Local Government Procurement Laws – Who The Heck Is A 'Responsible Bidder'?

All state and local government public works construction projects must follow the public bidding and procurement laws, which seek to protect the public against the squandering of public funds and prevent abuses such as fraud, waste, and favoritism.

Local governments1 are required to provide public notice and to competitively award public works construction contracts,2 unless an exception applies, such as where the estimated cost of the project will be less than $100,000.3 A contractor forfeits its right to payment if it performs work knowing that the local government did not follow the public procurement laws.

Local governments who take competitive sealed bids are not required to award the contract to any bidder.4 But if it decides to award the contract, the award must go to the "lowest responsible and responsive bidder."

In most cases the low bidder is awarded the contract; however, the local government must first determine that the bidder was responsible and the bid submitted was responsive based upon the requirements and criteria set forth in the invitation for bids before making the award. This article addresses what it means to be a "responsible bidder" in Georgia.5

A local government is not limited to looking at a bidder's financial ability to perform the public works contract. Rather, the term "responsible" looks to the bidder's ability to discharge the contractor's obligations in accordance with what is expected under the terms of the contract. Local governments may consider virtually any criteria reasonably or rationally related to the question of whether the contract, if awarded, could be completed by the bidder in accordance with its terms.

The determination of responsibility is a threshold issue qualifying the bidder for consideration of its bid, not an evaluation factor allowing an award to be made on the basis of the relative responsibleness of the various bidders.6 Indeed, a bidder can be found "not responsible" only if the government body would reach the same conclusion if the bidder was the only bidder submitting a bid. Thus, a local government must award a contract to the lowest bidder meeting the criteria for being responsible, even if another bidder is substantially more responsible and its bid only slightly higher than the low bidder.

In Georgia, O.C.G.A. § 36-91-2(13) defines a "responsible bidder" or "responsible offeror" as "a person or entity that has the capability in all respects to perform fully and reliably the...