14 SECTION 102
102.01 Qualification of Bidder
The Department will only consider a proposal from a prequalified Bidder. Obtain online prequalification from the Department. Instructions for the online submittal can be found on the Departments website. The Department must receive the Contractor’s Prequal ification Statement at least 10 business days before the bid opening. The Department may check any statements submitted by a Bidder on the Contractor’s Prequalification Statement and obtain additional pertinent information from other sources. The Department may disqualify a Bidder for any reason stated in Section 102.13, “Disqualification of Bidder”.
102.02 Contractor’S License
The Department will not require a Bidder to have a contractor’s license from the State to submit a proposal; however, the Department will only award a contract to a Bidder that has an appropriate contractor’s license from the State.
102.03 Issuance and Contents of Proposal Package
The Department will issue the proposal package in accordance with the advertisement and notice to bidders. The notice to bidders is available on the Department’s website ( www.dot.nd.gov ). The Department will issue all addenda no later than 4:00 p.m. central time 2 business days before the bid opening, except the Department may withdraw the project from the bid opening at any time. Before submitting a proposal, check the most current proposal package, including addenda. The proposal package will contain the following:
1.The request for proposals, which contain the following:
a.The proposal forms, which contain the following:
1.The location and description of the work;
2.A list of bid items and estimated quantities;
3.The contract time; and
4.The date, time, and location of the bid opening.
b.The supplemental specifications,
c.The special provisions, and
d.Other requirements that vary from or are not contained in the standard specifications;
2.The plans;
a.The project plans, and
b.The standard draw ings.
3.The standard specifications;
4.Any addenda; and
5.Other documents designated in the proposal package.
102.04 Interpretation of Quantities In Bid Item List
The quantities in the bid item list are estimates only that the Department prepares for comparing proposals. The Department will measure and pay for accepted quantities of work in accordance with Section 109, “Measurement and Payment.” 15 102.05 EXAMINATION OF PROPOSAL PACKAGE AND PROJECT Examine the proposal package and the project, including locations identified in the proposal package, before submitting a proposal. The Department will consider a Bidder’s submissi on of a proposal as conclusive evidence that the Bidder has investigated and is satisfied as to the conditions to be encountered; the character, quality, and scope of work to be performed; the quantities of materials to be furnished; and the conditions and requirements of the proposal package. Make such independent investigation and examination as necessary to be satisfied as to conditions to be encountered in the performance of the work and with respect to possible local material sources, the quality and quantity of material available from such property, and the type and extent of processing that may be required to produce material conforming to the contract. Independent investigation and examination includes knowledge of the State’s physical geography, geology, and hydrology, and of the available publications on that subject matter. If conditions at the project site are inconsistent with the proposal package or there are discrepancies, conflicts, errors, omissions, or ambiguities within the proposal package, immediately submit a request for explanation to the Department’s Construction Services Division. The Department must receive requests for explanation in adequate time to allow the Department to reply. The Department will issue interpretations by addendum and make them available on the Department’s website and the Bid Express website at least 2 business days before the bid opening. Before the Department’s approval and execution of the contract, any statements, explanations, or representations concerning the project made by any of the Department’s employees or agents are not binding, unless specifically included in the proposal package.
102.06 Supplemental Information
A.General. Any information that is not included in the proposal package is considered s upplemental information and will not become part of the contract. The Department provides supplemental information on an “as -is” basis. Supplemental information is data that is used or generated by the Department for use in project development and is not part of the proposal package and will not become part of the contract. Items designated as supplemental information are preliminary only and may differ from final design details. The Department does not warrant supplemental information to be free of errors or deficiencies and does not warrant the information as being fit for any particular use. Refer to the contract for final construction information for bidding and construction purposes. Any available supplemental information will be located on the Department’s website alongside the proposal package. If no supplemental information is available, a statement to that effect will be included in the area that would contain the supplemental information.
