United States: Local Government Procurement Laws – What Does It Take To Be A "Responsive Bidder"?

In a previous article we discussed the requirement that, if it awards a public works contract, a public entity in the State of Georgia must award the contract to the "lowest responsible and responsive bidder," unless an exception to this requirement applies.

This article addresses what it means to be a "responsive bidder."  While responsibleness focuses on the bidder or proposer, responsiveness focuses on the bid or proposal.  Specifically, responsiveness requires that a bid or proposal respond and conform to the requirements of the invitation for bids or request for proposals (the "Bid Documents").

Any deviation from the requirements of the Bid Documents may be considered non-responsive.  But public entities have the discretion to waive minor deviations from the requirements of the Bid Documents.  Minor deviations are a matter of form and not of substance, or they pertain to some immaterial or inconsequential defect or variation from the exact requirement of the Bid Documents.  For example, a minor deviation may occur where a bidder fails to initial a price change, or to write the solicitation number, date, and time of bid opening on its bid envelope, or to provide incidental information requested in the bid documents, such as information about its affiliates, or to include a unit price where the unit price can be calculated by dividing the line item total by the estimated quantity.

A public entity does not have discretion, however, to waive material deviations from the requirements in the Bid Documents. Indeed, O.C.G.A. § 36-91-2(14) defines a "responsive bidder" or "responsive offeror" as "a person or entity that has submitted a bid or proposal that conforms in all material respects to the requirements set forth in the invitation for bids or requests for proposals." (emphasis added).  A deviation from the Bid Documents is considered "material" if the deviation: (1) gives the bidder a substantial competitive advantage or (2) prejudices other bidders.  Some examples of material deviations include:

  • Limiting or changing the terms of the proposed contract through the bid (g., the bidder offers to supply oranges when the invitation is for the supply apples);
  • Including reservations or conditions in the bid that were not in the proposed contract (g., bidder offers to supply apples, so long as the wholesale price of apples remains less than $2.00/lb.1);
  • Making a bid contingent upon also receiving award on other bids currently under consideration; and
  • Failing to acknowledge addenda or amendments to the proposed contract.

If a public entity determines a bid is non-responsive, it must inform the contractor in writing as to the basis for its determination that the bid was non-responsive.  Failure to do so constitutes a procedural violation of due process.

The determination of what constitutes a material versus a minor deviation is generally left to the discretion of the public entity or agency awarding the contract.  In R.D. Brown Contractors v. Board of Educ. of Columbia County2, for example, the invitation for bids stated that "[a]long with the bid a list of all major subcontractors . . . must be provided. No changes may be made to the list post-bid without prior approval from the Board." Based on this requirement, the second lowest bidder filed suit seeking an order from the court compelling the county board of education to award a school construction contract to the second lowest bidder because the lowest bidder did not include a list of subcontractors with its bid.  The Court held that the lowest bidder's failure to include a list of subcontractors was a minor deviation and recognized that a governmental entity, such as the Board, retains a statutorily granted power to waive technicalities, explaining that:

[U]nder the statutory scheme of public bidding, the Board has the power to determine, within the parameters of that scheme, what constitutes material conformity with the invitation for bids.  Brown points to no statute, regulation or ordinance that requires that subcontractors be listed on bids; the only place such a provision appears is on the invitation for bids produced by the Board.  The invitation does not state, or suggest, that a list of subcontractors is a material requirement; in fact, the subcontractors provision specifies that the list of subcontractors may change with the Board's approval, suggesting that any list is not to be considered fixed.  The invitation also reserved the right to waive technicalities, as authorized by State law.  As the genesis of the specification concerning a list of subcontractors is solely by the Board, we see no reason why the Board could not determine that it was not a material requirement, but rather a technicality that could be waived.

