200 KAR 5:306. Competitive sealed
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
(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.)