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

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

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

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

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

     (3)  How notice may be published, including publication in a newspaper of general circulation, notice by mail to all persons on any applicable bidders mailing list, publication by any public or private telecommunication information network, or any other method of publication it deems to be effective.

     (d)  Bids shall be opened publicly in the presence of one or more witnesses, at the time and place designated in the invitation for bids.  The amount of each bid and other relevant information specified 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 accepted without alteration or correction, except as authorized in this chapter or by rules adopted by the policy board.

     (f)  Bids shall be evaluated based on the requirements set forth in the invitation for bids.  These requirements 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 as objectively measurable as possible, such as discounts, transportation costs, total or life cycle costs, and the bidder's past performance, if available.  The invitation for bids shall set forth the evaluation criteria to be used.  No criteria may be used in bid evaluation that are not set forth in the invitation for bids.

     (g)  Correction or withdrawal of inadvertently erroneous bids before or after award, or cancellation of invitations for bids, awards, or contracts based on such bid mistakes, shall be permitted in accordance with rules adopted by the policy board.  After bid opening no changes in bid prices or other provisions of bids prejudicial to the interest of the public or to fair competition shall be permitted.  Except as otherwise provided 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 a written determination made by the chief procurement officer or head of a purchasing agency.

     (h)  The contract shall be awarded with reasonable promptness by written notice to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the invitation for bids.  In the event all bids exceed available funds as certified by the appropriate fiscal officer, the head of the purchasing agency responsible for the procurement in question is authorized in situations where time or economic considerations preclude resolicitation of work of a reduced scope to negotiate an adjustment of the bid price, including changes in the bid requirements, with the low responsible and responsive bidder, in order to bring the bid within the amount of available funds.

     (i)  When it is not practicable to initially prepare a purchase description to support an award based on price, an invitation for bids, which requests the submission of unpriced offers to be followed by an invitation for bids limited to those bidders whose offers have been qualified under the criteria set forth in the first solicitation, may be used.  If a multi-step sealed bidding process is used, the notice and the invitation 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 L 1994, c 186, §9; am L 1995, c 178, §7; am L 1997, c 352, §23; am L 2021, c 188, §4]

Case Notes

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

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

  As prerequisites for board of water supply's exercise of its authority to waive the mandatory subcontractor listing requirement under subsection (b) were indisputably present where board determined that it was in the best interest of the State to do so, hearings officer erred in interpreting subsection (b) to preclude waiver of a bidder's failure to list a subcontractor who 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 plumbing subcontractor for the project and it was undisputed that contractor did not name in its bid a person or firm to be engaged by it as a plumbing subcontractor for the project, contractor's bid was nonresponsive.  101 H. 68 (App.), 62 P.3d 631.

  Where the record amply indicated that contractor had the capability "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.