Current through Register Vol. 48, No. 38, September 20, 2024
a)
Application
Competitive sealed bidding is the required method of source
selection except as allowed by the Code and this Part. The provisions of this
Section apply to every procurement required to be conducted by competitive
sealed bidding.
b) The
Invitation for Bids
1) Use. The IFB is used to
initiate a competitive sealed bid procurement.
2) Content. The IFB shall include, at a
minimum, the following:
A) instructions and
information to bidders concerning the bid submission requirements, including
the time and date set for receipt of bids, the address of the office to which
bids are to be delivered, the maximum time for bid acceptance by the State, and
any other special information such as the time and place of any pre-bid
conference;
B) the purchase
description, evaluation factors, delivery or performance schedule, and such
inspection and acceptance requirements as are not included in the purchase
description; and
C) the contract
terms and conditions, including warranty and bonding or other security
requirements, as applicable.
3) Incorporation by Reference. The IFB may
incorporate documents by reference provided that the IFB specifies where such
documents can be obtained.
c) Bidding Time
Bidding time is the period of time between the date of notice
or distribution of the IFB and the time and date set for receipt of bids. In
each case, bidding time will be set to provide bidders a reasonable time to
prepare their bids. A minimum of 14 days shall be provided unless a shorter
time is allowed in this Part.
d) Bidder Submissions
1) Bid Form. The IFB shall provide a form
that shall include space in which the bid price shall be inserted and that the
bidder shall sign and submit along with all other necessary
submissions.
2) Bid Samples and
Descriptive Literature
A) Bid samples or
descriptive literature may be required when it is necessary to evaluate
required characteristics of the items bid.
B) Unsolicited bid samples or descriptive
literature are submitted at the bidder's risk, may not be examined or tested,
will not be deemed to vary any of the provisions of the IFB, and may not be
utilized by the vendor to contest a decision or understanding with the
State.
e)
Public Notice
1) Publication. Every
procurement for goods and services in excess of $25,000 that must be procured
using an IFB shall be publicized in the Bulletin (see Section
1300.1510
).
2) Public Availability. A copy
of the IFB shall be made available for public inspection.
3) Distribution. IFB or Notices of the
Availability of IFB may be mailed or otherwise furnished to a sufficient number
of bidders for the purpose of securing competition. Notices of Availability
shall indicate where IFB may be obtained; generally describe the supply or
service desired; and indicate the due date for bids; and may contain other
appropriate information such as pre-bid conference data. Where appropriate, the
Procurement Officer may require payment of a fee or a deposit for the supplying
of the IFB.
f) Pre-Bid
Conferences
Pre-bid conferences may be conducted to enhance understanding
of the procurement requirements. They shall be announced to all prospective
bidders known to have received an IFB. The conference may be designated as
attendance mandatory or attendance optional. The conference should be held long
enough after the IFB has been issued to allow bidders to become familiar with
it, but sufficiently before bid opening to allow consideration of the
conference results in preparation of bids. Nothing stated in the pre-bid
conference shall change the IFB unless a change is made by written amendment to
the IFB. Minutes of the conference shall be supplied to all those prospective
bidders known to have received an IFB. If the conference is mandatory, the
minutes shall be supplied to attendees only.
g) Amendments to Invitations for Bids
1) Form. Amendments to IFB shall be
identified as such and shall require that the bidder acknowledge receipt of all
amendments issued. The amendment shall reference the portions of the IFB it
amends.
2) Distribution. Amendments
shall be sent to all prospective bidders known to have received an
IFB.
3) Timeliness. Amendments
shall be distributed within a reasonable time to allow prospective bidders to
consider them in preparing their bids. If the time and date set for receipt of
bids will not permit such preparation, the amendment shall extend the response
time. If necessary, the response time may be extended by fax or telephone and
confirmed in the amendment.
h) Pre-Opening Modification or Withdrawal of
Bids
1) Procedure. Bids may be modified or
withdrawn by written notice received in the office designated in the IFB prior
to the time and date set for bid opening. A fax modification or withdrawal, or
withdrawal received by telephone prior to the time and date set for bid
opening, will be effective if followed in writing.
2) Disposition of Bid Security. If a bid is
withdrawn in accordance with this Section, the bid security, if any, shall be
returned to the bidder.
3) Records.
