Difference between revisions of "LPA:136.10 Advertisement for Bid and Project Award"
m (→136.10.8 Award: Per LPA, clarified the need for a performance/contract bond in the executed construction contract for LPA projects.)
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:* Final Plans Package given to Bidders (include all addenda that were issued)
:* Final Plans Package given to Bidders (include all addenda that were issued)
:* Fully Executed Contract (can use Federal Project Bid Proposal Boilerplate WITH the following to make it an actual contract:
:* Fully Executed Contract (can use Federal Project Bid Proposal Boilerplate WITH the following to make it an actual contract:
:::- [[media:136.10.3.docx|Fig 136.10.3 Sample Contract Agreement]]
:::- [[media:136.10.3.docx|Fig 136.10.3 Sample Contract Agreement]]
:::- Performance/Contract Bond (see [[media:136.10.4.doc|Fig 136.10.4 Sample Contract Bond]]), and
:::- Performance/Contract Bond (see [[media:136.10.4.doc|Fig 136.10.4 Sample Contract Bond]]), and
Revision as of 14:17, 2 September 2016
- 1 136.10.1 Introduction
- 2 136.10.2 Qualification of Contractors
- 3 136.10.3 Bid Opening Advertisement
- 4 136.10.4 Pre-Bid Meeting
- 5 136.10.5 Amendments to the Bid Documents (Addenda)
- 6 136.10.6 Bid Submittal Requirements
- 6.1 220.127.116.11 Certification Regarding Anti-collusion
- 6.2 18.104.22.168 Certification Regarding Use of Contract Funds for Lobbying
- 6.3 22.214.171.124 Certification Regarding Debarment and Suspension
- 6.4 126.96.36.199 Certifications Regarding Affirmative Action and Equal Opportunity
- 6.5 188.8.131.52 Bid Guaranty
- 6.6 184.108.40.206 Disadvantaged Business Enterprise (DBE) Requirements
- 6.7 220.127.116.11 Addendum Acknowledgment
- 6.8 18.104.22.168 Any other submittals required by the LPA
- 7 136.10.7 Bid Opening, Bid Evaluation and Request for Concurrence in Award
- 7.1 22.214.171.124 Bid Opening Requirements
- 7.2 126.96.36.199 Retention of Bidding Documents
- 7.3 188.8.131.52 Bid Evaluation Considerations
- 7.3.1 184.108.40.206.1 Excessive Bids
- 7.3.2 220.127.116.11.2 Unbalanced Bids
- 7.3.3 18.104.22.168.3 DBE Submittal Form Review
- 7.3.4 22.214.171.124.4 Determination of Non-responsive Bid and Not Responsible Contractor
- 7.3.5 126.96.36.199.5 Rejecting All Bids
- 7.3.6 188.8.131.52.6 Additive Bidding
- 7.4 184.108.40.206 Concurrence In Award
- 8 136.10.8 Award
- 9 136.10.9 Key Submtittals/Requirements
This article describes the requirements, considerations and procedures for advertising, opening and evaluating bids and awarding a federal-aid contract. This article also includes requirements for contractor qualification. The Local Public Agency (LPA) will lose federal funds if they advertise a project for bids, purchase materials, or commence work before construction authorization has been issued (23 CFR 635.112). Once FHWA approves the obligation of construction funds, MoDOT will notify the LPA to advertise for bids. EPG 136.9.2 details the requirements for obtaining construction authorization.
Prior to advertisement for bids, the LPA should ensure there is adequate funding for the project. The LPA should have funds available to cover the cost of a contract that is within the engineer’s estimate for the project. If the LPA does not have sufficient funds, the project should not be advertised. The LPA will not be able to reject reasonable bids based solely on their lack of funds. The LPA should contact the appropriate MoDOT district representative if funding is a concern.
