Actually, this post has nothing to do with any of the above. I knew, however, that if I advertised with the true subject, purchasing, few if any would look at it.

I begin with a disclaimer: I already have given my advice to the commissioners court and the purchasing agent, so this is more of an academic exercise. I won't yet post my advice, since I would prefer not to have my brighter counterparts throughout the state begin their analyses by pointing out the inadequacy of mine.

Here's the scenario. My county owns several older buildings, which we are trying to sell. To do so, we need to remediate the ubiquitous asbestos in them. Bids were taken for remediation services. When the bids were opened, the lowest bidder had indicated it would provide less "ambient release" insurance than the bid specifications requested. After all the bids were opened, the low bidder indicated it would comply fully with the insurance specification. The purchasing agent opined that the variance from the bid specs meant that the commissioners court was obligated to pick the next lowest bidder. The commissioners court, not surprisingly, wants to go with the low bidder. What would you tell them?

My response would be,"let me do some research and call a friend of mine in Amarillo who knows all there is to know about the civil aspect of county law and I will give you an opinion shortly."

Without looking, I always have a problem with a bidder who doesn't meet specs in the intial bid and then comes in after the bids are opened and trys to verbally change what was originally submitted. Seems to skew the process to me.
That being said, it has been a while since I looked at the issue and I would not feel comfortable rendering an opinion without doing some research.
How's that for a non-answer?

for what it is worth and with the risk of being called unwise by Ray et al I would opine that you would have to go with the lowest bidder that complied with the RFP not just the lowest bidder.....

Under the Local Government Code, there is provision for lowest reponsible bidder, where if so specified, one could take the safety record into consideration. Presumably insurance may be something that relates to being responsible and should be taken into consideration. He may have evidence that that he already had an insurance policy for certain limits, hence the reason for not initially meeting the requirement.
So the issue is not necessarily one of specifcation, but of resposnsibility and therefore under per 271.027, he is entitled to a hearing before rejection. On the other hand, there are those pesky little provisions of 271.029 and 271.030. My answere is presuming that this contract was one that was required to be bid out and qualifies as a public works contract.

[This message was edited by LV on 07-29-04 at .]

Hey Scott, I just noticed HC got one of my opinions, so I only have two that are yet to be published. Since you already gave your advice, and looks like nobody else is willing to take a shot and risk looking foolish as me,you might go ahead and tell us. If you are concerned about saying something that raises the spectre of those certain little penalties for being "in violation", look on the bright side--you get to go four years without having to answer anymore of those tough purchasing questions!!

In a buying dispute of this nature I usually like the Purchasing Agent position. Often the documents (RFP) of the county will sway me though. I have found the most remarkable things in these documents like failure to provide insurance as requested will result in rejection of the bid. How do you square that with making an exception on a technicality in favor of the county (another favored expression in the RFP or RFB)? So long for now.

I suppose I should ask, was there a requirement of a "Bid Bond"? If so, then we might be talking "not a material variance" that clearly does not provide an unfair "competitive advantage" to low bidder, (as this was obviously not an "error in bid price" which clearly under the statute, is the only thing that absolutely can not be changed after the opening), thereby being something that can be waived or corrected to the advantage of the county or used to enforce the bid via the bond,--perhaps,Ray ? .

In the past we have had folks show without the bid bond and then argue please let us add it and you can then award to us. On that we have given a cold no. Reasoning: the company has to pay for the bid bond and when they come in second they never offer to pay for a bid bond under those circumstances. They are therefore obtaining an unfair advantage by just paying when they are low bidder. Plus I suspect such company's ability to do the work when they have sloppy paperwork.

Actually the latter part of my answer was assuming a bid bond had been duly paid and filed, because I agree that one should never ever permit a bid without a bid bond, except where none is required of any bidders by law or by specifications. That might well be a form of changing the amount of the bid, providing a competitive advatage, etc and so forth.

There was another reason I mention "the bond" that has to do with the rest of the answer, although the presence of the bond requirement is not necessarily, absolutely outcome determinative.

[This message was edited by LV on 07-28-04 at .]

Now that the responses are in and have been tabulated, I present the abbreviated version of my advice:

A bid bond was required and was submitted (SOP for us). I told the commissioners court that they could not consider post-bid offers. What they had to consider was whether the bid was the lowest and best, and that consideration should include whether the insurance variance (recalling that they didn't refuse to provide insurance, it just wasn't in the amount included in the solicitations for bids) was a material departure from the bid specifications. I also told them that their decision could be challenged, either by the low bidder (if it didn't get the contract), or the next lowest bidder (if the low bidder did get the contract). The court ultimately determined that the insurance variance was not a material departure from the bid specs and awarded the contract accordingly. I guess we'll see whether we get a challenge from the next lowest bidder. The optimist's spin on this outcome is that it can be seen as job insurance.

If you do, there is some very helpful case law on bid bond forfeiture issues that should prove helpful, because I suspicion that if they had refused to provide the insurance as requested---regardless of what they put as their "bid offer", you might have been able to force them to do it or take their bond.

Although, I am of the opinion that as a practical matter, one should not propose "marry me on my terms or you will be sued immediately for divorce". Just really does not appear the best way to start off with a contractor. The more usual arrangment is to sign the contract, go on the honeymoon, start the project, have a few bumps, then as deadlines are missed and the waves get bigger, start thinking about the divorce and checking on the bonds (that is the performance/payment bonds, not the bid bond. )