Purchasing Case Law: What Is A Minor Irregularity and Variance?

The courts have held that government entities have wide discretion in the determination of irregularities and variances. 

By Kirk Buffington, CPPO, C.P.M., MBA
Director of Procurement Services
City of Fort Lauderdale, FL

A citation of a case, as shown below, is simply a method used by the courts for listing the case, and provides a quick reference for finding the actual case law. In the case below, the citation is in parentheses as shown:

(417 So.2d. 1032) this refers to volume 417 of the Southern Reporter, 2nd edition, page 1032

Robinson Electric, Co. v. Dade County (417 So.2d. 1032) 1982

The Dade County Housing Authority issued a bid for renovation of a housing project. Part of the bid specifications required the submission of a bid bond OR a certified check OR a bank draft, in the amount of five percent of the total bid. In a subsequent addendum, it was stated that security shall be in the form of a five percent bid bond.

At the bid opening Robinson was the apparent low bidder, and had submitted his bid security in the form of a cashier’s check (not in accordance with the instructions of the addendum).

The County Commission awarded the contract to Robinson. However, the number three bidder, Markowitz, filed for injunction (withhold award), arguing that Robinson’s bid could not be accepted because the bond supplied by Robinson was not the proper form as required by the addendum.

The trial court agreed with Markowitz, finding Robinson’s bid non-responsive because it lacked the required form of security. The court ordered the county to reissue the bid

At issue is whether the Housing Authority can waive the requirement on the form of bid bond as a minor technicality.

Findings:

The Appeals Court reversed the trial court and ordered the award be reinstated to Robinson, stating:

         "Finding that Robinson’s bid substantially complied with the County’s 
          Advertisement for Bid, we reverse the trial court’s order vacating the
          award of contract to Robinson and reinstate the award."

The Appeals Court found that although a bid containing a material variance is unacceptable, not every deviation from the invitation is material.

In determining whether a specific non-compliance constitutes a substantial and hence, nonwaivable irregularity, the courts have applied two criteria:

•  If the effect of a waiver would be to deprive the City of its assurance that
   the contract will be entered into, performed and guaranteed according
   to its specified requirements

•  If the waiver would adversely affect competitive bidding by placing a bidder
   in a position of advantage over other bidders or by otherwise undermining
   the common standard of competition.

In this context, a variance is material if it gives the bidder a substantial advantage over the other bidders and thereby restricts or stifles competition.

The courts concluded that no irregularity existed, and it was apparent that competitive bidding was not in any way affected. It prevented no one from bidding, and all those who did bid were on equal footing, having the same opportunities to read and utilize the instructions.
 

New Webinar: Life Cycle Costing - How It Can Benefit Your Agency!

Thursday, April 5, 2007
1PM - 2:30 PM EST
Registration Deadline:  Wednesday, March 28

By using the Life Cycle Costing (LCC)/Total Cost of Ownership (TCO) model, an organization can evaluate the best value of a procurement to determine which commodity or service provides the optimum return on investment.

Course Objectives:

•  Understand the basic concepts of Life Cycle Costing (LCC)/Total Cost of 
   Ownership (TCO)
•  Identify the primary and secondary needs of the client/user components
•  Incorporate the needs of the client/user into appropriate solicitation
   evaluation criteria
•  Apply the LCC/TCO principles in evaluating proposals

Register Today.

                                   Presented By:  
                               
                         Ken Hayslette, CPPO, C.P.M.

Ken Hayslette is a trainer, speaker, and writer with over 33 years of experience in purchasing and contracting – 13 years in the electronics industry and over 20 years in the public sector. He has served as the Director for two large county governments with some very diverse stakeholders. Ken is currently in private practice providing educational and consulting services to individuals, public and private organizations. He also serves as an ethics counselor for two large not-for-profit organizations.
 

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P-Card Webinar Series: New Dates and New Presenter

                                         Presented By:  
                                          Lynn Larson  
                   Manager, Industry Information and Research  
                            
Ms. Larson has been with NAPCP since September 2003 and has been in the Purchasing Card industry for nearly nine years.  Lynn speaks on Purchasing Card topics at NAPCP events as well as events held by other organizations. [ return to top ]

Invitation To Attend Spring BOD Meeting

The NIGP Board of Directors will meet for their Spring 2007 Board Study Session and Official Meeting on April 20 - 21, 2007 at the Westin Charlotte in Charlotte, North Carolina - NIGP's host hotel for the 2008 Forum and Products Exposition.

These meetings each Spring traditionally cover any modifications to the Institute's strategic plan, revisions to the Board's policies and practices, adoption of the Institute's budget, and election of officers for the next fiscal year. The Board Study Session will be held on Friday afternoon, April 20 and the Board will conduct its official business meeting on Saturday, April 21. The agendas for both sessions will be posted on NIGP's Website approximately 30 days prior to the meeting.