23 CFR 635.104 requires federal-aid projects to be awarded on the basis of competitive bidding. However, in rare cases, this requirement may be waived if the LPA finds it more cost effective to use some other method or that an emergency exists. If any work is to be completed by local forces, refer to EPG 136.3.12. The LPA will not be permitted to bid in competition or to enter into subcontracts with private contractors. FHWA’s Guidelines on Preparing Engineer’s Estimate, Bid Reviews and Evaluation outlines recommended procedures for preparing engineer’s estimates and reviewing bids prior to award.
136.10.2 Qualification of Contractors
Qualification of contractors must occur prior to the bid opening and must be approved by MoDOT. 23 CFR 635.110 allows pre-qualification of contractors to be required as a condition of submission of a bid. To satisfy federal requirements, the LPA must ensure free, open and competitive bidding; therefore pre-qualification cannot include any criteria that may operate to restrict competition, to prevent any responsible contractor from submitting a bid, or to prohibit the consideration of a bid submitted by any responsible contractor.
Prequalification requirements cannot require a bidder to obtain a license before submitting a bid or before the bid is considered for award of a contract; however, a State contractor’s license must be obtained upon award of the contract. The LPA may withhold payment under such contract until such time as the contractor furnishes proof of a proper license in compliance with State laws. No preference can be given for contractors regarding whether resident or non-resident of the state wherein the work is to be performed. Bidding procedures must not discriminate against any qualified bidder regardless of political boundaries. The period between the date of issuing a request for bids and the date of opening of bids must afford sufficient time for a bidder to obtain the required pre-qualification rating or approval.
220.127.116.11 Required MoDOT Pre-qualification (projects involving roadway or bridge work)
The LPA must include a requirement that all bidders use MoDOT’s pre-qualification process for any project involving roadway or bridge work. MoDOT’s pre-qualification process is included in Sec 102.2 that states a prime contractor must have a fully responsive contractor questionnaire on file with the Missouri Highways and Transportation Commission (MHTC) at least seven (7) days prior to the bid opening date. The LPA should verify bidders are on MoDOT’s approved prime contractor list prior to opening bids. Any bid that was submitted by a contractor that is not on the approved list should be sent back to the contractor unopened. The contractor questionnaire and approved prime contractor list can be found on MoDOT’s Local Program website.
18.104.22.168 Waiving MoDOT Pre-qualification
For proposed improvements that do not contain roadway or bridge construction (i.e., landscaping, sidewalks and multi-use paths) MoDOT’s pre-qualification process may be waived as described in EPG 22.214.171.124.126.96.36.199 Waiving MoDOT Pre-qualification. The following sentence must be inserted into the contract to allow contractors not on MoDOT’s pre-qualified list to submit a bid for the project: “Sec 102.2 of the Missouri Standard Specifications for Highway Construction will be waived for this project.” If this waiver is not inserted in the proposal and the bidder is not on MoDOT’s pre-qualified list, the bid must be declared non-responsive and cannot be awarded.
When determining whether or not the pre-qualification will be waived, the LPA should be aware that 23 CFR 635.114(a) dictates the contract must be awarded to the lowest responsive bidder meeting the criteria of responsibility established in accordance with 23 CFR 635.110 and 23 CFR 635.112. In effect, this means that if qualification criteria are to be applied, it must be before bid opening. All responsive bids received would have to be accepted without the possibility of questioning responsibility unless the contractor's qualifications have changed from that shown on the questionnaire on file.
188.8.131.52 Optional LPA Pre-qualification
The LPA has the option of using their own pre-qualification process rather than MoDOT’s as described in EPG 184.108.40.206.220.127.116.11 LPA Pre-qualification. The LPA pre-qualification process must be approved by MoDOT prior to the advertisement for bids for the project.
18.104.22.168 Suspended, Debarred or Excluded Contractors
Contractors who are currently suspended, debarred or voluntarily excluded under 2 CFR part 180, or otherwise determined to be ineligible must be prohibited from participating in the Federal-Aid Highway Program. Any bid that was submitted by a suspended, debarred or excluded contractor must be sent back to the contractor unopened or if opened must be declared non-responsive. The General Services Administration maintains a government-wide list of excluded parties on their web-based system titled, “Excluded Parties List System”.
