Standard Provisions_V1_General.pdf

STANDARD PROVISIONS

FOR

CONSTRUCTION CONTRACTS

VOLUME 1:

GENERAL PROVISIONS

October 2017 Edition

INTRODUCTION

The Standard Provisions for Construction Contracts, consisting of Volume 1: General Provisions and Volume 2: Special Provisions, are intended to establish uniformity and consistency of specifications in matters of construction contracts. The Standard Provisions as referenced by edition date in the Technical Provisions and Bid Forms, are part of the Contract Documents and are binding upon the parties signatory to the Contract. By proposing to undertake a project and submitting a bid, the Contractor agrees that s/he has reviewed, is familiar with, and will abide by the requirements of these Standard Provisions.

If the Standard Provisions are revised, a new edition date will be provided on the contract CD.

Accordingly, the Bid Proposal Section in the Contract Bid Forms will refer to the applicable edition of the Standard Provisions for that contract. The prospective contractor is advised to record the correct applicable version of the Standard Provisions in the Bid Proposal Section in the Contract Bid Forms.

Standard Provisions for Construction Contracts Volume 1: General Provisions, October 2017 Edition i Table of Contents

STANDARD PROVISIONS FOR CONSTRUCTION CONTRACTS

GENERAL PROVISIONS

TABLE OF CONTENTS

PART I GENERAL PROVISIONS

SECTION 1 DEFINITION AND TERMS

GP-1.01 General

GP-1.02 Organizational Structure

GP-1.03 Organizational Definitions

GP-1.04 Abbreviations

GP-1.05 Definitions

SECTION 2 BIDDING REQUIREMENTS AND CONDITIONS

GP-2.01 Bid Irrevocable

GP-2.02 Contents of Bid Forms

GP-2.03 Interpretation of Quantities in Bid Schedule

GP-2.04 Site Investigation

GP-2.05 Taxes - Responsibility for Payment, Exemptions, Forms to File, Etc

GP-2.06 Preparation of Bid

GP-2.07 Proposal Guaranty

GP-2.08 Delivery of Bids

GP-2.09 Communications and Interpretations - Prior to Bid Opening

GP-2.10 Amendments to Invitations for Bids

GP-2.11 Pre-Opening Modification or Withdrawal of Bids

GP-2.12 Late Bids, Late Withdrawals, and Late Modification

GP-2.13 Opening and Recording of Bids

GP-2.14 Mistakes in Bids

GP-2.15 Minor Irregularities/Informalities

GP-2.16 Cancellation of Invitations for Bids

GP-2.17 Rejection of Individual Bids or Proposals

GP-2.18 Rejection of All Bids

GP-2.19 Bid Evaluation and Award

GP-2.20 Tie Bids

GP-2.21 Resident Business Preference

GP-2.22 Multiple or Alternate Bids

GP-2.23 Bid Protests

Volume 1: General Provisions, October 2017 Edition ii Table of Contents

SECTION 3 AWARD AND EXECUTION OF CONTRACT

GP-3.01 Award of Contract (See GP-Section 2)

