103Award and Contracting

103.1 Analysis of Bids

103.1a Tie Bids - In the case where two responsive bids from responsible bidders are equal monetarily, the Department shall determine the apparent low bidder by flipping a coin. The coin shall have sides clearly marked as heads and tails. The contractor whose first letter in its official company name that comes first in the alphabet shall be heads. If there are three bids, each bidder will flip the coin and the bidder with the odd toss will be the winner. (i.e. if the results are two heads and a tails, the bidder who had tails is the winner). For a three way tie, bidders may flip their own coin or have the Contracts Engineer flip for them. 1-28 The coin flip will occur at the next bid opening by the Contracts and Specifications Engineer or a designee. The tied bidders may attend the coin flip in person or watch on the internet as they choose.

103.1.1 Unit Prices Govern After Bid Opening, the Department will review the

mathematics of all apparently responsive Bids. In the event of a discrepancy between (A) unit and lump prices and (B) extensions and/or the total Bid Price, the unit and lumps sum prices shall govern and the total Bid Price will be adjusted accordingly.

103.1.2 Unbalanced Bids

A. Definitions An Unbalanced Bid is a Bid that is Mathematica lly Unbalanced and that may also be Materially Unbalanced. Mathematically Unbalanced means a Bid containing lump sum or Unit Prices that do not reflect reasonable direct costs plus a reasonable proportionate share of the Bidder’s anticipated profit, overhead costs, and other indirect costs. Materially Unbalanced means a Mathematically Unbalanced Bid that generates a reasonable doubt that said Bid will represent the lowest ultimate cost to the Department. B. Comparison and Possible Bid Rejection The Department will compare the price of items contained in the Bid of the Apparent Successful Bidder with the estimate prepared by the Department. If the Bid is Mathematically Unbalanced, the Department may, in its discretion, notify the Apparent Successful Bidder and request an explanation. There shall be no negotiation or changes in prices. If the Bidder fails to provide a reasonable explanation, and if the Department finds the Bid is Materially Unbalanced, the Department may reject the Bid as non-responsive and may take any action that is in the best interests of the Department, including those set forth in Section 103.6 - Failure to Fulfill Award Conditions.

103.1.3 Waiver of Defects and Technicalities; Right to Reject Bids The Department

reserves the right to reject any or all Bids and to advertise for new Bids if doing so is in the best interest of the Department. The Department reserves the right to waive curable Bid Defects and other technicalities without notice to any party. Refer to section 102.11.2 for Curable Bid Defects.

103.2 Return of Bid Guaranty Bid Bonds will not be returned unless so requested. Bid

Guaranties other than bonds will be returned within 7 Days following Bid Opening, except that the Bid Guaranties from two lowest responsive Bids from responsible Bidders will be retained until Contract Execution or rejection of all Bids.

103.3 Post-Bid Qualification

103.3.1 Pre-Qualification Requirement for Award If the Notice to Contractors lists a

Pre-Qualification requirement, the Apparent Successful Bidder must successfully complete the prequalification process as a condition of Award. 1-29

103.3.1 1 Notice and Information G athering After Bid Opening and as a condition

for Award of a Contract, the Department may require an Apparent Successful Bidder to demonstrate to the Department’s satisfaction that the Bidder is responsible and qualified to perform the Work. If such qualification is required, the Department will provide the Bidder with written notice to that effect. Such notice will include a brief description of the reasons why such qualifications is required, and may require the Bidder to provide any information requested in the “Contractor’s Prequalification Application” form adopted by the Department. If requested by the Bidder, the Department shall provide an opportunity for the Bidder to present evidence of qualifications at a reasonable time and place.

