21 SECTION 103
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. If the s uccessful Bidder fails to submi t the Proposed Progress Chart or fails to obtain a contractor’s license or a certificate of authority to do business in the State, the Department will cancel the award, and the Bidder will forfeit the proposal guaranty.
103.03 Cancellation of Award
The Department reserves the right to cancel the award of any contract before execution without liability.
103.04 Release of Proposal Guaranty
After the Department compares the proposals, the Department will release the Bidders of all obligations under the proposal guaranties, except for the responsible Bidders with the three lowest total sums bid. The Department will release the Bidders with the three lowest total sums bid of all obligations under the proposal guaranties as follows:
A.After the Department exec utes a contract, or
B.If the Department approves a request to withdraw a proposal in accordance with Section 103.01, “Consideration of Proposals.” If the Department allows a certified check or cashier’s check in accordance with Section 102.09, “Proposal Guaranty,” the Department will return those proposal guaranties in accordance with State law.
103.05 Co Ntract Bond
A.General. Obtain from a responsible surety a contract bond in an amount equal to the original amount of the contract. On the form provided by the Department, submit to the Department proof of contract bond in accordance with Section 103.06, “Execution and Approval of Contract.” If the contract bond is voided or becomes no longer in force before final acceptance, immediately notify the Department, obtain another contract bond in an amount equal to the original, and submit to the Department proof of the contract bond on the form provided by the Department.
B.Payment. After both parties execute the contract, the Department will pay for the contract bond as follows:
1.Submit to the Engineer a written request for payment for the “Contract Bond” contract item. Include, with the request, a receipted invoice from the surety showing the amount paid for the contract bond and the date of payment.
2.The Department will pay the Contractor the contract unit price for the “Contract Bond” contract item or the paid invoiced amount, whichever is less. If the contract unit price is greater than the paid invoiced amount, the Department will pay the difference in the final progressive estimate.
103.06 Executi On and Approval of Contract
Return to the Department the signed contract, proof of contract bond, and other required documents within 15 calendar days after the notice of award. The Department will review the 23 signed contract, proof of the contract bond, and other required documents. If the Department approves, the Director will sign the contract making it fully executed and binding on the two parties. If another party is providing funding for the project, the Department may not approve the contract until the Department receives concurrence from the participating party.
103.07 Failure To Execute Contract
If the successful Bidder fails to return a signed contract, proof of the contract bond, and other required documents in accordance with Section 103.06, “Execution and Approval of Contract,” the Department may cancel the award and the successful Bidder forfeits its proposal guaranty to the Department. The Department may then award the contract to the responsible Bidder with the next lowest total sum bid or re-advertise the project.
103.08 Escrow of Bid Documentation
A.General. If the bid item list contains an “Escrow of Bid Documentation” contract item, the low Bidder shall provide a legible copy of its bid documentation for storage at a depository chosen by the Bidder and approved by the Department. The successful Bidder may choose one of the following depositories: a banking institution, other bonded document storage facility, or in a secure location at the Department's headquarters . For subcontracts at any tier equal to or greater than $750,000, obtain from the subcontractor all bid documentation used to prepare the subcontractor’s bid for the portion of the work reflected in the subcontract. The subcontractor’s bid documentation requirements shall be the same as for the Contractor, except it shall be submitted w ithin 5 days of approval of the Prime Contractor’s Request to Sublet. Submit to the Department the bid documentation and affidavit in a separate sealed container, including the subcontractor’s name and address on the container.
B.Affidavit. Provide an affidavit with the bid documentation. The affidavit shall be signed by the Bidder or by an individual authorized to sign for the Bidder in accordance with Section 102.07.A, “Preparation of Proposal, General,” and listing each enclosed document, including the author, date, nature, and subject matter of each document. The affidavit shall attest that the signer has personally examined all bid documentation, that the affidavit lists all bid documentation, and that all bid documentation is included in the submission to the Department.
C.Submittal and Return of Bid Documentation. Submit the affidavit and bid documentation to the Department within 5 business days after the bid opening. Place the affidavit and bid documentation in a sealed container and clearly mark the container with the following:
1.The label, “Bid Documentation,”
2.The Bidder’s name and address,
3.The date of submittal, and
4.The NDDOT project number and PCN. If the responsive Bidder with the lowest total sum bid has already submitted the bid documentation and the Department rejects that Bidder’s proposal or cancels the award, the 24 Department will return the bid documentation. If the Department awards to the nex t lowest responsive Bidder, the Department will notify that Bidder to submit its affidavit and bid documentation. The next lowest responsive Bidder shall submit the affidavit and bid documentation within 5 business days after the date of notification by th e Department. If the Department rejects this proposal and subsequent ones or cancels this award or subsequent ones, the above procedures will continue until the Department awards, approves, and executes a contract.
