Title 37
Public Property and Works

Chapter 2
State Purchases

§ 37-2-18. Competitive sealed bidding.

(a) Contracts exceeding the amount provided by § 37-2-22 shall be awarded by competitive sealed bidding unless it is determined in writing that this method is not practicable or that the best value for the state may be obtained by using an electronic reverse auction as set forth in § 37-2-18.1. Factors to be considered in determining whether competitive sealed bidding is practicable shall include whether:

(1) Specifications can be prepared that permit award on the basis of either the lowest bid price or the lowest evaluated bid price; and

(2) The available sources, the time and place of performance, and other relevant circumstances as are appropriate for the use of competitive sealed bidding.

(b) The invitation for bids shall state whether the award shall be made on the basis of the lowest bid price or the lowest evaluated or responsive bid price. If the latter basis is used, the objective measurable criteria to be utilized shall be set forth in the invitation for bids, if available. All documents submitted in response to the bid proposal are public pursuant to chapter 38-2 upon opening of the bids. The invitation for bids shall state that each bidder must submit a copy of their bid proposal to be available for public inspection upon the opening of the bids. The burden to identify and withhold from the public copy that is released at the bid opening any trade secrets, commercial or financial information, or other information the bidder deems not subject to public disclosure pursuant to chapter 38-2, the Access to Public Records Act, shall rest with the bidder submitting the bid proposal.

(c) Unless the invitations for bid are accessible under the provisions as provided in § 37-2-17.1, public notice of the invitation for bids shall be given a sufficient time prior to the date set forth therein for the opening of bids. Public notice may include publication in a newspaper of general circulation in the state as determined by the purchasing agent not less than seven (7) days nor more than twenty-eight (28) days before the date set for the opening of the bids. The purchasing agent may make a written determination that the twenty-eight (28) day limitation needs to be waived. The written determination shall state the reason why the twenty-eight (28) day limitation is being waived and shall state the number of days, giving a minimum and maximum, before the date set for the opening of bids when public notice is to be given.

(d) Bids shall be opened and read aloud publicly at the time and place designated in the invitation for bids. Each bid, together with the name of the bidder, shall be recorded and an abstract made available for public inspection.

(e) The chief purchasing officer shall adopt and file regulations governing the bidding of highway and bridge construction projects in the state not later than December 31, 2011.

(f) Immediately subsequent to the opening of the bids, the copies of bid documents submitted pursuant to subsection 37-2-18(b) shall be made available for inspection by the public. Any objection to any bid on the grounds that it is nonresponsive to the invitation for bids must be filed with the purchasing agent within five (5) business days of the opening of the bids. The purchasing agent shall issue a written determination as to whether the subject bid is nonresponsive addressing each assertion in the objection and shall provide a copy of the determination to the objector and all those who submitted bids at least seven (7) business days prior to the award of the contract. If a bid is nonresponsive to the requirements in the invitation to bid, the bid is invalid and the purchasing agent shall reject the bid. The purchasing agent shall have no discretion to waive any requirements in the invitation to bid which are identified as mandatory. Nothing in this section shall be construed to interfere with or invalidate the results of the due diligence conducted by the division of purchasing to determine whether bids are responsive and responsible.

(g) Subsequent to the awarding of the bid, all documents pertinent to the awarding of the bid that were not made public pursuant to subsection 37-2-18(e) shall be made available and open to public inspection, pursuant to chapter 38-2, the Access to Public Records Act, and retained in the bid file. The copy of the bid proposal provided pursuant to subsection 37-2-18(b) shall be retained until the bid is awarded.

(h) The contract shall be awarded with reasonable promptness by written notice to the responsive and responsible bidder whose bid is either the lowest bid price, lowest evaluated, or responsive bid price.

(i) Correction or withdrawal of bids may be allowed only to the extent permitted by regulations issued by the chief purchasing officer.

(j) As of January 1, 2011, this section shall apply to contracts greater than one million dollars ($1,000,000); on January 1, 2012 for all contracts greater than seven hundred fifty thousand dollars ($750,000); on January 1, 2013 for all contracts greater than five hundred thousand dollars ($500,000); and on January 1, 2014 for all contracts awarded pursuant to this section.