- 19 - SECTION 102 -- PROPOSAL REQU IREMENTS AND CONDITIONS AND AWARDING OF CONTRACTS ON STATE HIGHWAY WORK Requirements for Bidders on Contracts Awarded by the Department
102.01 Prequalification of Bidders
1.All persons, (any individual, pa rtnership, association, corporation or joint stock company) proposing to bid on a contract for the construction, reconstruction, improvement, maintenanc e, or repair of roads, bridges and their appurtenances to be let by t he Department shall su bmit a statement showing his/her experience, equipment, and financial condition; except that such statement may not be required for contracts where the estimate of the Engineer is less than one hundred thousand dollars, or of an emergency nature. Such statement sh all be under oath and on a form to be provided by the Department and shall be submitted not later than 10 calendar days before the letting of the Co ntract or Contracts. T he statement shall develop fully the financial ability, adequacy of plant and equipment, organization, prior experience, and such other perti nent and material facts as may be desirable. The Department may require additional information at any time. The statements of bidder’s experienc e, equipment, and financial condition will not be retained in the active file of qualified bidders after the financial condition shown is of a dat e 15 months prior. Any person whose qualification will expire on or before the date of a letting must submit a new statement and request to be qualified at least 10 calendar days before the letting at which he/she desires to bid. Any person who desires a change in his/her qualification must submit a new statement or a request in writing at least 10 calendar days before the letting at which the change would be effective. Upon the compliance with all laws and rules and regulations relating thereto, such person will be qualified for the amount and class of work to which he/she is entitled. All informati on furnished the Department shall be confidential.
2.The financial showing required in such statement shall be certified by a public accountant holding a currently valid permit from the Nebraska Board of Public Accountancy or by an y certified public accountant holding a currently valid permit.
3.The use of a “Letter of Credit” as an alternate means of showing financial condition may be permitted when the net amount of the “Letter of Credit” does not exceed $500,000. The “Letter of Credit” must be from a licensed or chartered financial institut ion. The “Letter of Credit” shall be certified by a public accountant holding a currently valid permit from the Nebraska Board of Public Accountancy or by any certified public accountant holding a currently valid permit.
4.Each person will be qualified upo n such statement for an amount of work which he/she can perform properly as evidenced by his/her financial statement and supplementing documents, and his/her competency and responsibility as evidenced by the amount, condition, and availability of equipment, experience of personnel, and previous record with this and other awarding authorities.
5.Each person will be notified of the “maximum qualification” established in his/her case by the Department. The “maximum qualification” established may be increased or decreas ed at any time if, as determined by the Department, the performance record of the bidder warrants such action. Proposal Requirements and Conditions and
102.01 Awarding of Contracts on State Highway Work
- 20 - 6. A new statement may be requested at any time if, in the opinion of the Department, significant changes in t he responsibility or financial ability of the person have occurred.
7.Any bidder who desires a change in their qualification must submit a request in writing for such change at least 10 calendar days before the letting at which he/she desires to bid with the new qualification.
102.02 Reduction of Maximum Qualification
1.Any one or more of the following causes shall be sufficient for the reduction of the contractor’s maximum qual ification rating for a period of time to be determined by the Engineer:
a.The Contractor knowingly subm its false information relating to prequalification.
b.The Contractor does any act or omits doing or performing any act which, in the judgment of the Engi neer, evidences a material change in the Contractor’s financial responsibilit y or work capability where, in the judgment of the Engineer, the same will materially prejudice the Contractor’s ability to successfully prosecute such public improvement contracts. Such matters may include but are not limited to:
1.When the Department has determined that the Contractor is in default, delay, or neglect under Section 108.09(1), and the Contractor has failed to cure under 108.09(2). This will apply even if the Surety completes the Contract.
2.The Contractor delays commencement or completion of any work within the contract peri od or any extension thereof under circumstances that would give rise to a right in the Contract for liquidated damages or notice of default.
3.The Contractor continually fails or refuses to remove and replace materials or work found by the Engineer not to be in reasonably close conformity with the contract docum ents or to correct such material or work so as to cause such materials or finished product to be reasonably acceptable work.
4.The Contractor continually and, in the judgment of the Engineer, without good cause therefor, fails to carry on the work in an acceptable manner or refuses to comply with a written order of the Engineer within a reasonable time.
5.Failure to comply with the prompt payment clause.
6.Failure to repay monies due the Department resulting from overpayments.
