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H0337......................................................by STATE AFFAIRS
PUBLIC WORKS CONTRACTING - Amends existing law relating to public works
contracting to provide that a contract awarding agency shall provide
certain information to the State Tax Commission; to provide that the prime
contractor shall provide certain information within a specified time to the
State Tax Commission upon written request; to provide that the State Tax
Commission shall forward certain information; to provide that certain bids
shall be awarded to the qualified bidder submitting the lowest responsive
bid; and to revise requirements applicable to notices soliciting bids.
03/14 House intro - 1st rdg - to printing
03/15 Rpt prt - to Bus
03/16 Rpt out - rec d/p - to 2nd rdg
03/17 2nd rdg - to 3rd rdg
Rls susp - PASSED - 63-1-6
AYES -- Anderson, Andrus, Barraclough, Barrett, Bastian, Bayer,
Bedke, Bell, Bilbao, Black, Block, Boe, Bolz, Bradford, Cannon,
Chadderdon, Clark, Collins, Deal, Denney, Edmunson, Ellsworth,
Eskridge, Field(18), Field(23), Garrett, Hart, Harwood, Henbest,
Henderson, Jaquet, Jones, LeFavour, Loertscher, Martinez, Mathews,
McGeachin, McKague, Miller, Mitchell, Moyle, Nielsen, Nonini,
Pasley-Stuart, Pence, Ring, Ringo, Roberts, Rusche, Rydalch, Sali,
Sayler, Shepherd(2), Shepherd(8), Shirley, Skippen, Smith(24),
Smylie, Snodgrass, Stevenson, Trail, Wills, Wood
NAYS -- Schaefer
Absent and excused -- Crow, Kemp, Lake, Raybould, Smith(30), Mr.
Speaker
Floor Sponsor - Black
Title apvd - to Senate
03/18 Senate intro - 1st rdg - to Com/HuRes
03/23 Rpt out - rec d/p - to 2nd rdg
03/24 2nd rdg - to 3rd rdg
03/25 3rd rdg - PASSED - 34-0-0, 1 vacancy
AYES -- Andreason, Brandt, Broadsword, Bunderson, Burkett,
Burtenshaw, Cameron, Coiner, Compton, Corder, Darrington, Davis,
Gannon, Geddes, Goedde, Hill, Jorgenson, Kelly, Keough, Langhorst,
Little, Lodge, Malepeai, Marley, McGee, McKenzie, Pearce, Richardson,
Schroeder, Stegner, Stennett, Sweet, Werk, Williams
NAYS -- None
Absent and excused -- (District 21 seat vacant)
Floor Sponsor - Compton
Title apvd - to House
03/28 To enrol
03/29 Rpt enrol - Sp signed
03/30 Pres signed
03/31 To Governor
04/06 Governor signed
Session Law Chapter 295
Effective: 07/01/05
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-eighth Legislature First Regular Session - 2005
