less than 24 hours, all other Bid Defects not listed in Section 102.11.1 - Non-curable Bid Defects that are identified by the Department. Failure to cure such Defects within said time may result in forfeiture of the Bidder’s Bid Guaranty. Upon su ch failure, the Department may take any action in the best interests of the Department, in cluding those set forth in Such curable Bid Defects include, but are not limited to, the f ollowing. The Bidder signs only one of the C ontract Agreement Offer & Awa rd forms. Missing total sum of the items pr ovided in the Schedule of Items. The prices or signatures on the Bid or Bid Guaranty are not in ink or other non-erasable substance. Failure to acknowledge Receipt and consideration of all Bid Ame ndments. All other Defects that do not cr eate a significant question as to the Bidder’s total Bid amount or the Bidder’s ability to complete the Work within the Contract Time or by the Contract Completion Date as determined by the Department. Materially unbalanced Bids may create a significant question a s to the Bidder’s ability or will to complete the Work within the Contract Time i n accordance with the requirements of the Contract; see Section 103.1.2 - Unbalanced Bids. Contractors prequalified for the general category stated in th e Notice to Contractors may be determined non-responsive by the Department based on rec ent or new data provided since the last determination of prequalification for that Contr actor.
Scope of Section This Section includes requirements related to the final determination of Bid responsiveness and Award and execution of the Contract.
103.1Analysis of Bids
103.1a Tie Bids - In the case where two responsive bids from r esponsible bidders are equal monetarily, the Department shall determine the apparent l ow bidder by flipping a coin. The coin shall have sides clearly marked as heads and ta ils. The contractor whose first letter in its official company name that comes first in t he 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, bi dders may flip their own coin or have the Contracts Engineer flip for them.
The coin flip will occur at the next bid opening by the Contrac ts and Specifications Engineer or a designee. The tied bidders may attend the coin f lip 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 Pr ice, the unit and lumps sum prices shall govern and the total Bid Price will be adjusted ac cordingly. 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 Unbalan ced means a Bid containing lump sum or Unit Pri ces that do not reflect reasonable direct costs plus a reasonable proportionate share of the Bidder’s anticipated prof it, overhead costs, and other indirect costs. Materially Unbalanced means a Mathematically U nbalanced Bid that generates a reasonable doubt that said Bid will represent the l owest ultimate cost to the Department.
of items contained in the Bid of t he Apparent Successful Bidder with the estimate prepared by the Department. If the Bid is Mathematically Unbalanced, th e Department may, in its discretion, notify the Apparent Successful Bidder and request a n explanation. There shall be no negotiation or changes in prices. If the Bidder fails to pr ovide a reasonable explanation, and if the Department finds the Bid is Materially Unbalanced, t he Department may reject the Bid as non-responsive and may take any action that is in the be st interests of the Department, including those set forth in Section 103.6 - Failur e 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 f or new Bids if doing so is in the best interest of the Department. The Department reserves the r ight to waive curable Bid Defects and other technicalities without notice to any party. Refer to section 102.11.2 for Curable Bid Defects.
103.2Return of Bid Guaranty Bi d Bonds will not be returned un less so requested. Bid
Guaranties other than bonds will be returned within 7 Days foll owing Bid Opening, except that the Bid Guaranties from two lowest responsive Bids from re sponsible Bidders will be retained until Contract Execution or rejection of all Bids.
103.3Post-Bid Qualification 103.3.1 Pre-Qualification Requirement for Award If the Notice to Contractors lists a
Pre-Qualification requirement, t he Apparent Successful Bidder m ust successfully complete the prequalification process as a condition of Award.
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 descri ption of the reasons why such qualifications is required, and may require the Bidder to provi de any information requested in the “Contractor’s Prequalification Application” form adopted by the Department. If requested by the Bidder, the Department shall provide an opp ortunity 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 Bi dder of its determination in writing. If a determination of “Not Qualified” is rendered, th e 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.
services; to comply with directives of the Department, to fulfi ll warranty obligations, or to provide Closeout Documentation.
Performance Rating process.