102.03 Drug-Free Workplace
1.The State of Nebraska requir es all bidders on all construction, maintenance, or improvement contracts let by the Department to file and maintain a written Drug-Free Workplace Policy with the Department. By signing the bid signature page the bidder certifies that the company is operating under a written Drug-Free Workplace Policy on file with the Department. Proposal Requirements and Conditions and Awarding of Contracts on State Highway Work 102.05 - 21 - 102.04 -- Examination of Plans, Speci fications, Special Provisions, and Site of Work
1.The Department will provide det ailed Plans and Specifications. The bidder, before submitting a bid, shall carefully examine:
a.The site of the proposed work. b. The proposal form. c. The Plans. d. The Specifications. e. The Supplemental Specifications. f. The Special Provisions.
g.Other required forms.
h.The Environmental Commitments.
i.Permits applicable to the work.
j.The addenda. k. The Department’s Question/Answer website. 2. The submission of a bid is co nsidered conclusive evidence that the bidder made the examinations required in Paragraph 1 of Subsection 102.04 above and that the bidder is satisfied with and understands the conditions to be encountered in performing the wo rk and other requirements in the Contract.
3.The bidder shall not take ad vantage of any apparent error or omission in the contract. Upon discovery of such an error or omission, the bidder shall notify the Engineer immediately. The Engineer will then make such corrections or interpretations as necessary to fulfill the intent of the contract.
102.05 Federally Funded Contracts -- Equal Employme nt Opportunity
1.Each Contractor and Subcontrac tor submitting a bid must certify that he/she has or has not participated in a previous contract or subcontract subject to the equal opportunity clause, as required by Federal Executive Order 11246, and that he/she has or has not filed with the Joint Reporting Committee, the Director of the Office of Federal Contract Compliance, a Federal Government contracting or ad ministering agency, or the former President’s Committee on Equal Employ ment Opportunity all reports due under the applicable filing requirements.
2.The certification is required by the Equal Employment Opportunity Regulations of the Secretary of Labor (41 CFR 60-1.7 (b)(1)), and must be submitted by bidders and proposed Su bcontractors only in connection with contracts and subcontracts which ar e subject to the equal opportunity clause. Contracts and subcontracts which are exempt from the equal opportunity clause are set forth in 41 CFR 60-1.5. (Generally, only contracts or subcontracts of $10,000 or less are exempt.) Proposal Requirements and Conditions and
102.05 Awarding of Contracts on State Highway Work
- 22 - 3. Currently, Standard Form 100 (EEO -1) is the only report required by the Executive Orders or their im plementing regulations. Standard Form 100 (EEO-1) must be filed by:
a.Employers covered by Title VII of the Civil Rights Act of 1964 and employers covered by Federal Executive Order 11246 who have 100 or more employees in the payroll period for which they are reporting, normally any payroll period in December, January, or February preceding the filing of the report.
b.If Standard Form 100 (EEO-1) was not filed because the bidder has less than the 100 employee s requirement, it is proper for the bidder to state that he/she has submitted all required compliance reports due.
4.Bidders who have participated in a previous contract or subcontract subject to the Federal Executive Or ders and have not filed the required reports should note that 41 CFR 60-1.7 (b)(1) prevents the award of contracts and subcontracts unless such bidder submits a report covering the delinquent period or such other period specified by the Federal Highway Administration or by the Director, Offi ce of Federal Contract Compliance,
U.S. Department of Labor.
102.06 Current Qualification
1.Each bidder desiring to bid on work for which prequalification of bidders is required shall submit a request for proposal forms and with such request shall submit, in a format determined by the Department, a complete report of all work then under contrac t, including subcontracts, and the total value of the work, and the amount of work not completed on all such contracts. A current qualification ba sed on this statement and the bidder’s “maximum qualification” will be established by the Department taking into account the rate of progress which is being made in performing the uncompleted work, the requirements fo r the performance of the work for which the bidder desires to bid, and any other pertinent information that is available to the Department. This current qualification determines the amount of work for which any person is qualified at the particular letting and for which he/she may be awarded a contra ct or contracts, except that the Department may use a tolerance of not more than 25% of a bidder’s current qualification and award the contract or contracts in a total amount which does not exceed by more than 25% the current qualification established by the Department.
2.Contractors requesting a proposal form as a Joint Venture shall provide the Department with all document s establishing the joint venture as a legal entity. The current qualification for the Joint Venture will be established. This current qualification determines the amount of work for which the Joint Venture is qualified at the particular letting and for which it may be awarded a contract or contract s, except that the Department may use a tolerance of not more than 25% of the Joint Venture’s current qualification and award the contract or contracts in a total amount which does not exceed by more than 25% the current qualification established by the Department.