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 337
BY STATE AFFAIRS COMMITTEE
1 AN ACT
2 RELATING TO PUBLIC WORKS CONTRACTING; AMENDING SECTION 54-1904A, IDAHO CODE,
3 AS AMENDED BY SECTION 26, HOUSE BILL 263, AS ENACTED BY THE FIRST REGULAR
4 SESSION OF THE FIFTY-EIGHTH IDAHO LEGISLATURE, TO PROVIDE THAT A CONTRACT
5 AWARDING AGENCY SHALL PROVIDE CERTAIN INFORMATION TO THE STATE TAX COMMIS-
6 SION, TO PROVIDE THAT THE PRIME CONTRACTOR SHALL PROVIDE CERTAIN INFORMA-
7 TION WITHIN A SPECIFIED TIME TO THE STATE TAX COMMISSION UPON WRITTEN
8 REQUEST AND TO PROVIDE THAT THE STATE TAX COMMISSION SHALL FORWARD CERTAIN
9 INFORMATION; AND AMENDING SECTION 67-2805, IDAHO CODE, AS ADDED BY SECTION
10 37, HOUSE BILL 263, AS ENACTED BY THE FIRST REGULAR SESSION OF THE
11 FIFTY-EIGHTH IDAHO LEGISLATURE, TO PROVIDE THAT CERTAIN BIDS SHALL BE
12 AWARDED TO THE QUALIFIED BIDDER SUBMITTING THE LOWEST RESPONSIVE BID, TO
13 REVISE REQUIREMENTS APPLICABLE TO NOTICES SOLICITING BIDS AND TO REVISE
14 TERMINOLOGY.
15 Be It Enacted by the Legislature of the State of Idaho:
16 SECTION 1. That Section 54-1904A, Idaho Code, as amended by Section 26,
17 House Bill 263, as enacted by the First Regular Session of the Fifty-eighth
18 Idaho Legislature, be, and the same is hereby amended to read as follows:
19 54-1904A. FILING OF NOTICES AND INCOME TAX RETURNS -- PAYMENT OF INCOME
20 TAXES BY CONTRACTORS. Within thirty (30) days after any public works contrac-
21 tor who is required to be licensed pursuant to this chapter has been awarded a
22 contract for construction to be performed within the state of Idaho involving
23 the expenditure of any public moneys, the contract awarding agency shall
24 notify the state tax commission that the contract has been awarded and shall
25 provide to the state tax commission the name and address of the prime contrac-
26 tor. Upon written request of the state tax commission, the prime contractor,
27 within thirty (30) days, shall file with the state tax commission a signed
28 statement showing the date on which such contract was made or awarded, the
29 names and addresses of the home offices of the contracting parties, including
30 all subcontractors, the state of incorporation if the party is a corporation,
31 the project number and a general description of the type and location of the
32 work to be performed, the amount of the prime contract and all subcontracts,
33 and all other relevant information which may be required on forms which may be
34 prescribed by the state tax commission. with a copy to be sent to the The
35 state tax commission shall forward to the administrator such information from
36 the form as the administrator and the state tax commission agree is necessary
37 for the administrator to fulfill the requirements of section 54-1913, Idaho
38 Code. Every contractor or subcontractor whose name appears on any such notice
39 shall be required to file income tax returns with the state tax commission and
40 to pay all income taxes which may be due thereon pursuant to law for all years
41 in which any public moneys were received by him in connection with any con-
42 struction work which was performed within the state of Idaho.
2
1 SECTION 2. That Section 67-2805, Idaho Code, as added by Section 37,
2 House Bill 263, as enacted by the First Regular Session of the Fifty-eighth
3 Idaho Legislature, be, and the same is hereby amended to read as follows:
4 67-2805. PROCUREMENT OF PUBLIC WORKS CONSTRUCTION. (1) For any contem-
5 plated public works construction project with an estimated total cost of less
6 than fifty thousand dollars ($50,000), where the political subdivision deter-
7 mines that there may be a lack of available licensed contractors, a political
8 subdivision may publish a notice of intent to procure in its official news-
9 paper, concurrently sending such notice to the public works contractors
10 license board, in order to solicit statements of interest from licensed public
11 works contractors to determine whether one (1) or more licensed contractors is
12 interested in submitting bids. Such notice of intent to procure shall be pro-
13 vided by the same means required for published solicitation of competitive
14 bids and shall contain essentially the same information as such published
15 notice. If no licensed public works contractor submits a statement of inter-
16 est, the political subdivision may purchase public works construction from
17 other than a licensed public works contractor by using the same procurement
18 procedures otherwise specified herein.
19 (2) When a political subdivision contemplates an expenditure to procure
20 public works construction valued in excess of twenty-five thousand dollars
21 ($25,000) but not to exceed one hundred thousand dollars ($100,000), the pro-
22 curement procedures of this subsection (2) shall apply:
23 (a) The solicitation for bids for the public works construction to be
24 performed shall be supplied to no fewer than three (3) owner-designated
25 licensed public works contractors by written means, either by electronic
26 or physical delivery. The solicitation shall describe the construction
27 work to be completed in sufficient detail to allow an experienced public
28 works contractor to understand the construction project the political sub-
29 division seeks to build.
30 (b) The solicitation for bids shall describe the electronic or physical
31 delivery method or methods authorized to submit a bid, the date and time
32 by which a bid proposal must be received by the clerk, secretary or other
33 authorized official of the political subdivision, and shall provide a rea-
34 sonable time to respond to the solicitation, provided that except in the
35 event of an emergency, such time shall not be less than three (3) business
36 days.
