PUBLIC COMPETITIVE BIDDING ACT OF 1974

The Act requires that all contracts exceeding Twelve Thousand Five Hundred Dollars ($12,500.00) in amount awarded by any public agency for the purpose of making any public improvements or constructing any public building or making repairs thereto shall be let and awarded to the lowest responsible bidder by free and open competitive bidding after solicitation for sealed bids in accordance with the Act. It further provides that no work shall be commenced until a written contract is signed and all required bonds and insurance have been provided by the contractor to the awarding agency. Contracts cannot be split to avoid the provisions of the Act. Public improvements does not include the direct purchase of materials, equipment or supplies by the public agency.

I. Bid Notices

A. Notice of the proposal to award a construction contract shall be made as follows:

   a. By mailing, at least 20 days prior to the time set for opening bids, to all prospective bidders who have made known, in writing to the public agency, their interest in bidding within the last twelve (12) months.

   b. By publication, in a newspaper of general circulation in the county where the work is to be performed, for two (2) consecutive weekly issues, with the first publication to be at least twenty (20) days prior to the date set for the opening bids.

   c. If the contract exceeds Fifty Thousand Dollars ($50,000.00), by publication in a trade or construction publication.

B. The bid notices shall contain the following information:

   a. A description of the construction contract, either in the bid notice itself or by reference to the bidding documents.

   b. The name of the person from whom the complete set of bidding documents can be obtained.

   c. The date, time and place for the opening of bids. The name and office location and address of the public agency to whom the sealed bids should be submitted.

   e. Any additional information regarding the project deemed of interest by the awarding public agency.

C. Bidding documents to be on file:

   a. At least one set of bidding documents must be on file in the main office of the awarding agency twenty (20) days prior to the date set for opening bids.

   b. The agency must have a sufficient number of complete sets to provide one to any prospective bidder upon request (The agency may require a reasonable deposit, not to exceed the actual cost of duplicating and printing. All or part of the deposit may be retained by the agency, if so stated in the notice for bids.)

II. Bids

A. Bids must be submitted not more than ninety-six (96) hours, excluding Saturdays, Sundays and holidays, before the time set for opening bids. Any bid received before that time or after the time set for opening bids shall not be considered by the public agency and shall be returned unopened to the bidder.

B. All properly received bids shall be opened only at the time and place mentioned in the bid notice and shall be read aloud at such time. Such bid opening shall be open to the public and to all bidders.

C. Each bid must be accompanied by a certified or cashiers check of bid bond equal to five percent (5%) of the amount bid. This money shall be deposited with the awarding public agency as a guarantee in the event that the apparently successful bidder fails to execute the contract or fails to provide the required bonds and insurance to the awarding public agency.

D. The bid shall also include a written statement under oath disclosing any relationship between the bidder and the architect, engineer or other party to the project, or between the officers thereof.

E. The bid shall also be accompanied with the non-collusion affidavit. All bids, both successful and unsuccessful, and all contracts and all required bonds shall be open for public inspection at the public agency for a period of five (5) years from the date of opening of the bids or for a period of three (3) years from the date of completion of the contract, whichever is longer.

III. Award of Contract

A. The public agency has the right to reject all bids.

B. If awarded, the contract must be awarded to the lower bidder, except:

   a. Resident bidders are preferred over non-resident bidders, unless the nonresident bid is 5% less than the bid submitted by the resident bidder or the non-resident bidder is a resident of a state with which Oklahoma has a reciprocal bidding agreement, or

   b. The agency places on file a publicized statement setting forth the reason for accepting a bid other than the lowest bid.

C. The agency must award the bid within thirty (30) days after the opening of the bids. This time may be extended not to exceed fifteen (15) days where State and Local funds are involved or ninety (90) days where funds of any agency of the United State Government are involved.

D. The Contract must be signed within the time specified in the bid notice which shall not be later than sixty (60) days from the award of the contract.

E. Prior to the execution of a contract in excess of $15.000.00 the following documents must be submitted by the contractor to the awarding public agency:

   a. Certified check or irrevocable letter of credit equal to 5% of the bid.

   b. A performance bond or irrevocable letter of credit equal to contract price.

   c. A maintenance bond or irrevocable letter of credit equal to contract price for period of (1) one year.

   d. Public liability and workers' compensation insurance.

F. Insurance or bonds required by the Act must be obtained from companies licensed to do business in Oklahoma.

IV. Procedure During Construction

A. All statements or invoices submitted to the public agency for work performed must contain a sworn statement by the supervisory official of the agency that such work has actually been performed. No payment can be made by the agency until it has been provided with this statement.

B. No public construction contract shall be assignable by the successful bidder without written consent of the governing body of the awarding public agency, evidenced by resolution. In no event shall such a contract be assigned to a bidder who was declared by the awarding public agency not to be a responsible bidder in the consideration of bids received for the particular contract.

C. The contract shall provide for a ten percent (10%) retainage. When the project is fifty percent (50%) complete, the retainage shall be reduced to five percent (5%) if it is determined that satisfactory progress is being made and if the surety approves.

D. Change orders

   a. Change orders of an amount not to exceed fifteen percent (15%) of the original contract price can be made for contracts of One Million Dollars ($1,000,000.00) or less.

   b. Change orders of an amount not to exceed ten percent (10%) of the original contract price can be made for contracts of One Million Dollars ($1,000,000.00) or more.

   c. If the contract is bid on unit basis or has alternatives or add items bid with the original bid and included in the contract as options then the amount of the change is not included in determining the above percentages.

V. Inspection

The awarding public agency shall make provision for the inspection of projects prior to acceptance by the said agency and shall approve claims for payment only after proper inspection has been made as provided in the plans and specifications for said project.

VI. No Bid Received

If no timely bid is received, the agency may negotiate a contract with a prospective contractor.

   a. The amount of contract awarded cannot exceed $50,000.00.

   b. The contract shall be signed within six months of the bid opening date.

   c. The work to be performed shall be as specified in the initial bidding documents.

   d. Bonds shall be required as provided for in the Act.

VII. Emergencies

A. The provisions of the Act requiring public bidding do not apply when the agency declares an emergency.

B. An emergency may be declared by a 2/3 vote of all the members of the agency or by an administrative officer designated by a vote of all the members.

C. An emergency is limited to conditions resulting from a sudden unexpected happening wherein the public health or safety is endangered.

D. The reasons for the emergency must be entered into the minutes of the agency.

E. The contract cannot exceed Twenty-Five Thousand Dollars ($25,000.00).

F. The Speaker of the House of Representatives and the President Pro Tempore of the Senate shall be notified within ten (10) days and sent copies of the minutes.

G. All other provisions of the Act apply, e.g. bonds, insurance, etc.

VIII. Violations Under the Act

A. Of course, any contract awarded in violation of the Act is subject to being set aside.

   a. Action to enjoin enforcement of contract must be commenced within (10) days after the contract is signed.

   b. Action may be brought by an unsuccessful contractor or any taxpayer.

B. It is unlawful for the chief administrative officer or any member of the agency or their relatives within the third degree, to have an economic interest in the contract.

C. As previously noted, no contract may be split to avoid application of the act.

D. Neither the agency or anyone connected therewith shall require or attempt to require the contractor to obtain insurance or bonds from a particular company.