19-11-229. Competitive sealed bidding — Definition.

19-11-229. Competitive sealed bidding — Definition. (a) Definition. “Competitive sealed bidding” means a method of procurement which requires: (1) Issuance of an invitation for bids with a purchase description and all contractual terms and conditions applicable to the procurement; (2) Public, contemporaneous opening of bids at a predesignated time and place; (3) Unconditional acceptance of a bid without alteration or correction, except as authorized in §§ 19-11-204 and 19-11-228 — 19-11-240; (4) Award to the responsive and responsible bidder who has submitted the lowest bid that meets the requirements and criteria set forth in the invitation for bids; and (5) Public notice. (b)(1) Contracts exceeding an estimated purchase price of seventy-five thousand dollars ($75,000) shall be awarded by competitive sealed bidding unless a determination is made in writing by the agency procurement official or the State Procurement Director that this method is not practicable and advantageous and specifically states the reasons that this method is not practicable and advantageous. (2) The director may provide by rule that it is not practicable to procure specified types of commodities, technical and general services, or professional and consultant services by competitive sealed bidding. (3) Factors to be considered in determining whether competitive sealed bidding is not practicable shall include whether: (A) Purchase descriptions are suitable for award on the basis of the lowest evaluated bid price; and (B) The available sources, the time and place of performance, and other relevant circumstances are appropriate for the use of competitive sealed bidding. (c) When it is considered impractical to initially prepare a purchase description to support an award based on price, an invitation for bids may be issued requesting the submission of unpriced technical proposals to be followed by an invitation for bids limited to those bidders whose technical proposals meet the requirements set forth in the first invitation. (d) Notice inviting bids shall: (1) Be given not fewer than five (5) calendar days nor more than ninety (90) calendar days preceding the date for the opening of bids by publishing the notice at least one (1) time in at least one (1) newspaper having general circulation in the state or posting by electronic media, but in all instances, adequate notice shall be given; (2) Include a general description of the commodities, technical and general services, or professional and consultant services to be procured; (3) State where invitations for bids may be obtained; (4) State the date, time, and place of bid opening; and (5) State the time, date, and place of the solicitation conference if a solicitation conference is to be held before the opening of bids to provide information to prospective bidders. (e) Bids shall be opened publicly in the presence of one (1) or more witnesses at the time and place designated in the invitation for bids. Each bid, together with the name of the bidder, shall be recorded and open to public inspection. (f)(1)(A) Bids shall be evaluated based on the requirements set forth in the invitation for bids. (B) These requirements may include criteria to determine acceptability such as: (i) Inspection; (ii) Testing; (iii) Quality; (iv) Workmanship; (v) Delivery; (vi) Past performance; and (vii) Suitability for a particular purpose and criteria affecting price such as life-cycle or total ownership costs. (2)(A) The invitation for bids shall set forth the evaluation criteria to be used. (B) No criteria may be used in bid evaluation that were not set forth in the invitation for bids. (3)(A) A time discount may be considered in the evaluation of a bid only: (i) If the state agency specifically solicits pricing that requests a time discount; and (ii) Under the structured terms of the invitation for bids. (B) If a bidder offers a time discount as part of its bid without the solicitation of time discounts by the state agency, the state agency shall not consider the time discount. (g)(1) Correction of patent or provable errors in bids that do not prejudice other bidders or withdrawal of bids may be allowed only to the extent permitted under rules promulgated by the director and upon written approval of the Attorney General or a designee of such officer. (2) No award shall be made on the basis of a corrected bid, if the corrected bid exceeds the next lowest bid of a responsible bidder. (3)(A) The director or an agency procurement official may seek the clarification of a submitted bid. (B) A written response by a bidder under this subsection shall only clarify the submitted bid and shall not add any substantive language to the submitted bid or change the terms of the submitted bid. (C) If the bidder fails or refuses to clarify any matter questioned about the bidder's bid in writing by the deadline set by the director or agency procurement official, the bid may be rejected. (D) If the bidder clarifies the matter questioned under this subsection in writing, the clarification shall be evaluated and become a part of any contract awarded on the basis of the bidder's bid. (h)(1) The contract shall be awarded with reasonable promptness by written notice to the lowest responsible bidder whose bid meets the requirements and criteria set forth in the invitation for bids. (2)(A) Except with respect to a contract being procured for a construction project, the director or the head of a procurement agency may negotiate a lower bid price, including changes in the bid requirements, with the lowest responsive and responsible bidder if: (i) All bids received from responsive and responsible bidders exceed available funding as certified by the appropriate fiscal officer of the procurement agency; or (ii) It appears that additional savings to the state may result from negotiation. (B)(i)(a) If negotiations with the lowest responsive and responsible bidder conducted under subdivision (h)(2)(A) of this section fail to result in a lower bid price, the state may negotiate for a lower bid price with the next lowest responsive and responsible bidder. (b) If negotiations with the next lowest responsive and responsible bidder under subdivision (h)(2)(B)(i)(a) of this section fail to result in a lower bid price, the state may negotiate for a lower bid price with the next lowest responsive and responsible bidder until an acceptable lower bid price is negotiated or the state determines that negotiations are no longer in the best interest of the state. (ii) A bid price resulting from negotiations conducted under this section shall not be higher than: (a) The bid price originally submitted by the lowest responsive and responsible bidder; or (b) A price previously offered in negotiations by a responsive and responsible bidder. (iii) Negotiations conducted under this section do not preclude the use of other methods of source selection or procurement authority provided under this subchapter. (C)[Effective July 1, 2021.] (i) Negotiations under this subsection shall be conducted by a person who is trained and certified in negotiation and procurement processes. (ii)(a) The Office of State Procurement shall provide for the training and certification required under this subsection. (b) The training provided by the office shall be specific to Arkansas law. (3) All other bidders requesting to be notified of the award decision shall be promptly notified of the decision. (i)(1) An invitation for bids may be cancelled or any or all bids may be rejected in writing by the director or the agency procurement official. (2) Before the rejection of a bid by the director, the decision to reject the bid may be validated with the state agency for which the procurement is being conducted. (3) A bid may be rejected for failure to adhere to mandatory requirements.