103Award and Execution of Contract

103.01CONSIDERATION OF PROPOSALS

Bid proposals will be compared based on the summation of the item total prices shown in the bid schedule.

103.02AWARD OF CONTRACT

The contract will be awarded by the Commission within 45 calendar days after the bid opening to the lowest responsive, responsible, and qualified bidder whose bid proposal complies with all the requirements. The successful bidder will be notified in writing of the acceptance of the proposal and the award of the contract. If the contract is not awarded within 45 calendar days, all bid proposals are void. The Commission can extend the 45-day time period. In the event two or more qualified bids are exactly equal for the lowest bid, the successful bidder will then be determined by totaling the major bid items listed on their schedule of items. The contract will be awarded to the bidder having the lowest total of major bid items. A major bid item is defined in Subsection 101.03 .

103.03ASSIGNMENT OF CLAIMS

In consideration of being awarded the contract, the Contractor, on its own behalf and on behalf of its subcontractors, assigns to the Department all claims or causes of action for any antitrust law violations, or damages arising there from, as to goods, materials, and services purchased under the terms of the contract or any change order that may result from the contract.

103.04CANCELLATION OF AWARD

The award of the contract may be canceled at any time before the execution of the contract by all parties without liability against the Department.

103.05RELEASE OF PROPOSAL GUARANTY

All proposal guaranties will be void immediately following opening and checking of the proposals. The successful bidder’s proposal guaranty will be void after a satisfactory contract bond has been furnished and the contract has been executed.

103.06CONTRACT BOND

Furnish an executed contract bond or bonds in a sum equal to the contract amount under Subsection 103.07 . Use a form provided by the Department and executed by a surety company authorized by law to transact business in the State. The contract bond will remain in full force and effect until the certificate of completion is accepted by the Commission, plus any time period specified by Montana law. The statutory time for filing claims against the contract bond is 90 calendar days from the date of the Commission acceptance. See Sections 18-2-201 to 18-2-208 MCA. For claims filed against the bond, it is the duty of the surety company to independently investigate subcontractor and supplier claims. After a claim has been made against the bond and upon formal request from the Surety, the Department is responsible for making periodic payments to the Surety until all bond claims are settled. The surety company is responsible for making the appropriate payments to the subcontractor or supplier who has filed compensable claims against the bond in accordance with 28-2-2103 MCA. – AWARD AND EXECUTION 2020 EDITION V5.1 OF CONTRACT Once the surety company has confirmed all bond claims have been settled, the Department may resume making periodic payments to the Prime Contractor upon the request of the Prime Contractor.

103.07EXECUTION AND APPROVAL OF CONTRACT

than 5:00 p.m. on the 20th calendar day after award, not counting the date of receipt of the contract documents:

A contract is not binding unless all the above requirements have been satisfied.

The contract, bond, and insurance are subject to legal approval after execution by the Contractor and Surety.

103.08FAILURE TO EXECUTE CONTRACT

Upon failure to execute the contract and file acceptable bonds within 20 calendar days after receipt of the contract, under Section 18-1-204 MCA , the award will be canceled, and the proposal guaranty forfeited. Award may then be made to the next lowest responsive, responsible and qualified bidder, or the work may be re-advertised. If, due to circumstances entirely beyond the control of the bidder, the bidder is unable to file acceptable bonds and insurance policies within the time specified above, the Commission at its sole discretion may waive cancellation of the award and forfeiture of the proposal guaranty.

103.09BID DOCUMENTS

.1 General

Bid Documentation is defined in Subsection 101.03. The following requirements apply when submission of bid documents is required by the contract. The Department agrees to safeguard the bid documents, and all information contained therein, against disclosure to the fullest extent permitted by law.

.2 Form Submittals for Apparent Low Bidder

no later than 5 calendar days after the date of the bid opening (the date of the bid opening to count as the first full day). The Bid Documentation Recipients Form documents the authorized agent for the Contractor and authorized escrow agent to sign the Escrow Agreement.

MDT-CON-103-09A “ Bid Documentation Inventory and Affirmation” and submit with the bid documentation submittal files to an escrow agent located in the State of Montana. Follow all requirements for bid documentation submittal files listed on the Inventory and Affirmation form.

