12-3-203 - Competitive sealed bidding. - Tennessee Statutes

12-3-203. Competitive sealed bidding.

(a)  Multi-Step Sealed Bidding. 

     (1)  Multi-step sealed bidding is required on the acquisition of departmental computer systems involving the purchase of hardware and the development of application software.

     (2)  Multi-step sealed bidding may be used on any acquisition, subject to the approval of the board of standards.

     (3)  Discussions conducted for the purposes of facilitating understanding of technical offers and specifications may result in the obtaining of supplemental information, amendments to technical offers, and/or amendments to the invitation to bid.

     (4)  Acceptability of technical offers shall be determined by an evaluation team consisting of user agency personnel and others as determined by procedures of the department approved by the board of standards.

     (5)  For acquisitions made under the provisions of subsection (a), validation tests for the purpose of determining compliance with performance standards, or for objectively determining the validity of the bidder's performance outputs which has resulted in an adjustment to the bid price, may be conducted in phase two (2) after the apparent lowest responsible and responsive bidder has been determined. No such tests shall be required of the bidder unless, prior to the completion of phase one (1), validation tests shall be set forth in sufficient detail to enable bidders to perform such tests prior to the submission of the final technical offer. All performance standards, criteria for measuring performance outputs, and validation tests shall be set forth in the invitation to bid. However, nothing herein shall be construed to mean that such validation tests shall be required to be conducted by the state.

(b)  Bid Invitations and Bid Opening.  The department shall mail a copy of the invitation to bid to qualified bidders on the mailing list, as provided in § 12-3-703. All bids received by the department shall be publicly opened and examined at the time and place specified in the invitation to bidders. A copy of the bid tabulation shall be furnished at no cost to any citizen upon request. Any and all bids may be rejected by the commissioner pursuant to the provisions of subsection (i). Submission of a bid shall not create rights, interests, or claims of entitlement in any bidder, including the lowest apparent bidder.

(c)  Correction or Withdrawal of Bids Cancellation of Awards. 

     (1)  Correction or withdrawal of inadvertently erroneous bids, before or after award, or cancellation of awards or contracts based on such bid mistakes, shall be permitted in accordance with the rules and regulations of purchasing as approved by the board of standards.

     (2)  After bid opening, no changes in bid prices or other provisions of bids prejudicial to the interest of the state or fair competition shall be permitted.

     (3)  Except as otherwise provided by regulation, all decisions to permit the correction or withdrawal of bids, or cancel awards or contracts based on bid mistakes, shall be supported by a written determination made by the commissioner.

(d)  Evaluation of Technical Offers and Bids.  Technical offers and bids shall be evaluated based on the requirements set forth in the invitation to bid which may include criteria to determine acceptability, such as inspection, testing, quality, workmanship, delivery, and suitability for a particular purpose. Those criteria that will affect the bid price and be considered in evaluation for award shall be objectively measurable (quantifiable) and shall include, wherever practical, factors other than the initial purchase price. Such factors may include, but are not limited to, costs of training and conversion, the energy consumption and the projected cost of energy over the useful life of the product, and the anticipated resale or salvage value of the product. The invitation to bid shall set forth the evaluation criteria to be used. No criteria or factors may be used in bid evaluation that are not set forth in the invitation to bid.

(e)  Inspection Prior to Award.  After bid evaluation, all data relating to the procurement shall be made available for inspection to each bidder on the procurement, upon request. The department shall award no contract without providing bidders a reasonable opportunity for such inspection. Whenever multi-step sealed bidding is utilized, the department shall provide not less than five (5) working days for such inspection. The department shall establish procedures for providing such inspection. Notification by the state of intent to award shall not create rights, interests, or claims of entitlement in any bidder.

(f)  Award.  Each contract shall be awarded and let by the commissioner in the name of the state of Tennessee, with reasonable promptness by written notice to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the invitation to bid. Multiple awards may be made for term contracts when the board of standards determines such awards to be in the best interest of the state.

(g)  Term Contracts.  Every invitation to bid issued for the purpose of establishing a term contract or contracts shall include the total estimated purchase requirements by agencies of state government for the current contract period, if applicable, and for the new contract period. More than one (1) term contract may be let for the supply of any given class or type of supplies, equipment, or service and any term contract may provide for the cancellation thereof by either party. Term contracts executed or proposed to be executed for periods of time of more than twelve (12) months shall be subject to the rules of the department, as approved by the board, and meet the following conditions:

     (1)  Such term contracts must contain a provision giving the state the right of cancellation at any time with no more than one (1) year's notice, and at the end of any fiscal year without notice, in the event that funds to support the contract become unavailable; and

     (2)  No term contract may be let for periods of time in excess of sixty (60) months.

(h)  Certification of Sources of Supply.  After term contracts have been awarded, the commissioner shall certify to the several departments, institutions, and agencies of the state government the sources of supply and the contract price of the various supplies, materials, and equipment covered by the contracts. It is unlawful for any state department, institution or agency to purchase any supplies, material, or equipment covered thereby from any sources other than those certified by the commissioner, except as otherwise provided in this chapter.

(i)  Rejection by Commissioner of All Bids.  Whenever the commissioner proposes to reject all bids for a certain purchase, such action shall be taken only for the following reasons:

     (1)  Unreasonably high prices;

     (2)  Error in invitation to bid;

     (3)  Cessation of need;

     (4)  Unavailability of funds; or

     (5)  Any other reason approved by the board of standards.

(j)  Bid and Performance Bonds.  Bid and performance bonds or other security may be required for any contract. Any such requirement must be set forth in the invitation to bid. The department shall promulgate rules establishing the requirements for the use and appropriate amount of such bonds or other security.

[Acts 1987, ch. 337, § 4; 1989, ch. 497, § 1; 1990, ch. 910, § 1; 1992, ch. 865, § 1; 2000, ch. 924, §§ 1, 2.]