Chapter 7 - Bid Phase and Award

Chapter 7 Bid Phase and Award

After Plans, Specifications, and Estimates (PS&E) approval, the contract elements developed by the project team are packaged together by DelDOT’s Contract Administration section and advertised or let for bid. This portion of the project development process is known as the bid phase. In the bid phase, the bid proposal and the other contract documents are publicly advertised for prospective bidders to review, submit questions, and potentially offer bid. The bid proposal is also sometimes referred to as the invitation to bid or as a request for proposals (RFP). Bids received are reviewed by the project team and the contract can either be awarded or bids rejected. This phase in the project development process is intentionally regimented and must be strictly observed to ensure fair and equitable solicitation, protect DelDOT from unbalanced or otherwise detrimental agreements, and to comply with the pertinent procurement requirements in 29 Del. C. Chap. 69 and in Title 23 of the Code of Federal Regulations. The process described in this chapter primarily considers Design-Bid-Build contracts. Additional information on DelDOT’s processes related to alternative contracting methods are discussed in Section 6.1. In accordance with 29 Del. C. § 6923 (e)(2), the bid proposal must include at a minimum the following elements:

• Instructions and information concerning the bid submission requirements, including the time, date and place set for bid opening and any other special details;
• The description, specifications, evaluation criteria, delivery or performance schedule and inspection and acceptance requirements for the contract; and
• The contract terms and conditions, including, but not limited to, warranty and bonding or other security requirements, as applicable.

The information required to develop the bid proposal is more fully described in Section 6.2.

The bid phase may vary in duration with longer solicitation periods generally being provided for larger or more complex projects. At a minimum, 29 Del. C. § 6962(b) requires solicitations be made available at least 2 consecutive weeks prior to the bid opening while 23 CFR 635.112(b) requires a minimum of 3 weeks on federally participating contracts unless there are justified extenuating circumstances or special cases. The project team may consult DelDOT’s Contract Administration section and DelDOT’s Executive Management Team on the appropriate duration for an advertisement.

At the conclusion of the bid phase, all bids received as described in the bid proposal are opened and read aloud in accordance with 29 Del. C. § 6962(d)(12) and 23 CFR 635.113(a). After the bid opening, the project moves into the bid analysis phase so that a recommendation to award or rejection can be made. It is important that the Engineer of Record actively participate and support DelDOT’s Contract Administration section during the bid phase and perform the initial bid analysis. Therefore, when the Engineer of Record is procured through a professional services agreement, the scope of services should clearly include the services outlined within this chapter.

7.1 Pre-Bid Meetings

Depending on the complexity, specialization, or needs of the project, the project team in consultation with the Contract Administration section may choose to hold a pre-bid meeting. Pre-bid meetings are hosted by representatives from the design team, the administering Construction section, the DelDOT Contract Administration section, and other pertinent members of the project team and are open to prospective bidders, though DelDOT may elect to make attendance mandatory. Mandatory pre-bid meetings should be used judiciously as prospective bidders that do not attend will be precluded from bidding. Pre-bid meeting transcripts will become part of a contract’s General Description in accordance with DelDOT’s Standard Specifications. Therefore, even if a contractor does not attend a non-mandatory pre-bid meeting, they will be required to abide by the items discussed at the meeting.

Pre-bid meetings for projects involving the construction, reconstruction, alteration, or repair of a public building are governed by 29 Del. C. § 6962(d)(10) while all other non-professional solicitations are governed by 29 Del. C. § 6923(f). When used properly, pre-bid meetings are an excellent tool in mitigating risk for both the contractor and DelDOT. At a pre-bid meeting, the project team and the Contract Administration section can correspond directly with contractors, discuss the contract documents, and provide insight on complex work tasks or critical project details. Similarly, prospective bidders can ask questions or receive additional information to aid in the preparation of their bids. The insights provided at the meeting may result in more competitive bids. Pre-bid meetings can also provide the project team with useful information. Contractor attendance and engagement at the meeting can provide insight into the number of bids anticipated as well as showcase the contracting community’s understanding of the contract. Broad misunderstandings of the plans, scope, and specifications can alert the design team to the potential need for addenda to clarify aspects of the work to ensure the bids accurately represent the undertaking. Addenda are discussed in additional detail in Section 7.3.

