An interesting bid responsiveness case arose from the recent design-build procurement of the I-35W replacement bridge in Minnesota. Unfortunately, although the court arrived at the correct result in this particular case, the manner in which it got there is troubling.
In Scott Sayer, et al., v. Minnesota Department of Transportation, 2009 WL 2225877 (Minn. App. 2009), the Minnesota Court of Appeals addressed a claim by disappointed proposers on the I-35W design-build bridge project that the successful proposer, Flatiron-Manson, a joint venture, submitted a nonresponsive proposal and thus should have been disqualified from consideration. Flatiron’s proposal was deemed the best value after applying technical proposal scores even though its price was the highest of all four bidders. The disappointed bidders argued that Flatiron’s proposal was nonresponsive because it failed to comply with two requirements contained in the request for proposals (RFP): First, the design shall not include additional capacity or require additional right-of-way and, second, the concrete box girder designs shall feature a minimum of three webs. Flatiron’s proposal required additional right-of-way, and its design included two web concrete box girders.
The Minnesota Court of Appeals correctly determined that the disappointed bidders interpreted the relevant RFP language too broadly and that the additional right-of-way called for in Flatiron’s design as well as the box girders it would be supplying were not contrary to the RFP requirements.
In its analysis, the court reasoned that because design-build RFPs do not contain complete project specifications and such projects are procured under somewhat subjective circumstances where committees exercise discretion in judgment and grading, the decision on whether a design-build proposal is responsive should be more discretionary than in a typical design-bid-build format.
The court’s ultimate decision in Sayer was a correct one, because Flatiron’s proposal complied with the express requirements contained in the RFP. To suggest, however, that because officials must exercise discretion in grading technical proposals, a state highway department possesses more discretion in determining whether a proposal is responsive to an RFP, opens the door to abuse and the potential for even more bid protests in the future.
A contractor submitting a design-build proposal no doubt has significantly more latitude to structure its proposal than one submitting a bid on a typical design-bid-build project. In fact, there is little to no latitude in filling out a bid form on the latter type of project.
However, if a proposal fails to conform to specific parameters contained in the RFP—regardless of whether general or specific—officials should possess no more discretion to waive the nonconformity than in a design-bid-build scenario. For example, if Flatiron’s proposal had called for additional right-of-way and the RFP clearly prohibited the inclusion of such additional right-of-way, the only question for highway officials should have been whether the right-of-way provision in the RFP is a material one. If it is, the proposal should be rejected as nonresponsive. To do otherwise is to introduce chaos into the design-build procurement process and create an unfair disadvantage to other bidders who have complied with the parameters of the RFP.
I am hopeful that the Minnesota Court of Appeals does not have the opportunity in the future to apply the new law it has created to a different set of facts.