136.10.3 Bid Opening Advertisement
In accordance with 23 CFR 635.112(b), the advertisement and approved plans and specifications must be available to bidders a minimum of twenty-one (21) calendar days prior to bid opening unless otherwise approved by MoDOT in special justifiable cases. The advertisement must be placed in a newspaper having a general circulation in the area of the project at least once and must be advertised on MoDOT's "Projects to be Let by Others" website. The LPA must submit the bid advertisement to their local MoDOT district contact at least 4 weeks prior to the bid opening for posting on the MoDOT website. The LPA can advertise on their own website in addition to advertising on MoDOT's website and in a local newspaper. However, if the LPA requests to advertise on their own website instead of in a local paper or on MoDOT's website, then MoDOT must first approve the request before the LPA can post the ad on their website. The request must describe how the LPA will notify all interested bidders and how the website is readily accessible to all bidders.
The LPA should refer to Figure 136.10.1 for an example bid advertisement. At minimum, the following list of items must be included in the advertisement for bids:
- Brief description of the project
- Date and time when bids are due
- Instructions on how bidding documents can be acquired
- Title VI Civil Rights Assurances notification
- Instructions on how and where bids should be submitted
- Time and location of bid opening
- OSHA 10 Hour Requirements
- DBE Goal
- A statement regarding pre-qualification, if required
- Time and location of any pre-bid meetings, if necessary
Additionally, the LPA must ensure that requirements of state statutes governing advertisement and bidding for public works applicable to LPA operations are satisfied.
The following Title VI Civil Rights Assurances notification must be included in the invitation to bidders in the front of all bid proposals, bid advertisements and invitations to bid:
- “The County/City/Organization of _______________________ hereby notifies all bidders that it will affirmatively ensure that in any contract entered into pursuant to this advertisement, businesses owned and controlled by socially and economically disadvantaged individuals will be afforded full opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, religion, creed, sex, age, ancestry, or national origin in consideration for an award.”
136.10.4 Pre-Bid Meeting
This optional meeting is held by the LPA after advertising the project. The purpose of the pre-bid meeting is to address prospective contractors’ concerns and questions. It is recommended for more complex projects. The meeting’s purpose is to encourage face-to-face discussion regarding plan intent and any areas of concern prior to bid opening. This meeting often brings bid document discrepancies to light, which can then be rectified through an addendum. These discrepancies, if not rectified, may result in change orders or claims after the contract is awarded. The LPA shall notify MoDOT that they will hold a pre-bid meeting allowing them the opportunity to participate.
If attendance at a pre-bid meeting is made a condition of bid responsiveness, the project advertisement and all bidding documents must reflect this requirement. The LPA must give the contracting industry adequate notice to attend the meeting which may include a longer advertisement period.
136.10.5 Amendments to the Bid Documents (Addenda)
An addendum is required for any revision to the plans, specifications or bid proposal made after the bid advertisement. In accordance with 23 CFR 635.112(c), the LPA must submit and obtain approval from MoDOT prior to issuing any addenda which contains a major change to the approved plans or specifications during the advertising period. A major addendum is any revision that impacts the estimate by more than $50,000 or changes the date of the bid opening. Approval of the addendum must be attained prior to making the revised plans or bid proposal available to prospective bidders. Failure to receive prior approval of a major addendum to the bid package may jeopardize the federal funding for the project. Minor addenda do not need to receive prior approval but must be identified in the request for concurrence in award. The LPA is responsible for ensuring all bidders have received all issued addenda. If the LPA cannot assure that all bidders received all addenda issued on the project it may result in rejecting all bids and re-letting the project. If a bidder fails to acknowledge and incorporate all addenda they have received it may result in the bid being declared nonresponsive.