103.3.2 Notice of Determination After the Bidder’s presentati on of evidence of

qualifications (if required), the Department will notify the Bidder of its determination in writing. If a determination of “Not Qualified” is rendered, the Department’s Chief Engineer will send the notice, which will set forth the specific reasons therefore to the extent practical. Such reasons include the following. (A) Default(s) or termination(s) on past or current Contracts. (B) Failure on past or current Contracts to pay or settle all bills for labor, Materials or services; to comply with directives of the Department, to fulfill warranty obligations, or to provide Closeout Documentation. (C) “Below Standard” performance as determined from the Department’s Contractor’s Performance Rating process. (D) Insufficient bonding capability or Inability of the Contractor to obtain or retain Performance or Payment Bonds meeting Department requirements, or a pattern of unsupported Claims. (E) Failure to accept an Award of a Contract made by the Department. (F) Failure to provide information requested by the Department in a timely manner. (G) Debarment, suspension or a denial of prequalification or “award of contract” by any federal, State, or local governmental procurement agency or the Contractor’s Agreement to refrain from Bidding as part of the settlement with any such agencies or any of the reasons contained in Section 102.02 of the “Rules Regarding Debarment of Contractors,” Maine Department of Transportation Register 17-229, Chapter 102 (October 2, 1985). (H) Failure to demonstrate ability to do work to the satisfaction and at the sole discretion of the Department. 1-30 (I) Number of personnel working directly for the Contractor with applicable knowledge and experience is significantly below industry standards. (J) Safety Record, Environmental Record, Civil Rights, or Equal Opportunity Record significantly below industry standards. (K) Serious misconduct that the Department reasonably determines will substantially and adversely affect the cost, quality, or timeliness of Work, or the safety of workers or the public, any deceptive, evasive, or fraudulent statements or omissions contained in the Application, made or omitted at any interview or hearing, or otherwise made to or omitted from the Department; or any other substantial deficiencies in experience or conduct that are clearly below industry standards and that clearly demonstrate in the sole discretion of the Department that the Contractor is “Not Qualified.”

103.3.3 Appeal To appeal a “Not Qualified” determination, the Bidder must Deliver

a written “Request for Appeal of Qualification Determination” to the Commissioner within 48 hours of Receipt of such determination. The Commissioner or the Commissioner's designee will grant such Requests for Appeal unless the Department reasonably determines that Delay of Award pending appeal is likely to cause substantial harm to the interests of the Department. If the Request for Appeal is denied, the determination of “Not Qualified” is upheld and the Award process will proceed without the unqualified Bidder. If the Request for Appeal is gr anted, the Bidder and the Chief Engineer must Deliver to the Commissioner or the Commissioner’s designee any information or arguments that the parties want considered within 14 Days of Receipt of a “Not Qualified” determination. Within 14 Days of Receipt of such information and arguments, t he Commissioner or the Commissioner’s designee will notify the Bidder in writing as to whether: (A) the determination of “Not Qualified” is upheld, modified or reversed; or (B) the Commissioner or the Commissioner’s designee elects to submit the issue to binding or non-binding alternative Dispute resolution. After a final determination of “Not Qualified,” the Bidder’s B id Guaranty will be returned and the Bidder will be ineligible for Award of future Department Contracts until the Bidder is prequalified pursuant to the Department’s Prequalification Procedure.

103.4 Notice of Intent to Award The Department has 30 Days fo llowing Bid

Opening to Deliver a written Notice of Intent to Award and request a Payment Bond, Performance Bond, insurance bond, special certifications, and other information from the Apparent Low Bidder. If a notice of Intent to Award is not sent within 30 days of receipt of the Bid Opening, the Apparent Successful Bidder may withdraw its Bid without forfeiture of its Bid Guaranty or Bidding eligibility. If the Department and the Apparent Successful Bidder agree, an extension beyond the 30 days of the Bid and Bid prices may occur and the Bid remains viable. For a related provision, see Section 103.5 - Award Conditions. 1-31

103.5 Award Conditions The Apparent Successful Bidder must pr ovide and/or

perform all of the items listed in this Section 103.5 within 14 Days of Receipt of the Notice of Intent to Award. Unless indicated otherwise, all items must be Delivered to the Department’s Contracts Engineer.

103.5.1 Performance and Payment Bonds Performance and Payment Bonds

complying with Section 110.2.1 - Bonds.