GP-3.02 Return of Proposal Guaranty

GP-3.03 Performance Bond and Payment Bond Requirements

GP-3.04 Execution of Contract

GP-3.05 Failure to Execute Contract

SECTION 4 SCOPE OF WORK

GP-4.01 Intent of Contract

GP-4.02 General Provisions Controlling

GP-4.03 Entire Contract

GP-4.04 Variations in Estimated Quantities

GP-4.05 Differing Site Conditions

GP-4.06 Changes

GP-4.07 Negotiated Payment Provision

GP-4.08 Unauthorized Work

GP-4.09 Final Clean Up

GP-4.10 Warranty of Construction

SECTION 5 CONTROL OF WORK

GP-5.01 Authority of the Procurement Officer

GP-5.02 Conformity with Contract Requirements

GP-5.03 Discrepancies in the Contract Documents

GP-5.04 Cooperation by Contractor

GP-5.05 Cooperation with Utilities

GP-5.06 Cooperation Between Contractors

GP-5.07 Authority and Duties of Inspectors

GP-5.08 Inspection of Work

GP-5.09 Removal of Defective Work

GP-5.10 Load Restrictions

GP-5.11 Maintenance of Work During Construction

GP-5.12 Failure to Maintain Entire Project

GP-5.13 Acceptance for Maintenance

GP-5.14 Claims

GP-5.15 Disputes

SECTION 6 CONTROL OF MATERIAL

GP-6.01 General

GP-6.02 Storage and Handling of Materials

GP-6.03 Unacceptable Materials

Volume 1: General Provisions, October 2017 Edition iii Table of Contents

GP-6.04 Administration Furnished Material

SECTION 7 LEGAL RELATIONS AND RESPONSIBILITY TO PUBLIC

GP-7.01 Compliance with Laws

GP-7.02 Permits and Licenses

GP-7.03 Patented Devices, Materials and Processes

GP-7.04 Federal Participation

GP-7.05 Construction Safety and Health Standards

GP-7.06 Public Convenience and Safety

GP-7.07 Detours

GP-7.08 Barricades and Warning Signs

GP-7.09 Flagging of Motor Vehicle Traffic

GP-7.10 Maintenance of Traffic

GP-7.11 Preservation and Restoration of Property

GP-7.12 Land, Air and Water Pollution

GP-7.13 Responsibility for Damage Claims

GP-7.14 Liability Insurance

GP-7.15 Use and Possession Prior to Completion

GP-7.16 Contractor's Responsibility for Work

GP-7.17 Contractor's Responsibility for Utility Property and Services

GP-7.18 Personal Liability of Public Officials

GP-7.19 No Waiver of Legal Rights

GP-7.20 Non-Discrimination in Employment

GP-7.21 Sanctions Upon Improper Acts

GP-7.22 Non-Hiring of Employees

GP-7.23 Choice of Law

GP-7.24 Contingent Fee Prohibition

GP-7.25 Multi-Year Contracts Contingent Upon Appropriations

GP-7.26 Cost and Price Certification

GP-7.27 Corporate Registration and Tax Payment Certification

GP-7.28 Buy American Steel Act

GP-7.29 Minority Business Enterprise and Affirmative Action

GP-7.30 Prevailing Wage Contracts for Public Works

GP-7.31 Small Business Procurements

GP-7.32 Financial Disclosure

GP-7.33 Political Contribution Disclosure

GP-7.34 Conflict of Interest Law

GP-7.35 Pre-Existing Regulations

GP-7.36 Retention of Records

Standard Provisions for Construction Contracts Table of Contents Volume 1: General Provisions, October 2017 Edition iv

SECTION 8 PROSECUTION AND PROGRESS

GP-8.01 Subcontracting

GP-8.02 Notice to Proceed

GP-8.03 Prosecution of the Work

GP-8.04 Progress Schedule

GP-8.05 Limitations of Operation

GP-8.06 Character of Workmen, Methods and Equipment

GP-8.07 Suspension of Work

GP-8.08 Termination for Default - Damages for Delay - Time Extensions

GP-8.09 Liquidated Damages

GP-8.10 Termination for Convenience of the State

GP-8.11 Successful Termination of Contractor's Responsibility

SECTION 9 PAYMENT

GP-9.01 Scope of Payment

GP-9.02 Force Account Work

GP-9.03 Progress Payments

GP-9.04 Final Acceptance and Final Payment

GP-9.05 Late Payments

STANDARD PROVISIONS FOR CONSTRUCTION CONTRACTS

PART I

General Provisions

Standard Provisions for Construction Contracts Section 1 Volume 1: General Provisions, October 2017 Edition Definition and Terms

SECTION 1

DEFINITIONS AND TERMS

GP-1.01 General

Wherever in these General Provisions or in other Contract Documents the following terms or abbreviations are used, the meaning shall be as follows:

GP-1.02 Organizational Structure

The Maryland Department of Transportation is composed of the following Administrations:

(i) Maryland Port Administration

(ii) Mass Transit Administration

(iii) State Highway Administration

(iv) Maryland Aviation Administration

(v) Motor Vehicle Administration

(vi) State Railroad Administration; and

(vii) Office of Assistant Secretary, Administration

GP-1.03 Organizational Definitions

Administration The word "Administration" shall mean any one of the Administrations within the Maryland Department of Transportation, as listed in GP-1.02.

Administrator The chief executive officer of an Administration.

Department The word "Department" shall mean the Maryland Department of Transportation.

Engineer Any person designated by the Administrator or the procurement officer, acting directly or through his duly authorized representative, such representative acting within the scope of the particular duties assigned to him or of the authority given him.

Inspector The authorized representative of the Procurement Officer assigned to make detailed inspection of any or all portions of the work, or materials therefore.

Procurement Officer Any person authorized by a State agency in accordance with law or regulations to formulate, enter into, or administer contracts or make written determinations and findings with respect to them. The term also includes an authorized representative acting within the limits of authority.

Secretary The chief executive officer of the Maryland Department of Transportation.

GP-1.04 Abbreviations

AAN American Association of Nurserymen AAPA American Association of Port Authorities AAR Association of American Railroads AASHTO American Association of State Highway and Transportation Officials ACI American Concrete Institute AIA American Institute of Architects AIEE American Institute of Electrical Engineers AISC American Institute of Steel Construction AISI American Iron and Steel Institute ANSI American National Standards Institute ARA American Railway Association AREA American Railway Engineering Association ASCE American Society of Civil Engineers ASHRAE American Society of Heating, Refrigeration and Air-Conditioning Engineers ASLA American Society of Landscape Architects ASME American Society of Mechanical Engineers ASTM American Society for Testing and Materials ATA American Transit Association AWWA American Water Works Association AWS American Welding Society AWPA American Wood Preservers Association AGC Associated General Contractors of America BOCA Building Officials Conference of America COMAR Code of Maryland Regulations CRSI Concrete Reinforcing Steel Institute EEI Edison Electric Institute EIA Electronic Industries Association EPA Environmental Protection Agency FAA Federal Aviation Administration, U.S. Department of Transportation FCC Federal Communications Commission FHWA Federal Highway Administration, U.S. Department of Transportation FRA Federal Railway Administration, U.S. Department of Transportation FSS Federal Specifications and Standards, General Services Administration IEEE Institute of Electrical and Electronic Engineers IES Illuminating Engineers Society IPCEA Insulated Power Cable Engineers Association IRT Institute for Rapid Transit MBMA Metal Building Manufacturers' Association MSMT Maryland Standard Method of Test (as developed by the State Highway Administration) MUTCD Manual on Uniform Traffic Control Devices NBFU National Board of Fire Underwriters

NBS National Bureau of Standards NEC National Electric Code NEMA National Electrical Manufacturers' Association NFPA National Fire Protection Association OSHA Occupational Safety and Health Administration RLMI Reflector and Lamp Manufacturers' Institute SAE Society of Automotive Engineers SAWP Society of American Wood Preservers ULI Underwriters Laboratories, Inc.