Some seemingly minor deviations can be deemed material if they prejudice other bidders.  At first blush, submitting a bid a few minutes late may seem like a minor deviation.  Indeed, some states have allowed late bids upon a showing of no actual prejudice to other bidders.  Not in Georgia, where bids submitted after the time set for bid opening in the invitation for bids, even though prior to actual commencement of bid opening, have been rejected as nonresponsive in the interest of protecting the integrity of sealed bidding.

For example, in City of Atlanta v. J.A. Jones3, the Georgia Court of Appeals rejected the City's argument that it could accept a late bid if the other bids had yet to be opened, and ruled that submission of a late bid was a material deviation under Georgia law that was beyond the City's discretion to waive.

The Bid Documents in the J.A. Jones case stated that bids had to be submitted "... no later than 2:00 pm, April 10, 1985."  J.A. Jones submitted its bid before the 2:00 p.m. deadline; two other bidders did not.  The apparent low bid was submitted at 2:03 pm, three minutes late. J.A. Jones' bid was the second lowest bid, approximately $10,500 more than the bid by the apparent low bidder for a contract in which all bids received exceeded $13 million.

Initially, the City rejected the apparent low bid as untimely, but the bidder asked the City to check the accuracy of the bid clocks.  The City determined that, at 5:00 p.m. on April 10, the bid clock was 3 minutes fast and awarded the contract to the apparent low bidder. The record, however, showed the clock was never found fast in the years before or after 5:00 p. m., April 10, 1985, and no one could say that the clock was three minutes fast at 2:00 p. m. that day.

J.A. Jones protested the City's consideration of the late bid in three separate letters to the City on April 10, 23, and 25th.  A City ordinance authorized frustrated bidders, like J.A. Jones, to submit protests by letter, and obligated the City to reply within 10 days with its reasoned decision.  Rather than respond to J.A. Jones' letters, the City engaged in an internal debate over whether ICC's bid was timely.  The City ultimately determined that the bid was late, but that a bid three minutes late was a minor deviation that could be waived in its discretion if it saved taxpayer money.

On appeal, the Georgia Court of Appeals held that a late bid was a material deviation from the requirements of the Bid Documents and that the City did not have discretion to waive the requirement because the late submission of a bid gives the late bidder an unfair advantage over other bidders.  The Court reasoned that time is critical to bidders, who often synchronize their watches to the bid clock so they can make significant last minute price changes.  "Indeed, Jones lowered its bid by over $4,000,000 in the last hours and by an additional $200,000 in the minutes before the bid was submitted. Thus, even without [the late bidder] knowing the amounts of the other bids, a late bidder gained an important advantage by gaining additional time to revise its bid."

The Court of Appeals also held that the City's failure to timely respond to J.A. Jones' protest letters was a violation of due process that denied Jones the right to be heard in a meaningful time and manner, and to provide an adequate remedy to redress the wrong, which entitled J.A. Jones to damages of $375,000, in addition to $522,125.05 for anticipated profits. The Georgia Supreme Court reversed the damages award, explaining that "when, as here, a governmental entity has frustrated the bid process and awarded the contract to an unqualified bidder, the injured low bidder may bring an action for appropriate relief. [] However, a low bidder whose bid is unfairly rejected is only entitled to an award of reasonable costs of bid preparation," which for Jones was $22,125.05.

Bid protests are often asserted to determine whether a bidder's failure to follow the Bid Documents makes its bid non-responsive. But these protests are rarely successful because courts generally defer to the public entity's decision about whether a deviation was material or not, unless the public entity failed to follow the legal procedure for making such a decision.


1 See, e.g., Lift Power, Inc., Comp Gen. Dec. B-182604, 75-1 CPD ¶ 13 (finding a bid nonresponsive where a contractor reserved the right in the bid to change the price if costs should increase).

2 280 Ga. 210, 626 S.E.2d 471 (2006).

3 195 Ga. App. 72, 392 S.E.2d 564 (1990) cert. granted, (May 3, 1990) and judgment rev'd, 260 Ga. 658, 398 S.E.2d 369 (1990), on remand to, 198 Ga. App. 345, 402 S.E.2d 554 (1991)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.