3.When bidding in current and subs equent lettings, each Contractor participating in the joint venture shall provide to the Department the Proposal Requirements and Conditions and Awarding of Contracts on State Highway Work 102.09 - 23 - applicable share of the project (must total 100% of the joint venture work) that will be allocated to each participant when determining current qualifications for the participants.
102.07 Bid Requirements
1.A proposal form for work for which prequalification of bidders is required will be issued only to those qualified to bid. A bidder will not be considered as qualified for any particular letting if the bidder’s qualification will expire on or before the date of the letting.
2.Bidders submitting 2 or more bids in a total amount exceeding their current qualification by more than 25% shall submit the same, subject to the limitations of their current qualific ation, plus a tolerance of 25%.
3.Nothing in the Rules and Regulations or these Specifications shall prevent the Department from rejecting any bid where, in the opinion of theDepartment, other circumstances an d developments have changed the qualification or responsibility of the bidder.
4.If the qualification of the low bidder expires before the award of a contract, such contract will not be aw arded until the qualific ation of the low bidder has been renewed.
5.A proposal form for work for which prequalification of bidders is required will be labeled with the name of the bidder to whom they are issued and shall not be transferable. Any bid submitted by a bidder other than the person or company to whom the proposal form was issued shall be void.
6.A proposal form will not be issued to any bidder later than 5:00 p.m. of the day preceding the letting.
7.A proposal form for any contra ct for which prequalification of bidders is required may be issued, at th e discretion of the Department, to 2 or more qualified bidders jointly if the classes of work for which the prospective bidders are qualified to perfo rm satisfy, in the aggregate, the qualification requirements for the particu lar contract. Two or more qualified bidders may not bid jointly to perform any contract for which prequalification of bidders is required unless a proposal form is issued by the Department to those bidders jointly for that purpose.
102.08 Interpretation of Quantities in the Schedule of Items
1.The quantities listed in the sched ule of items are considered to be approximations, unless otherwise provided, and are to be used for the comparison of bids. Payments to the Co ntractor will be made for the actual quantities or Plan quantitie s, if specified, of work performed or materials furnished in accordance with the contra ct. It is understood that the quantities of work to be done and materials to be furnished may each be increased, diminished, or omitted as hereinafter provided without in any way invalidating the unit bid prices, except as provided in Subsection 104.02 of the current edition of the Nebraska, Standard Specifications for Highway Construction or Supplemental and Special Provisions.
102.09 Preparation of Bids
1.The bidder shall use the Department authorized electronic bidding system software when submitting a bid, unless otherwise directed by the Department in the Proposal Form. Proposal Requirements and Conditions and
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- 24 - 2. The bid shall be submitted in a sealed envelope, or submitted by using a Department authorized online bi dding exchange, or as directed by the Department. When submitting a sealed envelope, the envelope shall be clearly marked as containing a bid.
3.The Department may reject a bid if an error or warning message appears in the electronic bidding submission received by the Department.
4.In the event there is a discrepancy between the information submitted on the electronic submissi on and the paper copy of the schedule of items submitted with the bid, t he figures on the paper copy of the schedule of items will prevail.
5.The bidder shall pay applicable fees charged by the company providing the electronic bidding software, online bidding exchange or user fees for Internet services to submit a bid.
6.The blank spaces in the schedule of items must be filled in correctly, in ink, typed, or electronically for each item and document necessary to submit a complete bid.
7.The bid shall be legible or it will be rejected. 8. Signatures. a. Written signatures must be in ink on the line provided in the bid submittal. A bid without both a signatur e and a printed name in the spaces provided may be considered non-responsive.
b.All corrections and other entries not made by the electronic bidding system must be in ink or typed.
c.Bids submitted over t he internet must be signed using electronic signatures as provided by the Department-authorized online bidding exchange provider.
d.Failure of the bidder to properly sign the bid shall make the bid incomplete, and the bid may be considered non-responsive.
