Master Builders of Iowa

Contractor Qualification Process for Public Owners

In public sector procurement, the owner must avoid selecting contractors based on illegal criteria such as whether or not the contractor’s employees are union or non-union, local versus non-local, or other subjective criteria where political favoritism might come into the selection process.  It is permissible for the owner to make post-bid opening objective judgments necessary to determine the contractor’s financial and performance qualifications to do the work outlines by the project plans and specifications.  Any special qualifications needed to perform the work should be contained in the project specifications and bidder should be notified in advance that their inability to meet these special criteria may constitute a cause for their bid to be considered non-responsive in the final selection and award process.  However, contractors should not be disqualified from bidding on the basis of those criteria.  In order to provide the owner with the largest potential pool of bidders, owners should not “pre-qualify” bidders on the basis of immutable, arbitrary criteria.  As stated in an Iowa Supreme Court decision, “such discrimination [amounts to] the denial of equality of right and opportunity to which every bidder is entitled.”

With this in mind, MBI – through the direction and expert opinion of John Templer of Whitfield & Eddy, P.L.C of West Des Moines – sought out to find a working model qualifications form that was acceptable and in compliance with current law and allows public owners to further evaluate the low responsive and responsible bidder through a “post-bid, pre-award” process.  Consequently, MBI located a document developed by the Des Moines Community School District which can be accessed through this site.  MBI decided to be proactive in the distribution of this document as members are seeing more public owners trying to attach illegal pre-qualification policies to project specifications.  Over the years, Iowa court opinions have determined that contractor pre-qualification is illegal.  Likewise, during the 2009 legislative session, MBI successfully defeated legislation that would have allowed public owners to incorporate a highly intrusive pre-qualification questionnaires into project specifications, which further enforced the premise that pre-qualification is not legal under Iowa’s competitive bidding statute. 

The contractor qualifications document, as written and un-modified, is an acceptable legal document and can be accessed through the MBI website.  To download a copy of MBI post-bid, pre-award contractor qualification document, please CLICK HERE.