Ala. Admin. Code r. 355-4-3-.02

Current through Register Vol. 43, No. 1, October 31, 2024

Section 355-4-3-.02 - Competitive Sealed Bidding

(1) The Invitation for Bids.

(a) Use. The Invitation for Bids is used to initiate a competitive sealed bid procurement.

(b) Content. At a minimum, the Invitation for Bids shall include the following:

1. instructions and information to bidders concerning the bid submission requirements, including the time and date set for receipt of bids, the address of the office to which bids are to be delivered, the maximum time for bid acceptance by the State, and any other information relevant to bid submission;

2. the purchase description, delivery or performance schedule, and such inspection and acceptance requirements as are not included in the purchase description; and

3. the contract terms and conditions, including warranty and bonding or other security requirements, as applicable.

(c) Incorporation by Reference. The Invitation for Bids may incorporate documents by reference provided that the Invitation for Bids specifies where such documents can be obtained.

(d) Acknowledgement of Amendments. The Invitation for Bids shall require the acknowledgement of the receipt of all amendments issued.

(2) Bidding Time. Bidding time is the period of time between the date of public release of the Invitation for Bids and the time and date set for receipt of bids. In each case bidding time will be set to provide bidders a reasonable time to prepare their bids. A minimum of 14 days shall be provided unless a shorter time is deemed necessary for a particular procurement as determined in writing by the Chief Procurement Officer or the head of the Purchasing Agency.

(3) Bidder Submissions

(a) Bid Form. The Invitation for Bids shall provide a form which shall include space in which the bid price shall be inserted and which the bidder shall sign and submit along with all other information required by the Invitation for Bids to be submitted.

(b) Electronic Bids. The Invitation for Bids may state that electronic bids will be considered whenever they are received at the designated office by the time and date set for receipt of bids. Such electronic bids shall contain specific reference to the Invitation for Bids; the items, quantities, and prices for which the bid is submitted; the time and place of delivery; and a statement that the bidder agrees to all the terms, conditions, and provisions of the Invitation for Bids.

(c) Bid Samples and Descriptive Literature.

1. "Descriptive literature" means information available in the ordinary course of business which shows the characteristics, construction, or operation of an item which enables the State to consider whether the item meets its needs.

2. "Bid sample" means a sample to be furnished by a bidder to show the characteristics of the item offered in the bid.

3. Bid samples or descriptive literature may be required when it is necessary to evaluate required characteristics of the items bid.

4. Unless bid samples or descriptive literature are requested or allowed by the Invitation for Bids, they cannot be considered or evaluated.

(4) Public Notice.

(a) Distribution. Invitations for Bids or Notices of the Availability of Invitations for Bids shall be mailed, electronically transmitted, or otherwise furnished to a sufficient number of potential bidders for the purpose of securing competition. Notices of Availability shall indicate where, when, and for how long Invitations for Bids may be obtained; generally describe the supply or service; and may contain other appropriate information.

(b) Publication. Every Invitation to Bid more than $25,000 shall be publicized in one or more of the following ways:

1. in a newspaper of general circulation;

2. in a newspaper of local circulation in the area pertinent to the procurement;

3. in industry media;

4. through electronic mailing lists,

5. through an agency web site or other publicly accessible electronic media,

6. in a government publication designed for giving public notice, or

7. a method preapproved by the Chief Procurement Officer in writing.

(c) Public Availability. A copy of the Invitation for Bids shall be made available for public inspection at the Chief Procurement Officer or head of the Purchasing Agency's office.

(5) Bidders Lists.

(a) Purpose. Bidders lists may be compiled to provide the State with the names of businesses that may be interested in competing for various types of State contracts. Unless otherwise provided, inclusion or exclusion of the name of a business does not indicate whether the business is responsible in respect to a particular procurement or otherwise capable of successfully performing a State contract.

(b) Public Availability. Names and addresses on bidders lists shall be available for public inspection as provided for in these rules.