B.Soil Information and Boring Logs. The Department does not warrant or guarantee the sufficiency or accuracy of the boring logs or the interpretations made or opinions of the Department as to the type of materials and conditions that may be encountered. General soil and rock strata descriptions and indicated boundaries are based on a geotechnical interpretation of all available subsurface data and may not reflect the actual 16 subsurface conditions between individual borings or between sampled strata within the bore hole. The laboratory data and the in- place data can be relied on only to the degree of reliability inherent to the standard test method. The observed water levels or soil moisture conditions may vary considerably with time according to climatic conditions including temperature, precipitation, and w ind, as well as other non-climatic factors. Make independent subsurface investigations, as necessary, to become satisfied with the conditions to be encountered on the project.
C.Electronic Design Data. Electronic design data is subject to change by the Department without notice. The use of electronic design data in preparation of a proposal or in performance of the work does not allow relief from obligations under the contract or from complete and proper fulfillment of the contract requirements. The De partment does not warrant or guarantee the accuracy of the electronic design data or the consequences related to the use, retention, distribution, alteration, or deletion of the electronic design data. The use of electronic design data does not entitle the Contractor to compensation or an extension of time for damages or losses which could be attributed to the use of electronic design data. Electronic design data will be accessible through the Department’s ftp site. A notice will be placed with the remai ning supplemental information with instructions detailing how to access the electronic design data.
102.07 Preparation of Proposal
A.General. Prepare the proposal using the Bid Express website in accordance with Section 102.07 B, “Electronic Proposal,” unless the notice to bidders states that the Department will accept a paper proposal in accordance wi th Section 102.07 C, “Paper Proposal.” Acknowledge the receipt of all addenda in accordance with the proposal forms. Execute the proposal as follows:
1.For an individual, signed by that individual;
2.For a partner ship, signed by a partner;
3.For a corporation, signed by an officer of the corporation with the officer’s title;
4.For a joint venture, signed by a legally qualified representative of each of the parties to the joint venture; and
5.For an individual, a partnership, a corporation, or a joint venture, signed by anyone having a power of attorney. Provide a copy of the power of attorney with the proposal, or arrange with the Department to file the power of attorney with the Department before submitting the proposal.
B.Electronic Proposal.
1.Electronic Bidding Credentials. A Digital ID is required to electronically sign proposals. 17 If a Bidder does not have a Digital ID, create a Digital ID and set up bidding privileges by following the instructions on the Bid Express website ( www.bidx.com ). Begin the Digital ID creation process a minimum of 7 business days before the bid opening.
2.Submitting an Electronic Proposal. Prepare the proposal using Bid Express as follows:
1.Download the most current “Proposal Files” and “DBE Roster File” from the Bid Express website (www.bidx.com).
2.Use the Bid Component for AASHTOWare Project Bids to prepare and submit the proposal forms. Follow the Bid Component software instructions and review the help screens provided on the Bid Express website to ensure that the bid item list is prepared properly. Provide a unit price for each bid item. If the proposal forms contain alternate or optional bid items, provide unit prices for those bid items as follows:
a.For alternate bid items, provide a unit price for each bid item included in the Bidder’s preferred alternate.
b.For optional bid items, provide a unit price for all bid items under all options. The user’s Digital ID must be on file and enabled by Bid Express. The use of the Digital ID constitutes the Bidder’s signature for execution of the proposal. The Department is not responsible for the Bidder’s inability to submit a proposal using AASHTOWare .
C.Paper Proposal. The Department will only consider a paper proposal if the proposal package states that the Department will accept a paper proposal. Enter a unit price in numerals for each bid item on the bid item list, except as not required in the case of alternate bid items. Enter the product of each unit price and respective quantity. Enter the total sum bid at the bottom of the last page of the bid item list. The paper bid item list may be a computer -printed bid item list from the current version of Expedite. Execute the proposal by signing and notarizing in ink and in the space provided on the proposal forms.
