Title 37
Public Property and Works

Chapter 2
State Purchases

§ 37-2-20. Negotiations after unsuccessful competitive sealed bidding.

(a) In the event that all bids submitted pursuant to competitive sealed bidding under § 37-2-18 result in bid prices in excess of the funds available for the purchase and the chief purchasing officer determines in writing:

(1) That there are no additional funds available from any source so as to permit an award to the lowest responsive and responsible bidder, and

(2) The best interest of the state will not permit the delay attendant to a resolicitation under revised specifications, or for revised quantities, under competitive sealed bidding as provided in § 37-2-18, then a negotiated award may be made as set forth in subsection (b) or (d) of this section.

(b) Where there is more than one bidder, competitive negotiations, pursuant to § 37-2-19, shall be conducted with the three (3) (or two (2) if there are only two (2)) bidders determined in writing to be the lowest responsive and responsible bidders to the competitive sealed bid invitation. Competitive negotiations shall be conducted under the following restrictions:

(1) If discussions pertaining to the revision of the specifications or quantities are held with any potential offeror, all other potential offerors shall be afforded an opportunity to take part in such discussions; and

(2) A request for proposals, based upon revised specifications or quantities, shall be issued as promptly as possible, shall provide for an expeditious response to the revised requirements, and shall be awarded upon the basis of the lowest bid price, or lowest evaluated bid price submitted by any responsive and responsible offeror.

(c) Contracts may be competitively negotiated when it is determined in writing by the purchasing agent that the bid prices received by competitive sealed bidding were not independently reached in open competition, and for which:

(1) Each competitive bidder has been notified of the intention to negotiate and is given reasonable opportunity to negotiate; and

(2) The negotiated price is lower than the lowest rejected bid by any competitive bidder; and

(3) The negotiated price is the lowest negotiated price offered by a competitive offeror.

(d) When, after competitive sealed bidding, it is determined in writing that there is only one responsive and responsible bidder, a negotiated award may be made with the bidder subject to the provisions of § 37-2-28.