Current through Bulletin 2024-18, September 15, 2024
(1) In General. Competitive sealed bidding,
which includes multi-step sealed bidding, shall be an allowable method for the
procurement of construction when a single prime contractor is used. Other
methods may be considered for procurement of construction when the executive
director determines that it best meets the needs for the project. For all other
goods, supplies and services, contracts shall be awarded by competitive sealed
bidding expect as otherwise provided in R131-4. An invitation for bids shall be
issued when a contract is to be awarded by competitive sealed bidding. The
invitation shall include a purchase description and all contractual terms and
conditions applicable to the procurement.
(2) Public Notice of Invitations for Bids.
(a) Public notice of invitations for bids
shall be publicized electronically on the Internet, and may be publicized in
any or all of the following as determined appropriate:
(i) In a newspaper having general circulation
in the area in which the project is located;
(ii) In appropriate trade
publications;
(iii) In a newspaper
having general circulation in the state; or
(iv) By any other method determined
appropriate.
(b) A copy
of the public notice shall be available for public inspection at the principal
office of the board in Salt Lake City, Utah.
(3) Content of the Public Notice to
Contractors for Invitation For Bids. The public notice to contractors for
invitation for bids (herein referred to as the "Notice") shall include the
following:
(a) The closing time and date for
the submission of bids;
(b) The
location to which bids are to be delivered;
(c) Directions for obtaining the bidding
documents;
(d) A brief description
of the project; and
(e) Notice of
any mandatory pre-bid meetings.
(4) Bidding Time. Bidding time is the period
of time between the date of the first publication of the public notice and the
final date and time set for the receipt of bids by the executive director.
Bidding time shall be set to provide bidders with reasonable time to prepare
their bids and shall be not less than ten calendar days, unless a shorter time
is deemed necessary for a particular project as determined in writing by the
executive director.
(5) Bid Prices.
The bidding documents for an invitation for bids shall include a bid price form
having a space in which the bid prices shall be inserted and which the bidder
shall sign and submit along with all other required documents and materials and
may include qualification requirements as appropriate.
(6) Addenda to the Bidding Documents.
(a) Addenda shall be distributed or otherwise
made available to all entities known to have obtained bidding documents for a
project.
(b) Addenda shall be
distributed within a reasonable time to allow all prospective bidders to
consider them in preparing bids. If the time set for the final receipt of bids
will not permit appropriate consideration, the bidding time shall be extended
to allow proper consideration of the addenda. The person responsible for the
issuance of bidding documents shall confirm in writing, any addenda
communicated to bidders by telephone.
(7) Pre-Opening Modification or Withdrawal of
Bids.
(a) Bids may be modified or withdrawn by
the bidder by written notice delivered to the place designated in the notice
when bids are to be delivered prior to the time set for the opening of
bids.
(b) Bid security, if any,
shall be returned to the bidder when withdrawal of the bid is
permitted.
(c) All documents
relating to the modification or withdrawal of bids shall be made a part of the
appropriate project file.
(8) Late Bids, Late Withdrawals, and Late
Modifications. Any bid, withdrawal of bid, or modification of bid received
after the time and date set for the submission of bids at the place designated
in the notice shall be deemed to be late and shall not be considered, unless it
is the only bid received in which case it may be considered.
(9) Receipt, Opening, and Recording of Bids.
(a) Upon receipt, all bids and modifications
shall be stored in a secure place until the time for bid opening.
(b) Bids and modifications shall be opened
publicly, in the presence of one or more witnesses, at the time and place
designated in the invitation for bids. The names of the bidders, the bid price,
and other information deemed appropriate by the executive director shall be
read aloud or otherwise made available to the public. After the bid opening,
the bids shall be tabulated or a bid abstract made, including the amount of
each bid. The record (bid tabulation) and opened bids shall be available for
public inspection.
(10)
Mistakes in Bids.
(a) If a mistake is
attributable to an error in judgment, the bid may not be corrected. Bid
correction or withdrawal by reason of an inadvertent, nonjudgmental mistake is
permissible but only at the discretion of the executive director and only to
the extent it is not contrary to the interest of the board or the fair
treatment of other bidders.
(b)
When it appears from a review of the bid that a mistake may have been made, the
executive director may request the bidder to confirm the bid in writing.
Situations in which confirmation may be requested include obvious, apparent
errors on the face of the bid or a bid lower than the other bids submitted that
appears to have neglected some part of the project.
(c) Mistakes at Bid Opening. The executive
director shall weigh the types of factors described below in which mistakes in
bids are discovered after opening but before award. After the bid opening, no
changes in the bid prices or other provisions of bids prejudicial to the
interest of the board or fair competition may be permitted. These include:
(i) Minor formalities are matters which, in
the discretion of the board or executive director, are found to be of form
rather than substance evident from the bid document, or are insignificant
mistakes that can be waived or corrected without prejudice to other bidders and
with respect to which, in the executive director's discretion, the effect on
price, quantity, quality, delivery, or contractual conditions is not or will
not be significant. The executive director, in the executive director's sole
discretion, may waive minor formalities or allow the bidder to correct them
depending on which is in the best interest of the board. Examples include the
failure of a bidder to:
(A) Sign the bid, but
only if the unsigned bid is accompanied by other material indicating the
bidder's intent to be bound;
(B)
Acknowledge receipt of any addenda to the invitation for bids, but only if it
is clear from the bid that the bidder received the addenda and intended to be
bound by its terms; the addenda involved had a negligible effect on price,
quantity, quality, or delivery; or the bidder acknowledged receipt of the
addenda at the bid opening.