9.The Schedule of Items must be properly completed. The following rules will apply:
a.The schedule of items must st ate the unit price for each item of work contemplated.
b.If the “Unit Price” column is left blank and the quantity of the item is one and an amount is shown in the “Extension” column, then the amount in the “Extension” column will be considered the unit price.
c.If the bidder enters an amount in the “Unit Price” column when “Lump” is shown in the “Unit” column for that item, the “Unit Price” shall govern in the extension of that item.
d.The bidder shall also show the product of the respective unit prices and quantities in the “Extensi on” column provided for that purpose and the total amount for all groups and co mbination of groups, as indicated in the schedule of items, necessary for a complete bid for the work.
e.If the “Unit Price” is indicate d with a line, the unit price will be considered free no matter what amount is shown in the “Extension” column. Proposal Requirements and Conditions and Awarding of Contracts on State Highway Work 102.10 - 25 - f. If the “Unit Price” is left blan k and the quantity of the item is greater than one, the bid is incomplete and the bid is rejected.
g.(1) If the “Unit Price” and “Extension” columns are left blank, the bid will be considered incomplete and rejected except when alternate groups are provided and the Contractor is not required to bid on all alternates.
2.When alternate groups are included in the proposal forms, the bidder shall complete the schedule of items for only one alternate group, unless specifically required by the contract to complete additional alternate groups.
h.When the schedule of items is divided into groups, a price shall be submitted on each item of work within the group.
i.On alternate groups when the bidder does not intend to submit a bid for a group, the bid for that group must be left blank.
j.In the event of a di screpancy between unit bid prices, extensions or totals, the unit price shall govern.
102.10 Contents of Bid
1.The bidder shall include the following in each bid submitted to the Department. Failure to submit any of the following shall cause the bid to be considered non-responsive.
a.A Schedule of Items.
b.Required DBE Participation form (if applicable).
c.Certification of Previous EEO Performance (if applicable).
d.Equipment Assessment Ce rtification (if applicable).
e.Hiring Practice Certification. f. Drug-Free Workplace Policy Certification. g. Noncollusion Declaration.
h.Compliance Certification for Standard Specifications for Highway Construction Sections 102 and 103.
i.Bid Bond or approved confirmation of a Bid Bond (See Subsection 102.14).
j.Other forms, as required by the Department. 2. Written bid signatures must be affixed by a person authorized to sign as shown on the pre-qualification (w hen pre-qualification is required for the contract), and notariz ed. Electronic signatures must have authorized digital signatures affixed by a person authorized to sign as shown on the pre-qualification (when pre- qualification is required for the contract), each bidder, in signing the bid by or on behal f of the person, firm, association, or corporation submitting the bid, certifies that:
a.Such person, firm, associati on, or corporation has not either directly or indirectly entered into any agreement, participated in any collusion, or otherwise taken any action in restraint of free competitive bidding in connection with the submitted bid. Proposal Requirements and Conditions and
102.10 Awarding of Contracts on State Highway Work
- 26 - b. All equipment has been assessed for the current year.
c.The company is operating under a Drug-Free Workplace Policy, a copy of which is on file with the Department.
d.A contract bond for the c ontract amount will be furnished.
e.Reports have been filed regar ding EEO participation (Federally funded projects only).
f.Disadvantaged Business Enterprises (DBE) goals on designated Federally funded projects will be achieved or “good faith” documentation provided.
3.The bid shall be signed by a person listed on the prequalification statement as being authorized to si gn on behalf of the bidder, when prequalification is required for the c ontract. A signature by a person other than those listed will make the bid nonresponsive.
4.False statements in any of the ce rtifications will constitute perjury.
102.11 Bid Submission
1.Bids must comply with all plans, special provisions, addenda, the Specifications (as defined in Su bsection 101.0386), Supplemental Specifications to the St andard Specifications for Highway Construction, and the Nebraska Rules and Regulations regarding bid preparation and bid submittal.
2.Bids shall be received until the date and time set forth for the opening and must be, by that time, delivered to the place indicated in the Proposal Form. Except as otherwise directed by the Department, there are two options to submit bids:
a.OPTION 1 - A printed bid shall be placed in a sealed envelope and submitted to the Department. The bidder shall indicate in the bid submittal to the Department the bid bond type that applies to the submitted bid. The envelope containing the bid shall be marked by the bidder to indicate its contents.
b.OPTION 2 - Bidders may submit bids electronically over the Internet using a Department authorized online bidding exchange. The bidder shall indicate in the bid submittal to the Department the bid bond type that applies to the submitted bid.
3.The Department retains the discretion to accept as responsive a bid that was not generated us ing the Department’s Electronic Bidding Software.
102.12 Ties and Limitations
1.A bid shall not be tied to any other bid except as may be indicated in the proposal form. If the bidder desire s to tie his/her bid to his/her bid on any or all of the other bids which may be indicated in the proposal form, such tie shall be clearly indicated in the space provided. The bidder shall not indicate a tie by means other than those shown.