136.10.6 Bid Submittal Requirements
All bids received must be in accordance with the terms of the bid advertisement. Missouri State Statute requires that all bids are to be submitted in a sealed envelope or approved electronic bidding format. 23 CFR 635.112 and 635.113 state that any requirements the bidder must comply with to be considered responsive should be clearly identified in the bidding documents. Failure to submit the following required documents prior to bid opening will make the bid non-responsive and not eligible for award consideration:
- Certification Regarding Anti-collusion
- Certification Regarding Use of Contract Funds for Lobbying
- Certification Regarding Debarment and Suspension
- Certification Regarding Affirmative Action and Equal Opportunity
- Bid Guaranty
- Disadvantage Business Enterprise (DBE) Certification (within 3 days of bid opening)
- Acknowledgement of Addenda, if applicable
- Any other submittals required by the LPA, if applicable
22.214.171.124 Certification Regarding Anti-collusion
23 CFR 635.112 requires an executed anti-collusion certification to be submitted by all bidders prior to the bid opening. Failure to submit the executed certification as part of the bidding documents will make the bid nonresponsive and not eligible for award consideration. The bidding document requirements for the anti-collusion statement are included in EPG 126.96.36.199.1.6. The Federal Project Bid Proposal Boilerplate (Figure 136.9.3), includes the anti-collusion certification requirements in Section (6) CERTIFICATIONS FOR FEDERAL JOBS and Section (14) SIGNATURE AND IDENTITY OF BIDDER.
188.8.131.52 Certification Regarding Use of Contract Funds for Lobbying
49 CFR 20 requires an executed lobbying certification to be submitted by all bidders prior to the bid opening. Failure to submit the executed certification as part of the bidding documents will make the bid nonresponsive and not eligible for award consideration. The bidding document requirements for the lobbying certification are included in EPG 184.108.40.206.1.7. The Federal Project Bid Proposal Boilerplate (Figure 136.9.3), includes the lobbying certification requirements in Section (6) CERTIFICATIONS FOR FEDERAL JOBS.
220.127.116.11 Certification Regarding Debarment and Suspension
49 CFR 29 requires an executed certification regarding suspension and debarment to be submitted by all bidders prior to the bid opening. Failure to submit the executed certification as part of the bidding documents will make the bid nonresponsive and not eligible for award consideration. The bidding document requirements for the suspension and debarment certification are included in EPG 18.104.22.168.1.5. The Federal Bid Proposal Boilerplate (Figure 136.9.3), includes the suspension and debarment certification requirements in Section (6) CERTIFICATIONS FOR FEDERAL JOBS.
22.214.171.124 Certifications Regarding Affirmative Action and Equal Opportunity
49 CFR 60 and Executive Order No. 11246 require an executed certification regarding affirmative action and equal opportunity to be submitted by all bidders prior to the bid opening. Failure to submit the executed certification as part of the bidding documents will make the bid nonresponsive and not eligible for award consideration. The bidding document requirements for the affirmative action and equal opportunity certification are included in EPG 126.96.36.199.1.4. The Federal Bid Proposal Boilerplate (Figure 136.9.3), includes the affirmative action and equal opportunity certification requirements in Section (6) CERTIFICATIONS FOR FEDERAL JOBS. A certification regarding affirmative action and equal opportunity for the subcontractor (Fig 136.9.2) must be submitted for all subcontractors.
188.8.131.52 Bid Guaranty
An enforceable bid guarantee meeting the criteria set forth in the proposal must be submitted by all bidders prior to the bid opening. If the bid guarantee is a bid bond, it must be accompanied with the Power of Attorney. Failure to submit an enforceable bid guarantee as part of the bidding documents will make the bid nonresponsive and not eligible for award consideration.
184.108.40.206 Disadvantaged Business Enterprise (DBE) Requirements
If a DBE goal is established for a project as described in EPG 220.127.116.11.1.15, the LPA must include the goal in the bidding documents. Even if a DBE goal is not established, all bid proposals must include the DBE contract provisions (Figure 136.9.8) and DBE submittal forms (Figure 136.9.9) to be completed by the bidder and returned. If a DBE goal is established, failure to submit the DBE submittal forms within three (3) working days of the bid opening will make the bid nonresponsive and not eligible for award consideration.
If the bidder does not meet the established project DBE goal, award of contract can only be made if the bidder can document and demonstrate good faith effort to meet the goal. MoDOT will review and make a determination of the good faith effort.