29 Del. C. § 6962(d)(10) requires these meetings must be scheduled no less than 15 days before bid opening for projects involving the construction, reconstruction, alteration, or repair of a public building while 29 Del. C. § 6923(f) requires these meetings be scheduled no less than 7 days before bid opening for other non-professional solicitations.

7.2 Questions from Prospective Bidders

Often, prospective bidders will have questions about the contract documents during the bid phase. These questions can range from specific work tasks within the plans and small clarifications on pay items to broad scope of work questions and potential design flaws. Prospective bidders are required to submit their questions to DelDOT in accordance with the language included in the bid proposal. Questions submitted by prospective bidders are received by the Contract Administration section and then distributed to the Project Manager. The bidder’s questions and DelDOT’s answers will become part of a contract’s General Description in accordance with DelDOT’s Standard Specifications. Therefore, at a minimum, the Project Manager should provide all questions and suggested responses to the administering Construction section for review. The Project Manager must use their judgement to decide which other project team members will require consultation before submitting a response to the Contract Administration section.

Addressing questions requires measured answers as all prospective bidders will be able to view both the question and answer once posted to the State’s bid website. The design team should evaluate both the purpose and implication of the question and potential answer before formulating a response. The purpose of the questions can vary from asking for a small clarification to identifying a pervasive issue that may be present throughout the contract documents. The design team should gauge the purpose of the question and act accordingly, whether that be vetting the question against the contract documents, seeking input from the appropriate discipline subject matter expert, or analyzing the need for an addendum to remove ambiguity or even an error in the contract. Additionally, the implication of the question should be considered. All answers given become a part of the bid package and will most likely influence all submitted bids. The answer must address the question but must also not contradict or otherwise invalidate other aspects of the contract or leave gray areas that could be misinterpreted. Questions from prospective bidders may also necessitate the development of an addendum which is discussed in more detail in Section 7.3.

As with all tasks within the bid phase, it is imperative that questions are answered in a timely manner. A response to the Contract Administration section is expected within two business days. The Project Manager should notify the Contract Administration section as soon as possible if the response will take more than two business days. All prospective bidder questions received prior to the questions deadline are to be answered before bid opening in accordance with the requirements within the bid proposal. To achieve this, it may be necessary to extend the bid opening through an addendum so that questions can be fully and completely answered. Prompt and accurate responses to perspective bidder questions not only helps support the accuracy of bids but also aids in keeping the bid phase on schedule.

7.3 Addenda

Department Resources
Utility Conflict Matrix (UCM)

Project addenda are changes to the plans, estimates, specifications, or other contract documents after advertisement but before the bid opening. Processing addenda can be time consuming and costly. Therefore, addenda are only to be used to address discovered issues within the contract prior to the submission of bids and not as a means to accelerate project schedule.

As soon as an issue arises that could require an addendum, the Project Manager should confer with the Contract Administration section and the DelDOT PS&E Coordinator to determine if an addendum is required. If an addendum is required, the Project Manager should notify the relevant support section and request their input on the proposed change. Support staff and sections that could be notified include:

• Right-of-Way,
• Traffic Design,
• Traffic Safety,
• Environmental Stewardship,
• Engineering Support,
• Materials and Research,
• Legal,
• Construction Manager,
• Economic Development Coordination,
• Stormwater Engineer,
• Railroad Coordinator, and
• Utilities Engineer.

For Federal Highway Administration (FHWA) Projects of Division Involvement (PODI) projects, FHWA must also be consulted in accordance with the project’s PODI Stewardship & Oversight Plan.

Once consensus is reached with the relevant stakeholders, the addendum can be drafted into the plans. Chapter 6 contains DelDOT’s drafting guidance for addenda. The design team should then circulate the addendum for comment and adjust the plans accordingly. Again, FHWA must also review and approve the addendum on PODI projects in accordance with the project’s PODI Stewardship & Oversight Plan. The addendum review and approval process will occur through Unifier for projects included within the software. If changes are required to quantities, items, or unit prices, the Project Manager must also input the changes into AASHTOWare project with confirmation of the PS&E Coordinator. Additionally, support sections must issue new statements to accompany the addendum if the change dictates. Addendum for projects that are not in Unifier will need to be coordinated directly with DelDOT’s Contract Administration section.