2.If the bidder does not designate a preference in the space provided, it will be assumed that he/ she does not desire to tie his/her bid to any of the bids listed therein; and the bid will be considered on that basis. The bidder shall not insert a tie in any other place in his/her bid except in the space provided in the bid. Proposal Requirements and Conditions and Awarding of Contracts on State Highway Work 102.13 - 27 - 3. The Engineer reserves the right to make awards that will be in the best interest of the State, and any comme nt in a bid limiting or qualifying this reserved right shall constitute an irregular bid. However, the bidder may specify one or more of the following:
a.The maximum monetary value of awards that will be accepted.
b.The total number of cont racts that will be accepted.
c.The number of contracts of an y particular class or classes of work that will be accepted.
4.Such limitations must be indicated in the space provided in the bid. Any limitation in the number of contract s of any particular class or classes of work that the bidder will accept wi ll be considered as applying only to the primary class or classes of work for that contract, as indicated in the Proposal Form.
5.Such limitations indicated by a bidder on one bid shall be applied to all of bidder’s bids submitted in the same letting.
6.In the event a bidder indicates multiple limitations on one or more bids, and there is a discrepancy between limitations, the mo st restrictive of said limitations shall be applied.
7.The bidder shall not make a c onditional deduction or reduction in any unit price in any bid.
102.13 Disqualification of Bids
1.Any one or more of the following causes shall be sufficient for the disqualification of a bid or bids, if det ermined by the Department to be in its best interest:
a.Any tie, statement, qualific ation, or limitation made by the bidder in violation of, or not permitted by, Subsection 102.12.
b.Alterations of forms, additions not called for, conditional bids, incomplete bids erasures, or irregularities of any kind.
c.Incorrect extensions or totals in the bid.
d.More than one bid on any one project from an individual, a firm or partnership, a corporation, or an a ssociation under the same or different names. Reasonable grounds for believing that any bidder has interest in more than one bid for the work contem plated will cause the rejection of all bids in which such bidder is interested.
e.Evidence of collusion amongst bidders. There is reason to believe that collusion exists among the bidders or if the bidder has been disqualified from bidding or debarred from performing work due to collusion prior to award of the contract.
f.Bids which are mathematically unbalanced. g. Bids which are materially unbalanced. h. Bids which are accompanied by bid bonds on forms that are not authorized by the Department or by bid bond forms which are incorrectly completed or are incomplete. Proposal Requirements and Conditions and
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- 28 - i. Bids in which the bid signat ure page is completed incorrectly or is incomplete.
102.14 Proposal Guaranty Bid Bond (Bid Bond)
1.Unless otherwise provided in the Proposal Form, each bid shall be bonded with a bid bond made payable to the Department in an amount equal to at least 5% of the amount bid. Bid bonds must be executed by corporations authorized to contract as a surety in the State of Nebraska. Any alterations, conditions, or limitations added to the Department’s bid bond form will be unacceptable and cause the bid to be rejected. All bid bonds must be current as of the time of t he letting and must contain a provision preventing termination of such bond no later than 5 days prior to the letting. In the event the low bidder fails to comply with any requirement regarding the execution of the contract, the Depart ment shall immediately be entitled to recover the full amount of the bid bond as liquidated damages. There are three options to submit the proposal guaranty bid bond:
a.OPTION 1 - (Project Specific Paper Bid Bond). The bid bond shall be properly execut ed on the form provided by the Department.. The properly executed original or exact copy thereof shall be delivered to the Department, in a sealed envelope, with the bid or separately prior to the bid letting.
b.OPTION 2 - (Project Specific Electronic Bid Bond) The Department, at its discretion, may al low a bidder to authorize a bonding company to register the bid bond with a Department authorized on-line bond registry service and provide the Department access to the bid bond data to confirm the existence of the bid bond specific to the project and to document that the bond is valid. The bidder must indicate in the bid submittal to the Department that their bid bond is posted on the bond registry service.
c.OPTION 3 - (Annual Bid Bond). The Department at its discretion may allow a bidder to place an “Annual Bid Bond” on file with the Department. This bond will cover all projects on which the bidder bids for a 12-month period shown in the bond unless a project specific bid bond is submitted with the bid or separately pr ior to the bid letting. The original Annual Bid Bond shall be executed on the Department of Road’s Bid Bond Form, which may be obtained from the De partment. A copy of the original form will be accepted.