UMTA Urban Mass Transportation Administration, U.S. Department of

Transportation.

GP-1.05 Definitions

Award The decision by a procurement agency to execute a purchase agreement or contract after all necessary approvals have been obtained.

Bid A statement of price, terms of sale, and description of the supplies, services, construction or construction-related services offered by a bidder to the State in response to an Invitation for Bids.

Bid Bond See Proposal Guaranty.

Bid Form The approved form on which an Administration requires bids to be set forth and submitted.

Bidder A person formally submitting a bid for the work contemplated, acting directly or through a duly authorized representative.

Board The Board of Public Works of the State of Maryland.

Business A corporation, partnership, individual, sole proprietorship, joint venture, or any other legal entity through which commercial activity is conducted.

Calendar Day Every day shown on the calendar, Saturdays, Sundays and holidays included.

Change Order A written order signed by the responsible Procurement Officer, directing a Contractor to make changes which the changes clause of a contract authorizes the Procurement Officer to order with or without the consent of the Contractor.

Construction The process of building, altering, repairing, improving or demolishing any structure, building, or other improvement to real property.

Contract Any agreement entered into by a procurement agency for the acquisition of supplies, services, construction, construction-related services, architectural services or engineering services.

Contract does not include:

1. Collective bargaining agreements with employee organizations or agreements creating employer-employee relationships, as defined in Article 64A, Section 15A(a)(3), Annotated Code of Maryland.

2. Medicaid, Medicare, Judicare, or similar reimbursement contracts for which user eligibility and cost are set by law or regulation.

Contract Documents The written agreement executed between an Administration and the successful bidder, covering the performance of the work and furnishing of labor, equipment and materials, by which the Contractor is bound to perform the work and furnish the labor, equipment and materials, and by which the Administration is obligated to compensate him therefore at the mutually established and accepted rate or price. The Contract shall include the Invitation for Bids, Notice to Contractors, Instructions to Bidders, Proposal, Contract Forms and Bonds, General Provisions, Specifications, Supplemental Specifications, all Special Provisions, all Technical Provisions, all Plans and Notices to Proceed, also any written Change Orders and Supplemental Agreements that are required to complete the construction of the work in an acceptable manner, including authorized extension thereof.

Contract Drawings See definition of "Plans".

Contract Item (Pay Item) An item of work specifically described and for which a price, either unit or lump sum, is provided. It includes the performance of all work and the furnishing of all labor, equipment, and materials, described herein or described in any Technical Provisions or Supplemental Specifications.

Contract Modification Any written alteration in the specifications, delivery point, date of delivery, contract period, price, quantity, or other provision of any existing contract, whether accomplished in accordance with a contract provision, or by mutual action of the parties to the Contract. It includes change orders, extra work orders, supplemental agreements, contract amendments, or reinstatements.

Contractor Any person having a contract with a procurement agency. Contractor does not include an employee with an employment contract, or an employee organization with a collective bargaining agreement.

Day Calendar day unless otherwise designated.

Invitation for Bids Any document, whether attached or incorporated by reference, used for soliciting bids under procurement by competitive sealed bidding and small procurement procedures including requests for quotations.

Materials Any substances specified for use in the construction of the project and its appurtenances.

Notice to Contractors The advertisement for Bids for all required work or materials. Such advertisement will indicate the location and magnitude of the work to be done or the character and quantity of the material to be furnished and the time and place of the opening of bids.

Notice to Proceed A written notice to the Contractor of the date on or before which he/she shall begin the prosecution of the work to be done under the Contract.

Payment Bond Security as stated in COMAR 21.06.07.01B as a guarantee that Contractor will pay in full all bills and accounts for materials and labor used in the work, as provided by law.

Performance Bond Security as stated in COMAR 21.06.07.01B, guaranteeing complete performance of the Contract.

Person Any individual or a corporation, partnership, sole proprietorship, joint stock company, joint venture, unincorporated association, union, committee, club, or other organization or legal entity.

Plans The official drawings issued by the Administration as part of the Contract documents, including those incorporated in the Contract documents by reference.

Proposal The response by an offeror to a request for proposals issued by a procurement agency to obtain goods or labor. The response may include but is not limited to an offeror's price and terms for the proposed contract, and description of technical expertise, work experience and other information as requested in the solicitation. As used herein the word "proposal" means "bid".

Proposal Guaranty The security, in the form stated in COMAR 21.06.07.01B, designated in the Proposal, to be furnished by the offeror as a guaranty of good faith to enter into a contract with the State, if the work of constructing the improvement is awarded to him.

Responsible Bidder or Offeror A person who has the capability in all respects to perform fully the Contract requirements, and the integrity and reliability that shall assure good faith performance.

Responsive Bid A bid submitted in response to an Invitation for Bids that conforms in all material respects to the requirements contained in the Invitation for Bids.

Specification A written description of functional characteristics, or the nature of a construction item to be procured. It may include a statement of any of the user's requirements and may provide for inspection, testing, or preparation of a construction item before procurement.