All addended plans as well as an updated Utility Conflict Matrix (UCM) should be provided to the project’s Utility Coordinator once available. The Utility Coordinator will then submit the addenda and UCM to all utility companies on the project. In this way, all utility companies will be kept abreast of the changes to the project that could impact their facilities or relocation plans.

It is in the best interest of both DelDOT and prospective bidders that ample time be provided to prospective bidders to review all advertisement changes or clarifications prior to bid opening. To this point, 23 CFR 635.112(c) requires that DelDOT provide assurances to the FHWA that all bidders have received all issued addenda as part of the request to award. This assurance is achieved by bidders submitting the bidder’s Certification Form with their bid. Additionally, 29 Del. C. § 6962(b)(2) requires that DelDOT provide a minimum of 2 calendar days’ notice for any changes in bid opening locations, dates, or times, such as bid extensions. Bid opening extensions are performed through contract addenda; therefore, all issues or open items that could create the need for a change to the advertisement must be settled prior to the deadline included in 29 Del. C. § 6962(b)(2). It is also imperative that sufficient time be provided for the Contract Administration section to review and provide concurrence on addendum prior to issuance. For large scale addendum, it may be advantageous to extend the bid opening to allow for more than the minimum time for prospective to review the information, as to not compromise the validity or competitiveness of the bids.

Projects which require multiple addenda may be a sign of an unclear advertisement. In these cases, the design team should review the scale of the addenda to determine if reasonable bids can be received. In cases where reasonable bids cannot be guaranteed, the design team should consult with the Contract Administration section as well as the Executive Management Team to determine if the bid proposal should be canceled and then re-advertised. In cases where projects are re-advertised, the entire advertisement package should be reviewed and updated as needed prior to posting to the bid website to ensure consistency, transparency, and clarity.

7.4 Bid Analysis and Award or Rejection

Department Resources
Policy Implement D-08: Bid Analysis and Recommendation to Award Procedures
Recommendation to Award (RTA) Memo
RTA Bid Analysis Report Sample
Bid Tabulation and Analysis Worksheet
Stewardship and Oversight Agreement

The bid analysis and subsequent award or rejection is a significant milestone within the project development process. If a bid is accepted, the phase results in a contractually binding agreement between the contractor and DelDOT to complete the work included in the solicitation. The goal of the bid analysis is to assess the reasonableness of the bid when compared to the estimated quantities and Engineer’s Estimate.

29 Del. C. § 6962(d)(13)a provides DelDOT with 30 calendar days to award a public works contract or bids must be extended. All necessary bid extensions are to be coordinated through the Contract Administration section. The Project Manager will be provided with the preliminary bid tabs with a minimum of the information established in 23 CFR 635.113(b) from the Contract Administration section once they are available. The Project Manager should distribute the preliminary bid tabs to necessary members of the design team, the FHWA on PODI projects in accordance with the project’s PODI Stewardship & Oversight Plan, as well as to the project’s Construction Manager and Area Engineer for their input. Additionally, DelDOT's Utility Coordinator should be provided the opportunity to review bid tabs for all utility related work. The bid tabs should otherwise be kept confidential.

The DelDOT Utility Coordinator will work with the DelDOT Utility Engineer to obtain concurrence from the pertinent utility owners in cases where the utility owner will be responsible for reimbursing DelDOT for contract work on their utility. In these cases, the Project Manager is to provide the pertinent completed breakout sheets to the DelDOT Utility Coordinator and DelDOT Utility Engineer once they become available to help facilitate discussion.

The Engineer of Record should perform the bid analysis for low-bid solicitations in accordance with Policy Implement D-08 entitled Bid Analysis and Recommendation to Award Procedures, while best value awards are to be assessed in accordance with the criteria established in the bid proposal. Policy Implement D-08 establishes uniform procedures for analyzing bids and requires the review of the low bid against the representative, minimum, and maximum bids from all those received as well as the Engineer’s Estimate, historic bid data, and results from other similar scale projects. The representative bid is the average of the remaining bids for an item after the lowest and highest bid price for the item are removed. From the analysis, the Engineer of Record should determine if the bids are mathematically and/or materially unbalanced. 23 CFR 635.102 defines a mathematically unbalanced bid as a bid containing lump sum or unit bid items which do not reflect reasonable actual costs plus a reasonable proportionate share of the bidder's anticipated profit, overhead costs, and other indirect costs; and a materially unbalanced bid as a bid which generates a reasonable doubt that award to the bidder submitting a mathematically unbalanced bid will result in the lowest ultimate cost.