Only those DBE firms listed on the MRCC DBE Directory will be allowed to count for participation toward the established DBE goal. DBE’s must be listed on the MRCC DBE Directory at the time of the bid opening.
18.104.22.168 Addendum Acknowledgment
Failure to acknowledge and incorporate addenda issued for the project may make the bid nonresponsive and not eligible for award consideration. Verification that bidders received and incorporated all addenda issued for the project must be evident in the submitted bidding documents.
22.214.171.124 Any other submittals required by the LPA
Should the LPA choose to require any other documents as a condition of responsiveness, it should be clearly identified in the bidding documents. Failure to submit any required items in the specified timeframe may make the bid nonresponsive and not eligible for award consideration.
136.10.7 Bid Opening, Bid Evaluation and Request for Concurrence in Award
The bid opening is a public forum for the announcement of all bids, and is that point in time where the bids are opened and read aloud. It is also the last moment that bids can be accepted. Missouri State Statute requires that all bids are to be submitted in a sealed envelope. The advertisement/bid documents will state a final time in which bids can be accepted. No bids can be accepted during or after bids are opened. For the bidder, the reading of the bids confirms whether his bid is successful. For the LPA and the general public, this forum establishes the cost to build the project. All bids are to be evaluated based on 23 CFR 635.114. MoDOT concurrence must be obtained prior to the award of contract. Concurrence from MoDOT must also be obtained if the LPA wishes to reject all bids and re-advertise. The bid opening requirements as outlined below apply to all federal-aid highway construction projects.
126.96.36.199 Bid Opening Requirements
Only sealed bids submitted prior to the time specified in the notice are acceptable. Bids must be opened only at the time and place specified in the notice and in the presence of a representative of the LPA. The LPA must follow its own procedures for bid opening, provided such procedures include:
- As bids are received, they must be logged in and stamped with the time and date.
- Bids must be retained in a secure place until the designated time and place for public opening.
- All bids received in accordance with the terms of the advertisement must be publicly opened and announced either item by item or by total amount.
- If any bid received is not read aloud, the name of the bidder and the reason for not reading the bid aloud must be publicly announced at the bid opening.
- Negotiation with contractors, during the period following the opening of bids and before the award of the contract is not permitted.
The LPA must at minimum disclose the total bid for each responsive bid after the bid opening. It is recommended that unit prices (item-by-item) are not disclosed until after award. When determining whether to disclose the unit prices after the bid opening, the LPA should consider the effects of sharing each contractor’s unit prices may have on future bids, should a justifiable reason require the project to be re-bid.
188.8.131.52.1 Responsive Bid
Responsive bid is one that meets all the requirements of the advertisement and proposal. There must be a justifiable reason for determination of a nonresponsive bid. Examples of irregularities for determining a bid to be considered nonresponsive are as follows:
- Failure to sign the bid as stated in the bidding documents
- Failure to submit an anti-collusion affidavit or certification
- Failure to submit a lobbying certification
- Failure to submit certifications regarding Affirmative Action and Equal Opportunity
- Failure to furnish an enforceable bid guaranty (bid bond or cashier’s check)
- Failure to prepare the bid in ink
- Inclusion of conditions or qualifications not provided for in the specifications
- Submission of a materially unbalanced bid
- Failure to acknowledge/incorporate addenda
- Failure to submit the DBE submittal forms within three business days after the bid opening date (or by the date that the bid proposal states)
- Failure to demonstrate a good faith effort (GFE) if the DBE goal is not achieved as outlined in Fig.136.9.8. Also see EPG 184.108.40.206 for more DBE information. A bid cannot be rejected solely for not meeting the goal at the time of bid opening without completing the entire GFE process outlined in Fig. 136.9.8. The GFE process can take up to 2 months to complete depending upon all parties' schedules.
The above examples do not include all possible bidding irregularities. The bidding documents govern what constitutes a bidding irregularity. Accordingly, the LPA’s bidding documents must clearly identify those requirements with which the bidder must comply to make the bid responsive.