State The State of Maryland acting through its authorized representative.

Subcontract Any agreement entered into by the Contractor or a subcontractor for a portion of the construction or any other part of the work in connection with, and under the terms of the Contract.

Subcontractor Any person undertaking a portion of the construction or any other part of the work under the terms of the Contract, by virtue of an agreement with the Contractor or a subcontractor, who, prior to such undertaking, has received the consent of the surety and the approval of the Administration. Subcontractor does not include an employee with an employment contract, or an employee organization with a collective bargaining agreement.

Superintendent The executive representative of the Contractor authorized to receive and execute instructions from the Procurement Officer, and who shall supervise and direct the construction.

Supplemental Specifications Additions and revisions to the State Highway Administration's Standard Specifications. Generally include new or improved procedures, construction items or materials developed subsequent to the publication of the State Highway Administration Standard Specifications.

Surety The corporate body bound with and for the Contractor, for the full and complete performance of the Contract, and for the payment of all debts pertaining to the work. When applying to the Bid Bond, it refers to the corporate body which engages to be responsible in the execution by the bidder of a satisfactory contract.

Third Tier Contracting The process in which the Contractor subcontracts a portion of the Contract to a subcontractor who in turn subcontracts a portion of a subcontract to a third party. This latter action is termed entering into a third tier contract.

Work Work shall be understood to mean the furnishing of all labor, materials, equipment, and other incidentals necessary to the successful completion of the project and the carrying out of all the duties and obligations imposed by the Contract.

Standard Provisions for Construction Contracts Section 2 Volume 1: General Provisions, October 2017 Edition Bidding Requirements and Conditions

SECTION 2

BIDDING REQUIREMENTS AND CONDITIONS

GP-2.01 Bid Irrevocable

Unless otherwise provided in the invitation for bids, bid prices are irrevocable for 90 days following bid opening.

GP-2.02 Contents of Bid Forms

All papers included in, bound thereto or attached to the bid form are necessary parts thereof and shall not be detached, separated or altered. The plans, specifications, supplemental specifications, referred to in the specifications, and all other contract documents will be considered a part of the bid form whether attached thereto or not.

GP-2.03 Interpretation of Quantities in Bid Schedule

Where designated as estimated quantities, the quantities in the prepared bid schedule are approximate only. Payment to the Contractor will be made only for the actual quantities of work performed or materials furnished in accordance with the Contract and as provided in GP-4.04, Variations in Estimated Quantities.

GP-2.04 Site Investigation

The Contractor acknowledges that he/she has investigated and satisfied himself as to the conditions affecting the work, including but not restricted to those bearing upon transportation, disposal, handling and storage of materials, availability of labor, water, electric power, roads and uncertainties of weather, river stages, tides or similar physical conditions at the site, and confirmation and conditions of the ground, the character of equipment and facilities needed preliminary to and during prosecution of the work. The Contractor further acknowledges that he/she has satisfied himself as to the character, quality and quantity of surface and subsurface materials or obstacles to be encountered insofar as this information is reasonably ascertainable from an inspection of the site, including all exploratory work done by the State, as well as from information presented by the drawings and specifications made a part of this Contract. Any failure by the Contractor to acquaint himself/herself with the available information may not relieve him/her from responsibility for estimating properly the difficulty or cost of successfully performing the work. The State assumes no responsibility for any conclusions or interpretations made by the Contractor on the basis of the information made available by the State.

Volume 1: General Provisions, October 2017 Edition Bidding Requirements and Conditions

GP-2.05 Taxes - Responsibility for Payment, Exemptions, Forms to File, Etc.

A. The Contractor is responsible for, and by submitting a bid agrees to pay, all retail sales, income, real estate, sales and use, transportation and special taxes applicable to and assessable against any materials, equipment, processes and operations incident to or involved in the construction. The Contractor is responsible for ascertaining and acquainting himself with such taxes and making all necessary arrangements to pay same.

B. The Contractor shall indicate its Federal Tax Identification or Social Security number on the face of each invoice billed to the Administration.

C. The Administration or the Comptroller of the Treasury may withhold any payment under this Contract until the Contractor and any subcontractors performing any duties under this Contract have paid all State taxes or other obligations due the State of Maryland. The taxes or other obligations shall be resolved either by set-off of the amount due the Contractor against the amounts due the State or by direct payment.

GP-2.06 Preparation of Bid

A. The bidder shall submit his/her bid upon the blank form(s) furnished by the

Administration. The bidder shall specify a price in dollars and cents for each pay item given, and shall show the products of the respective unit prices and quantities written in figures in the column provided for that purpose, together with the total amount of the bid obtained by adding the amounts of the several items.

B. The bid form(s) shall be filled out legibly in ink or typed. The bid, if submitted by an individual, shall be signed by the individual; if submitted by a partnership, shall be signed by such member or members of the partnership as have authority to bind the partnership; if submitted by a corporation, the same shall be signed by an officer, and attested by the corporate secretary or an assistant corporate secretary. If not signed by an officer, as aforesaid, there must be attached a copy of that portion of the By-Laws or a copy of a Board resolution, duly certified by the corporate secretary, showing the authority of the person so signing on behalf of the corporation. In lieu thereof, the corporation may file such evidence with the Administration, duly certified by the corporate secretary, together with a list of the names of those officers having authority to execute documents on behalf of the corporation, duly certified by the corporate secretary, which listing shall remain in full force and effect until such time as the Administration is advised in writing to the contrary. In any case, where a bid is signed by an Attorney in Fact, the same must be accompanied by a copy of the appointing document, duly certified. All bids shall be signed in ink. All erasures or alterations shall be initialed by the signer in ink.

