In our house of chaos, rules are especially important. And when you don’t follow the rules—like no jumping on the furniture—you could end up with a lump on your head. Just ask Jackson.
In the world of government contracts, you know that rules, instructions, and directions should be followed precisely. In the case of Silver Bow Construction v. State of Alaska, the Alaska Supreme Court reviewed whether the State could find that a bidder whose bid exceeded the 10-page limit for bids could nonetheless be awarded the contract in question.
The Facts. In November 2010, the State issued a request for proposals to perform exterior renovations to the Governor’s House in Juneau. The request imposed specific submission requirements and guidelines. Paragraph 8 of the request included the instructions relevant to this appeal, which provided in part:
The maximum number of attached pages (each printed side equals one page) for criteria Responses shall not exceed: 10 pages.
Paragraph 8 warned that “Criteria Responses which exceed the maximum page limit or otherwise do not meet requirements stated herein, may result in disqualification.”
One contractor submitted a 7-page proposal; Silver Bow submitted a 10-page proposal; another contractor submitted an 11-page proposal; and Alaska Commercial Contractors (the awardee) submitted a 15-page proposal.
The Protest. Silver Bow protested the bid and argued that the over-length bid by Alaska Commercial was non-responsive and that the successful bidder should have been disqualified. The State countered that the page count was a matter of form and did not confer an advantage on the winning bidder.
The Opinion. On appeal, the Alaska Supreme Court concluded that the State reasonably found that the over-length bid did not confer an unfair advantage on the winning bidder. It then upheld the State’s bid award as being within its discretion, particularly where (by use of the permissive word “may” in Paragraph 8 of the instructions) the State had the discretion to decide whether a failure to comply with this requirement could be a basis for disqualification.
So What? The decision in Silver Bow highlights the distinction of substantive and non-substantive issues in a request for proposal. In the government contracts arena, where a bid received two minutes past a deadline is likely rejected, the decision may not make sense. However, you should make every effort to follow the instructions to bidders so as not to leave a lump on your head.