A goal of public contracts is to procure goods and services at the best price possible while maintaining a level playing field for all bidders. This is accomplished through competitive bidding statutes. These statutes require that all bids must be “responsive” to the material requirements of the government’s solicitation for bids, or they must be rejected.

The government’s evaluation of bid responsiveness focuses on whether the contractor’s bid complies with the mandatory requirements of the invitation for bids (IFB) and applicable statutes. Minor deviations can be waived, but only where the deviations relate to form and not substance. Material deviations cannot be waived. The determination of whether a deviation is material hinges on whether it would give the bidder a competitive advantage over other bidders.

In Julian and JJID, Inc. v. Delaware Dept. of Transportation (Sept. 28, 2012), the Delaware Supreme Court upheld the Delaware Department of Transportation’s (Del DOT) rejection of a contractor’s bid as nonresponsive.

During the summer and fall of 2011, Del DOT requested bids for a joint project with Amtrak, including the “hazardous work of cleaning and painting the existing steel beams for the railroad bridge over Little Mill Creek.” Del DOT’s request for proposals (RFP) listed the requirements regarding paint certifications twice, including in the bid package and the Special Provisions under the heading “Special Notice to Contractors.”

The notice states the following:

The following documentation must be submitted with the bid. If this documentation is not submitted with the bid, the bid will be considered non-responsive.

Proof is required that the prime contractor, if he/she is performing the cleaning/painting operation, and any cleaning/painting Subcontractors are certified by the Steel Structures Painting Council (SSPC) Painting Contractor Certification Program (PCCP) QP–1 and QP–2.

On Aug. 31, 2011, Del DOT held a mandatory pre-bid meeting where it reminded all attendees, including representatives from JJID, Inc., that the existing steel beams supporting the Mill Creek railroad bridge were to be rehabilitated, cleaned and painted.

On Nov. 3, 2011, JJID submitted its bid. It was the low bidder at $6,697,790. However, JJID failed to include the required paint certifications with its bid.

Del DOT faxed a letter to JJID advising that its bid was irregular because it failed to submit the required paint certifications. JJID responded that it did not submit the paint certifications because it planned to replace the steel beams supporting the bridge, instead of refurbishing them. A few days later, JJID sent the paint certifications to Del DOT stating it would perform the work as required by the specifications without any change in price.

Del DOT notified JJID its bid was rejected because it was non-responsive to a material requirement of the RFP — submission of the paint certifications. JJID’s bid was also non-responsive because it proposed to submit new steel beams instead of repairing and repainting the existing steel beams. Del DOT said it would be contacting the second lowest bidder.

On November 23, 2011, Julian and JJID filed suit against Del DOT seeking a temporary restraining order preventing Del DOT from awarding the contract to a different bidder. The parties filed motions for summary judgment. The trial court granted Del DOT’s motion, finding JJID’s bid was non-responsive because it failed to submit the required paint certifications and it failed to bid on refurbishing the steel beams. JJID appealed.