103AWARD AND EXECUTION OF THE CONTRACT; BID DOCUMENT ESCROW

103.1Bid Consideration.

based on the totals of the extended unit prices. The Department will post the bid tabulations after awarding the project. In the event of a discrepancy between unit prices and the extensions, the unit prices shall take precedence. The Department reserves the right to reject proposals, waive technicalities, reject all bids and advertise the project for rebidding, or reject all bids and not rebid the work. Maximum price provisions, noted elsewhere in the contract, may affect unit bid prices. In such cases, upon discovery of a discrepancy, the Department will adjust the unit bid price to conform to the maximum permissible bid price.

considerations the Department will use to select the successful bidder.

103.2Contract Award.

The Department will award the contract within 30 calendar days after opening proposals to the bidder that submits the lowest responsive bid. The Department will notify the successful bidder by letter, or by electronic means, of proposal acceptance and contract award. By mutual consent, the Department and the winning bidder may extend the 30-day time limit for contract award.

103.3Award Cancellation.

The Department reserves the right to cancel the award of any contract before execution without liability.

103.4Proposal Security Return.

The Department will return proposal securities, except that of the successful bidder, upon contract award. In no event will the Department take any longer than 30 days after the bid opening date to return securities. The Department will return the successful bidder’s proposal security after the Department receives the required performance and payment bonds and the contract is executed. The Department will not return the proposal security of a successful bidder that later decides it wants to be released from the bid due to an alleged error in the proposal preparation.

103.5Performance and Payment Bonds.

of the contract price. The bond is for the benefit of the Department, as well as for the use and benefit of Delaware’s Division of Revenue in the case of claims under this bond for taxes due to the State. Provide a bond issued by a corporate surety authorized to do business in Delaware.

term and condition of the contract, at the time and in the manner prescribed by the contract, including the payment in full to every person furnishing material or performing labor or services in the performance of the contract, and of all sums of money due for such labor, services, or material. Ensure that the bond contains the contractor's guarantee to indemnify and save harmless the State of Delaware, the Department of Transportation, its secretary and all officers, agents, employees, assigns, and servants from all costs, damages, and expenses growing out of, or by reason of, the contractor's failure to comply with applicable laws and regulations and failure

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to perform the work and complete the contract in accordance with the terms and conditions of the contract.

contractor under the contract may maintain an action on the bond for its own use in the name of the State in any court of competent jurisdiction, for recovery of such sum or sums of money due the person from the contractor.

that all tax obligations are satisfied. Present this form to the Department as a condition for release of the bonds.

103.6Bid Withdrawal.

If, at any time after the bid opening date before execution of the contract by the Department, the contractor wants to withdraw its bid, submit a written request to the Department's contract administration section stating the reason for the withdrawal request. The Department reserves the right to accept or reject a contractor's request to withdraw a bid and to retain the proposal security in full or in part as liquidated damages. The Department may then proceed to the next lowest bidder or may reject all proposals and re-advertise the work.

103.7Contract Execution and Approval; Proof of Insurance.

the notice of award. If the Department has not executed the contract within 15 calendar days following receipt of the signed contract and bonds, the contractor has the right to withdraw the bid without penalty or liability.

requirements of Subchapter XVI of Title 8 of the Delaware Code, and as further amended at the time of bid.

the Delaware Code. Provide a certificate of insurance to the Department before contract execution. Provide coverage for additional insureds if required by the contract. The Department will not execute the contract until the contractor provides acceptable proof of insurance.

103.8Failure to Execute a Contract.

The Department will consider failure by the contractor to execute the contract and provide an acceptable bond within 20 calendar days after the notice of award as a revocation of the notice of award and a forfeiture of the proposal security to the Department. The Department may then award the contract to the next lowest bidder or the Department may re-advertise the project.

103.9Escrow of Bid Documentation.

section if required by the bid proposal.

engineer in resolving disputes and claims and for use in arbitration proceedings, litigation, or negotiations arising from this contract.

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Clearly mark the container “Bid Documentation” and label the container with the contractor’s name, address, date of submittal, the contract number, and the bid proposal title. The Department and the contractor will jointly deliver the sealed container and an affidavit, in accordance with Section 103.9.C.4., to a banking institution or other bonded document storage facility selected by the Department for placement in a safety deposit box, vault, or other secure accommodation. The escrowed bid documents will remain in escrow subject to the terms of this section until all of the following have occurred:

contract; and

representative authorized to execute proposals, listing each bid document submitted by author, date, nature, and subject matter. List all the documents the contractor relied upon in preparing the proposal. Ensure that the affidavit states the person signing the document has personally examined the bid documentation and that all bid documentation is included in the sealed container submitted to the Department. Include the signed affidavit with the sealed container.

proposal constitute all of the information used in preparation of the contractor’s proposal. The contractor shall agree that the Department will not consider any other proposal preparation information in resolving disputes or claims. The contractor also shall agree that the escrowed bid documents are not part of the contract and that nothing in the escrowed bid documents changes or modifies the contract.

work required by the contract documents. Separate all work into sub-items as required to present a complete and detailed estimate of all costs. The documents shall provide the detail of:

contingencies, markup, and other items to each direct cost item. Include all assumptions, quantity takeoffs, production rates and progress calculations, quotes from subcontractors and suppliers, memoranda, narratives, and all other information used by the contractor to arrive at the bid price for the contract.

occurs during performance of the contract. The Department will request the documents in writing and the contractor and engineer will place the additional documents in the sealed container held in escrow. The requirements of this specification apply to all documentation supporting pricing for extra work.

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contractor to resolve disputes and negotiate contract changes. The Department may review all or any part of the escrowed bid documents in the event of a dispute. The Department is entitled to make and retain copies of escrow documents, provided that the Department executes a confidentiality agreement specifying that the Department will keep all proprietary information contained in the copied documents confidential. The Department will deliver the confidentiality agreement to the contractor. The Department’s confidentiality agreement will state that the Department will distribute copied documents only to the Department’s agents, attorneys, auditors, and experts aiding the Department in resolving the dispute. The Department will return all original and copied documents to the escrow depository upon resolution of the dispute. The foregoing will not limit the Department’s litigation discovery rights with respect to such documents.

Department’s right to review as provided in these specifications. The Department acknowledges that the escrowed bid documents constitute trade secrets or proprietary information. The Department further acknowledges that the contractor expended money in developing the information included in the escrowed bid documents and that it would be difficult for a competitor to replicate the information contained therein. The Department acknowledges that the contractor’s provision of the escrowed bid documents only occurs because providing the documents is a prerequisite to executing a contract.

contractor shall forfeit the proposal guaranty in accordance with Section 103.8, Failure to Execute a Contract. The Department will review the escrowed bid documents to determine if the documents are complete. If the Department discovers that documentation is missing, the Department will request in writing that the contractor provide the missing documents. Provide the requested documents within 3 business days of the Department’s request. The Department will date stamp the documents received and will label the documents as supplementary material added to the escrowed bid documents. The contractor shall have no right to add documents to the escrowed bid documents except upon the Department’s request.

The Department will bear the storage costs for the documents. The Department will provide escrow instructions to the document depository consistent with this section.