(ii) A determination by the executive
director that the mistake and the intended bid are clearly evident on the face
of the bid document. The bid shall be corrected to reflect the intent of the
bidder, and may not be withdrawn. Examples of mistakes that may be clearly
evident on the face of the bid document are typographical errors, errors in
extending unit prices, transposition errors, and arithmetical errors.
(iii) Approval to withdraw a low bid if the
executive director determines a mistake is clearly evident on the face of the
bid document but the intended amount of the bid is not similarly evident, or if
the bidder submits to the executive director proof of evidentiary value which,
in the executive director's best judgment, demonstrates that a mistake in
calculation or estimation was made.
(d) No bidder shall be allowed to correct a
mistake or withdraw a bid because of a mistake discovered after award of the
contract; provided, that mistakes of the types described in R131-4-401 may be
corrected or the award of the contract canceled if the executive director
determines that correction or cancellation will not prejudice the interests of
the board or fair competition.
(e)
The executive director shall approve or deny in writing all requests to correct
or withdraw a bid.
(11)
Bid Evaluation and Award. Except as provided below, the contract may be awarded
to the lowest qualified responsible and responsive bidder whose bid meets the
requirements and criteria set forth in the invitation for bids and no bid shall
be evaluated for any requirements or criteria that are not disclosed in the
bidding documents. A reciprocal preference shall be granted to a resident
contractor if the provisions of Section
63G-6-405
are met. Bids shall be evaluated based on the requirements set forth in the
invitation for bids, which may include 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 evaluation for award shall be objectively measurable. The
criteria may include discounts, transportation costs, and total or life cycle
costs.
(12) Cancellation of
Invitations For Bids; Rejection Of Bids in Whole or In Part.
(a) Although issuance of an invitation for
bids does not compel award of a contract, the executive director may cancel an
invitation for bids or reject bids received in whole or in part only when the
executive director determines that it is in the best interests of the board to
do so.
(b) The reasons for
cancellation or rejection shall be documented and made a part of the project
file and available for public inspection.
(c) Any determination of nonresponsibility of
a bidder shall be made by the executive director in writing. An unreasonable
failure of the bidder to promptly supply information regarding responsibility
may be grounds for a determination of nonresponsibility. Any bidder determined
to be nonresponsible shall be provided with a copy of the written determination
within a reasonable time. The board finds that it would impair governmental
procurement proceedings by creating a disincentive for bidders to respond to
inquiries of nonresponsibility, therefore information furnished by a bidder or
pursuant to any inquiry concerning responsibility shall be classified as a
protected record pursuant to Section
63G-2-305 and
may be disclosed only as provided for in
R131-4-411 A.
(13)
(a) All bids for a construction project
exceed available funds as certified by the appropriate fiscal officer, and the
low responsive and responsible bid does not exceed those funds by more than 5%,
the executive director may, in situations where time or economic considerations
preclude resolicitation of work of a reduced scope, negotiate an adjustment of
the bid price, including changes in the bid requirements, with the low
responsive and responsible bidder in order to bring the bid within the amount
of available funds.
(b)
Notwithstanding Subsection (13)(a), if all bids exceed the construction budget
by any amount, the executive director may take any action allowed by this rule
to award the contract to the lowest responsible and responsive bidder that will
complete the construction project within the amount of available
funds.
(c) This rule does not
restrict in any way, the right of the executive director to use any emergency
or sole source procurement provisions, or any other applicable provisions of
State law or rule which may be used to award the construction
project.
(14) Tie Bids.
Tie bids shall be resolved in accordance with Section
63G-6-426.
(15) Subcontractor Lists. The executive
director may provide for subcontractor list requirements in the invitation for
bids.
(a) Pursuant to Section
63G-2-305,
information contained in the subcontractor list submitted to the board or
executive director shall be classified public except for the amount of
subcontractor bids which shall be classified as protected until a contract has
been awarded to the bidder at which time the subcontractor bid amounts shall be
classified as public. During the time that the subcontractor bids are
classified protected, they may only be made available to procurement and other
officials involved with the review and approval of bids.
(b) Change of Listed Subcontractors. If the
executive director requires the submission of a subcontractor list with a
deadline, the contractor may change his submitted listed subcontractors only
after receiving written permission from the executive director based on
complying with all of the following:
(i) The
contractor has established in writing that the change is in the best interest
of the state and that the contractor establishes an appropriate reason for the
change, which may include, but is not limited to, the following reasons: the
original subcontractor has failed to perform, or is not qualified or capable of
performing, or the subcontractor has requested in writing to be
released;
(ii) The circumstances
related to the request for the change do not indicate any bad faith in the
original listing of the subcontractors;
(iii) Any requirement set forth by the
executive director to ensure that the process used to select a new
subcontractor does not give rise to bid shopping;
(iv) Any increase in the cost of the subject
subcontractor work shall be borne by the contractor; and
(v) Any decrease in the cost of the subject
subcontractor work shall result in a deductive change order being issued for
the contract for such decreased amount.