(6) Pre-Bid Conferences. Pre-bid conferences may be conducted to explain the procurement requirements. They shall be announced to all prospective bidders known to have received an Invitation for Bids. Nothing stated at the pre-bid conference shall change the Invitation for Bids unless a change is made by written amendment as provided in Rule 355-4-3-.02(7) (Amendments to Invitations for Bids).

(7) Amendments to Invitations for Bids. Distribution. Amendments to Invitation to Bids shall reference the portions of the Invitation to Bids it amends and shall be sent to all prospective bidders known to have received an Invitation for Bids. Amendments shall be distributed within a reasonable time to allow prospective bidders to consider them in preparing their bids. If the time and date set for receipt of bids will not permit such preparation, such time shall be extended, if possible, in the amendment or, if necessary, by email or telephone and confirmed in the amendment.

(8) Pre-Opening Modification or Withdrawal of Bids.

(a) Procedure. Bids may be modified or withdrawn by written notice received in the office designated in the Invitation for Bids prior to the time and date set for bid opening. An electronic modification or withdrawal received from the bidder prior to the time and date set for bid opening will be effective provided that there is objective evidence confirming that the message was received prior to the time and date set for bid opening.

(b) Disposition of Bid Security. If a bid is withdrawn in accordance with this Section, the bid security, if any, shall be returned to the bidder.

(c) Records. All documents relating to the modification or withdrawal of bids shall be made a part of the appropriate procurement file.

(9) Late Bids, Late Withdrawals, and Late Modifications.

(a) Definition. Any bid received after the time and date set for receipt of bids is late. Any withdrawal or modification of a bid received after the time and date set for opening of bids at the place designated for opening is late.

(b) Treatment. No late bid, late modification, or late withdrawal will be considered unless received before contract award, and the bid, modification, or withdrawal would have been timely but for the action or inaction of State personnel directly serving the procurement activity.

(c) Notice. Bidders submitting late bids that will not be considered for award shall be so notified as soon as practicable.

(d) Records. Records equivalent to those required in Rule 355-4-3-.02(8) (c) (Pre-Opening Modification or Withdrawal of Bids, Records) shall be made and kept for each late bid, late modification, or late withdrawal.

(10) Receipt, Opening, and Recording of Bids.

(a) Receipt. Upon its receipt, each bid and modification shall be time-stamped but not opened and shall be stored in a secure place until the time and date set for bid opening. Bids submitted through electronic means shall be received in such a manner that the time and date of submittal, along with the contents of such bids shall be securely stored until the time and date set for bid opening.

(b) Opening and Recording. Bids and modifications shall be opened with electronic bids being made publicly available online and manual bids being opened in the presence of at least one witness, at the time, date, and place designated in the Invitation for Bids. The name of each bidder, the bid price, and such other information as is deemed appropriate by the Procurement Officer, shall be read aloud or otherwise made available. Such information also shall be recorded at the time of bid opening; that is, the bids shall be tabulated or a bid abstract made. The names and addresses of required witnesses shall also be recorded at the opening. The opened bids shall be available for public inspection except to the extent the bidder designates Confidential Information as set forth in Subsection (c) of this Section. Material so designated shall accompany the bid and shall be readily separable from the bid in order to facilitate public inspection of the nonconfidential portion of the bid. Price and makes and model or catalogue of the items offered, deliveries, and terms of payment shall be publicly available at the time of bid opening regardless of any designation to the contrary. Makes, models, and catalog items may be withheld from public disclosure if required to eliminate or mitigate a security risk as determined by the Chief Procurement Officer in writing. Bids submitted through electronic means shall be received in such a manner that the requirements of this section can be readily met.

