January 20, 2019

Contractor Qualification

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.”

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