102.15 Withdrawal of Bids
1.A bidder may withdraw an unopened bid at any time prior to the bid opening time specified in the “Proposal Form”.
2.To withdraw a bid, the bidder shall provide a written and signed notice of withdrawal to the address id entified in the proposal form. This notice shall be delivered, by letter, email, or FAX prior to the time established for the bid opening. The notice shall be signed by a person authorized to bid as shown in t he bidders pre-qualification (when prequalification is required for the contract). It is the Contractor’s responsibility to ensure that the notice was received by the Department prior to letting. Proposal Requirements and Conditions and Awarding of Contracts on State Highway Work 102.17 - 29 - 3. A withdrawn paper bid will only be returned upon request and only to a person authorized to bid as show n in the bidder’s prequalification statement or to an agent authorize d in the notice of withdrawal.
4.In the event that the bidder chooses to make changes to the withdrawn paper bid and resubmit it, t he notice shall authorize the person to whom the bid is returned to do so and the bidder shall be bound by the signature page on the withdrawn and resubmitted bid.
5.A bidder may also submit a subsequent new bid on a project after a previous bid has been withdrawn.
6.The Department will not accept bids after the bid opening time specified in the proposal form.
102.16 Public Opening of Bids
1.Except when specifically aut horized in writing by the Department and except as authorized in Subsection 102.15, properly submitted bids will be opened and read publicly at the time and place indicated in the proposal form. The Department reserves the right to reject any bid that has been read when the bid is subsequently found to not meet the requirements of these Specifications. Errors by the bidder in filing his/her bid will not be cause for waiving any of the above requirements and will not be the responsibility of the Department.
2.The “Total Bid” for each bid will be read publicly.
102.17 Suspension and Debarment Policy and Procedures
1.Suspension: When circumstances warrant, the Department may “suspend” or exclude persons and/or companies considered for debarment. Causes for suspension include adequate evidence that:
a.A cause for debarment exists, and
b.Immediate action is necessary to protect the public interest. An indictment for a debarment offense will constitute adequate evidence for a suspension action.
2.Debarment a. The Director may, in his/her sole discretion, debar an individual, a bidder, or its affiliates from bidding, subcontracting, or supplying materials on Department contracts for any illegal activity involving bidding evidenced by any of the following:
1.An indictment or conviction of a bidding crime; any plea of guilty or nolo contendere to a charge of a bidding crime; any public admission of a bidding crime; any presentation of an unindicted co- conspirator; or any testimony protected by a grant of immunity of any bidder in any jurisdiction indicating involvement in a bidding crime.
2.Conviction of any offense indicating a lack of moral or ethical integrity as may reasonably be perceived to relate to or reflect upon the business practices of the bidders.
3.Debarment by any other State or Federal agency for substantially any of t he reasons listed above. Proposal Requirements and Conditions and
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- 30 - (4) Any other activities of an individual, bidder, or its affiliates of a serious or compelling nature that are reasonably perceived to relate to their work as a Contractor.
5.Making materially false statements on a bid. b. An individual or a bidder shall be given a debarment hearing if either so requests before or afte r debarment. The determination as to whether the debarment hearing will be he ld before or after debarment shall be at the sole discretion of the Director.
1.The written request for a debarment hearing must be received by the Director no later than 10 days after the receipt of the written notice from the Director. Unless otherwi se mutually agreed in writing, the debarment hearing shall be held no later than 14 days after receipt of the individual’s or bidder’s request for a debarment hearing.
2.Debarment after hearing. In those situations where the Director decides to hold a debarment hearing prior to deciding whether debarment is proper, he/she shall se nd written notice to the affected individual, bidder, or their agents by certified or regist ered mail stating:
i.That debarment is being considered. (ii) The general reasons that suggest the debarment. (iii) That the bidder will be afforded an opportunity for a debarment hearing if requested.
3.Debarment before hearing. In those situations where the Director determines that debarment is appropriate prior to a debarment hearing, he/she shall send written notice to the affected individual, bidder, or their agents by certified or registered mail stating:
i.That the bidder or individual has been debarred. (ii) The general reasons for the debarment. (iii) That the bidder or individual shall be accorded the opportunity for a debarment hearing if th ey so request in writing within 10 days of the receipt of the written notice of debarment.