(c) Confidential Data. The Procurement Officer shall examine the bids to determine the validity of any requests for nondisclosure of Confidential Information identified in writing. If the parties do not agree as to the disclosure of Confidential Information, the Procurement Officer shall inform the bidders in writing what portions of the bids will be disclosed and that, unless the bidder protests under Code of Ala. 1975, § 41-4-161, the bids will be so disclosed. The bids shall be open to public inspection subject to any continuing prohibition on the disclosure of Confidential Information.

(11) Mistakes in Bids.

(a) General. Bid correction or withdrawal by reason of an apparent, inadvertent mistake is permissible but only to the extent it is not contrary to the interest of the State and the fair treatment of other bidders.

(b) Mistakes Discovered Before Opening. A bidder may correct mistakes discovered before bid opening by withdrawing or correcting the bid as provided in Rule 355-4-3-.02(8) (Pre-Opening Modification or Withdrawal of Bids). The Procurement Officer has no duty to inspect bids for mistakes or to notify bidders of potential mistakes in bids before bid opening.

(c) Mistakes Discovered At or After Bid Opening But Before Award.

1. When the Procurement Officer concludes that a mistake has been made, the bidder shall be asked to confirm the bid. Situations in which confirmation should be requested include obvious inadvertent or clerical errors on the face of the bid or a bid that is unreasonably low compared to other bids.

2. The following types of mistakes discovered at or after bid opening may be corrected as follows:

(i) Minor Informalities. Minor informalities are matters of form rather than substance evident from the bid document, or insignificant mistakes that can be waived or corrected without prejudice to other bidders; that is, the effect on price, quantity, quality, delivery, or contractual conditions is negligible or non-existent. The Procurement Officer shall waive such informalities or allow the bidder to correct them depending on which is in the best interest of the State. Examples include the failure of a bidder to:

(I) return the number of signed bids required by the Invitation for Bids;

(II) sign the bid, but only if the unsigned bid is accompanied by other material indicating the bidder's intent to be bound; or

(Ill) acknowledge receipt of an amendment to the Invitation for Bids, but only if:

I. it is clear from the bid that the bidder received the amendment and intended to be bound by its terms; or

II. the amendment involved had a negligible effect on price, quantity, quality, or delivery.

(ii) Mistakes Where Intended Correct Bid is Evident. If the mistake and the intended correct bid are clearly evident on the face of the bid document, the bid shall be corrected to the intended correct bid and may not be withdrawn. Examples of mistakes that may be clearly evident on the face of the bid document are typographical errors, errors in extending unit prices, transposition errors, and arithmetical errors.

(iii) Mistakes Where Intended Correct Bid is Not Evident. A bidder may be permitted to withdraw a low bid if:

(I) a mistake is clearly evident on the face of the bid document, but the intended correction is not similarly evident or

(II) the bidder submits proof of evidentiary value which clearly and convincingly demonstrates that a mistake was made.

(d) Mistakes Discovered After Award. Mistakes shall not be corrected after award of the contract except where the Chief Procurement Officer or the head of a Purchasing Agency makes a written determination that it would be unconscionable not to allow the mistake to be corrected. Any corrections made after award must be accomplished through an amendment to the contract, or alternatively, the contract may be terminated and a new solicitation be issued for the required supplies and services.

(e) Actions Required. Before any action is taken under Rule 355-4-3-.02(11) (c) or (d), the Chief Procurement Officer or head of a Purchasing Agency must consult and obtain concurrence of legal counsel. When a mistake is corrected or a request for correction is denied under Rule 355-4-3-.02(11) (c) or (d), the Chief Procurement Officer or the head of a Purchasing agency shall prepare a written determination showing that the relief was granted or denied in accordance with these Rules

(12) Bid Evaluation and Award.

(a) General. The contract is to be awarded "to the lowest responsible and responsive bidder whose bid meets the requirements set forth in the Invitation for Bid." See Code of Ala. 1975, § 41-4-132(g)(1). The Invitation for Bids shall set forth the requirements which will be used to determine the lowest responsive bidder. No bid shall be evaluated for any requirement that is not disclosed in the Invitation for Bids.