Volume 1: General Provisions, October 2017 Edition Bidding Requirements and Conditions

C. Bid Samples and Descriptive Literature. If the Invitation for Bids requires the bidder to furnish samples or descriptive literature, it shall be submitted with the bid, unless the invitation for bids provides otherwise.

D. Offerors shall identify those portions of their proposals which they deem to be confidential, proprietary information or trade secrets and provide any justification of why such materials should not be disclosed by the State under the Maryland Public Information Act, Section 10-611 et seq. of the State Government Article of the Annotated Code of Maryland.

GP-2.07 Proposal Guaranty

A. No bid will be considered for any contract in excess of $100,000 unless accompanied by a guaranty in an amount not less than 5% of the amount bid, or such amount as may be specified elsewhere in the bid documents and made payable to the State of Maryland.

B. Acceptable forms of security for bid guaranty shall be:

1. A bond in a form satisfactory to the State underwritten by a surety company authorized to do business in this State;

2. A bank certified check, bank cashier's check, bank treasurer's check, or trust account.

3. Pledge of securities backed by the full faith and credit of the United States government or bonds issued by the State of Maryland;

4. Cash, if submitted pursuant to COMAR 21.06.07.01C; and

5. An irrevocable letter of credit in a form satisfactory to the Attorney General and issued by a financial institution approved by the State Treasurer.

C. Bonding Assistance

1. Assistance in obtaining bid, performance and payment bonds may be available to qualifying small businesses through the Maryland Small Business Development Financing Authority (MSBDFA). MSBDFA can directly issue bid, performance or payment bonds up to $750,000.

MSBDFA may also guaranty up to 90% of a surety's losses as a result of a contractor's breach of contract; MSBDFA's exposure on any bond guaranteed may not, however, exceed $900,000. Bonds issued directly by the program will remain in effect for the duration of the contract, and those surety bonds that are guaranteed by the program will remain in effect for the duration of the surety's exposure under the contract.

Volume 1: General Provisions, October 2017 Edition Bidding Requirements and Conditions

2. To be eligible for bonding assistance, a business must first be denied bonding by at least one surety in both the standard and specialty markets within 90 days of submitting a bonding application to MSBDFA. The applicant must employ fewer than 500 full-time employees or have gross sales of less than $50 million annually, have its principal place of business in Maryland or be a Maryland resident, must not subcontract more than 75 percent of the work, and the business or its principals must have a reputation of good moral character and financial responsibility.

3. Finally, it must be demonstrated that the bonding or guarantee will have a measurable economic impact, through job creation and expansion of the state's tax base. Applicants are required to work through their respective bonding agents in applying for assistance under the program. Questions regarding the bonding assistance program should be referred to:

4. Maryland Department of Business and Economic Development Maryland Small Business Development Financing Authority 826 E. Baltimore Street Baltimore MD 21202 Phone: (410) 333-4270; Fax: (410) 333-6931

GP-2.08 Delivery of Bids

Each bid must be submitted in a sealed envelope plainly marked to indicate its contents.

When sent by mail, the sealed bid must be addressed to the Administration at the address and in care of the official in whose office the bids are to be received. All bids shall be filed prior to the time and at the place specified in the Notice to Contractors. Bids received after the time for opening of bids will be treated in accordance with the provisions of GP-2.12.

GP-2.09 Communications and Interpretations - Prior to Bid Opening

A. Any information regarding the requirements or the interpretation of any provision of the General Provisions, Special General Provisions, Specifications or any part of the bidding documents shall be requested, in writing, from the Procurement Officer, and delivered no later than ten days prior to the scheduled date of bid opening.

Responses to questions or inquiries having any material effect on the bids shall be made by written addenda, or by written notice sent to all prospective bidders. DO

NOT MAKE VERBAL INQUIRIES.

B. Any verbal interpretations or oral pre-bid statements made by State employees or their representatives shall not be binding upon the State.

GP-2.10 Amendments to Invitations for Bids

Volume 1: General Provisions, October 2017 Edition Bidding Requirements and Conditions

A. Form. Each amendment to an Invitation for Bids shall be in writing and identified as such.

B. Acknowledgements. Unless otherwise provided, the bidder shall acknowledge receipt of all amendments.

GP-2.11 Pre-Opening Modification or Withdrawal of Bids

A. Procedure. Bids may be modified or withdrawn by written notice received in the office designated in the invitation for bids before the time and date set for bid opening. A telegraphic modification or withdrawal received by telephone from the receiving telegraph company office before the time and date set for bid opening shall be effective if the telegraph company confirms the telephone message by sending a written copy of the telegram showing that the message was received at the telegraph company's office before the time and date set for bid opening.

B. Disposition of Bid Security. If a bid is withdrawn in accordance with this regulation, the bid security, if any, shall be returned to the bidder.

GP-2.12 Late Bids, Late Withdrawals, and Late Modification

A. Policy. Any bid received at the place designated in the solicitation after the time and date set for receipt of bids is late. Any request for withdrawal or request for modification received at the place designated in the solicitation after the time and date set for receipt of bids is late.