4.If the bidder or individual notifies the Director that he/she desires a hearing, the de barment hearing will be held no later than 14 days after receipt of the individuals or bidder’s request unless mutually agreed otherwise in writing. The Director s hall determine in writing whether the individual or bidder will be reinstated.
c.The Director shall appoint a Hearing Examiner to conduct all debarment hearings. The Hearing Examiner shall make a recommendation to the Director, and such recommendation shall include findings of fact and conclusions of law.
d.Except as modified by the Rules and Regulations of the Department, debarment hearings before the Hearing Examiner shall conform to the Code of Civil Procedure applicable to the District Courts of the State. Practice before the Hearing Examiner shall be governed by the Department’s Rules and Regulations, Title 407.
e.Debarment shall be for a period of thirty-six months or, in the case of a reciprocal debarment as pr ovided for under Paragraph 2.a.(3) of Proposal Requirements and Conditions and Awarding of Contracts on State Highway Work 102.17 - 31 - Subsection 102.17, the term of the deb arment shall be for the same period as the debarment imposed by the other State or the Federal government.
f.The Director may suspend a debarment at any time he/she determines it is in the public interest to do so. Mitigating circumstances may be considered in the decision to lift or suspend a debarment and may include, but shall not be limited to:
1.The degree of culpability of the debarred individual or bidder.
2.Restitution by the deba rred individual or bidder to the State for any perceived overcharges or damages resulting from the actions of the debarred individual or bidder.
3.Cooperation by the debarred individual or bidder with the State, the United States, and/or any other political governmental subdivision in the investigation of bidding crimes, including a full and complete account of the individual’s or bidder’s particular involvement therein.
4.Disassociation with individuals and firms that have been involved in a bidding crime.
g.The Director, at his/her discret ion, may hold a hearing, no later than 15 days prior to the last day of the debarment, and require the debarred individual or bidder to show cause wh y the debarment should not continue. If the Director, in his/her so le discretion, determines that a debarred individual or bidder has failed to become a responsible bidder, then the Director may continue the debarment for up to 12 additional months. The same show cause procedures shall continue for each successive extension of the original debarment until such time as the Director has determined that the debarred individual or bidder meets t he criteria of a responsible bidder.
h.For purposes of debarment, the conduct of a bidder or an individual shall be fully imputed to:
1.Business firms with which they are or were associated.
2.Business firms by whom the individual was or is employed.
3.Parent or subsidiary companies of the bidder. (4) Business firms in which the individual or bidder has a controlling interest.
i.Debarment of a bidder shall in no way affect the obligations of the bidder to the State for services to the Department already under contract.
j.Every bidder currently qualifie d by the Department to bid on its contracts shall have a duty to notify the Director if i t, any of its employees, officers, board members, or associates are indicted or convicted of a bidding crime within 30 days of the indictment or conviction. Failure to do so is a serious and compelling offense suffi cient to result in debarment.
k.Every bidder qualified by the Department to bid on its contracts shall have a duty to notify the Director if the bidder, any of its employees, officers, board members, or associates are contacted by any person with the purpose of engaging in any illegal activities in connection with bidding on Proposal Requirements and Conditions and
102.17 Awarding of Contracts on State Highway Work
- 32 - contracts let by the Department or contracts involving federal aid. Notice shall include the name of the person making such overture or bid proposal, the time and place thereof, and the specific nature of the overture or bid proposal.
l.A copy of Section 004 of the Department’s Rules and Regulations shall be mailed to each prequalified bidder and to each bidder heretofore debarred or suspended.
3.Procedures for Certif ication Regarding Debarment.
a.Unless the Bidder submits an explanation of exceptions to the following, by signing and submitting a bid, the bidder swears, to the best of his/her knowledge and belief, t hat he/she and the principals:
1.Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal Department or Agency.
2.Have not within a 3-year period preceding this bid been convicted of or had a civil judgm ent rendered against them for:
i.Commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under a public transaction. (ii) Violation of Federal or State antitrust statutes. (iii) Commission of embezzl ement, theft, forgery, bribery, or falsification or destruction of records. (iv) Making false statements.
v.Receiving stolen property. (3) Are not presently indicted for or otherwise criminally or civilly charged by a governmental ent ity (Federal, State, or local) with commission of any of the offenses e numerated in Paragraph 3.a.(2) of Subsection 102.17 of this Specification.