220.127.116.11.2 Responsible Bidder
Responsible bidder is one who is physically organized and equipped with the financial ability to undertake and complete the contract. There must be a justifiable reason for determination that the bidder is not a responsible bidder. Reasons for determining that a bidder is not responsible are as follows:
- Failure to be pre-qualified in the time frame required in the bid documents, if applicable.
- Contractor is suspended or debarred. The LPA should ensure no bidders are on the publication A Listing of Parties Excluded from Federal Procurement and Non-procurement Programs.
Responsibility must be determined prior to the bid opening unless the contractor's qualifications have changed from that shown on the prequalification questionnaire on file. If prequalification is required, any bid submitted by a contractor that is not on the pre-qualification list should not be opened, but if opened it must be declared non-responsive. See EPG 18.104.22.168.1.14.2 for more information on contractor pre-qualification.
22.214.171.124 Retention of Bidding Documents
The following is a list of records and documents the LPA must retain for their project correspondence file. These records and documents must be kept for a period of three (3) years after the final payment made or as required in the LPA/NDOR Project Program Agreement, except for the construction contract which must be retained for ten (10) years. The LPA must retain the following completed documents for the successful bidder in the project file:
- Bid Advertisement including copy of affidavit of publication
- Original bid submittal documents including all of signature pages from low and second low bidders
- A tabulation of all bids received and the estimate shown for comparison (preferably with any items inconsistent with the submitted bid indicated)
- Signed E-Verify Affidavit and Memorandum of Understanding (MOU) from low and second low bidders
- Bid Guaranty from low and second low bidders. Bid Bonds must include the Power of Attorney.
- Verification that ALL bidders received all addendums issued for the project.
- The DBE submittal forms for the lowest and second lowest bidders.
126.96.36.199 Bid Evaluation Considerations
The LPA shall conduct at least three bid evaluations for each project. The bid evaluation is performed to justify the award or rejection of bids and to ensure that good competition and lowest possible cost were received. A proper evaluation ensures that funds are being used in the most effective manner. A bid evaluation also assists the agency in preparing accurate engineering estimates on future projects. If three bids are not available, the LPA shall provide written justification when bids are submitted for concurrence.
The bid evaluation examines the unit bid prices for reasonable conformance with the engineer’s estimated unit prices. Beyond the comparison of unit prices, other factors that a bid analysis may consider include:
- Number of bids
- Distribution or range of the bids
- Identify and geographic location of the bidders
- Urgency of the project
- Unbalancing of bids
- Current market conditions and workloads
- Potential for savings if the project is re-advertised
- Comparison of bid prices with similar projects in the letting
- Justification for significant bid price differences
- Other factors as warranted
188.8.131.52.1 Excessive Bids
Not all of the factors above need to be considered for bids that indicate reasonable prices or show good competition. However, when the low bid exceeds the engineer’s estimate by an unreasonable amount, a more thorough analysis should be undertaken to determine if the bids should be rejected or a justification for award of the contract can be made. In order to justify award of a contract under these circumstances, the following criteria should be examined:
- Was there good competition?
- Is the project essential and would delay of project be contrary to public interest? (see examples given below)
- Would re-advertisement result in higher bids?
- Is there an error in the engineer’s estimate?
- If applicable, is the increase within the amount programmed in the TIP?
- Does the LPA have funds available for the increase?
- Can any adjustments be made to the plans or specifications to reduce the bids? (Some possible items to consider are timeframe, increase in time allowed for construction or change in completion date to construction season and weather implications due to season, reduction in liquidated damages specified if above the minimum amount required, change to plans or staging.)
- Would re-advertising at a different time of the year be beneficial and result in lower bids?
Written justification must be included in the project file and submitted with concurrence requests where the lowest responsible bidder exceeds the engineer’s estimate by 10% or more. The justification should explain the reasons for the difference between the engineer’s estimate and bid amount, and why it was decided to award the contract.
Some projects may be so essential that deferral, even for 60 days, would not be in the public’s interest. Examples of such projects might include:
- Safety projects to correct an extremely hazardous condition where the traveling public is in danger.
