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PROCUREMENT: WHEN IS ‘MINOR’ MINOR? with the rules. ink about this. If you tell your teenager
CONTINUED FROM PAGE 29 you MUST be home by 10 p.m., and your child arrives at
midnight, you wouldn’t let your child claim that their lateness
was a “minor informality” now would you? Mandatory
the “discussions” and “best and nal” process allows the requirements denoted by “shall” or “must” are imperative
district much more exibility in correcting mistakes than the by rule and MUST not be waived.
traditional Invitation for Bid/hard bid (IFB) process allows. So, how do we know if a mistake is minor? e most
Mistakes are also much more easily corrected in a Request signi cant question I get is: What if a bidder failed to sign an
for Quali cation (RFQ) process. erefore, the rest of this addendum to the bid solicitation? In certain situations it may
article will only deal with best practices for the traditional be appropriate to waive the requirement to acknowledge
hard bid process. Yes, there is a reason they call it “hard!” receipt of addenda to an invitation for bid, but only if one of
Rule R7-2-1030 advises a school district shall either waive two conditions is met.
minor informalities in a bid or allow the bidder to correct e rst condition is if the addenda involve only a matter
them if correction is advantageous to the school district. of form or has either no e ect or merely a negligible e ect on
However, the rules also say that a bid mistake based on price, quantity, quality, or delivery relating to the item being
an error in judgment may not be corrected or withdrawn. bid upon. If the addenda in question included speci cation
Further, a bid may not be withdrawn and shall be corrected and contract requirements, it is most likely that the changes
to the intended bid if a bid mistake and the intended bid are have a material e ect and should not be waived.
evident on the face of the bid. e school district may permit e second condition that would allow us to waive the
a bidder to withdraw a bid if a nonjudgmental mistake is acknowledgement of the addenda as a minor informality
evident on the face of the bid but the intended bid is not is when the bid submitted clearly indicates somehow,
evident; or the bidder establishes by clear and convincing somewhere anywhere within the bid submittal that the
evidence that a nonjudgmental mistake was made. bidder even hints acknowledgement of the requirements
However, no corrections in bid prices or other provisions of of the addenda. Within the bid package the bidder would
bids prejudicial to the interest of the school district or fair have to show some indication of an acknowledgement of the
competition shall be permitted. requirements of the addenda in question.
Clearly, our rules de nitely allow us to waive minor If neither of the two conditions is met, the error should
informalities in bids received. But how do we determine not be waived. erefore, in order to be in compliance with
what’s a minor informality and what is not a minor the school district procurement rules, the district must
informality? ere is no clear cut de nitive answer but disqualify the bidder for failure to provide the required
there are some best practice guidelines I would absolutely acknowledgement of a bid addenda. Waiving the addenda
recommend that you follow. is article should give you acknowledgement requirement in this case would not only
some direction and food for thought as you tackle minor be in violation of the procurement rules but would also invite
informalities and mistakes in bids. a potential protest by the second low bidder that the district
A minor informality or irregularity is one that is merely would have to sustain.
a matter of form and not of substance. It also pertains to Another question I often get is whether to waive the
some immaterial defect that can be corrected or waived required number of copies if a bidder fails to provide the
without being prejudicial to other bidders. The school speci ed number. Well, if you made the number of copies to
district should give the bidder an opportunity to cure any be submitted a mandatory requirement by using the words
de ciency resulting from a minor informality or irregularity like, “ e bidder SHALL submit…” then you cannot waive the
in a bid or waive the de ciency, whichever is advantageous failure as a minor informality. Change “shall” in this case to
to the school district. “should” and help yourself avoid this conundrum.
Keep in mind that “mandatory requirements” denoted by Although I always struggle as a procurement o cer when
“must” or “shall” should never be waived. e procurement I am forced by the stringent requirements of the invitation
rules de ne “shall” as denoting the imperative. An imperative to bid process to recommend disqualification of an
item is crucial and hence should not be “waived.” When apparent low bidder, I remind myself that compliance with
drafting your bids, take careful note of those requirements the procurement rules and the integrity of the bid process
you de ne as imperatives, because they can never be waived. far outweighs the potential cost savings. e cost of non-
You may have a bidder that could not meet the mandatory compliant purchases is much greater. Only the attorneys win
requirement imposed in your bid and therefore did not in this situation.
submit a bid. Take a look at every mandatory requirement
and consider changing “must” or “shall” to “should.” It will Bill Munch, CPPO, CPPB is the Procurement Compliance
allow you some discretion in your bid evaluations and not and Training Of cer for Valley Schools Management Group,
“force” you to disqualify bidders on a “technicality.” recipient of the 2018 AASBO Bill Lovett Award, and the 2016
If you waive a mandatory requirement you are being NIGP National Purchasing Manager of the Year. He may be
prejudicial to prospective bidders, which is not compliant reached at: bmunch@vsit.org.

30 THE EDGE | WINTER 2019