(b) Responsibility and Responsiveness. Responsibility of prospective contractors is defined by Code of Ala. 1975, § 41-4-130(7) and Rule 355-4-3-.09 (Responsibility) of this Chapter. Responsiveness of bids is addressed in Code of Ala. 1975, § 41-4-130(8) which defines "responsive bidder" as "a person who has submitted a bid... which conforms in all material respects to the Invitation for Bid..."

(c) Product Acceptability. The Invitation for Bids shall set forth any evaluation criterion to be used in determining product acceptability. It may require the submission of bid samples, descriptive literature, technical data, or other material. It may also provide for accomplishing any of the following prior to award:

1. inspection or testing of a product prior to award for such characteristics as quality or workmanship;

2. examination of such elements as appearance, finish, taste, or feel; or

3. other examinations to determine whether it conforms with any other purchase description requirements.

The acceptability evaluation is not conducted for the purpose of determining whether one bidder's item is superior to another but only to determine that a bidder's offering is acceptable as set forth in the Invitation for Bids. Any bidder's offering which does not meet the acceptability requirements shall be rejected as nonresponsive.

(d) Determination of Lowest Bidder. Following determination of product acceptability as set forth in Subsection (c) of this Rule 355-4-3-.02(12), if any is required, bids will be evaluated to determine which bidder offers the lowest cost to the State in accordance with the evaluation criteria set forth in the Invitation for Bids. Only objectively measurable criteria which are set forth in the Invitation for Bids shall be applied in determining the lowest bidder. Examples of such criteria include, but are not limited to, transportation cost and ownership or life cycle cost formulas. Evaluation factors need not be precise predictors of actual future costs, but to the extent possible such evaluation factors shall:

1. be reasonable estimates based upon information the State has available concerning future use; and

2. treat all bids equitably.

(e) Restrictions. Nothing in this Section shall be deemed to permit contract award to a bidder submitting a higher quality item than that designated in the Invitation for Bids if such bidder is not also the lowest bidder as determined under Subsection (d) of this Rule 355-4-3-.02(12). Further, this Section does not permit negotiations with any bidder, except as provided by Code of Ala. 1975, § 41-4-132(g) (1).

(f) Intent to Award and Award. Following determination of the lowest bidder as set forth in Subsection (d) of this Rule 355-4-3-.02(12), and if there is no other reason to cancel the procurement, the procurement officer shall publicly, in writing, provide a notice of intent to award. Unless stayed due to a protest, the procurement may be awarded 14 days after the intent to award is published.

(13) Low Tie Bids.

(a) Definition. Low tie bids are low responsive bids from responsible bidders that are identical in price and which meet all the requirements and criteria set forth in the Invitation for Bids.

(b) Award. In a tie involving only two bidders, the awardee will be determined by the Chief Procurement Officer flipping a coin. In the event of a tie among three or more bidders, award will be made by drawing lots. These tiebreaker procedures do not apply to multi-vendor awards.

(c) Record. Records shall be made of all Invitations for Bids on which tie bids are received showing at least the following information:

1. the identification number of the Invitation for Bids;

2. the supply or service; and

3. a listing of all the bidders and the prices submitted. A copy of each such record shall be maintained in the relevant procurement file.

(14) Documentation of Award. Following award, a record showing the basis for determining the successful bidder shall be made a part of the procurement file.

(15) Publicizing Awards. Written notice of award shall be sent to the successful bidder. Unsuccessful bidders shall be notified of the award in writing. Notice of award shall be made available to the public.

(16) Multi-Step Sealed Bidding.