- Emergency repairs or replacement of damaged facilities.
- Projects to close substantial gaps in otherwise completed facilities to allow opening to traffic.
- Projects that are critical to staged or phased construction and delay would significantly impact the completion of the whole project.
184.108.40.206.2 Unbalanced Bids
Unbalanced bids are one of the factors to review in a bid analysis. The two types of unbalanced bids are as follows:
- A mathematically unbalanced bid is a bid that contains lump sum or unit bid items that do not reasonably reflect the actual costs (plus reasonable profit, overhead costs, and other indirect costs) to construct the item, and
- A materially unbalanced bid is a bid that generates reasonable doubt that award to that bidder would result in the lowest ultimate cost to the government.
Where obvious unbalanced bid items exist, the LPA’s decision to award or reject a bid must be supported by written justification. A bid found to be mathematically unbalanced, but not found to be materially unbalanced, may be awarded. When a low bid is determined to be both mathematically and materially unbalanced, MoDOT will conduct a more in depth analysis of the bids. If the LPA requests concurrence in award, MoDOT’s action may range from non-concurrence to concurrence with contingency conditions limiting Federal participation.
220.127.116.11.2.1 Mathematically Unbalanced Bids
To detect mathematical unbalancing, the unit bid items should be evaluated for reasonable conformance with the engineer’s estimate and compared with the other bids received. There are no definitive parameters (e.g., an amount or percent of variance from the engineer’s estimate) that constitutes an unbalanced bid. The degree of unbalancing of a bid may depend on the reason for the unbalancing. Mathematically unbalanced bids, although not desirable, may be acceptable.
Care must also be exercised to ensure that unit bids for mobilization do not mask unbalancing. Also, “token bids” (i.e., bids with large variations from the engineer’s estimate) should be considered as mathematically unbalanced bids and further evaluation and other appropriate steps should be taken to protect the public interest.
18.104.22.168.2.2 Materially Unbalanced Bids
If unbalancing creates reasonable doubt that award would result in the lowest ultimate cost, the bid is materially unbalanced and should be rejected or other steps should be taken to protect the public interest. There may be situations where the quantity of an item could vary due to inaccuracies in the estimating, errors in the plans, changes in site conditions or design, etc. An example of a materially unbalanced bid would be if a contractor doubled the bid price on cubic yards of rock excavation to take advantage of an under estimated quantity of rock excavation knowing that a change order would be required. In such situations, the bids should be further evaluated to determine if the low bidder will ultimately yield the lowest cost.
22.214.171.124.3 DBE Submittal Form Review
DBE Submittal Forms should be reviewed for completeness and accuracy once received within the three business days after bid opening. Verify the firms listed are on MoDOT’s approved list, check math to ensure the goal is being met, etc. Contact MoDOT’s External Civil Rights Division if you have any questions regarding the completeness or accuracy of submitted forms within the three business days when possible. If an error is found on the DBE Submittal form, the bidder has the option to correct the error within the three business days of the bid opening. See EPG 126.96.36.199 for more DBE information.
188.8.131.52.4 Determination of Non-responsive Bid and Not Responsible Contractor
If the LPA determines that the lowest bid is not responsive or the bidder is not responsible, it must notify and obtain MoDOT’s concurrence before making an award to the next lowest bidder. The LPA must submit justification for rejecting or declining to read or consider a low bid on the grounds that it is not responsive due to a requirement that was not clearly identified in the bidding documents. If such justification is not considered by MoDOT to be sufficient, concurrence will not be given to award to another bidder on the contract at the same letting.
184.108.40.206.5 Rejecting All Bids
Any proposal to reject all bids received for a federal-aid contract must be submitted to MoDOT for concurrence, accompanied by adequate justification.
220.127.116.11.6 Additive Bidding
Add alternates are awarded to the lowest responsible bidder of the combination of add alternate sections that will allow the most work to be completed within the LPA’s budget. The award of add alternates is based on the LPA’s budget referenced in the contract. The priority of the alternates to be awarded must be clearly defined in the contract so that it is easily determined what “add alternates” can be awarded based on the budget available. The award of “add alternates” will be determined based on the priorities included in the additive alternate specification included in the contract.