37 (c) Written objections to specifications or bid procedures must be
38 received by the clerk, secretary or other authorized official of the
39 political subdivision at least one (1) business day before the date and
40 time upon which bids are scheduled to be received.
41 (d) When written bids have been received, by either physical or elec-
42 tronic delivery, they shall be submitted to the governing board or govern-
43 ing board-authorized official which shall approve the responsive bid pro-
44 posing the lowest procurement price or reject all bids and publish notice
45 for bids, as before.
46 (e) If the political subdivision finds that it is impractical or impossi-
47 ble to obtain three (3) bids for the proposed public works procurement,
48 the political subdivision may acquire the work in any manner the political
49 subdivision deems best from a qualified public works contractor quoting
50 the lowest price. When fewer than three (3) bids are considered, a
51 description of the efforts undertaken to procure at least three (3) bids
52 shall be documented by the political subdivision and such documentation
53 shall be maintained for at least six (6) months after the procurement
54 decision is made. If two (2) or more price quotations offered by different
3
1 licensed public works contractors are the same and the lowest responsive
2 bids, the governing board or governing-board authorized official may
3 accept the one (1) it chooses.
4 (3) When a political subdivision contemplates an expenditure to purchase
5 public works construction valued in excess of one hundred thousand dollars
6 ($100,000), the procurement procedures of this subsection (3) shall apply. The
7 purchase of construction services shall be made pursuant to a competitive
8 sealed bid process with the purchase to be made from the qualified public
9 works contractor submitting the lowest bid price complying with bidding proce-
10 dures and meeting the prequalifications, if any are provided, established by
11 the bid documents. Competitive bidding for public works may proceed through
12 either of two (2) alternative procedures as set forth below:
13 (a) Category A. Competitive bidding procedures shall be open to receipt
14 of bids from any licensed public works contractor desiring to bid upon a
15 public works project. For a category A bid, the political subdivision may
16 only consider the amount bid, bidder compliance with administrative
17 requirements of the bidding process, and whether the bidder holds the req-
18 uisite license, and shall award the bid to the qualified bidder submitting
19 the lowest responsive bid.
20 (i) The request for bids for a category A procurement shall set a
21 date and place for the public opening of bids. Two (2) notices solic-
22 iting bids shall be published in the official newspaper of the polit-
23 ical subdivision. The first notice shall be published at least two
24 (2) weeks before the date for opening bids, with the second notice to
25 be published in the succeeding week at least seven (7) days before
26 the date that bids are scheduled to be opened. The notice shall
27 succinctly describe the project to be constructed. Copies of specifi-
28 cations, bid forms, bidder's instructions, contract documents, and
29 general and special instructions shall be made available upon request
30 and payment of a reasonable plan copy fee by any interested bidder.
31 (ii) Written objections to specifications or bidding procedures
32 must be received by the clerk, secretary or other authorized official
33 of the political subdivision at least three (3) business days before
34 the date and time upon which bids are scheduled to be opened. The
35 administrative officer or governing board supervising the bidding
36 process shall respond to any such objection in writing and communi-
37 cate such response to the objector and all other plan holders,
38 adjusting bidding timeframes if necessary.
39 (iii) All bids shall be presented or otherwise delivered under
40 sealed cover to the clerk of the political subdivision or other
41 authorized agent of the political subdivision designated by the
42 information provided to bidders by the political subdivision with a
43 concise statement marked on the outside generally identifying the
44 expenditure to which the bid pertains.
45 (iv) If the political subdivision deems it is in the political
46 subdivision's best interest, it may require the bidder to provide bid
47 security in an amount equal to at least five percent (5%) of the
48 amount bid. If required, a bid shall not be considered unless one (1)
49 of the forms of bidder's security is enclosed with it, and unless the
50 bid is submitted in a form which substantially complies with the form
51 provided by the political subdivision. The political subdivision may
52 require that the bid security be in one (1) of the following forms:
53 (A) Cash;
54 (B) A cashier's check made payable to the political subdivi-
55 sion;
4
1 (C) A certified check made payable to the political subdivi-
2 sion; or
3 (D) A bidder's bond executed by a qualified surety company,
4 made payable to the political subdivision.