CON-103-09B, through DocuSign to the authorized representatives identified on the Bid Documentation Recipients Form. Follow all requirements for the escrow procedure listed on the Escrow Agreement. The forms must be signed by an authorized agent for the bidder. These forms are available at the following web page: https://www.mdt.mt.gov/publications/forms.shtml#hig 2020 EDITION V5.1 AWARD AND EXECUTION – 103 OF CONTRACT

.3 Escrow of Bid Documents

Once identified as the apparent low bidder on a contract requiring submission of bid documents, submit the Bid Documentation Recipients Form. Submit all bid documentation submittal files and the Bid Documentation Inventory and Affirmation form, to an approved escrow agent located in the State of Montana. Only submit bid documentation as PDF files. When possible, merge the PDF files together. Use DocuSign to sign the Escrow Agreement within 7 business days, (the date of the bid opening to count as the first full day). The Escrow Agreement administered by the Department through DocuSign, will capture the signatures of the bidder’s representative, escrow agent, and MDT CES representative. The Escrow Agreement is not to be signed until bid documentation submittal files and the Bid Documentation Inventory and Affirmation form is complete and submitted to the escrow agent. An approved escrow agent includes any business located in the State of Montana such as a banking institution, title company, or other bonded business which provides secure accommodation for the bid documentation files. The escrow agent must hold the bid documents in trust, fulfilling fiduciary obligations to MDT and all contractors and suppliers of the project. The escrow agent is responsible for holding the bid documents as electronic submittal files. If the apparent low bid is deemed non-responsive, the second low bid will be reviewed, and the bidder will be notified in writing and will have 7 business days to comply with the above requirements.

.4 Bid Responsiveness

The bid documentation submittal files and Bid Documentation Inventory and Affirmation must be submitted to an escrow agent and the Escrow Agreement must be executed using DocuSign; if incomplete or not submitted, the bid will be deemed non-responsive. If the apparent low bid is deemed non-responsive, the second low bid will be reviewed, and the bidder will be notified in writing and will have 7 business days to comply with the above requirements.

.5 Release of Bid Documents to the Department

The bid documentation submittal files in escrow are and will remain the property of the Contractor unless a certified claim is filed by the Contractor or litigation, or arbitration is initiated under the contract. If the Contractor submits a certified claim or litigation or arbitration is initiated under the contract; the bid documents included in escrow become the property of the Department for its use, specifically including use in preparing for and conducting of all claims, disputes, arbitration, or litigation. Failure to submit all bid documents as defined in Subsection 101.03 and the Bid Documentation Inventory and Affirmation form as required, or failure to include the items indicated by the Bidder on the Bid Documentation Inventory and Affirmation form in the documents that are placed in escrow, will be a material breach of the contract, is a failure to comply with a condition precedent to filing a claim or lawsuit, acts as a total and final waiver of all claims or disputes involving matters that would have been included (e.g., claims of delay, changed site conditions, loss of productivity, etc.), and subjects the Contractor to action under The Release of Contract Escrow Bid Documentation Form is administered through DocuSign by the Department. Transfer the bid documentation submittal files to the Department through the State File Transfer Service. Only submit bid documentation as PDF files. When possible, merge PDF files together.

.6 Release of Bid Documents to the Contractor

Except as provided for in Subsection 103.09.5 , the bid documents will remain in the storage location during the life of the contract. After a certificate of completion has been issued for the contract, the Department will notify the escrow agent and the Contractor that the bid documents – AWARD AND EXECUTION 2020 EDITION V5.1 OF CONTRACT may be released. It is the Contractor’s responsibility to obtain necessary signatures and retrieve the bid documents from the Escrow Agency.

.7 Method of Measurement and Basis of Payment

Escrow of Bid Documents is measured and paid as lump sum. Payment will be made on the first progress estimate. Payment at the contract unit price is full compensation for all resources necessary to complete the item of work under the contract.

103.10SUBCONTRACTOR REPORT

No later than 6 calendar days after the date of bid-opening (the date of bid opening to count as the first full day), the apparent low bidder must submit to ECCB, during its regular work hours, a fully completed form MDT-CON-102-8 documenting all responding subcontractors, and the work quoted. Include the quoted amount for each subcontractor to be used. If no work is subcontracted, submittal of form MDT-CON-102-8 is still required. If the 6th day is a holiday, turn the documentation in earlier. The DBE commitment information in Expedite must still be reported. The information provided on this form will only be used for reporting at the time of letting. Form MDT-CON-102-8 is available at the following web page: https://www.mdt.mt.gov/publications/forms/const_forms.shtml. The bid proposal may be considered non-responsive and rejected if the above form(s) are not submitted within the required time frame.

103.11PROPOSED AGGREGATE SOURCE(S)

No later than 7 calendar days after the date of bid opening (the date of bid opening to count as the first full day), the apparent low bidder must submit to ECCB, during its regular work hours, a fully completed Proposed Aggregate Source (Form MDT-CON-106-02-3) for each aggregate source the bidder used to prepare its bid or a subcontractor used to prepare its quote, if used by the bidder for its bid. If the 7 th day is a holiday, turn the documentation in earlier. Form MDT-CON-106-02-3 is available at the following web page: https://www.mdt.mt.gov/publications/forms/const_forms.shtml The bid proposal may be considered non-responsive and rejected if the above form(s) are not submitted within the required time frame.