B. Treatment. A late bid, late request for modification, or late request for withdrawal may not be considered. Late bids will be returned to the bidder unopened. Upon written approval of the Office of the Attorney General, exceptions may be made when a late bid, withdrawal, or modification is received before contract award, and the bid, withdrawal, or modification would have been timely but for the action or inaction of State personnel directing the procurement activity or their employees.

GP-2.13 Opening and Recording of Bids

A. Opening and Recording. Bids and modifications shall be opened publicly, at the time, date, and place designated in the invitation for bids. The name of each bidder, the bid price, and such other information as is deemed appropriate shall be read aloud or otherwise made available. This information also shall be recorded at the time of bid opening. The bids shall be tabulated or a bid abstract made. The opened bid shall be available for public inspection at a reasonable time after bid opening but in any case before contract award except to the extent the bidder designates trade secrets or other proprietary data to be confidential as set forth in COMAR 21. Material so designated shall accompany the bid and shall be readily separable from the bid in order to facilitate public inspection of the nonconfidential portion of the bid. Prices, makes, and model or catalog numbers of the items offered, deliveries, and terms of

Volume 1: General Provisions, October 2017 Edition Bidding Requirements and Conditions payment shall be publicly available at a reasonable time after bid opening but in any event before contract award regardless of any designation to the contrary at the time of bid opening.

B. Confidential Data. The Procurement Officer shall examine the bids to determine the validity of any requests for nondisclosure of trade secrets and other proprietary data identified in writing. Confidential, proprietary information, and trade secrets furnished by a bidder or offeror may be disclosed to another State agency if there is a need for the information and may not be disclosed outside of State government except as provided by the Public Information Act or other applicable laws of this State.

GP-2.14 Mistakes in Bids

A. Mistakes Discovered Before Opening. A bidder may correct mistakes discovered before the time and date set for bid opening by withdrawing or correcting the bid as provided in GP-2.11.

B. Confirmation of Bid. If the Procurement Officer knows or has reason to conclude that a mistake may have been made, the bidder may be required to confirm the bid.

Situations in which confirmation may be requested include obvious, apparent errors on the face of the bid or a bid unreasonably lower than the other bids submitted. If the bidder alleges mistake, the bid may be corrected or withdrawn upon written approval of the Office of the Attorney General if any of the following conditions are met:

1. If the mistake and intended correction are clearly evident on the face of the bid document, the bid shall be corrected to the intended correct bid and may not be withdrawn. Examples of mistakes that may be clearly evident on the face of the bid document are typographical errors, errors in extending unit prices, transposition errors, and arithmetical errors.

2. A bidder may be permitted to withdraw a low bid if:

a. A mistake is clearly evident on the face of the bid document but the intended correct bid is not similarly evident; or

b. The bidder submits proof of evidentiary value which clearly and convincingly demonstrates that a mistake was made.

C. Mistakes Discovered After Award. Mistakes may not be corrected after award of the

Contract except when the Procurement Officer and the head of a procurement agency makes a determination that it would be unconscionable not to allow the mistake to be corrected. Changes in price are not permitted. Corrections shall be submitted to and approved by the Office of the Attorney General.

Volume 1: General Provisions, October 2017 Edition Bidding Requirements and Conditions

GP-2.15 Minor Irregularities/Informalities

A. General. Minor irregularities or informalities in bids, as defined below, may be waived if the Procurement Officer determines that it shall be in the State's best interest. The Procurement Officer may either give a bidder an opportunity to cure any deficiency resulting from a technicality or minor irregularity in its bid, or waive the deficiency where it is to the State's advantage to do so.

B. When at any public opening of bids, a bid appears to be irregular, as herein specified, this fact may be announced when read. Said bid shall be read as other bids and then referred to the Procurement Officer for consideration and appropriate action thereon in accordance with these General Provisions, Law and Regulation.

C. A minor irregularity is one which is merely a matter of form and not of substance or pertains to some immaterial or inconsequential defect or variation of a bid or proposal from the exact requirement of the solicitation, the correction or waiver of which would not be prejudicial to other bidders or offerors. The defect or variation in the bid or proposal is immaterial and inconsequential when its significance as to price, quantity, quality, or delivery is trivial or negligible when contrasted with the total cost or scope of the supplies or services being procured and the intent and meaning of the entire bid or proposal is clear.

GP-2.16 Cancellation of Invitations for Bids

A. Before opening of bids a solicitation may be canceled in whole or in part when the

State determines this action is fiscally advantageous or otherwise in its best interest.

B. When a solicitation is canceled before bid opening, the bids shall be returned to the vendors submitting them and notice of cancellation shall be included.

GP-2.17 Rejection of Individual Bids or Proposals

A. Any bid may be rejected in whole or in part when it is in the best interest of the State to do so.

B. Reasons for rejection of a bid may include but are not limited to:

1. The bid is not responsive i.e., it does not conform in all material respects to the solicitation;

2. Unreasonable price;

3. The bidder submitting the bid is determined to be non-responsible. A determination of non-responsibility may be made for, but is not limited to, any of the following reasons:

Volume 1: General Provisions, October 2017 Edition Bidding Requirements and Conditions

a. Bidder debarred or ineligible and period of debarment or ineligibility not expired.

b. The unit prices contained in a bid are unbalanced.

c. Evidence of collusion among bidders.

d. Inadequate quantity and/or quality of experience, plant, equipment, financing, manpower or other resources required to perform the contract.

e. Bidder's workload which, in the judgment of the Administration, might hinder or prevent the prompt completion of the subject work if awarded.

f. Default by the bidder on other contracts.

g. Failure to pay or satisfactorily settle all reasonable and just bills due for labor and material on prior or current contracts.

h. The same person has an interest in more than one bid on a contract exclusive of being named by another bidder as a subcontractor.

i. Failure to perform satisfactorily on other contracts awarded, and the conditions leading to unsatisfactory performance remain unresolved.

j. Any other reason affecting the bidder's ability to perform, or record of business integrity.

k. Bidder not otherwise qualified and eligible to receive an award under applicable laws and regulations.