D.Duration and Use. After the Department approves and executes the contract, the Department and the Contractor will jointly deliver the sealed container and affidavit to the depository for placement in a safety deposit box or other secure accommodation. The depository must be located in Bismarc k, North Dakota, unless otherwise approved by the Department. Provide escrow instructions to the depository consistent with this section. The agreement with the depository will reflect that the bid documentation and affidavit will remain in escrow during the life of the contract, until the Contractor notifies the Department of intent to file a claim in accordance with Section 104.04 “Notice of Intention to File a Claim (NOI)” or the Contractor initiates litigation or ar bitration against the Department related to the contract. Notification of the Contractor’s intention to file a claim, or initiation of litigation or arbitration against the Department, will be sufficient grounds for the Department to obtain the release and custody of the bid documentation. The Department may open sealed escrowed bid documentation submitted by a subcontractor if it is related to the issues detailed on the NOI, or if the investigation into the issue indicates that relevant information may be found in subcontractor escrow documents. If the Contractor has not submitted notification of intent to file a claim or initiated litigation or arbitration, and the required statutory time to file a claim has elapsed since the submission of the final estimate, the Department will instruct the depository to release the sealed container to the Contractor. In accordance with the affidavit attesting that the sealed container placed in escrow contains all of the materials relied upon to prepare the proposal, the Contractor waives its right to use any bid documentation other than that placed in escrow in any claim or litigation arising out of this contract.
E.Refusal or Failure to Provide Bid Documentation. If the s uccessful Bidder fails to provide the bid documentation in accordance with Section
103.08 C, “Submittal and Return of Bid Documentation,” the Department will reject the
proposal or cancel the award, and the Bidder will forfeit the proposal guaranty. If the Contractor fails to submit a subcontractor’s bid documentation, the Department may withhold progressive estimates.
F.Confidentiality of Bid Documentation. The bid documentation and affidavit in escrow are and will r emain the property of the Contractor. The Department has no interest in or right to the bid documentation, unless the Department receives a notification of the intention to file claim from the Contractor or litigation ensues between the Department and Contractor. In the event of a claim or litigation, the bid documentation and affidavit will become the property of the Department. The Department will return to the Contractor the bid documentation and any copies made by the Department at the conclusion of litigation or once the Contractor signs the final payment statement. 25 G. Payment. The Contractor shall be responsible for the payment of the depository rent. After the Department has deposited the bid documentation and the two parties have executed the contract, the Department will pay the Contractor the contract unit price for the “Escrow of Bid Documentation” contract item. The contract unit price for the “Escrow of Bid Documentation” contract item includes the costs of all data compilation, container, depository rent, and any other costs associated with the escrow, including escrow of subcontractor bid documentation. The Department will not charge a depository rent for the use of its facility. Section 104 26 SECTION 104 SCOPE OF WORK
104.01 Intent of Contract
The intent of the contract is to state the roles, responsibilities, and obligations of the Department and Contractor regarding the construction, execution, and completion of the work. Provide all resources required to complete the work and execute the work in accordance with the contract.
104.02 Contract Revisions
A.General. The Department may revise the contract as necessary to satisfactorily complete the project at any time between the date of contract execution and the date the Department issues the final payment statement to the Contractor. Contract revisions neither invalidate the contract nor release the surety. Perform the work as revised. Proceed with the revised work only when directed by the Engineer; continue with all wor k unaffected by the revision. If circumstances arise that may necessitate a contract revision, immediately notify the Engineer in accordance with Section 104.03, “Contractor Requested Contract Revisions”. Failure to provide notice as specified in Section 104.03 constitutes a waiver of entitlement to compensation or a time extension and releases the Department from responsibility for providing compensation or a time extension for any related claims filed under Section 104.04, “Notice of Intention to File a Claim (NOI)”, and Section 104.05, “Claims for Adjustment”. If the Department revises the contract the Department will determine compensation in accordance with Section 109.03, “Compensation for Contract Revisions,” and a time extension in accordance with Section 108.06, “Determination of and Extensi ons to the Contract Time.” The Engineer will issue a change order to document the nature of the contract revision, including any determined compensation, any time extension, or both. Sections 104.02 B, C, and D contain wording mandated by FHWA. As the ter ms “modification,” “change,” “adjustment,” or “alteration” are used in them they shall mean a contract revision.
B.Differing Site Conditions. During the progress of the work, if subsurface or latent physical conditions differing materially from those indicated in the contract are encountered at the site or if unknown physical conditions of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in the work provided for in the contract, are encountered at the site, notify the Engineer of the specific differing conditions in accordance with Section 104.03, “Contractor Requested Contract Revisions”, before disturbing the site or performing the affected work. Upon written notification, the Engineer will investigate the conditions, and if the Engineer determines that the conditions materially differ and cause an increase or decrease in the cost or time required for the performance of any work under the contract, an adjustment, excluding anticipated profits, will be made and the contract modified in writing accordingly. The Engineer will notify the Contractor of the determination whether or not an adjustment of the contract is warranted.
Source: North Dakota Standard Specifications for Road and Bridge Construction, 2022 Edition. Pages 56–60 of 550.