Reader Response: Thoughts on “Responsive and Responsible”

Lisa Premo’s excellent article “Language Matters: Distinguishing Between Responsive and Responsible” inspired me to contribute additional points to consider regarding use of the terms “responsive” and “responsible.” During the latest iteration of my research into best practices in state and local government procurement, I added two best practices titled “Define ‘responsive proposal’ in RFP” and “Define ‘responsible contractor’ in RFP.”

The best practices were restricted to RFPs, for this research project, because the best practices were developed for inclusion in the second edition of my book, “Contracting for Services in State and Local Government Agencies” and solicitations for service contracts are made, by most state and local government agencies, through RFPs and not IFBs. If the book addressed IFBs, as well as RFPs, the best practices would have been titled “Define ‘responsive Bid/Proposal’ in solicitation” and “Define ‘responsible contractor’ in solicitation.”

The reason for including the definitions for “responsive” and “responsible” in solicitations is that most solicitations include a statement like, “the contract will be awarded to the responsible contractor that submits the lowest priced responsive bid,” or “the contract will be awarded to the responsible contractor that submits the best value responsive proposal.” If responsible and responsive are not defined in the solicitation and a contractor with the lowest priced bid or best value proposal is eliminated from the competition due to not being responsible or not submitting a responsive bid/proposal, a protest may be filed.

The reason a protest might be filed in either of these instances is that the aggrieved contractor may have a definition for one or both of these terms that differs from the government’s definition. When eliminating a business entity or individual for a nonresponsive bid/proposal or for not being responsible, the government should ensure that the reason given for such contractor’s elimination clearly meets the government’s “responsive” and “responsible” definition(s) as stated in the solicitation. Adhering to this practice should discourage protests and simplify the defense against those protests that were not discouraged.

The definition in the NIGP Dictionary of Procurement Terms for “Responsive Bid/Proposal” is exactly what I would recommend for inclusion in the solicitation. With respect to the definition for “Responsible Bidder/Proposer,” however, I would add a sentence regarding the prospective contractor’s integrity. The statement regarding the prospective contractor’s integrity would be along the line of “Responsible bidders/proposers shall not have been convicted of, or pled guilty to, crimes involving procurement fraud or damage to the environment during the previous five years and shall not currently be included on any list of debarred or suspended business entities or individuals.” The definitions to be included in the solicitation, therefore, include the following which are identical to the NIGP definitions except for the final sentence in the “Responsible Bidder/Proposer” definition:

“Responsive Bid/Proposal: A bid or proposal that fully conforms in all material respect to the Invitation for Bids (IFB)/Request for Proposals (RFP) and all its requirements, including all form and substance.”

“Responsible Bidder/Proposer: A business entity or individual who has the capability and financial and technical capacity to perform the requirements of the solicitation and subsequent contract. Responsible bidders/proposers shall not have been convicted of, or pled guilty to, crimes involving procurement fraud or damage to the environment during the previous five years and shall not currently be included on any list of debarred or suspended business entities or individuals.”

While the disqualification of contractors for not being responsible is normally identical when either an RFP or IFB is used as the solicitation document, most states and local government agencies approach responsiveness differently for bids and for proposals. When bids do not meet the government’s definition for responsiveness, such bids are normally rejected summarily. When proposals do not meet the government’s definition for responsiveness, however, the government normally offers the prospective contractor an opportunity to make minor adjustments to its proposal that will render it responsive. For example, if a bid includes a delivery date that is beyond the required delivery date in the IFB, the bid is normally rejected summarily. If, however, the proposed delivery date is beyond the stated delivery date in the RFP, the prospective contractor is normally offered an opportunity to modify its proposed delivery date to make its proposal responsive.

Government agencies that make this distinction in the treatment of nonresponsive bids versus nonresponsive proposals are urged to include their treatment of nonresponsive bids in response to an IFB and their treatment of nonresponsive proposals in response to an RFP in their solicitations. The statement in IFBs might read “bids that the agency deems to be nonresponsive shall be summarily rejected,” while the statement in RFPs might read, “The agency may offer prospective contractors an opportunity to make minor adjustments to nonresponsive proposals to render them responsive.”

William Curry, CPCM, NCMA has over 45 years of experience in federal, state and local government contracting. He’s also the author of “Contracting for Services in State and Local Government Agencies.”