Current through Register Vol. 51, No. 6, March 22, 2024
A.
General.
(1) Solicitations on all State
construction contracts when the contract is expected to exceed $100,000 require
the submission of bid security in an amount equal to at least 5 percent of the
amount of the bid or price proposal except that, for bids stating a rate but
not a total cost, the bid bond shall be in an amount as determined by the
procurement officer. Bid security or evidence of the posting of bid security
shall be submitted with the bid or proposal. Bid bonds may be required for any
other procurement over $50,000, as determined by the procurement officer. If a
contractor fails to accompany its bid with the required bid security, the bid
shall be considered nonresponsive and rejected except as provided by
§§B and D of this regulation.
(2) A procurement officer may require a bid
security for a bid or proposal for services, supplies, maintenance, or
construction-related services if the contract is expected to exceed $50,000.
The procurement officer shall set the amount of the security.
B. Failure to Comply. If bid
security is provided by a bidder in an amount less than that required by this
regulation, the bid shall be rejected as nonresponsive, unless the procurement
officer determines that the deficiency in the amount of security provided is
insubstantial and acceptance is in the best interests of the State, and that:
(1) Only one bid or proposal was received,
and there is insufficient time to rebid the contract;
(2) The bid security became inadequate as a
result of the correction of a mistake in the bid or proposal, or as a result of
a modification in the bid or proposal in accordance with applicable
regulations, and the bidder or offeror increased the amount of bid security to
required limits within 48 hours after the correction or modification;
or
(3) After consideration of the
risks involved and the difference between the lowest bid and the next lowest
bid, fiscal advantage could reasonably be expected to accrue to the State from
acceptance of the lowest bid.
C. Withdrawal of Bid or Proposal Before
Award. If a bidder or offeror is permitted to withdraw a bid or proposal before
award because of a mistake in the bid or proposal, action may not be taken
against the bid security. Otherwise, action may be taken against the bid
security of a bidder or offeror that withdraws a bid or offer.
D. Forms of Bid Bonds.
(1) The preferred form of a bid bond is as
follows:
BID BOND
Bond No.
We, ___________ as Principal, hereinafter called the
Principal, and ________________, a corporation duly organized under the laws of
the State of _____________, as Surety, hereinafter called the Surety, are held
and firmly bound unto the State of Maryland, hereinafter called "State", for
the sum of ________ for the payment of which sum, the Principal and the Surety
bind ourselves, our heirs, executors, administrators, successors and assigns,
jointly and severally, firmly by these presents.
WHEREAS, the Principal has submitted a bid for (Identify
project by number and brief description):
NOW, THEREFORE, if the Principal, upon acceptance by the
State of its bid identified above, within the period specified therein for
acceptance (ninety (90) days, if no period is specified), shall execute such
further contractual documents, if any, and give such bond(s) as may be required
by the terms of the bid as accepted within the time specified (ten (10) days if
no period is specified) after receipt of the forms, or in the event of failure
so to execute such further contractual documents and give such bonds, if the
Principal shall pay the State the difference not to exceed the penalty hereof
between the amount specified in Principal's bid and such larger amount for
which the State may in good faith contract with another party to perform the
work covered by said bid, then the above obligation shall be void and of no
effect.
The Surety executing this instrument hereby agrees that its
obligation shall not be impaired by any extension(s) of the time for acceptance
of the bid that the Principal may grant to the State, notice of which
extension(s) to the Surety being hereby waived; provided that such waiver of
notice shall apply only with respect to extensions aggregating not more than
ninety (90) calendar days in addition to the period originally allowed for
acceptance of the bid.
In Presence of:
Witness
|
Individual Principal
___________________
(Name) |
| ________________ as to |
_________________ (SEAL) |
In Presence of:
Witness
|
Partnership Principal
___________________
(Name) |
| ________________ as to |
________________(SEAL)
Partner |
| ________________ as to |
________________ (SEAL)
Partner |
| ________________ as to |
________________ (SEAL)
Partner |
Attest:
|
Corporate Principal |
| ________________ |
______________________
(Name of Corporation)
AFFIX
|
Secretary
|
By: ________________
President SEAL |
________________
(Surety) AFFIX |
| Attest |
| ________________ |
By: ________________
Attorney-in-fact
SEAL |
| Bonding Agent's Name
__________________________________ |
| Agent's Address
_______________________________________ |
| Approved as to form and legal sufficiency this __ day
of________, 20__ |
| Assistant Attorney General
__________________________________ |
(2)
Unless prohibited by the solicitation, a bid bond on a form other than the
preferred form under §D(1) of this regulation may be accepted if the form
provides that the principal and the surety shall be liable under the bond in an
amount at least equal to the difference between the amount of the principal's
bid and such other amount or amounts for which the obligee may contract with
another party to perform as required by the solicitation for which the
principal's bid was submitted.
(3)
Extensions of Time for Acceptance of Bid.
(a)
In this subsection, "acceptance period" means the period during which bids
remain irrevocable as provided in the solicitation or in COMAR
21.05.02.19A.
(b) If a solicitation requires a
bid bond to contain consent of the surety to an extension of the acceptance
period and the bid bond fails to meet that requirement, the bid:
(i) May not be rejected as nonresponsive on
that basis alone during the acceptance period; and
(ii) Shall be rejected as nonresponsive if
written consent to an extension has not been provided by the bidder and the
surety during the acceptance period or an additional period of time set by the
procurement officer which is approved by the head of the procurement
agency.
(4)
Authenticity and Enforceability of Powers of Attorney.
(a) Any person signing a bid bond as an
attorney-in-fact shall include with the bid bond evidence of authority to bind
the surety.
(b) An original, or a
photocopy or facsimile of an original, power of attorney is sufficient evidence
of such authority.
(c) For purposes
of this section, verified electronic, mechanically-applied and printed
signatures, seals and dates on the power of attorney shall be considered
original signatures, seals and dates, without regard to the order in which they
were affixed.
(d) The procurement
officer shall:
(i) Treat the failure to
provide a signed and dated power of attorney at the time of bid opening as a
matter of responsiveness; and
(ii)
Treat questions regarding the authenticity and enforceability of the power of
attorney at the time of bid opening as a matter of responsibility. These
questions are handled after bid opening.
(e) If the procurement officer contacts the
surety to validate the power of attorney, the contracting officer shall
document the file providing, at a minimum, the following information:
(i) Name of person contacted;
(ii) Date and time of contact; and
(iii) Response of the surety.
(f) If, upon investigation, the
surety declares the power of attorney to have been valid at the time of bid
opening, the procurement officer may require correction of any technical error
with the power of attorney.
(g) If,
upon investigation, the surety declares the power of attorney to have been
invalid, the procurement officer shall determine the bid to be nonresponsive
and not allow the bidder to substitute a replacement power of attorney or a
replacement surety.