NIGP’s members are cordially invited to attend these meetings of the Board of Directors.  Direct queries regarding the meeting to Sandy Riggs at 800-FOR-NIGP x243 or sriggs@nigp.org.  For lodging information, contact LaWann Terry at 800-FOR-NIGP x242 or lterry@nigp.org.
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Instructor Talent Search

Am I ready to stand out among my peers?
Am I ready to be the face of change?
Am I ready to share my insight, experiences and talent?
Am I ready to have a vital role in educating the procurement community?

If you answered ‘yes’ to any or all of these questions, then you may have what it takes to become an NIGP Instructor.  NIGP relies on its talented instructor team to develop, cultivate and communicate the best practices and new ideas that influence the development of the profession.

NIGP Instructors are:

• Motivated • Committed • Inspired • Experienced • Knowledgeable

Qualifications of an NIGP Instructor:

• Candidate must hold a CPPO or CPPB designation.
• Successful completion of the NIGP Train-the-Trainer Seminar.
• Completion of three NIGP Student Training experiences with a customer
  approval rating of 90 percent or above.
• Possess work-related experience and a broad range of information and
  understanding in the subject matter taught.
• Ability to communicate subject matter through various teaching methods 
  to facilitate the student’s ability to gain insight, knowledge, skill and/or
  ability in the area of concentration.

Start the Process:

Becoming an NIGP Instructor begins by completing and submitting the Instructor Training Application.

Make a difference in the lives of public procurement professionals.
Join the NIGP team of talented instructors.

Qualified applicants will be invited to attend the upcoming Train-the-Trainer on April 18 - 20 in Herndon, Virginia. [ return to top ]

NIGP Star Of The Month

Michael Romero Awarded The February NIGP Star

Michael joined NIGP in July of 2001 as an intern assistant.  Today, he is the Events Registrar for the Meetings department and reports to Carrie Rawn, Meetings Director.

Michael plays a vital role at NIGP by providing registration to exhibitors (Forum), as well as all NIGP seminars.  He is the 'go to' person.  Michael is a database expert with a knack for streamlining processes.  Some of Michael's recent acccomplishments include updating the seminar registration information on the Website, promoting the GCC certificate program and courses as well as initiating the Exhibitor newsletter.

Michael received the NIGP STAR for his dedication and commitment to the Core Values of NIGP and as expressed by a staff member

...He is always making processes more efficient - which in the long run helps all of us get through the 'clogs' easier and faster every day!

NIGP's STAR employee recognition program gives SPECIAL THANKS AND RECOGNITION to key team members.  The program encourages staff to recognize fellow colleagues for their valuable support of our members, constituents, and staff. What makes this program special is the fact that STARs are recognized by their peers and the criteria selection is based on NIGP core values that include:

• Professionalism
• Ethical behavior
• Customer Service
• Diversity and its benefits
• Innovation
• Collaboration and the synergy it provides
• Excellence in leadership

Congratulations Michael!



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Special Opportunity For NIGP Code Users

Periscope Holdings, Inc. announces the first NIGP Code Essay Contest

Periscope Holdings, Inc. is proud to launch the first NIGP Code Essay Contest, giving voice to the many agencies that successfully employ the Code to improve agency effectiveness and demonstrate value back to their communities.

This contest is your opportunity to share your agency’s success, realized through the use of the Code.  The top two submissions will receive a substantial credit* applied to their NIGP Forum registration.

The essay focus for this inaugural year is:  

      How has the NIGP Code enhanced your organization’s efficiency?

Essays should be a maximum of two pages. Submissions must be received no later than April 20, 2007 in an electronic format that includes the author's name, agency name, address, e-mail, and phone number.  Send your entry via e-mail to etorgerson@goperiscope.com.  Should you wish to submit a hard copy essay, mail your submission, along with a CD containing the document file, to:  Emily Torgerson, Director of Marketing, Periscope Holdings, Inc., 319 Congress Avenue, Suite 200, Austin, Texas, 78701.

Any questions regarding the essay contest should be directed to Emily Torgerson at etorgerson@goperiscope.com or (512) 472-9062 x241.

A select panel of NIGP Code current users and non-users will judge the essays based on originality, message/content, focus, clarity, and grammar.

Winners of the essay contest will be notified by mail and recognized in Periscope and NIGP publications, published on the NIGP.com and NIGP.org Web sites, and announced at the NIGP Annual Forum & Products Exposition in Hartford, CT, August 4-8, 2007.

Submission indicates your permission to publish as outlined above.

* The winning author will receive a credit of up to $625, which will be applied to their NIGP Annual Forum Registration Fee.  The runner-up will receive a partial credit of up $312.50, which will be applied to their NIGP Annual Forum Registration Fee.

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Time To 'Rake In' Submissions To IFPSM's Maple Leaf Award

Representing 42 purchasing and supply associations and nearly 200,000 purchasing professionals around the globe, the International Federation of Purchasing and Supply Management (IFPSM) has announced the theme for this year's professional writing contest in conjunction with the annual Maple Leaf Award competition.  As a prominent member association of the Federation, NIGP endorses the Maple Leaf Award and encourages its members to fully participate in this competition.

