28-6923

28-6923. Bid requirements; procedure;
bond

A. All items of construction or reconstruction of department facilities involving
an expenditure of one hundred eighty-nine thousand dollars or more shall be called for by
advertising in a newspaper of general circulation published in this state for either:

1. Two consecutive publications if it is a weekly newspaper.

2. Two publications at least six but not more than ten days apart if it is a daily
newspaper.

B. In fiscal year 2008-2009 and each fiscal year thereafter, the amount provided in
subsection A of this section shall be adjusted by the annual percentage change in the GDP
price deflator as defined in section 41-563.

C. The advertisement shall state specifically the character of the work to be done
and where a person may obtain copies of the plans, specifications and complete
information as to the proposed work.

D. The bidding information provided shall state specifically the character of the
work to be performed and the kind, quantity and quality of materials or supplies to be
furnished. The plans and specifications:

1. Shall be sufficiently complete, definite and explicit to permit informed, free,
open and competitive bidding on a common basis.

2. May require performance on the basis of either means and methods specifications
or end result specifications.

3. If end result specifications are used, shall provide an objective or standard to
be achieved with the successful bidder expected to exercise the bidder's skill and
ingenuity in achieving that objective or standard of performance by selecting the means
and manner of performance and by assuming a corresponding responsibility for that
selection.

E. A bid shall be accompanied by a certified check, cashier's check or surety bond
for ten per cent of the amount of the bid included in the proposal as a guarantee that
the contractor will enter into a contract to perform the proposal pursuant to the plans
and specifications.

F. The certified check, cashier's check or surety bond shall be returned to the
contractors whose proposals are not accepted and to the successful contractor on the
execution of a satisfactory bond and contract as provided in this article.

G. The surety bond provided pursuant to subsection D of this section shall be
executed and furnished as required by title 34, chapter 2, and the conditions and
provisions of the surety bid bond regarding the surety's obligations shall follow the
form required under section 34-201, subsection A, paragraph 3.

H. If a bid that is satisfactory to the board is received, it shall let a contract
to the lowest responsible bidder, on the contractor giving performance and payment bonds
that follow the form and include the provisions required by title 34, chapter 2, article
2.

I. If the bids received for construction or reconstruction are not satisfactory to
the board, a second call shall be made. If they are again rejected by the board, it may
authorize the state engineer to construct or reconstruct the item as it deems most
advantageous.

J. In determining the lowest responsible bidder under this section, the department
and the board may consider the time of completion proposed by the bidder if the
department and the board determine that this procedure will serve the public interest by
providing a substantial fiscal benefit or that the use of the traditional awarding of
contracts is not practicable for meeting desired construction standards or delivery
schedules and if the formula for considering the time of completion is specifically
stated in the bidding information.

K. This section does not prohibit a change to a construction contract that either:

1. Does not alter the scope of the work under a contract and the cost of the change
does not exceed ten per cent of the contract amount or fifty thousand dollars, whichever
is greater.

2. Does alter the scope of the work if the cost of the change does not exceed ten
per cent of the contract amount or fifty thousand dollars, whichever is greater, and the
changed work is within twenty per cent of the total project length.

L. If a project is funded completely with private monies, the private entity is not
required to comply with subsections A through K of this section if the private entity
complies with all of the following:

1. Before advertising for bids, submits to the department a bond that is issued by
a surety insurer authorized to do business in this state and that is in an amount equal
to one hundred twenty-five per cent of the anticipated construction cost of the project,
including construction management and contractor costs.

2. Solicits sealed bids from at least four contractors who are prequalified by the
department to perform a contract of the anticipated dollar amount of the construction.

3. Awards the contract to the best bidder taking into account price and other
criteria as provided in the bid documents.

4. Obtains bonds from the selected contractor that provide the same coverage as
performance and payment bonds issued under title 34, chapter 2, article 2.

5. Uses department construction standards.

6. Pays all costs of department reviews of the contract and inspections of the
project.

M. For the purposes of this section, a project is funded completely with private
monies if all of the following apply:

1. The contractor is paid entirely with monies from private entities.

2. The private entities hire a competent construction manager and contractor who do
not have an affiliation with each other.

3. The private entities either pay all costs of design or reimburse the department
for all costs of design.