SECTION 103 AWARD AND EXECUTION OF CONTRACT
103.01 CONSIDERATION OF BID. After opening and announcing the Bid Proposals,
the Department will compare the Bidders’ proposed prices. The Department will review Bid Proposals based on the summation of the products of the unit bid prices and the approximate quantities. The results of such comparisons are made public on the Department’s website and listed as the Unit Bid Tabulation for each letting. Should any responsive bidder be low on more Bid Proposals than the bidder is qualified to handle under their certificate of eligibility, the Department reserves the right to select from the Bid Proposals submitted and award to the Contractor those that are most advantageous to the Department. The bidder’s other submitted Bid Proposals will not be considered in deciding awards. The Department reserves the right to reject any or all Bid Proposals and/or to waive minor technicalities if doing so is in the best interest of the Commonwealth.
103.02 AWARD OF CONTRACT. Unless rejecting all Bid Proposals, the Department
will award the Contract to the lowest responsive bidder, without discrimination on the grounds of race, creed, color, sex, or national origin, whose Bid Proposal complies with the requirements of the law, the regulations, and the Contract. The Department may reject unbalanced Bid Proposals and award the Contract to the next lowest responsive bidder. The Department will normally award or reject a Contract within 10 working days after the opening of the Bid Proposals unless the Department deems it best to hold the Bid Proposals of any or all bidders for a period not to exceed 60 calendar days for final determination of award. Contracts containing a Disadvantaged Business Enterprise (DBE) goal must have a TC 14-35 DBE Utilization Plan submitted and approved prior to award. Should the bidder fail to reach the designated DBE percentages, then the Department will consider whether the bidder made reasonable efforts to meet these percentages prior to issuing a work order. The Department may hold the Bid Proposal of the lowest responsive bidder longer than 60 days if the bidder concurs. The Department will send the official Notice of Award to the email address submitted on the TC 14-1 Certificate of Eligibility application.
103.03 CANCELLATION OF AWARD. The Department reserves the right to cancel
the award of any Contract at any time prior to the execution of the Contract by all parties, without any liability to the Department.
103.04 RETURN OF PROPOSAL GUARANTIES. Immediately after the opening and
review of Bids, the Department will return Proposal Guaranties provided in the form of a certified check or cashier’s check, unless they ar e one of the three lowest responsive bidders. After the Awards Committee meeting, the Department will return any outstanding Proposal Guaranties that are in the form of a certified check or cashier’s check to any remaining unsuccessful Bidder. After the successful Bidder has been issued an executed contract and a Notice to Proceed, the Department will return their Proposal Guaranty to the successful Bidder upon request. The Department will not release a bidder from the obligations of the Bid Proposal because of an alleged error in the preparation of the Bid Proposal unless the Department retains the bidder’s Proposal Guaranty.
103.05 REQUIREMENT OF CONTRACT BONDS. To be acceptable to the
Department, the surety must have a minimum A. M. Best rating of an “A-”, be listed on the U.S. Treasury Listing of approved sureties for an amount equal to or greater than the amount of the bond and be an admitted carrier in the Commonwealth of Kentucky. Submit Contract bonds conditioned upon the faithful performance of the requirements of the Contract and any modifications in conformity with the Contract; payment of proper compensation under the required labor and wage conditions as provided in the Contract; payment of claims against the Contractor for materials, labor and supplies; and reimbursement to the 103-1 Department for any overpayment made on the Contract. Maintain the Contract bonds in full force for the time required by law. If at any time during the performance of the Contract the surety company falls below the minimum a cceptable requirements, the Contractor shall file new bonds in an amount established by the Commissioner, or his designee, within 14 calendar days of such failure to meet the minimum requirements. The surety of the Contract bonds shall only sign a prescribed form through a duly appointed power of attorney with certifications acceptable to the Department. File an attested copy of all certifications of attorney s-in-fact with the Franklin County Court Clerk prior to submission to the Department and file a certified copy with the Department. All non-resident agents of Kentucky signing the bonds as representatives of a surety company shall obtain the countersignature of a licensed Kentucky agent of the insurer as required by law. All appointments of attorneys-in-fact shall contain a provision that the appointment will not be revoked without giving the Department notice in writing at least 30 calendar days prior to the effective date of the revocation and filing same with the Franklin County Court Clerk. More than one surety may execute a bond for any one Contract, and, in such event when 2 or more sureties are provided on such bond, each surety shall be liable and obligated for the full amount required herein before. The Department reserves the right to copy the surety on all of its communications with the Contractor concerning the Contractor’s performance, or performance deficiencies, on the project and further reserves the right to communicate directly with the surety to inform them of the Contractor’s performance, or performance deficiencies, on the bonded project.
103.06 EXECUTION OF CONTRACT. Within 15 calendar days after receiving the
Contract, execute and return to the Department along with the following items:
1.the completed Contract bonds required in Subsection 103.05;
2.satisfactory evidence of required liability insurance per Section 107;
3.satisfactory evidence of compliance with Subsection 102.15;
4.when the Bid Proposal designates a certain percentage of the Contract as the Disadvantaged Business Enterprise (DBE) portion, submit the necessary number of agreements with DBEs to meet or exceed these designated percentages. Submit a completed TC 14-35 (DBE Plan/Subcontract Request), an executed agreement between the Prime and each DBE subcontractor, and a certificate of insurance for each DBE subcontractor. For DBE suppliers, submit a completed TC 14-35 form and purchase order agreement. The contract and bonds will be issued electronically upon award of project. Print and execute these documents. Return the executed contract, bonds and all other necessary documents to the Department. Upon receipt of the required documents, the Commissioner will, within a period not exceeding 30 calendar days, make a final review of the Contract and issue a Notice to Proceed. Should the Department hold the Notice to Proceed in excess of the 30 calendar day period, the Contractor shall have the option of accepting or rejecting the Contract without forfeiting the Proposal Guaranty.
103.07 APPROVAL OF CONTRACT. The Contract is not binding until the
Commissioner executes it and certain agencies of the Commonwealth, as required by law, certify that sufficient funds are available.
103.08 FAILURE TO EXECUTE CONTRACT. The bidder’s failure to execute the
Contract or to comply with all requirements of Subsection 103.06 within 15 calendar days after receipt of the Contract will be just cause for the Department to nullify the award. It is understood by both the bidder and the Commissioner that, in the event of the annulment of the award, the bidder will be considered in default. The Department will obtain liquidated damages for the bidder’s default. The amount of the damages will be the smaller of the two possible amounts. The first possible amount is the total amount of the Proposal Guaranty of the bidder that is considered in default. The second possible amount is the difference between the bid of the bidder being 103-2 held in default and the amount of the bid awarded to the next responsive bidder. The damages associated for single bid contracts will be equal to the amount of the Proposal Guaranty. The Department can then make an award to the next lowest responsive bidder; or re-advertise the work or take other action as provided by statute on this subject, as the Commissioner may elect. A bidder who forfeits a Proposal Guaranty according to this Section will not be considered for bidding given the situations below. These prohibitions shall apply to any other name under which the same person, affiliate, individual, partnership, company, firm, limited liability. corporation, association, cooperative, or other legal entity may be operating in which the principal owners are involved. The prohibitions shall be:
a.Work will not be allowed as a subcontractor or in any other capacity or role on the project.
b.Bidding will not be allowed on the original contract if it is re-advertised for letting.
c.Bidding will not be allowed on any subsequent contract which contains any portion of the original contract. 103-3
Source: Kentucky Standard Specifications for Road and Bridge Construction, 2019 Edition. Pages 25–27 of 718.