Envisioned by the Purchasing Management Association of Canada (PMAC) and adopted by IFPSM in 1977, this competition is open to all professionals regardless of membership. The program is designed to stimulate the sharing of purchasing/materials management ideas and knowledge by procurement professionals worldwide with the submission of scholarly professional papers.

This year's theme is “What Is The Role Of Procurement/Supply Chain In Driving Enterprise Competitive Advantage?”   Professionals are encouraged to share their knowledge and expertise of the selected topic by submitting a 3,500 to 4,500-word professional paper no later than May 18, 2007.  Manuscripts should be sent via e-mail as a Microsoft Word document attachment to the IFPSM Director General, Jack Wagner, johnwagner@bellsouth.net.  If you are unable to submit your manuscript by e-mail, please submit the paper on CD-ROM in Microsoft Word.  The mailing address is:  IFPSM Director General, P.O.Box 88450, Atlanta, Georgia 30356 USA.

The document must include the full name of the author, title, address, daytime telephone number, e-mail address, and a brief biographical sketch.  For complete submission requirements and evaluation process, please reference the Maple Leaf Award information page on www.ifpsm.com.

The award winner will be announced at the Fall IFPSM meeting in Buenos Aires (date to be determined). For additional information on the Maple Leaf Award competition, please contact Sandy Riggs, NIGP’s Executive Assistant, at (800) FOR-NIGP ext. 243 or by email at sriggs@nigp.org. [ return to top ]

Fully Certified? Be Recognized!

                           

Through its Fully Certified Agency Award program, the Universal Public Purchasing Certification Council (UPPCC) identifies organizations that have earned the distinguished and unique honor of achieving and/or maintaining a UPPCC fully  certified public procurement staff. 

The UPPCC believes that having a fully certified procurement staff is a significant accomplishment and a strong indicator of current trends within state and local governments. This is an annual award and interested agencies must apply each year for consideration.

This award program was developed to recognize those organizations that have made a concerted effort to achieve procurement excellence.  It should be noted that the UPPCC has specific requirements that must be met in order to be awarded the Certified Professional Public Buyer (CPPB) or Certified Public Purchasing Officer (CPPO) designation. Criteria are based on formal education, continuing education, public sector employment experience as well as successful examination performance. Detailed certification requirements may be found in the UPPCC Certification Handbook and on the UPPCC Website at www.uppcc.org.

Historically, fully certified agencies have been recognized on an annual basis at the National Institute of Governmental Purchasing (NIGP) Forum and Products Exposition. The Council recognized twenty-seven fully certified agencies at the 2006 event and also launched the next level of achievement for the awards program. The “Sterling Agency” award level recognizes those agencies who have maintained a fully certified procurement staff for three consecutive years.

As the fully certified awards program continues to evolve, opportunities for further refinement present themselves. Currently agencies have only a limited window of opportunity each year to apply for recognition (March 1 – June 1). If the agency experiences staff turnover or departmental growth causing vacancies during that time their chances for fully certified recognition for that year could be eliminated. Furthermore, missing one year of recognition can represent a significant setback for an agency pursuing the new Sterling Agency status.

For this reason, the UPPCC has reviewed the awards program policies and are implementing changes effective for 2007.

Application Process

The application for fully certified recognition will be available on a continuous basis allowing agencies to apply at any time during a given calendar year for recognition. Agencies must apply by the end of the calendar year in order to receive recognition for that year. To be included in the award announcements at the 2007 NIGP Annual Forum in Hartford, Connecticut, August 4-8, the UPPCC must receive your application for processing no later than June 1, 2007. Successful agencies who submit applications after June 1 will be provided to NIGP for inclusion in their 2008 program. To apply, access the application and complete the form in its entirety and submit it to UPPCC.

Fully Certified Awards

The agency must submit an application to receive recognition at anytime during the calendar year. The recognition is valid only for the current calendar year in which the agency applies regardless of the month during the year in which the application was received by the UPPCC. The agency must reapply for recognition in each subsequent calendar year to maintain their fully certified status. The maintenance of fully certified status is important for those agencies pursuing the Sterling Agency Award. Agency recognition for fully certified is in the form of a framed certificate bearing the agency’s name and the calendar year in which the recognition was earned. A list of fully certified agencies will be maintained on the UPPCC website.

Sterling Agency Awards

The agency must submit an application and receive recognition as a fully certified agency for three consecutive years.  For example an agency receiving the Sterling Agency Award in 2007 would have applied and received confirmation of earning the fully certified award for that agency in 2005, 2006 and 2007. There is no additional application to complete for Sterling Agency. The UPPCC issues the Sterling Agency Award to individual agencies based on historical records of previous applications and subsequent awards. The agency will automatically be issued the Sterling Agency Award in addition to the Fully Certified Award during the calendar year in which the agency files their third consecutive fully certified application and receives recognition by the UPPCC.

The UPPCC invites qualifying organizations to Apply for Recognition in 2007.

For additional information, address questions to: certification@uppcc.org or call 800-367-6447 x236.

  
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