The Mississippi Court of Appeals has recently recognized the validity and enforceability of a definitive responsibility requirement set forth in a solicitation for the construction of a prison. [click here for a copy of decision] The solicitation required that prospective bidders "[p]rovide [a] list of prior construction experience with references on successful correctional facilities projects within the last [five] years having a minimum construction contract amount of eight[-]million dollars…each for no less than two…separate projects…Failure to do so may be cause for rejection." Desoto County Board of Supervisors rejected the apparent low bidder and second low bidder who did not satisfy the solicitation’s requirement and awarded it to the third low bidder for a price premium of $283,100.00. The disappointed bidders challenged the decision to award the contract to the third low bidder but the Court affirmed the decision finding the definitive responsibility requirement to be reasonable and enforceable.
There are two lessons to be learned from this. The first lesson is to protest such a definitive responsibility requirement as unduly restrictive of competition and try to convince the procuring agency to eliminate or "loosen" the standard. The second lesson is to make sure you can satisfy the criteria set forth in the solicitation or face the prospect of having your bid rejected as non-responsive.