SECTION 103: AWARD AND EXECUTION OF CONTRACT
103.1 Consideration of Bids
The Department’s Bid Review Committee shall review, evaluate Bi ds and make recommendations for rejection or issuance of the Notice of Prel iminary Award. The Department’s Bid Review Committee will review the Bid Item Unit Pricing to determine if the Bid Item Unit Pricing is respons ive, unbalanced either material ly or mathematically, or any other abnormalities exist. The Department reserves the right t o request justification from the Bidder for any aspect relating to its Bid and the Bidder shall respond to the request. The results of the completed analysis will be available to the publ ic after the Department issues the Notice of Preliminary Award of Contract letter. If two (2) Contractors submit identical lowest Total Bid Amount s, the Department shall determine the successful Bidder by the flip of a coin. Any or all Bids may be rejected when it is in the best interest of the public and the Department at any time prior to execution of the Contract. If all Bids are rejected the Department may issue a new Advertisement. A Department decisio n to reject all Bids, rescind the Notice of Preliminary Award of Contract, or to cancel the A ward of Contract and issue a new Advertisement is wholly an exercise of executive discretion not subject to review at an informal hearing pursuant to Sec tion 103.3, “Bidding Dispute Re solution Procedures”.
103.2 Notice of Preliminary Award of Contract
Except as described in Section 103.3, “Bidding Dispute Resoluti on Procedures,” the Department will issue the Notice of Preliminary Award of the Co ntract within 30 Days after Bid Opening to the lowest Responsible Bidder. Bidders may agree to a later Notice of Preliminary Award time if requested to do so by the Department, failure to agree to a later Notice of Preliminary Award time as requested by the Department will be d eemed the Bidder’s withdrawal of its Bid. The Notice of Preliminary Award letter, if it is mailed within 30 Days of the Bid Opening, shall bind the lowest Responsible Bidder to Ac cept the Contract or to reject the Contract and forfeit the Bid Guaranty it has provided.
103.3 Bidding Dispute Resolution Procedures
103.3.1 Bidding Disputes
1. A Bidder aggrieved in connection with the solicitation or No tice of Preliminary Award of a Contract shall file a written protest within fifteen (15) Days of the Notice of Preliminary Award of a Contract. Written protests filed prior t o the Department’s Notice of Preliminary Award of Contract may be deferred at the sole discretion of the Department and not considered until the Department has issued t he Notice of Preliminary Award of Contract.
103.3.2 Reserved
103.3.3 Informal Hearing Procedures
1. Failure to file a timely protest shall constitute a waiver o f the Bidder’s right to protest and the Bidder is not entitled to an informal hearing; 2. The written protest must include facts supporting the protes t, any pertinent contractual provisions, law, rul es or regulations, and other le gal authorities supporting the protest and a requested action; Section 103: Award and Execution of Contract Page 25 3. Service of the written protest shall be made upon the Cabine t Secretary, with a copy contemporaneously transmitted and separately served upon the Of fice of General Counsel for the Department, during the Department’s regular Bus iness Hours by delivery in person, or by certified mail, postage prepaid, retu rn receipt requested, or by delivery by a nationally recognized overnight or same-day co urier service that obtains receipts. Electronic communication (i.e. e-mail, facsi mile) shall not be considered. Service of a written protest made after the Departm ent’s regular Business Hours shall not be effe ctive until the next business D ay; 4. Copies of the protest shall be contemporaneously transmitted by the disputing Bidder to every Bidder when the protest is served upon the Cabi net Secretary and the Office of General Counsel; 5. Any Bidder, other than the di sputing Bidder, that considers itself to be an interested party to the Bidding dispute may submit a written response to t he protest in advance of the informal hearing. The response shall include a statemen t of the requested action, a rebuttal of any of the factual matters in the protest , facts supporting the response, and any contractual pro visions, laws, rules, or regul ations, or other authority supporting the response; 6. When a timely protest is filed, the Cabinet Secretary will n ot proceed further with the Award by execution of Contract until the dispute is resolved, a s detailed below, unless or until the Cabinet Secretary determines that the Award or execution of the Contract is necessary to protect the best interests of the publ ic and the Department. The Cabinet Secretary retains the right to reject all Bids, to rescind the Notice of Preliminary Award of Contract, or cancel the Award of Contract and issue a new Advertisement when it is in the best interest of the public and the Department; 7. When a timely protest is filed, the Bids of both the Apparen t Low Bidder and the next Apparent Low Bidder (or a ll Bidders) shall be automaticall y extended an additional 15 Days. The Department will, subject to other prov isions in the Specifications, may Award the Contract by executing the Contrac t within 45 Days of the Bid Opening; 8. Within seven (7) Days of receiving a timely Bid protest, the Cabinet Secretary or the Cabinet Secretary’s designated informal hearing officer will ca use to be delivered by mail, postage prepaid, or by facsimile copy or by email transmi ssion a letter notifying all parties to the protest of the date, time and place to appe ar with all necessary Material evidence for an informal hearing. Such letter shall i nclude a copy of the written protest. Whenever practicable the parties will be affo rded at least seven (7) Days’ notice of the scheduled informal hearing. If an informal hearing officer is designated by the Cabinet Secretary, the designee shall not be a person who made or approved the Award decision under review or a subordinate of such person during the past 12 months; 9. The formal rules of evidenc e or civil procedure do not apply to the informal hearing. The informal hearing officer has absolute discretion in establi shing the degree of formality for the informal