4. The bidder or offeror fails to supply information to the Procurement Officer promptly, after notification from the Procurement Officer that such information is required in connection with a determination to be made pursuant to this

GP-2.17.

GP-2.18 Rejection of All Bids

A. After opening of bids or proposals but before award, all bids or proposals may be rejected in whole or in part when the Procurement Officer, with the approval of the agency head or his designee, determines that this action is fiscally advantageous or otherwise in the State's best interest.

B. A notice of rejection of all bids shall be sent to all vendors that submitted bids, and bids which have been opened shall be retained by the Administration.

Volume 1: General Provisions, October 2017 Edition Bidding Requirements and Conditions

GP-2.19 Bid Evaluation and Award

A. General. The Contract is to be awarded to the responsible and responsive bidder whose bid meets the requirements and evaluation criteria set forth in the invitation for bids, and is either the lowest bid price or lowest evaluated bid price.

B. Determination of Lowest Bidder. Bids shall be evaluated to determine which bidder offers the lowest cost to the State in accordance with the evaluation criteria set forth in the invitation for bids.

C. Except as otherwise provided under GP-2.14 Mistakes in Bids:

1. The unit price will govern in the event of a discrepancy between the unit price bid and the extended price (product of unit price multiplied by the quantity).

2. The sum of the extended prices will govern in the event of a discrepancy between the total lump sum bid and the extended prices.

3. The written words will govern in the event of a discrepancy between the prices written in words and the prices written in figures.

4. If a unit price has been omitted, the unit price will be determined by dividing the extended price by the quantity.

D. The Administration reserves the right to make the award by item, or groups of items, or total bid if it is in the best interest of the State to do so unless the bidder specifies in his bid that a particular or progressive award is not acceptable.

E. Award. Upon determination of the lowest bidder, review of the bid for responsiveness, and satisfaction that the bidder is responsible, the Contract may be awarded to that bidder. A contract may be awarded to a bidder offering a higher quality item than that designated in the invitation for bids if that bidder is also the lowest responsive and responsible bidder.

GP-2.20 Tie Bids

A. Definition. Tie bids are responsive bids from responsible bidders that are identical in price, terms and conditions and which meet all the requirements and evaluation criteria set forth in the invitation for bids.

B. Award. In the instance of tie bids, the award shall be made in accordance with

COMAR 21.05.02.14. If identical low bids are received from an in-State and out-of- State bidder, the award shall be made to the in-State bidder. If identical low bids are

Volume 1: General Provisions, October 2017 Edition Bidding Requirements and Conditions received from in-State bidders or from out-of-State bidders, a drawing shall be conducted, and a witness shall be present to verify and certify the result.

GP-2.21 Resident Business Preference

A. When awarding a contract by competitive sealed bidding, if the state in which a non-resident firm submitting the lowest responsible bid is located gives a competitive advantage to its resident businesses, a procurement agency may give an identical competitive advantage to the Maryland firm submitting the lowest responsive and responsible bid in order to determine contract award.

B. A competitive advantage may include:

1. A percentage preference;

2. An employee residency requirement;

3. Any other provision that favors a non-resident firm over a Maryland firm.

C. This provision GP-2.21 shall not apply if it conflicts with any Federal grant or regulation affecting this contract.

GP-2.22 Multiple or Alternate Bids

Unless multiple or alternate bids are requested in the solicitation, these bids may not be accepted. However, if a bidder clearly indicates a base bid, it shall be considered for award as though it were the only bid submitted by the bidder.

GP-2.23 Bid Protests

A bid protest must be in writing and filed with the Procurement Officer. Oral objections, whether or not acted on, are not protests.

1. Time for filing:

a. A bid protest shall be filed not later than seven (7) days after the basis for protest is known or should have been known, whichever is earlier;

b. A protest based on alleged improprieties in the solicitation which are apparent before the bid opening or the closing date for receipt of initial proposals shall be filed before the opening date or the closing date for receipt of initial proposals.

2. Content of Written Protest:

Volume 1: General Provisions, October 2017 Edition Bidding Requirements and Conditions

a. Name and address of protestor;

b. Bid or Contract Number;

c. Reasons for protest;

d. Supporting exhibits, evidence or documents to support claim. If not available within filing time, indicate expected availability date;

e. Mark envelope "PROTEST".

C. Bid protests will be resolved pursuant to COMAR 21.10.02.

Standard Provisions for Construction Contracts Section 3 Volume 1: General Provisions, October 2017 Edition Award and Execution of Contract

SECTION 3

AWARD AND EXECUTION OF CONTRACT

GP-3.01 Award of Contract (See GP-Section 2)

Written notice of award shall be sent to the successful bidder. A Notice of Award may be rescinded at any time prior to execution of the Contract by the Administrator.