It is important to distinguish the apparent low bidder from the actual low bidder. Through the bid analysis, the Engineer of Record shall verify if the apparent low bidder and their contract unit prices will result in the lowest cost to DelDOT. Depending on the results of the analysis and in accordance with 29 Del. C. Chap. 69, the design team, with concurrence from the Contract Administration section, has three options:

• Award the contract to the lowest responsible and responsive bidder,
• Award the contract to a bidder other than the lowest responsible and responsive bidder if the interests of the State are better served, or
• Reject all bids.

If the apparent low bidder is determined to be the mathematically lowest bidder, the Project Manager can assemble the Recommendation to Award (RTA) Memo. This memo confirms the apparent result of the bid opening and includes a copy of the bid analysis. The Project Manager will also need to include the documentation required in Policy Implement D-08 with the RTA Memo. When deemed beneficial, the project team can set up a pre-award meeting with the apparent low bidder to address any questions and to provide the apparent low bidder an opportunity to provide clarifications on their bid. All desired pre-award meetings should be arranged through the Contract Administration section.

Although 29 Del. C. § 6923(k)(2) (for materials and nonprofessional services) and 29 Del. C. § 6962(d)(13)b (for public works) allow for award to a bidder other than the lowest responsible and responsive bidder, this practice should be avoided, absent documented non-responsibility or non-responsiveness. In cases where award is recommended to a bidder other than the lowest responsible and responsive bidder, 29 Del. C. § 6923(k) and 29 Del. C. § 6962(d)(13)b require the decision be supported by the bid analysis and written determination made describing the reason or reasons why such award better serves the interest of the State. Additionally, contracts for Federal-aid Highway Projects are generally required to be awarded to the lowest responsive and responsible bidder, subject to the award conditions established in 23 CFR 635.114.

In accordance with 29 Del. C. § 6962(d)(13)f, DelDOT may reject all bids for public works projects for any reason if it is in the best interest of the agency. These reasons can include but are not limited to:

• No responsible or nonresponsive bidders in accordance with 29 Del. C. § 6962(d)(13)(a),
• Materially unbalanced bids with no suitable alternative,
• Front loaded bids, or bids with higher unit prices of advanced payment items indicating the contractor is acting in bad faith,
• A lack of prospective bidders, or
• Quantity errors within the contract that undermine the quality of bids.

Regardless of the reason, it may be prudent to reject all bids rather than expose DelDOT to claims, damages, or otherwise detrimental contracts. If all bids are rejected, the design team is to confer with both the Contract Administration section and the Executive Management Team to determine the path forward for the project. Rejecting all bids normally requires that the project scope be reevaluated and involve major or minor changes in plans or limits. Recommendation to reject all bids uses the same memo template as the RTA Memo.

Pursuant to the current DelDOT and FHWA Stewardship and Oversight Agreement, the FHWA has delegated contract administration and award responsibilities under 23 CFR 635.114 to DelDOT for Federal-aid Highway Projects; consequently, routine contract awards, low bidder disqualifications for non-responsiveness or non-responsibility, and bid rejections do not require direct FHWA concurrence. However, for projects designated as PODI projects, prior FHWA concurrence for contract awards, determinations of non-responsiveness or non-responsibility, or the rejection of all bids must be obtained in accordance with the project’s PODI Stewardship & Oversight Plan.

DelDOT provides a Bid Tabulation and Analysis Worksheet which will need to be attached to the RTA Memo when submitted for endorsement as well as an RTA Bid Analysis Report Sample which is available for the design team’s reference. Whenever award is recommended, the project estimate in Unifier must be updated to be consistent with the recommendations in the RTA Memo. The design team must also determine if the project is adequately funded for the awarded amount. In cases where the awarded amount is greater than the funded amount, the DelDOT Project Manager must work with the Division of Finance to obtain the necessary funding for construction. Additional information on project cost increases is included in Section 5.8.7.