Performance or Payment Bonds meeting Department requirements, o r a pattern of unsupported Claims.
federal, State, or local governmental procurement agency or the Contractor’s Agreement to refrain from Bidding as part of the settlement wit h any such agencies or any of the reasons contained in Section 102.02 of the “Rules Regarding Debarment of Contractors,” Maine Department of Transportation R egister 17-229, Chapter 102 (October 2, 1985).
of the Department.
and experience is significantly below industry standards.
significantly below industry standards.
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 in dustry standards and that clearly demonstrate in the sole discretion of the Departme nt 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 Q ualification Determination” t o 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 Departm ent 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 w ill 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 Qua lified” 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 a s to whether: (A) the determination of “Not Qualified” is upheld, modified or reverse d; or (B) the Commissioner or the Commissioner’s designee elects to submit the issue to bi nding 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 Prequal ification Procedure.
103.4Notice of Intent to Award The Department has 30 Days fo llowing Bid
Opening to Deliver a written Notice of Intent to Award and requ est a Payment Bond, Performance Bond, insurance bond, special certifications, and o ther information from the Apparent Low Bidder. If a notice of Intent to Award is not sen t within 30 days of receipt of the Bid Opening, the Apparent Su ccessful Bidder may withdraw it s 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 Bi d prices may occur and the Bid remains viable. For a related provision, see Section 103.5 - Award Conditions.
103.5Award 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 Contr actor 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 proprietors hip, 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.
must file with the Department a copy of a written appointment o f an attorney admitted to practice in the State of Maine having a place of business withi n the State. The appointment must: (A) set forth the attorney’s business and personal addres ses, and business telephone and fax numbers, (B) name said attorney to be the true and lawf ul attorney of the Non- Resident Contractor, (C) set for th that the Contractor agrees t hat any lawful process that is served on said attorney shall have the same legal force and val idity as if served on the Contractor, (D) set forth that the appointment shall continue i n 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 t o this paragraph, (E) provide that service of such process may be made by leaving a c opy of the process in the hands or in the office of the Resident attorney and that suchs ervice will be effective upon the Non-Resident Contractor, as if service were made in accorda nce with Rule 4 of the Maine Rules of Civil Procedure, and (F) provide that the Contra ctor expressly waives any and all defenses regarding service of process under Rule 12 of said Civil Rules or otherwise. The appointment shall be filed i n the office of the Maine Secre tary of State. 103.5.4 Execution of Contract By Bi dder The properly complete d and signed Contract Agreement, Offer, & Awa rd form provided with the Bid c onstitutes 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 Pr ovision. Failure to provide Confo rming Bid Escrow
Documentation or the Affidavit constitutes a refusal to enter i nto 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 ref erenced in the Notice of Inten t to Award.
103.6Failure 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 Awar d to the Apparent Successful Bi dder 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 f or a period of two years from t he date of such refusal. The Department may then take any action that the Department de termines is in the best interest of the Departmen t, including Awarding the Contrac t to the responsible Bidder with the next lowest responsive Bid, rejecting all Bids, and/or re-advertising the Work.
103.7Forfeiture 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 Bid der before Contract Execution shall be the sole responsibility of the Bidder.
103.8Award of Contract by Department Once the Contractor has met the
requirements of the Notice of Int ent to Award letter, the Depar tment has 14 days to execute the Contract and notify the Contr actor of the award with a writ ten Notice of Award. If a Notice of Award is not sent within 14 days, the Apparent Succes sful Bidder may withdraw its Bid without forfeiture of its Bid Guaranty or Bidding eligi bility. For a related provision, see Section 107.2 - Commencement of Contract Time.
103.9Computation 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 C ontract by mutual Agreement. Unless specificall y and mutually agreed to in writi ng, such extensions shall not extend the Contract Time or the Contract Completion Date.
Scope of Section This Section sets forth certain rights and r esponsibilities of the Department and the Contractor that are generally applicable to all Contracts. This Section is not all inclusive, and additional rights and responsibilities a re set forth elsewhere in the Contract.