4.Have not within a 3-year period preceding this bid had one or more public transactions (Federal, Stat e, or local) terminated for cause or default.
b.The inability of a person to provide the certification required above will not necessarily result in denial of participation in a contract. The bidder shall submit an explanat ion of why he/she cannot provide certification. The certificat ion or explanation will be considered in connection with the Department’s or agency’s determination whether to enter into this transaction. However, failure of the bi dder to furnish a certification or an explanation shall disqualify the bid.
c.The certification in this claus e is a material representation of fact upon which reliance was placed when the Department determined to enter into this transaction. If it is later determined that the bidder knowingly rendered an erroneous certif ication, in addition to other remedies available to the Federal Government, the Departm ent may terminate this transaction, cause prosecution for perjury, bri ng debarment proceedings, or any combination of the above. Proposal Requirements and Conditions and Awarding of Contracts on State Highway Work 102.17 - 33 - d. The bidder shall provide immediate written notice to the Department if at any time the bidder learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances.
e.The terms “covered trans action,” “debarred,” “suspended,” “ineligible,” “lower tier covered transaction,” “participant,” “person,” “primary covered transaction,” “principal,” “bid proposal,” and “voluntarily excluded,” as used in this clause, have the meanings set out in the Definitions and Coverage sections of the rules implementing Federal Executive Order 12549. The Department may be contacted for assistance in obtaining a copy of those regulations.
f.The bidder agrees by submitting this bid that, should the proposed covered transaction be entered into, he/she shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction unless authorized by the Department.
g.The bidder further agrees by subm itting this bid that he/she will include this Subsection (102.17), without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions.
h.A bidder in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not debarred, suspended, ineligible, or vo luntarily excluded from the covered transaction unless he/she knows that t he certification is erroneous. A bidder may decide the method and frequency by which he/she determines the eligibility of his/her principals.
i.Except for transactions au thorized under Paragraph 3.f. of Subsection 102.17 of these Specificat ions, if a bidder in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this contract, in addition to other remedies available to the Federal Government, the Department may terminate this contract for cause or default, cause prosecution for perju ry, bring debarment proceedings, or any combination of the above. - 34 - SECTION 103 -- AWARD AND EXECUTION OF THE CONTRACT
103.01 Contract Award
1.The award of the contract will be made by the Engineer to the lowest responsible bidder whose bid complies with all the requirements described. The award will not be made until all necessary investigations have been made into the responsibility of the bidder to whom it is proposed to award the contract. The decision to award or reject shall be made within thirty calendar days after the opening of the bids, unless both parties agree in writing to an extension
2.The right is reserved to limit the work awarded one bidder to the amount that he/she is considered capa ble of handling, taking into account both his/her capacity to perform work an d contracts in force as evidenced by the Contractor’s current qualificatio n amount. Should a bidder be the low bidder on two or more bids in a total amount exceeding their qualification, the Department reserves the right to aw ard a contract or contracts in the best interest of the State which do no t exceed their current prequalification plus a tolerance of not more than 25%. The State reserves the right to determine which bid(s) will be awarded or rejected.
3.The Engineer reserves the righ t to request from the low bidder an extension of time to consider their bid for award or rejection. The Contractor then has the right to reject t he extension without reprisal.
4.The successful bidder will be notif ied in writing that his /her bid has been accepted and that he/she has been awarded the contract.
103.02 Affirmative Action
1.The Department, in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252) and the Regulations of the Department of Transportation (49 CFR, Part 21), issued pursuant to such Act, hereby notifies all bidders that it will affirmatively insure that the Contract entered into will be awarded to the lowest responsible bidder without discrimination on the grounds of race, color, sex, or national origin.
103.03 Consideration of Bids
1.Following the bid opening, the Department will compare the responsive bids. Unless otherwise defined in the proposal form, the comparison will be based on the summati on of the quantitie s and the unit bid prices shown in the bid. The bid totals will be available to the public as soon as reasonably possible, not to exceed two working days after the bid letting.
2.The right is reserved to reject any and all bids and to waive technical errors as may be deemed in the Department’s best interest.
3.When the Department allows one or more projects to be tied at the option of the Bidder, the De partment may consider both tied and untied bids to determine the lowest responsible bidder. When untied bids are not received on projects that are allowed to be tied, the Department may award the contract to a bidder submitting the lowest tied bid, regardless of whether an untied bid on a single project is lower than the tied bid. The Department will act in the best interest of the State when making this determination.
4.All documents and information used in the preparation of a bid shall be retained by all bidders for a period of 60 calendar days after the bid letting and shall be produced to the Engineer upon request. The bidder
Source: Nebraska Standard Specifications for Highway Construction, 2017 Edition. Pages 53–67 of 1,048.