(a) Definition. Multi-step sealed bidding is a two- phase process consisting of a technical first phase composed of one or more steps in which bidders submit unpriced technical offers to be evaluated by the State, and a second phase in which those bidders whose technical offers are determined to be acceptable during the first phase have their price bids considered. It is designed to obtain the benefits of competitive sealed bidding by award of a contract to the lowest responsive, responsible bidder, and at the same time obtain the benefits of the competitive sealed proposals procedure through the solicitation of technical offers and the conduct of discussions to evaluate and determine the acceptability of technical offers.

(b) Conditions for Use. The multi-step sealed bidding method may be used when it is not practical to prepare initially a definitive purchase description which will be suitable to permit an award based on price. Multi-step sealed bidding may thus be used when it is considered desirable:

1. to invite and evaluate technical offers to determine their acceptability to fulfill the purchase description requirements;

2. to conduct discussions for the purposes of facilitating understanding of the technical offer and purchase description requirements and, where appropriate, obtain supplemental information, permit amendments of technical offers, or amend the purchase description;

3. to accomplish Subsections (a) and (b) of this Rule 355-4-3-.02(16) prior to soliciting priced bids; and

4. to award the contract to the lowest responsive and responsible bidder in accordance with the competitive sealed bidding procedures.

(17) Pre-Bid Conferences in Multi-Step Sealed Bidding. Prior to the submission of unpriced technical offers, a pre-bid conference as contemplated by Rule 355-4-3-.02(6) (Pre-Bid Conferences) may be conducted by the Procurement Officer. The Procurement Officer may also hold a conference of all potential bidders in accordance with Rule 355-4-3-.02(6) at any time during the evaluation of the unpriced technical offers.

(18) Procedure for Phase One of Multi-Step Sealed Bidding.

(a) Form. Multi-step sealed bidding shall be initiated by the issuance of an Invitation for Bids in the form required by Rule 355-4-3-.02(1) (The Invitation for Bids), except as hereinafter provided. In addition to the requirements set forth in Rule 355-4-3-.02(1), the multi-step Invitation for Bids shall state:

1. that unpriced technical offers are requested;

2. whether priced bids are to be submitted at the same time as unpriced technical offers; if they are, such priced bids shall be submitted in a separate sealed envelope;

3. that it is a multi-step sealed bid procurement, and priced bids will be considered only in the second phase and only from those bidders whose unpriced technical offers are found acceptable in the first phase;

4. the criteria to be used in the evaluation of the unpriced technical offers;

5. that the State, to the extent the Procurement Officer finds necessary, may conduct oral or written discussions of the unpriced technical offers;

6. that bidders may designate those portions of the unpriced technical offers which contain Confidential Information which are to remain confidential; and

7. that the item being procured shall be furnished generally in accordance with the bidder's technical offer as found to be finally acceptable and shall meet the requirements of the Invitation for Bids.

(b) Amendments to the Invitation for Bids. After receipt of unpriced technical offers, amendments to the Invitation for Bids shall be distributed only to bidders who submitted unpriced technical offers, and they shall be permitted to submit new unpriced technical offers or to amend those submitted. If, in the opinion of the Procurement Officer, a contemplated amendment will significantly change the nature of the procurement, the Invitation for Bids shall be cancelled in accordance with Rule 355-4-3-.09 (Cancellation of Solicitations; Rejection of Bids or Proposals) of this Chapter and a new Invitation for Bids issued.

(c) Receipt and Handling of Unpriced Technical Offers. Unpriced technical offers shall not be opened publicly but shall be opened in front of two or more procurement officials. Such offers shall not be disclosed to unauthorized persons. Bidders may request nondisclosure of Confidential Information identified in writing.

(d) Evaluation of Unpriced Technical Offers. The unpriced technical offers submitted by bidders shall be evaluated solely in accordance with the criteria set forth in the Invitation for Bids. The unpriced technical offers shall be categorized as:

1. acceptable;

2. potentially acceptable, that is, reasonably susceptible of being made acceptable; or

3. unacceptable. The Procurement Officer shall record in writing the basis for finding an offer unacceptable and make it part of the procurement file.

