Chapter 4 - § 4.21 • BRIDGE AND HIGHWAY CONTRACTS

• Jurisdiction: Colorado

§ 4.21 • BRIDGE AND HIGHWAY CONTRACTS

As mentioned in § 4.1, the Colorado Procurement Code does not apply to bridge and highway construction undertaken by the state and its agencies. The key regulatory provisions governing the procurement of bridge and highway construction projects by the state and its agencies are found in the Department of Transportation's Rules for Road, Highway and Bridge Public Works,³⁸⁵ Rules for Design-Build,³⁸⁶ and Standard Specifications for Road and Bridge Construction (Standard Specifications).³⁸⁷

§ 4.21.1-Competitive Sealed Bidding

Bridge and highway public projects typically invoke the same procedures found in other types of public projects governed by the Colorado Procurement Code. The Department of Transportation must give public notice of invitations for bids at least 14 calendar days prior to the date set for the opening of bids.³⁸⁸ For federally funded projects, advertisement and approved plans and specifications must be available to the public for three weeks prior to the opening of bids.³⁸⁹ Public notification of invitations for bids may include state internet or web-based services.³⁹⁰

Invitation for bids may be canceled or deferred when it is in the best interests of the Department of Transportation.³⁹¹ If there is sufficient time, notice of cancellation or deferment must be published on CDOT's website and forwarded to each plan holder.³⁹² When there is not sufficient time, the Department of Transportation must attempt to notify prospective bidders about the cancellation or deferment by phone.³⁹³ Nonetheless, the Department of Transportation is not liable to any plan holder who does not receive notice of cancellation or deferment prior to the opening of bids.³⁹⁴

Prospective contractors must submit their bids according to the invitation for bids and bid proposals.³⁹⁵ Bids must include (1) a unit price in dollars and cents in figures for each pay item for which a quantity is given, (2) the mathematical products of the respective unit prices and the estimated quantities in the column provided for that purpose, and (3) the total amount of the bid.³⁹⁶ Finally, prospective contractors must submit the collusion affidavit, personal guarantee, and certification regarding debarment with the bid proposals.³⁹⁷

All bids for bridge and highway construction must be accompanied by a proposal guarantee,³⁹⁸ which is the security furnished by bidders to guarantee that they will enter into a contract if their bids are accepted.³⁹⁹ A proposal guarantee may come in the form of a bid bond, cashier's check, or certified check.⁴⁰⁰

The Department of Transportation will receive bids only from contractors who are prequalified at the time of bid opening and who are not suspended or debarred.⁴⁰¹ Bids may be rejected for the following reasons: (1) failure to submit a collusion affidavit, (2) failure to submit a proposal guarantee, (3) the bid is in a different form than specified, (4) the form has been altered or detached, (5) the form does not contain a written or electronic signature, and (6) the prospective contractor is affiliated with another prospective contractor on the same public project.⁴⁰²

Bids are compared on the basis of the summation of the mathematical products of the estimated quantities shown in the bid schedule and the unit bid prices and any adjustments indicated by the specifications.⁴⁰³ If there are low-tie bids, the Department of Transportation conducts a drawing to determine the low bidder.⁴⁰⁴

Both written and electronic bids may be withdrawn before the opening of bids.⁴⁰⁵ In addition, bids may be withdrawn to make corrections, as long as the bids are redeposited before the opening of bids.⁴⁰⁶ Bids may not be withdrawn after the opening of bids.⁴⁰⁷ Furthermore, mistakes discovered after award may not be corrected, except when the chief engineer makes a written determination that it would be unconscionable not to allow correction.⁴⁰⁸

When the Department of Transportation determines that a mistake has been made after the opening of bids, but before award, it must contact the contractor and ask for confirmation.⁴⁰⁹ Confirmation is appropriate in instances where there are obvious, apparent errors on the face of the bid or the bid is unreasonably lower than the other submitted bids.⁴¹⁰ If the mistake is the result of an error in judgment, the contractor may not correct the mistake or withdraw the bid. If the mistake is inadvertently made and not the result of an error in judgment, correction or withdrawal may be made in the following situations: (1) for minor informalities, the Department of Transportation may waive or allow correction of the mistake;⁴¹¹ (2) for mistakes where the intended correct bid is evident, the Department of Transportation corrects the bid to the intended correct bid;⁴¹² and (3) for mistakes where the intended correct bid is not evident, a contractor may withdraw the bid if the mistake is clearly evident, but the intended correct bid is not evident, or the contractor submits satisfactory proof that a material mistake was inadvertent and not intentional, that it was made in good faith, and that the Department of Transportation has not relied to its detriment.⁴¹³

