Chapter Five: Bidding Documents
At least one complete set of bidding documents regarding a proposed public construction contract shall be on file in the main office of the awarding public agency at least 21 days prior to the date set for opening bids. The officer, agent, or employee of the awarding county or public agency designated in the bid notice shall have a sufficient number of complete sets of the bidding documents and shall provide a complete set of those documents to any prospective bidder upon request. However, the awarding public agency may require a reasonable deposit for each such set, provided that that deposit shall not exceed the actual cost of duplicating or printing. The public agency may retain all or part of the deposit if it is stated in the notice for bids.
61 O.S. § 106
Payments received for the deposit of bidding documents should be deposited to the county clerk depository account. The funds should be held there until they are refunded. Refunds would be made by depository voucher. A recommended best practice is to require a written request for a refund, which would provide for good checks and balances. If no refund is allowed, or at the time specified in the bid documents, the funds should be paid to the general fund or the Mechanic Lien Account at the close of the month.
The county may retain all or part of the deposit as stated in the notice of bids.
Required Bonds
The bid must be accompanied by one of the following items:
- A bid bond (certified check, cashier's check, or actual bond) equal to five percent of the bid, which shall be deposited with the awarding county as a guaranty.
- An irrevocable letter of credit containing terms prescribed by the Construction and Properties Division of the OMES, issued by a financial institution insured by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation for the benefit of the state, on behalf of the awarding county, in an amount equal to five percent of the bid.
The bid bond serves to recover the cost of republication of the notice to bidders, actual expenses incurred by reason of the bidder's default, and the difference between the low bid of the defaulting bidder and the amount of the bid of the bidder to whom the contract is subsequently awarded. The costs and expenses shall not exceed the amount of the bid bond. The irrevocable letter of credit may, at the discretion of the awarding county, be forfeited to the awarding county in the event the successful bidder fails to execute the contract or fails to provide the required bonds or irrevocable letters of credit and insurance to the awarding county.
The county shall return the bid bond or the irrevocable letter of credit to the successful bidder on execution and delivery of the contract and required bonds or irrevocable letters of credit and insurance. Checks of unsuccessful bidders shall be returned to them in accordance with the terms of the bid solicitation.
The bid bond may be returned if it is determined that the bidders committed what the courts have determined under the common law to be an excusable bidding error (clerical error).
Business Affidavit
The business relationship affidavit must accompany the bid. The affidavit is a written statement under oath disclosing the following information:
- The nature of any partnership, joint venture, or other business relationships in effect or which existed within one year prior to the date of the statement with the architect, engineer, or another party to the project;
- Any such business relationship in effect or which existed within one year prior to the date of such statement between any officer or director of the bidding company and any officer or director of the architectural or engineering firm, or another party to the project;
- The names of all people having any business relationships and the positions they hold with their respective companies or firms:
- If none of these business relationships exist, then a statement shall be made to that effect.
Note: Nepotism laws apply to all projects under the Public Competitive Bidding Act.
61 O.S. § 114
Non-Collusion Affidavit
Any agreement or collusion among bidders, prospective bidders, or material suppliers in restraint of freedom of competition by agreement to bid at a fixed price or to refrain from bidding, or otherwise, shall render the bids of such bidders void. Each bidder shall accompany the bid with a sworn statement that the bidder has not been a party to any such agreement. SA&I Form No. 4001, Affidavit for Contracts and Payments, must accompany the bid.
Warning: Persons willfully violating this section in the Oklahoma Statutes shall be guilty of a felony
Bid Opening
Any disclosure by an employee of the county regarding the terms of a bid submitted in response to a bid notice issued by the county before the opening of all bids submitted is unlawful. It is also unlawful for any person to solicit, possess, or receive information that is to be contained in a bid notice of the county for use in preparing a bid before the date on which the bid notice is to be made equally known to all prospective bidders and the public. It is further unlawful for any employee of the county to withhold or impede the distribution of information after notice of the bid has been given unless the solicitation of bids has been withdrawn or the particular information in question has been deleted or replaced through alteration of the bid notice and the withdrawal or alteration has been made equally known.
61 O.S. §116(A)
Warning: Any violation of this subsection in the Oklahoma Statutes is a felony and shall render the proceedings void and require a new solicitation and award.
The estimate of the actual cost of the project made by the county, construction manager, or consultant for the agency shall not be considered confidential and shall be available to the public in accordance with the Oklahoma Open Records Act.
61 O.S. § 116(B)
Bids received after the bid deadline shall be returned unopened. A recommended best practice is that a copy of the bid envelope is made for county records. A notation should be made on the outside of the bid of the date and time received and the date and time returned.
61 O.S. § 109
All bids shall remain sealed until the bid opening. They shall be opened by the board of county commissioners at a public meeting at the time and place mentioned in the bid documents and read aloud.
The board of county commissioners has, by majority vote, the right to reject any and all bids if, in their opinion, they believe it is in the best interest of the people to do so. A statement should be entered into the minutes regarding the disposition of the bids.
61 O.S. § 119
Note: If no bids are received or if all bids are rejected, the project must rebid.