All documents relating to the modification or withdrawal of bids shall be made
a part of the appropriate procurement file.
i) Receipt, Opening and Recording of Bids
1) Receipt. Upon its receipt, each bid and
modification shall be time-stamped but not opened and shall be stored in a
secure place until the time and date set for bid opening. If a bid is opened in
error, the file shall so state.
2)
Opening and Recording
A) Bids and
modifications shall be opened publicly or through an electronic procurement
system, in the presence of one or more witnesses, at the time, date, and place
designated in the IFB. Opening shall be witnessed by a State employee or any
other person present, but the person opening bids shall not serve as witness.
The name of each bidder, the bid price, and such other information as is deemed
appropriate by the Procurement Officer shall be recorded and the name of each
bidder read aloud or otherwise made available. The names of required witnesses
shall also be recorded at the opening.
B) The winning bid shall be available for
public inspection after award, along with the record of the other
bids.
3) Confidential
Data. The Procurement Officer shall examine the bids to determine the validity
of any requests for nondisclosure of trade secrets and other proprietary data
identified in writing. If the parties do not agree as to the disclosure of data
or other information, the bid shall be rejected as nonresponsive.
j) Bid Evaluation and
Award
1) General. The contract is to be
awarded to the lowest responsible and responsive bidder whose bid meets the
requirements and criteria set forth in the IFB, except as permitted in this
Section. The IFB shall set forth the requirements and criteria that will be
used to determine the lowest responsive bidder. No bid shall be evaluated for
any requirements or criteria that are not disclosed in the IFB.
2) Responsibility. Responsibility of
prospective contractors is covered by Section
1300.2046.
3) Responsiveness. Section 15-85 of the Code
defines
responsive bidder as
a person who has
submitted a bid that conforms in all material respects to the Invitation for
Bids.
A) Product or Service
Acceptability. The IFB shall set forth any evaluation criteria to be used in
determining product or service acceptability. It may require the submission of
bid samples, descriptive literature, technical data, references, licenses, or
other information or material. It may also provide for accomplishing any of the
following prior to award:
i) inspection or
testing of a product or service prior to award for such characteristics as
quality or workmanship;
ii)
examination of such elements as appearance, finish, taste, or feel;
or
iii) other examinations to
determine whether it conforms with any other purchase description
requirements.
B) The
acceptability evaluation is not conducted for the purpose of determining
whether one bidder's product or service capability is superior to another, but
only to determine that a bidder's offering is acceptable as set forth in the
IFB. Any bidder's offering which does not meet the acceptability requirements
shall be rejected.
4)
Determination of Lowest Bidder. Following determination of product or service
acceptability as set forth in this subsection (j), bids will be evaluated to
determine which bidder offers the lowest cost to the OAG in accordance with the
evaluation criteria set forth in the IFB. Only objectively measurable criteria
that are set forth in the IFB shall be applied in determining the lowest
bidder. Examples of such criteria include, but are not limited to,
transportation cost and ownership or life-cycle cost formulas. While evaluation
factors need not be precise predictors of actual future costs, they should be,
to the extent possible, reasonable estimates based upon information the OAG has
available concerning future use and shall provide for equitable treatment of
all bids. Pricing for optional goods or services or for renewal terms may be
considered particularly when the pricing for such items or terms is unbalanced
when compared to other pricing in the bid.
5) Price Negotiation. This Section permits
negotiations with the low bidder to obtain a lower price for the item bid.
k) Documentation of
Award
Following award, a record showing the successful bidder shall
be made a part of the procurement file.
l) Award to Other Than Low Bidder
1) The Procurement Officer may award to other
than the lowest responsible and responsive bidder upon a written determination
that award to another bidder is in the State's best interest. The written
explanation must be published in the appropriate volume of the
Bulletin.
2) This action may be
appropriate when the difference in quality of goods or services or speed of
delivery is so great as compared to the difference in price, and considering
the needs of the OAG, that a best value award is justified. However, if the
difference in price is significant, the Procurement Officer may not utilize
this provision.
3) The explanation
must include:
A) a description of the OAG's
needs;
B) a determination that the
anticipated cost will be fair and reasonable;
C) a listing of all reasonable and responsive
bidders; and
D) the name of the
bidder selected, pricing and the reasons for selecting that bidder.
4) The explanation shall be filed
with the Legislative Audit Commission and the OAG PPCMB.
m) Publicizing Award
The successful bidder shall be notified of award and such
notification may be in the form of a letter, purchase order or other clear
communication. In procurements over the small purchase limit set in Section
1300.2020 of this
Part, notice of award shall be published in the
Bulletin.