103.5.2 Insurance Certificates Certificates of Insurance comp lying with Section

110.3 Insurance.

103.5.3 Non-Resident Contractor Requirements

A. Definition A Non-Resident Cont ractor is defined as a Contractor that is: (A) any individual who is not a resident of the State of Maine, or (B) any firm, corporation, limited liability company, partnership, joint venture, sole proprietorship, or other entity that (i) is not licensed to do business within the State of Maine, or (ii) does not have a principal place of business within the State of Maine. B. Requirements If a Non-Resi dent Contractor, the Apparent Successful Bidder must file with the Department a copy of a written appointment of an attorney admitted to practice in the State of Maine having a place of business within the State. The appointment must: (A) set forth the attorney’s business and personal addresses, and business telephone and fax numbers, (B) name said attorney to be the true and lawful attorney of the Non- Resident Contractor, (C) set forth that the Contractor agrees that any lawful process that is served on said attorney shall have the same legal force and validity as if served on the Contractor, (D) set forth that the appointment shall continue in force as long as any potential liability in any way related to the Work or the Contract remains or until the Department receives written notice of a change of appointment Conforming to this paragraph, (E) provide that service of such process may be made by leaving a copy of the process in the hands or in the office of the Resident attorney and that such service will be effective upon the Non-Resident Contractor, as if service were made in accordance with Rule 4 of the Maine Rules of Civil Procedure, and (F) provide that the Contractor expressly waives any and all defenses regarding service of process under Rule 12 of said Civil Rules or otherwise. The appointment shall be filed in the office of the Maine Secretary of State.

103.5.4 Execution of Contract By Bi dder The properly completed and signed

Contract Agreement, Offer, & Award form provided with the Bid constitutes the Bidder’s offer. Once the Department has received the bonds, insurance, and any other pre-award items required, the Department will sign the Contract Agreement, Offer, & Award form and execute the Contract. The point of Contract execution is when the Contractor receives the written Notice of Award.

103.5.5 Bid Escrow If required by Special Provision, the Appa rent Successful

Bidder must provide a legible copy of Bid Escrow Documentation and a related Affidavit Conforming to said Special Provision. Failure to provide Conforming Bid Escrow 1-32 Documentation or the Affidavit constitutes a refusal to enter into the Contract and will result in the Bidder’s forfeiture of its Bid Guaranty.

103.5.6 Other Conditions The Apparent Successful Bidder must comply with all

other conditions set forth or referenced in the Notice of Intent to Award.

103.6 Failure to Fulfill Award Conditions Failure of the Appa rent Successful Bidder

to fulfill all conditions of Award within the time provided or to otherwise accept Award will result in forfeiture of the Award to the Apparent Successful Bidder and the forfeiture of the Bid Guaranty. Such Bidder will be prohibited from submitting a Bid for the Work in the event that the Work is re-advertised. Further, the Department may refuse to accept any Bid from the Bidder on any Project for a period of two years from the date of such refusal. The Department may then take any action that the Department de termines is in the best interest of the Department, including Awarding the Contract to the responsible Bidder with the next lowest responsive Bid, rejecting all Bids, and/or re-advertising the Work.

103.7 Forfeiture of Award The Department reserves the right t o stop the Award of

any Contract at any time before the Contract Execution without liability if doing so is in the best interest of the Department. Any costs incurred by the Bidder before Contract Execution shall be the sole responsibility of the Bidder.

103.8 Award of Contract by Department Once the Contractor has met the

requirements of the Notice of Intent to Award letter, the Department has 14 days to execute the Contract and notify the Contractor of the award with a written Notice of Award. If a Notice of Award is not sent within 14 days, the Apparent Successful Bidder may withdraw its Bid without forfeiture of its Bid Guaranty or Bidding eligibility. For a related provision, see Section 107.2 - Commencement of Contract Time.

103.9 Computation and Extension of Time In the event that a t ime period provided

in this Section 103 concludes on a Holiday, Saturday, or Sunday, said time period shall be extended to the next Business Day. The Department and Apparent Successful Bidder may extend the t ime for the Award process, fulfillment of Award Conditions, or execution of the Contract by mutual Agreement. Unless specifically and mutually agreed to in writing, such extensions shall not extend the Contract Time or the Contract Completion Date.