Prior to contract award, the Department of Transportation makes a determination of responsibility for the low bidder based upon its part performance, performance capability statements, and bid.⁴¹⁴ A low bidder may be found non-responsible for the following reasons: (1) the bidder has failed or is failing to perform on any construction contract; (2) the fiscal or workmanship capability of the low bidder has significantly decreased; (3) the Department of Transportation identifies concerns with the bidder's performance capability; (4) the bidder has been sent a notice of intent to revoke prequalification; (5) the bidder has been sent a notice of intent to find default on a Department of Transportation contract; (6) the bidder has been sent a notice of intent to debar or of suspension; or (7) the Department of Transportation finds that the bidder's good faith efforts to comply with DBE requirements are unsatisfactory.⁴¹⁵

Within 30 days after the opening of bids, the Department of Transportation must award the contract to the "low responsible and responsive bidder."⁴¹⁶ However, until the parties execute a contract, the Department of Transportation may cancel the award without any liability.⁴¹⁷ The low responsible and responsive bidder must furnish both a performance and payment bond at the time of execution of the contract.⁴¹⁸ Each bond must be in the penal sum of the bid and those force account items equal to the next highest integral one hundred dollars.⁴¹⁹ The low responsible and responsive bidder must execute the contract within 15 calendar days after the date of award, unless otherwise provided.⁴²⁰ If the low responsible and responsive bidder does not execute the contract in a timely fashion, the Department of Transportation may cancel the award and retain the bidder's proposal guarantee.⁴²¹ On the other hand, if the Department of Transportation does not execute the contract within 30 days after the date of award, the bidder may withdraw its bid without penalty.⁴²²

§ 4.21.2-Protests

Bid Protests

Any actual or prospective bidder may file a protest concerning the solicitation or award of a contract by the Department of Transportation to the chief engineer or designee.⁴²³ The protest must be submitted within seven working days after the bidder knew or should have known of the relevant facts.⁴²⁴ The chief engineer then issues a written decision within seven working days after the protest is filed, which shall constitute final agency action.⁴²⁵ Similar to the Colorado Procurement Code, when a bid protest is sustained either administratively or upon administrative or judicial review, the bidder is entitled to reasonable costs incurred in connection with the solicitation, including bid preparation costs, so long as the protesting bidder should have been awarded the contract.⁴²⁶ No other costs are allowed, and reasonable costs do not include attorney fees.⁴²⁷

Contract Disputes

Use of the 2019 Standard Specifications became mandatory for all projects after October 1, 2019, and supersedes the 2017 Standard Specifications.⁴²⁸ This section addresses the 2019 Standard Specifications. The 2019 Standard Specifications are detailed below.

Subsections 105.22, 105.23, and 105.24 of the 2019 Standard Specifications set forth the process through which CDOT and the contractor must resolve an issue that may result in a dispute.⁴²⁹

Subsections 105.22, 105.23, and 105.24, Dispute Resolution

"An issue is a disagreement concerning contract price, time, interpretation of the Contract, or all three between the parties at the project level regarding or relating to the Contract."⁴³⁰ The contractor must submit a written notice of the issue to the Department of Transportation's project engineer within 20 days of the contractor being aware of the issue and must continually work with CDOT toward a resolution.⁴³¹ The contractor's failure to do so will bar it from any administrative, equitable, or legal remedy.⁴³²

"A dispute is an issue which the Contractor and CDOT [were unable] to resolve and for which the Contractor submits a written formal notice of dispute . . . ."⁴³³ Disputes relating to subcontractors, material suppliers, or any other entity not in privity with CDOT must be passed through the contractor.⁴³⁴ Generally, written notices of disputes must be submitted within 30 days of the date of the project engineer's final acceptance letter.

To initiate the dispute resolution process, the contractor must submit a written notice of dispute to the Department of Transportation's project engineer upon the failure of the parties to resolve the issue through negotiation.⁴³⁵ The contractor also must supplement the written notice of dispute with a detailed written request for equitable adjustment within 15 days.⁴³⁶ Within 15 days...