The priority of add alternates cannot be altered to move alternates up in priority to maximize the budget (i.e. mix and match alternates to get as close to the budget as possible). This is not allowed because it would allow the possibility for unbalanced bidding on alternates that contractors prefer to construct resulting in award of alternates that are not the highest priority. The priorities also must be clearly defined to avoid the perception that the LPA is awarding contracts based on the bidder rather than the lowest bid for the highest priority work.
18.104.22.168 Concurrence In Award
The LPA must receive concurrence in award from MoDOT prior to award of a contract or commencement of work. Federal-aid contracts must be awarded only on the basis of the lowest responsive, responsible bid in accordance with EPG 22.214.171.124. Award of the contract must be within the timeframe established in the bidding documents. It is the LPA’s responsibility to assure that all successful bidders are licensed contractors upon award of any contract incorporating state or federal-aid funds.
126.96.36.199.1 Request for Concurrence In Award
The LPA must formally request concurrence in the award and should use the concurrence in award checklist (Figure 136.10.2) when composing the request. MoDOT’s concurrence in award is a prerequisite to federal participation in construction costs. Concurrence in award must be formally approved and shall only be given after receipt and review of the submitted request. If the LPA determines that the lowest bid is not responsive or the bidder is not responsible, it must notify and obtain MoDOT’s concurrence before making an award to the next lowest bidder.
The LPA will be working directly with MoDOT Central Office personnel reviewing bid concurrence requests. The LPA’s formal request for concurrence in award must be submitted electronically by email to LPASubmit@modot.mo.gov.
Additional justification is required as described in EPG 188.8.131.52 if the lowest bid is more than 10% higher than the project estimate, the lowest bid contains obvious unbalanced bid items or a low bid was declared non-responsive due to a requirement that was not clearly identified in the proposal.
184.108.40.206.2 Response to Concurrence Request
Requests for concurrence should be reviewed within five business days of receipt. If the submittal is complete the LPA can expect to receive concurrence with their request within that timeframe, or notification of a reason for non-concurrence. If information is missing, or additional justification is required, the LPA can expect to receive notification of such within five business days of receipt of their request. The request for concurrence submittal should include contact information, email and/or phone number for such requests.
When concurrence in award is given, the LPA will receive a letter stating the following:
- The contractor to whom the contract is awardable
- The amount of the contract
- The DBE %
- MoDOT’s district contact for submittals after contract award
- A list of items to be submitted after award. These items are noted in EGP 136.10.8.
After receiving concurrence in award, the LPA and the awarded contractor noted in the concurrence letter should execute a contract in the amount specified. After executing the contract, the LPA should submit an electronic copy of the following to the District Contact specified in the award letter:
- Final Plans Package given to Bidders (include all addenda that were issued)
- Fully Executed Contract (can use Federal Project Bid Proposal Boilerplate WITH the following to make it an actual contract):
- Certification Regarding Affirmative Action signed by prime contractor (only if NOT utilizing MoDOT's Federal Project Bid Proposal Boilerplate)
- Insurance Certificate
- E-verify MOU & Affidavit
Please contact your local MoDOT district representative to determine how many copies are needed and if these can be submitted electronically.
The LPA will coordinate with the local MoDOT district contact to schedule a pre-construction meeting prior to giving Notice to Proceed as described in EPG 136.11 Local Public Agency Construction. No work is to be initiated on any part of the project until MoDOT gives the LPA the notice to proceed.
136.10.9 Key Submtittals/Requirements
|Task/Submittal||LPA Responsibility||MoDOT Responsibility||MoDOT Timeframe|
|Bid Advertisement||Create advertisement and publish in local paper. Submit to MODOT for website.||Review advertisement and post to MoDOT website.||1 week newspaper submittal|
2 day MoDOT review
3 week advertisement
|MoDOT Bid Concurrence||Submit bidding documents to MoDOT for review||Review and approve bid concurrence submittal||5 business days|