GP-3.02 Return of Proposal Guaranty

All proposal guaranties, except those of the three lowest bidders, will be returned immediately following opening and the review of the proposals. The guaranty of the three lowest bidders will be returned following the execution of the Contract and approval by the Board, if required. The Contractor has the right to substitute a bid bond for other bid security at any time prior to return of the proposal guaranty.

GP-3.03 Performance Bond and Payment Bond Requirements

A. Acceptable security for performance and payment shall be as stated in COMAR

21.06.07.01B.

B. Performance and Payment Bonds. A performance and payment bond is required for all construction contracts in excess of Fifty Thousand Dollars ($50,000), each in the amount equal to at least One Hundred (100) percent of the Contract price. The bonds shall be delivered by the bidder to the Administration no later than the time the Contract is to be executed. If the bidder fails to deliver the required bonds, his/her bid shall be rejected, his/her bid security shall be enforced, and award of the Contract may be made to the next lowest responsive and responsible bidder.

1. The required Performance Bond shall be in the form specified in COMAR

21.07.02.10, Exhibit A.

2. The required Payment Bond shall be in the form specified in COMAR 21.07.02.10, Exhibit B.

GP-3.04 Execution of Contract

A. The Contract shall be effective only upon receipt by the Administration of the proper, executed Contract Forms, and Performance and Payment Bonds (if required), approval by the Board of Public Works, (if required), and execution of the Contract by the Administration.

Standard Provisions for Construction Contracts Section 3 Volume 1: General Provisions, October 2017 Edition Award and Execution of Contract

B. After a Notice of Award, as provided in GP-3.01, has been issued to a bidder, the Administration shall forward the formal Contract Forms and the appropriate forms for the Payment and Performance Bonds (if any) to the bidder for execution. The bidder will execute the Contract Forms and return same, together with fully executed Payment and Performance Bonds (if any), to the Administration within ten (10) days after receipt of same. After receipt of properly executed Contract Forms and Payment and Performance Bonds, (if any), the Administration will execute the Contract within sixty (60) days and forward the bidder a copy; provided, however, that the Board has approved the Contract if such approval is required. If the Administration fails to execute the Contract and the period of irrevocability has expired, the bidder may, as its sole remedy, withdraw its bids.

GP-3.05 Failure to Execute Contract

Failure of the bidder to execute the Contract and file acceptable security as defined in GP-3.03 within the time aforesaid shall be just cause for the annulment of the award and the forfeiture of the Proposal Guaranty which shall become the property of the State of Maryland, not as a penalty but in liquidation of damages sustained. Award may then be made to the next lowest responsive, responsible bidder or the work may be re-advertised and constructed under contract or otherwise, as the Administration may decide.

Standard Provisions for Construction Contracts Section 4 Volume 1: General Provisions, October 2017 Edition Scope of Work

SECTION 4

SCOPE OF WORK

GP-4.01 Intent of Contract

A. The Contractor shall (within specified tolerances) perform all work in accordance with the lines, grades, typical cross sections, dimensions, and other data shown on the plans or as modified by written orders including the furnishing of all materials, implements, machinery, equipment, tools, supplies, transportation, labor, and all other things necessary to the satisfactory prosecution and completion of the project in full compliance with the contract requirements.

B. The Documents composing the Contract Documents are intended to be complementary, and to describe the construction and completion of the work.

Anything mentioned in the specifications and not shown on the Contract Drawings, or shown on the Contract Drawings and not mentioned in the specifications shall be of like effect as if it is shown or mentioned in both.

C. Omissions from the drawings or specifications or the misdescription of details of work which are manifestly necessary to carry out the intent of the drawings and specifications or which are customarily performed shall not relieve the Contractor from performing such omitted or misdescribed details of work, but they shall be performed as if fully and correctly set forth and described in the drawings and specifications.

GP-4.02 General Provisions Controlling

In the event of a conflict between these General Provisions and any other provision of the Contract Documents, these General Provisions shall prevail unless such other provision expressly provides to the contrary.

GP-4.03 Entire Contract

The Contract Documents represent the entire and integrated agreement between the parties hereto and supersedes all prior negotiations, representations or agreements either written or oral.

GP-4.04 Variations in Estimated Quantities

Where the quantity of a pay item in this Contract is an estimated quantity and where the actual quantity of such pay item varies more than twenty-five percent (25%) above or below the estimated quantity stated in this Contract, an equitable adjustment in the Contract price shall be made upon demand of either party. The equitable adjustment shall be based upon any increase or decrease in costs due solely to the variation above one hundred twenty-five percent (125%) or below seventy-five percent (75%) of the estimated quantity. If the quantity variation is such as to cause an increase in the time necessary for completion, the Procurement Officer shall, upon receipt of a written request for an extension of time within ten (10) days from the beginning of the delay, or within a further period of time which may be granted by the Procurement Officer before the date of final settlement of the Contract, ascertain the facts and make the adjustment for extending the completion date as in his/her judgment the findings justify.

GP-4.05 Differing Site Conditions

A. The Contractor shall promptly, and before such conditions are disturbed, notify the

Procurement Officer in writing of:

1. Subsurface or latent physical conditions at the site differing materially from those indicated in this Contract; or

2. Unknown physical conditions at the site of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in…