hearing and may limit the presentati on of evidence or argument. While parties to an informal hearing may call their own witnesses they are not afforded the opportunity to subpoena or cross-examine w itnesses. Parties are permitted to submit documentary evidence and written argume nts at the informal hearing. Parties may supplement the record or provide supplemental written arguments after the informal hearing date provided that such Materials are submitted to the informal hearing officer three (3) Days after the information hearing date. The informal hearing officer shall have the authority to question any party or witness; 10. At disposition, the informal hearing officer is not restric ted to considering only evidence or argument presented at the informal hearing but may consider evidence Section 103: Award and Execution of Contract Page 26 that is reliable, accurate, and competently obtained. When suc h information is obtained the hearing officer sha ll provide it to both parties a nd provide 24 hours for rebuttal before the final decision. 11. The informal hearing officer is responsible for maintaining a complete record of the informal hearing including all evidence, transcripts of the hea ring, and written arguments submitted by the parties. A complete record of the t estimony and argument at the informal hearing shall, whenever practicable, b e either stenographically or electronically recorded by a certified cour t reporter or monitor. Transcripts or recordings of t he proceeding, if available, may be supplied to any party at their own expense upon request to the court reporter o r monitor; 12. Within seven (7) Days of the informal hearing date, the Cab inet Secretary or the Cabinet Secretary’s designated informal hearing officer will is sue a determination letter stating the reasons for the action taken and informing t he losing party of its right, under NMSA 1978, § 13-1-183 (1984), to file an appeal in Santa Fe District Court within 30 Days of the issuance of the adverse determinati on. The determination letter shall cons titute the final Department deci sion or order; 13. The Award of the Contract to the lowest Responsible Bidder, based upon the Department’s determination le tter, shall be conditioned upon th e unsuccessful party not appealing, under NMSA 1978, § 13-1-183 (1984), to the Santa Fe District Court within 30 Days of receiving the determination letter. The Awar d letter, if it is mailed within 60 Days of the Bid Opening, shall bind the lowest Respon sible Bidder to Accept the Contract or to reject the Contract and forfeit the B id Guaranty it has provided; 14. If an appeal is filed pursuant to NMSA 1978, § 13-1-183 (19 84), the Department may extend the date of the Award letter to a later date as agre ed upon by the Department and the lowest Responsible Bidder. When such an ext ension cannot be agreed upon or for any other reason, the Department may proc eed with the Award to the next lowest Responsible Bidder if the Cabinet Secr etary determines that the Award of the Contract is necessary to protect the subs tantial interests of the public and the Department, or may cancel the Award of the Contr act, or reject all Bids and issue a new Advertisement when it is in the best inter est of the public and the Department; 15. If a Bidder successfully prevails on appeal, a Bidder is li mited to one (1) of two (2) remedies arising from the Bid di spute, Award of the Contract or , if the Contract can no longer be practicably awarded to the Bidder or it is not in the best interest of the public and the Department to Award the Contract to the Bidder, the Contractor’s reasonable and documented Bid preparation costs; and, 16. Each party shall bear its own attorney’s fees and costs.
103.4 Cancellation of Award
The Department may reject all bids, rescind the Notice of Preli minary Award of Contract, and cancel the Award of any Contract at any time prior to the e xecution of the Contract by all parties without incurring liability where such cancellation is deemed by the Cabinet Secretary to be in the best interests of the public and the Department. No Bidder has a contractual, equitable, implied, or any other right to the Contract until ex ecuted by both parties.
103.5 Reserved
103.6 Contractor Executed Contract
The Department will provide the Contract to be executed by the Contractor and returned to the Department. The Contractor shall return the signed Cont ract with Contract Bonds and Section 103: Award and Execution of Contract Page 27 other documents required by the Notice of Preliminary Award let ter within the 15 Days from the date of the letter. The Contract Bonds shall become bindin g upon Contract execution. The value of each bond shall equal the Total Original Contract Amount. All Contract Bonds shall be procured from Sureties with an A.M. Best Company financial strength rating level of A- or better, Class VII or better, unl ess otherwise approved in writing by the Department. In no event shall the Department approve the u se of a Surety with an A.M. Best Company financial strength rating level of B or worse.
103.7 Failure To Execute Contract
Failure by the lowest Responsible Bidder to return the signed Contract, Contract Bonds and other documents required by the Notice of Preliminary Award letter within 15 Days of receiving the letter shall cons titute just cause for rescinding the Notice of Preliminary Award of Contract and the forfeiture of the Bid Guaranty which shall bec ome the property of the Department, not as a penalty but as liquidation of reasonable d amages sustained. The Bid Guaranty remains in effect until the Department has fully execu ted the Contract. The Department may then issue the Notice of Preliminary Award of th e Contract to the next lowest Responsible Bidder or take other actions as the Department may decide.
103.8 Execution of Contract
If the Department fails to execute the Contract within 30 Days of receiving the signed Contract, Contract Bonds, and other documents required by the Notice of P reliminary Award Letter from the successful Bidder, the Bidder may withdraw its Bid without penalty. No Contract shall be effective until it has been fully executed by the Department an d the Contractor. In no event shall the Contractor commence Work until after execution of the Contract by all parties. Section 104: S c o p e o f W o r k Page 28