise reflects, is treated as a minor informality that may be waived or cured. The test is the effect of the amendment, not the fact of the omission.
Can a bidder withdraw a bid after opening?
Not at will. Bids are generally irrevocable for the acceptance period stated in the invitation, which is why a bid bond exists. Withdrawal after opening is permitted where a mistake is established by clear and convincing evidence and the contracting officer determines the bid should be withdrawn rather than corrected. A bidder who simply changes its mind about the price it offered is held to the bid, and refusal to perform can support a claim for the excess cost of reprocurement.
How is capability assessed in a negotiated procurement?
Twice, in different places. Capability-related matters that the solicitation makes evaluation factors, such as technical approach, experience and past performance, are assessed comparatively as part of the source selection. The general responsibility determination is made separately by the contracting officer before award, on the same standards used in sealed bidding. An offeror can be rated highly on the evaluation factors and still fail the responsibility determination, usually on financial capacity or integrity grounds.
Sources
- Acquisition.gov — FAR Part 14, Sealed BiddingThe responsiveness requirement, minor informalities and the treatment of mistakes.
- Acquisition.gov — FAR Subpart 14.4, Opening of Bids and Award of ContractThe opening procedure, rejection of bids and waiver of irregularities.
- Acquisition.gov — FAR Part 9, Contractor QualificationsResponsibility standards, special standards and the prohibition on awarding to a nonresponsible offeror.
- Acquisition.gov — FAR Subpart 9.1, Responsible Prospective ContractorsThe general standards and the evidence a contracting officer must obtain.
- Acquisition.gov — FAR Subpart 19.6, Certificates of Competency and Determinations of EligibilityThe mandatory referral of a small business nonresponsibility finding.
- eCFR — 13 CFR 125.5, What Is the Certificate of Competency Program?The certificate process, its time limits and the effect of a certificate.
- Acquisition.gov — FAR Subpart 9.4, Debarment, Suspension, and IneligibilityThe separate eligibility bar that operates independently of responsibility.
Lawwise is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
More in Government Contracts
The Debriefing and the Clock It Starts
An offeror excluded before award, or notified of an award in a negotiated procurement, may obtain a debriefing by written request made within three days of the notice. A required debriefing must disclose the evaluation of the offeror's own proposal, the awardee's evaluated price and technical rating, any overall ranking and the rationale for award. It may not disclose point-by-point comparisons. The debriefing date controls both the protest deadline and the window for the automatic suspension.
Sealed Bidding and Negotiated Procurement Compared
Sealed bidding is required where time permits, award will be made on price and price-related factors, discussions are unnecessary, and more than one bid is expected. Bids are opened publicly and award goes to the responsible bidder whose responsive bid is most advantageous considering price alone. Negotiated procurement evaluates proposals against stated factors, permits a competitive range and discussions, and allows an award to other than the lowest price where the solicitation says so.
The Settlement Proposal After a Contract Is Ended Early
On a convenience termination the contractor stops work, terminates subcontracts, protects and disposes of property, and submits a settlement proposal within one year of the effective date unless the period is extended in writing. Recoverable amounts include preparations and work done, initial costs, settlement expenses, subcontractor settlements, and reasonable profit on work performed. Anticipatory profit is not recoverable, and a loss contract carries no profit.