If there are two or more acceptable or potentially acceptable unpriced technical offers, the Procurement Officer may initiate Phase Two of the procedure if, in the Procurement Officer's opinion, there are sufficient acceptable offers to assure effective price competition in the second phase without technical discussions. If the Procurement Officer finds that such is not the case, the Procurement Officer shall issue an amendment to the Invitation for Bids or engage in technical discussions as set forth in Subsection (e) of this Rule 355-4-3-.02(18). In the event there is only one acceptable or potentially acceptable unpriced technical offer, the Procurement Officer may engage in technical discussions, initiate Phase Two, or cancel the Invitation for Bids. If the only unpriced technical offer received is unacceptable, the Procurement Officer shall cancel the Invitation for Bids and may re-solicit the requirement.

(e) Discussion of Unpriced Technical Offers. The Procurement Officer may conduct discussions with any bidder who submits an acceptable or potentially acceptable technical offer. During the course of such discussions the Procurement Officer shall not disclose any information derived from one unpriced technical offer to any other bidder. Once discussions are begun, any bidder who has not been notified that its offer has been finally found unacceptable may submit supplemental information amending its technical offer at any time until the closing date established by the Procurement Officer. Such submission may be made at the request of the Procurement Officer or upon the bidder's own initiative.

(f) Notice of Unacceptable Unpriced Technical Offer. When the Procurement Officer determines a bidder's unpriced technical offer to be unacceptable, such offeror shall not be afforded an additional opportunity to supplement its technical offer.

(19) Mistakes During Multi-Step Sealed Bidding. Mistakes may be corrected or bids may be withdrawn during Phase One at any time. During Phase Two, mistakes may be corrected or withdrawal permitted in accordance with Rule 355-4-3-.02(11) (Mistakes in Bids).

(20) Procedure for Phase Two.

(a) Initiation. Upon the completion of Phase One, the Procurement Officer shall either:

1. open priced bids submitted in Phase One (if priced bids were required to be submitted) from bidders whose unpriced technical offers were found to be acceptable; or

2. if priced bids have not been submitted, technical discussions have been held, or amendments to the Invitation for Bids have been issued, invite each acceptable bidder to submit a priced bid.

(b) Conduct. Phase Two shall be conducted as any other competitive sealed bid procurement except:

1. as specifically set forth in Rule 355-4-3-.02(16) (Multi-Step Sealed Bidding) through this Section;

2. no public notice need be given of this invitation to submit priced bids because such notice was previously given;

3. after award the unpriced technical offer of the successful bidder shall be disclosed as follows. The Procurement Officer shall examine written requests of confidentiality for Confidential Information in the technical offer of such bidder to determine the validity of any such requests. If the parties do not agree as to the disclosure of data, the Procurement Officer shall inform the bidder in writing what portions of the unpriced technical offer will be disclosed and that, unless the bidder protests under Division 6 of the State Procurement Code (Legal and Contractual Remedies), the offer will be so disclosed. Such technical offer shall be open to public inspection subject to any continuing prohibition on the disclosure of confidential data; and

4. unpriced technical offers of bidders who are not awarded the contract shall not be open to public inspection unless the Chief Procurement Officer determines in writing that public inspection of such offers is essential to assure confidence in the integrity of the procurement process; provided, however, that the provisions of Subsection (b)(3) of this Rule 355-4-3-.02(20) shall apply with respect to the possible disclosure of Confidential Information.

Ala. Admin. Code r. 355-4-3-.02

Adopted by Alabama Administrative Monthly Volume XL, Issue No. 09, June 30, 2022, eff. 8/14/2022; operative 10/1/2022.

Amended by Alabama Administrative Monthly Volume XLI, Issue No. 06, March 31, 2023, eff. 5/15/2023.

Author: Department of Finance, Legal Division

Statutory Authority:Code of Ala. 1975, § 41-4-132.