102.08 Bid Limitation
If the Bidder desires to submit a proposal on more than one project as part of the same bid opening (date and time), and desires to avoid receiving an award of more projects than the Bidder is equipped to handle, the Bidder may submit proposals on multiple projects and limit the total amount of work awarded to the Bidder on selected projects by completing the “Bid Limitation” section in the proposal forms. The bid limitation can be made by declaring the total amount of work or total number of projects. If a Bidder makes a limiting statement on any proposal, the statement will apply to all proposals submitted by the Bidder as part of that bid opening. If the bid limitation statements on more than one proposal differ, the Department will use the lower bid limitation amount or number. Do not attempt to reserve the right to choose the contract or contracts. 18 When considering al l projects with bid limitations, the Department will select those proposals that provide the lowest overall cost to the Department.
102.09 Proposal Guaranty
A.General. Provide a proposal guaranty in the form of an annual bid bond in accordance with Section
102.09 B, “Annual Bid Bond,” a single project bid bond in accordance with Section 102.09 C,
“Single Project Bid Bond,” or a certified or cashier’s check in accordance with Section 102.09 D, “Certified or Cashier’s Check.” Contact the Department’s Construction Services Division to obtain bond forms.
B.Annual Bid Bond. Before submitting a proposal, file an executed annual bid bond with the Department on the Annual Bid Bond (SFN 50231), in an amount equal to 10 percent of the total sum bid, and from a surety c ompany authorized to do business in the State. Execute the annual bid bond as principal. The annual bid bond applies to all proposals submitted by a Bidder in a calendar year.
C.Single Project Bid Bond. Upon request, the Department may allow the Bidder to file a single project bid bond with the Department before the bid opening. Before the date and time of the bid opening, submit an executed single project bid bond on the Bid Bond – Single Project (SFN 14196), in an amount equal to 10 percent of the total sum bid, and from a surety company authorized to do business in the State. Execute the single project bid bond as principal.
D.Certified or Cashier’s Check. Upon request, the Department may allow the Bidder to file a certified check or cashier’s check before the bid opening. Before the date and time of the bid opening, submit a certified check or cashier’s check in an amount equal to 5 percent of the total sum bid and from a solvent bank.
102.10 Submission of Proposal
Submit the proposal so that the Department receives the proposal before the date and time of the bid opening. The Department will allow the following two methods of submitting a proposal:
A.Electronic Proposal. Follow the instructions on the Bid Express website to submit an electronic proposal. If submitting an electronic proposal, do not sign, notarize, or submit a paper proposal. The Department will not consider proposals submitted electronically as received until the date and time of the bid opening.
B.Paper Proposal. The Department will only consider a paper proposal if the notice to bidders states that the Department will accept a paper proposal. Seal the executed paper proposal in an envelope and label the envelope with the following:
1.The Bidder’s name,
2.The Projec t Number, and
3.The date and time of the bid opening. Submit the sealed envelope to the Department. If the Department receives a proposal after the bid opening, the Department will return the unopened proposal to the Bidder.
102.11 Bid Opening
The Department will publicly open and announce proposals at the bid opening.
102.12 Irregular Proposal
The Department will consider a proposal irregular and reject it if:
1.The Bidder fails to prepare the proposal in accordance with Section 102.07, “Preparation of Proposal” , or submit the proposal in accordance with Section 102.10, “Submission of Proposal” .
2.The Bidder fails to provide an executed proposal guaranty in accordance with Section 102.09, “Proposal Guaranty” .
3.The Bidder adds any provisions reserving the right to accept or reject an award, or to enter into a contract pursuant to an award. This does not apply to bid limi tations made in accordance with Section 102.08, “Bid Limitation” .
4.The Bidder fails to complete the “Non-Collusion and Debarment Certification” section of the request for proposals. The Department may consider a proposal irregular and reject it if:
1.The Bidder fails to comply with any requirements of the proposal package.
2.The Bidder makes unauthorized additions to the proposal forms, makes unauthorized conditional or alternate proposals, or there are irregularities of any kind that could make the meaning of the proposal incomplete, indefinite, or ambiguous.
3.The Bidder fails to acknowledge addenda as required in the proposal forms.
4.The Department cannot determine a unit price for every bid item, except in the case of authorized alternate bid items.
5.The Department determines that any unit price is materially unbalanced.
