§103D-302  Competitive sealed bidding. (a)  Contracts shall be awarded by competitive sealed bidding except asotherwise provided in section 103D-301.  Awards of contracts by competitivesealed bidding may be made after single or multi-step bidding.  Competitivesealed bidding does not include negotiations with bidders after the receipt andopening of bids.  Award is based on the criteria set forth in the invitationfor bids.

(b)  An invitation for bids shall be issued,and shall include a purchase description and all contractual terms andconditions applicable to the procurement.  If the invitation for bids is forconstruction, it shall specify that all bids include the name of each person orfirm to be engaged by the bidder as a joint contractor or subcontractor in theperformance of the contract and the nature and scope of the work to beperformed by each.  Construction bids that do not comply with this requirementmay be accepted if acceptance is in the best interest of the State and thevalue of the work to be performed by the joint contractor or subcontractor isequal to or less than one per cent of the total bid amount.

(c)  Adequate public notice of the invitationfor bids shall be given a reasonable time before the date set forth in theinvitation for the opening of bids.  The policy board shall adopt rules whichspecify:

(1)  The form that the notice is to take;

(2)  What constitutes a reasonable interim betweenpublication and bid opening; and

(3)  How notice may be published, including publicationin a newspaper of general circulation, notice by mail to all persons on anyapplicable bidders mailing list, publication by any public or privatetelecommunication information network, or any other method of publication itdeems to be effective.

(d)  Bids shall be opened publicly in thepresence of one or more witnesses, at the time and place designated in theinvitation for bids.  The amount of each bid and other relevant informationspecified by rule, together with the name of each bidder shall be recorded. The record and each bid shall be open to public inspection.

(e)  Bids shall be unconditionally acceptedwithout alteration or correction, except as authorized in this chapter or byrules adopted by the policy board.

(f)  Bids shall be evaluated based on therequirements set forth in the invitation for bids.  These requirements mayinclude criteria to determine acceptability such as inspection, testing,quality, workmanship, delivery, and suitability for a particular purpose. Those criteria that will affect the bid price and be considered in evaluationfor award shall be objectively measurable, such as discounts, transportationcosts, and total or life cycle costs.  The invitation for bids shall set forththe evaluation criteria to be used.  No criteria may be used in bid evaluationthat are not set forth in the invitation for bids.

(g)  Correction or withdrawal of inadvertentlyerroneous bids before or after award, or cancellation of invitations for bids,awards, or contracts based on such bid mistakes, shall be permitted inaccordance with rules adopted by the policy board.  After bid opening nochanges in bid prices or other provisions of bids prejudicial to the interestof the public or to fair competition shall be permitted.  Except as otherwiseprovided by rule, all decisions to permit the correction or withdrawal of bids,or to cancel awards or contracts based on bid mistakes, shall be supported by awritten determination made by the chief procurement officer or head of apurchasing agency.

(h)  The contract shall be awarded withreasonable promptness by written notice to the lowest responsible andresponsive bidder whose bid meets the requirements and criteria set forth inthe invitation for bids.  In the event all bids exceed available funds ascertified by the appropriate fiscal officer, the head of the purchasing agencyresponsible for the procurement in question is authorized in situations wheretime or economic considerations preclude resolicitation of work of a reducedscope to negotiate an adjustment of the bid price, including changes in the bidrequirements, with the low responsible and responsive bidder, in order to bringthe bid within the amount of available funds.

(i)  When it is not practicable to initiallyprepare a purchase description to support an award based on price, aninvitation for bids, which requests the submission of unpriced offers to befollowed by an invitation for bids limited to those bidders whose offers havebeen qualified under the criteria set forth in the first solicitation, may beused.  If a multi-step sealed bidding process is used, the notice and theinvitation for bids shall describe each step to be used in soliciting,evaluating, and selecting unpriced offers. [L Sp 1993, c 8, pt of §2; am L1994, c 186, §9; am L 1995, c 178, §7; am L 1997, c 352, §23]

 

Case Notes

 

  Bidder’s submission of two bids in a sealed competitivebidding process that permitted submission of only one bid was a materialdeviation from the bid solicitation special conditions and nonresponsive; bidthus properly rejected.  89 H. 443, 974 P.2d 1033.

  Question of whether construction company complied with thebidding process requirements of this section was not moot as it involved amatter of public concern and was capable of repetition, yet likely to evadeappellate review.  99 H. 191, 53 P.3d 799.

  As prerequisites for board of water supply's exercise of itsauthority to waive the mandatory subcontractor listing requirement undersubsection (b) were indisputably present where board determined that it was inthe best interest of the State to do so, hearings officer erred in interpretingsubsection (b) to preclude waiver of a bidder's failure to list a subcontractorwho had not been "lined up" prior to bid opening.  101 H. 68 (App.),62 P.3d 631.

  Where contractor was required to use a licensed plumbingsubcontractor for the project and it was undisputed that contractor did notname in its bid a person or firm to be engaged by it as a plumbingsubcontractor for the project, contractor's bid was nonresponsive.  101 H. 68(App.), 62 P.3d 631.

  Where the record amply indicated that contractor had thecapability "in all respects to perform fully the contract requirements,and the integrity and reliability which will assure good faith performance",it was therefore a "responsible bidder" within the meaning of§103D-104 and this section.  101 H. 68 (App.), 62 P.3d 631.