NPM No. 110-2015
Requesting Entity: Aspen Multi-System Corp.
Issues Concern: Definition of "Similar" in Single Largest Completed Contract Similar to the Contract to be Bid (SLCC) and Prospective Bidder's Attendance in the Pre-Bid Conference
1. Whether the Procuring Entity (PE) can apply the definition of the word "similar" in SLCC requirement not on the goods to be procured but as to whom the goods were supplied to (i.e. the procuring entity do not consider supply of computers to a private high school similar to a supply of computers to a college)
[T]he PE is given the discretion to further define the word "similar" in SLCC requirement because it is in the best position to do so as it knows the technical components needed in the contract. However, such discretion is not without limit.
The definition or description should not unreasonably limit competition and inequitably bar participation of capable suppliers. Hence, similarity of contract should be interpreted liberally in the sense that it should not refer to an exact parallel, but only to analogous one of similar category. xxx. The word "similar" only refers to the contract to be bid or the object of the contract and does not include the parties to the contract. If the word "similar" will extend to the parties of the contract, the requirement will unreasonably limit competition and restrict participation of capable suppliers, which is not the intention of the law.
2. Whether the Procuring Entity (PE) can bar a prospective bidder who has not yet purchased the bidding documents from attending the pre-bid conference.
[T]he PE has the option to allow only those who have purchased the Bidding Documents to raise or submit written queries or clarifications during the pre-bid conference, but this does not include proscribing attendance of prospective bidders who have not yet purchased the Bidding Documents during the pre-bid conference.