6.On a paper proposal, the Bidder fails to type or use ink to enter all information on the bid item list.
7.For a paper proposal, the check code printed on the bottom of the printout of the Expedite- generated bid item list is not the same on every page of the printout.
8.The Bidder fails to comply with the Disadvantage Business Enterprise (DBE) requirements.
102.13 Disqu Alification of Bidder
The Department will disqualify a Bidder and reject their proposal(s) for the following reasons:
1.A Bidder fails to obtain prequalification in accordance with Section 102.01, “Qualifications of Bidder”.
2.The Department finds evidence of collusion among Bidders. The Department will not recognize a participant in collusion as a Bidder for future projects until that Bidder obtains prequalification. 20 3. A Bidder submits more than one proposal for the same project as an individual, firm, or corporation under the same or different name.
4.Any other reason deemed proper by the Department. The Department may disqualify a Bidder and reject their proposal(s) for the following reasons:
1.The Bidder has incomplete work that the Department determines might hinder or prevent prompt completion of proposed work.
2.The Bidder fails to promptly pay or satisfactorily settle all claims for labor and material on another Department contract, including those projects where the Bidder is a party to a joint venture that has failed to settle such claims.
3.The Bidder defaults on another Department contract.
4.The Bidders fails to repay the Department for overpayments on another Department contract.
5.The Bidder fails to perform satisfactory work on another Department contract as follows:
a.Fails to comply with contract requirements or Engineer’s directives.
b.Fails to complete work on time.
c.Performs substantial corrective work before acceptance.
d.Performs work that requires pay reductions.
6.The Attorney General of the State or Department determines that the Bidder has questionable moral integrity.
7.The federal government has disbarred the Bidder from performing work on federal contracts. Section 103 21 SECTION 103 AWARD AND EXECUTION OF CONTRACT
103.01 Consideration of Proposals
A.General. After the Department opens and announces the proposals, the Department will compare the proposals based on each total sum bid, and will publicly announce the results. The Department reserves the right to reject any or all proposals, waive technicalities, or to advertise for new proposals.
B.Requests to Withdraw Proposals. To request a withdrawal of a proposal after the bid opening due to a bid error, notify the Department that an error occurred by submitting a written request to the Department with the following information:
1.All bid documentation related to the error(s); and
2.A notarized affidavit or declaration signed under penalty of perjury that describes the specific error(s) and certifies that any submitted bid documentation were the only ones used in the preparation of the proposal. The Department will not consider requests received after 5:00 p.m. central time on the s econd business day after the bid opening. The Department will review the request to determine the validity of the claimed error, and will evaluate applicable laws to determine if relief from forfeiture is warranted. If the Department determines that an err or did occur and the law allows relief, the Department will relieve the Bidder of the responsibilities of award and release the Bidder of the obligations under the proposal guarantee. If the Department determines that an error did not occur or that the law does not allow relief, the Department may award the contract and if the Bidder refuses to execute the contract, the Bidder shall forfeit its proposal guaranty in accordance with Section 103.07, “Failure to Execute Contract.”
103.02 Award of Contract
If the Department awards a contract, the Department will select the responsible Bidder with the lowest total sum bid and a proposal that complies with the proposal package. The Department will make an award no more than 30 calendar days after the bid opening, unless both parties agree in writing to an extension, and will notify the successful Bidder by providing a contract, contract bond form, and other required documents to be returned in accordance with S ection 103.06, “Execution and Approval of Contract”. Submit an initial schedule of proposed progress on Proposed Progress Chart (SFN 7721) within 10 business days after the bid opening. The Proposed Progress Chart shall meet all time and scheduling requirements in the proposal package. The Department will not execute the contract with a Bidder that does not have a contractor's license in accordance with Section 102.02, "Contractor's License." For foreign (out-of-State) corporations, obtain a certificate of authority to do business in the State from the Secretary of State’s Office. The Department will not execute the contract with a foreign corporation that does not have this certificate of authority.
Source: North Dakota Standard Specifications for Road and Bridge Construction, 2022 Edition. Pages 49–55 of 550.