200 KAR 5:306. Competitive sealed

bidding.

 

      RELATES TO: KRS 45A.080

      STATUTORY AUTHORITY: KRS 45A.035, 45A.080

NECESSITY, FUNCTION, AND CONFORMITY: KRS

45A.035 authorizes the Secretary of the Finance and Administration Cabinet to

promulgate administrative regulations for the implementation of the Kentucky

Model Procurement Code (KRS Chapter 45A). This administrative regulation

implements KRS 45A.080.

 

      Section 1. (1) The purchasing agencies of

the Commonwealth shall provide adequate public notice of solicitations pursuant

to KRS 45A.080(3).

      (2) In addition to any other public

notice given pursuant to KRS 45A.080(3), solicitations shall be posted to the

Finance and Administration Cabinet’s procurement website.

 

      Section 2. The purchasing officer or

other employee of the purchasing agency designated to open the bids shall

determine when the time set for opening bids has arrived and shall so declare

the time to those present for the bid opening. The purchasing officer or

designee shall, in the presence of all persons in attendance, open all bids

received as of that date and hour. If practical, the names of the bidders and

the amounts of their bids may be read aloud to the persons present. Except if

it is deemed impractical, due to the nature or complexity of a solicitation, a

bid tabulation summary sheet shall be prepared for each solicitation recording

the name of each bidder, a description of the supplies or services bid, and the

amounts of the bids received. The bid tabulation summary sheet shall be permanently

retained in the solicitation file and shall be available for public inspection.

Inspection of bids by interested persons shall not be permitted during the

formal bid opening process.

 

      Section 3. The bids shall be examined by

the purchasing officer responsible for the procurement for any clerical or

technical errors, reviewed for technical compliance with the terms of the

solicitation, and the supplies or services bid evaluated for conformity with

the specifications contained in the solicitation. A bidder shall, if requested

by the purchasing officer responsible for the procurement, clarify, in the

format specified by the purchasing officer, any matter contained in the

submitted bid about which the purchasing officer has question or believes in

good faith needs to be clarified. The bid of any bidder who fails or refuses,

within a reasonable time, to give a clarification, if requested to do so by the

purchasing officer, shall not be considered further for an award on the basis

of that solicitation. The clarification shall be incorporated in any contract

awarded on the basis of that bid. After a reasonable bid evaluation period, the

contract shall be awarded to the responsive and responsible bidder whose bid

offers the best value to the Commonwealth. After evaluation of the bids,

including consideration of any clarifying information submitted, the purchasing

officer may determine that no satisfactory bid has been received and all bids

may be disqualified. At the discretion of the purchasing officer, the solicitation

may be cancelled and new bids solicited on the basis of the same or revised

specifications, or competitive negotiations undertaken for the procurement. The

basis for the disqualification of all bids and subsequent action taken or to be

taken with respect to the solicitation shall be recorded and filed in the

solicitation file relating to the procurement.

 

      Section 4. (1) The right to disqualify

any bid and to waive technicalities and minor irregularities in bids shall be

preserved in the case of all solicitations issued by purchasing agencies within

the Finance and Administration Cabinet or pursuant to delegations of purchasing

authority by the Finance and Administration Cabinet.

      (2) Grounds for the disqualification of

bids include:

      (a) Failure of a bid to conform to the

essential requirements of a solicitation.

      (b) Failure to conform to the

specifications contained or referenced in a solicitation, unless the

solicitation authorized the submission of alternate bids and the items offered

as alternatives meet the requirements specified in the solicitation.

      (c) Failure to conform to a delivery

schedule established in a solicitation.

      (d) Imposition of conditions which modify

the terms and conditions of the solicitation, or limit the bidder's liability

to the state on the contract awarded on the basis of a solicitation.

      (e) Submission of an unreasonable price.

Any determination by the purchasing officer that a bid is unreasonable as to

price shall be documented.

      (f) Nonresponsibility of a bidder.

      (g) Failure to furnish a bid guarantee if

required by a solicitation.

      (h) Other cause as documented by the

purchasing officer in a determination and finding.

      (3) Technicalities or minor

irregularities in bids, which may be waived if the purchasing officer determines

that it will be in the Commonwealth's best interest to do so, are mere matters

of form not affecting the material substance of a bid or an immaterial

deviation from or variation in the precise requirements of the solicitation

having no or a trivial or negligible effect on price, quality, quantity,

delivery of supplies, or performance of the services being procured, the

correction or waiver of which will not affect the relative standing of, or be

otherwise prejudicial to other bidders. The purchasing officer may give a

bidder an opportunity to cure any deficiency resulting from a technicality or

minor irregularity in a bid, or waive the deficiency if it is advantageous to

the Commonwealth to do so.

 

      Section 5. If a mistake in a bid is

claimed, and the purchasing officer determines that a material mistake was made

in the bid and that due to this mistake, the bid submitted was not the bid

intended, the bidder shall be permitted to withdraw the bid. If a mistake in a

bid is claimed after the award and execution of a contract, the contractor

shall be required to perform according to the terms and conditions of the

contract, unless it is determined in writing by the Finance and Administration

Cabinet that a material mistake had been made in the original bid and the

contractor will sustain a financial loss if required to perform the contract

according to its terms. A reduction or diminution in profit margin shall not be

deemed a financial loss under this section. If it is determined that a material

mistake has been made in a bid after the award of a contract, and the

contractor will sustain a financial loss if required to perform the contract,

the contract shall be rescinded and the contractor shall be ineligible to

submit a bid upon resolicitation for the commodity or service. (5 Ky.R. 573;

Am. 946; eff. 7-17-79; 18 Ky.R. 1357; 2201; eff. 1-10-92; 23 Ky.R. 1405; 1925;

eff. 11-11-96; 24 Ky.R. 929; eff. 12-15-97; 30 Ky.R. 672; 1462; eff. 1-5-2004.)