This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its May 2010 decision in Sun Art Painting Corporation v. Palm Beach County School Board, the Florida Division of Administrative Hearings overruled the Palm Beach County School Board’s decision to reject all bids over an alleged ambiguity in the solicitation document, as it found the ambiguity in question to be immaterial to bid compliance. The case dealt with a tendering process for two school painting projects. The Board decided to cancel its tendering process over concerns about an ambiguity in the solicitation instructions, which called for a signed bid summary form. However, the Court determined that this requirement was immaterial to bid compliance and did not justify the cancellation of the tendering process:
It would be without reason or logic (or, in other words, it would be “arbitrary”), as well as contrary to the best interests of the taxpayers (the intended ultimate beneficiaries of the competitive bidding requirements governing the instant procurements19), for Respondent to reject all bids on Items 1 and 2 and readvertise these projects based on an ambiguity in the ITB concerning a waivable requirement, non-compliance with which does not warrant a bidder’s disqualification from consideration for award. As was stated in School Food Service Systems, 2001 Fla. Div. Adm. Hear. LEXIS 2647 *47, “[l]etting authorities must be mindful that rejecting all bids discourages competitive bidding and hence should be the exception in public procurement rather than the rule.” The invocation of this “exception” simply cannot be reasonably justified under the facts of this case.
In view of the foregoing, Respondent should not reject all bids on Items 1 and 2, but instead should, with respect to each of these items, award a contract to the “lowest responsive and responsible bidder.” In determining the “lowest responsive and responsible bidder,” Respondent should find that a bidder’s failure to have signed its Revised Bid Summary Sheet constituted a minor irregularity not vitiating the bidder’s responsiveness.
The Court therefore ordered the government to accept and award the contract to the lowest bidder, notwithstanding the lack of a signature on one of the bid submission forms.
As this case illustrates, whenever possible, purchasing institutions should avoid cancelling a tendering process since this practice discourages competitive bidding. In addition, institutions should only do so for significant and legally defensible reasons.
