The Ohio Court of Appeals upheld the trial court's affirmation of the Columbus Regional Airport Authority ("Airport") rejection of the bid of a contractor the Airport found was non-responsible. The current case cite is 2012_Ohio_App_LEXIS_14 and it can be found here.
Glidepath, LLC submitted a bid for construction of two buildings to be located behind the main terminal at the Port Columbus International Airport. The construction project was to be part of a larger project which was highly interdependent with the building construction. The total estimated cost of the project as a whole was estimated at $55 million dollars. Part of the project consisted of the building construction which was the subject of Glidepath's bid.
Glidepath's bid was for $13,674,797. It was the low bid. Glidepath was also found to have submitted a responsive bid. However, after review of Glidepath's background, an 11 member evaluation committee determined that Glidepath was not a responsible bidder. Glidepath appealed the determination first at the administrative level, lost, then in trial court, lost, then on appeal.
On appeal, Glidepath argued that the Airport used previously unannounced criteria to determine whether it was a responsible bidder, then misapplied even these unannounced standards in rejecting Glidepath's bid. Glidepath argued that its ability to procure a performance bond should have mooted questions about its responsibility.
The Ohio Court of Appeals rejected these arguments, holding first that the standards for responsibility were set forth with sufficient clarity in the procurement statute, which required review of the bidder's experience, financial condition, conduct and performance on previous contracts, facilities, management skills, and ability to execute the contract properly. These criteria by their nature required some qualitative analysis, however they were sufficiently clear and reasonable to avoid any allegation of impermissible or unconstitutional vagueness.
Moreover, the court held, the standards were not misapplied. Determinations regarding Glidepath's financial condition, its conduct and performance on prior contracts, and its management skills, dictated the finding of nonresponsibility. In particular, Glidepath appeared to have misrepresented financial information during an initial meeting, Dun & Bradstreet, the agency providing information regarding the financial standard and credit rating of businesses, ranked Glidepath a "2" (out of 100 — the lower the number, the higher the risk), for financial riskiness, Glidepath had an unofficial reputation as being litigious, and its stated project manager lacked experience.
The court of appeals found all of these constituted proper measurements for determining bidder responsibility, and accordingly found Glidepath's claims were unfounded.
Because of this finding, the court refused to make a "moot" finding of whether a performance bond constituted sufficient evidence of responsibility under the code.
Hawaii's procurement code likewise requires that competitive bids be awarded to the lowest responsive and responsible bidder. This case provides an example of procurement authorities using the responsibility requirement to inject some of the "best performance" practices the City has recently indicated it would like to involve in Hawaii's bids.
With a current standing duty to determine whether bidders are responsible, i.e. capable of completing the stated work, it is questionable whether the procurement code does in fact need to be altered in order to afford procurement officials the ability to reject otherwise low and responsive bidders who are clearly not up to the tasks they have sought to undertake.