5 (v) Any bid received by the political subdivision may not be with-
6 drawn after the date and time set in the notice for opening of bids.
7 When sealed bids have been received, they shall be opened in public
8 at a designated place and time, thereafter to be compiled and submit-
9 ted to the governing board for award.
10 (vi) If the successful bidder fails to execute the contract, the
11 amount of his bidder's security may be forfeited to the political
12 subdivision at the sole discretion of the political subdivision and
13 the proceeds shall be deposited in a designated fund out of which the
14 expenses of procuring substitute performance are paid.
15 (vii) The political subdivision may, on the refusal or failure of
16 the successful bidder to execute the contract, award the contract to
17 the qualified bidder submitting the next lowest responsive bid. If
18 the governing board awards the contract to the next lowest qualified
19 bidder, the amount of the lowest qualified bidder's security may be
20 applied by the political subdivision to the difference between the
21 lowest responsive bid and the next lowest responsive bid, and the
22 surplus, if any, shall be returned to the lowest bidder if cash or
23 check is used, or to the surety on the bidder's bond if a bond is
24 used, less reasonable administrative costs not to exceed twenty-five
25 percent (25%) of the amount of the bidder's security to the owner.
26 (viii) In its discretion, the governing board may reject all bids
27 presented and re-bid, or the governing board may, after finding it to
28 be a fact, pass a resolution declaring that the project sought to be
29 accomplished by the expenditure can be performed more economically by
30 purchasing goods and services on the open market. If identical bids
31 are received, the governing board may choose the bidder it prefers.
32 If no bids are received, the governing board may procure the goods or
33 services without further competitive bidding procedures.
34 (ix) If the governing board of any political subdivision chooses to
35 award a competitively bid contract involving the procurement of pub-
36 lic works construction to a bidder other than the apparent low bid-
37 der, the political subdivision shall declare its reason or reasons on
38 the record and shall communicate such reason or reasons in writing to
39 all persons who have submitted a competing bid.
40 (x) If any participating bidder objects to such award, such bidder
41 shall respond in writing to the notice from the political subdivision
42 within seven (7) calendar days of the date of transmittal of the
43 notice, setting forth in such response the express reason or reasons
44 that the award decision of the governing board is in error. Thereaf-
45 ter, staying performance of any procurement until after addressing
46 the contentions raised by the objecting bidder, the governing board
47 shall review its decision and determine whether to affirm its prior
48 award, modify the award, or choose to re-bid, setting forth its rea-
49 son or reasons therefor. After completion of the review process, the
50 political subdivision may proceed as it deems to be in the public
51 interest.
52 (b) Category B. Competitive bidding procedures shall be open to licensed
53 public works contractors only after meeting preliminary supplemental qual-
54 ifications established by the political subdivision. The solicitation for
55 bids in a category B procurement shall consist of two (2) stages, an ini-
5
1 tial stage determining supplemental prequalifications for licensed con-
2 tractors, either prime or specialty contractors, followed by a stage dur-
3 ing which bid prices will be accepted only from prequalified contractors.
4 (i) Notice of the prequalification stage of the category B compet-
5 itive bidding process shall be given in the same manner that notice
6 of competitive bidding is provided for a category A competitive bid
7 request, providing a specific date and time by which qualifications
8 statements must be received. Political subdivisions may establish
9 prequalification standards premised upon demonstrated technical com-
10 petence, experience constructing similar facilities, prior experience
11 with the political subdivision, available nonfinancial resources,
12 equipment and personnel as they relate to the subject project, and
13 overall performance history based upon a contractor's entire body of
14 work. Such request must include the standards for evaluating the
15 qualifications of prospective bidders.
16 (ii) During the initial stage of the category B bidding process,
17 licensed contractors desiring to be prequalified to bid on a project
18 must submit a written response to a political subdivision's request
19 for qualifications.
20 (iii) Written objections to prequalification procedures must be
21 received by the clerk, secretary or other authorized official of the
22 political subdivision at least three (3) business days before the
23 date and time upon which prequalification statements are due. The
24 administrative officer or governing board supervising the bidding
25 process shall respond to any such objection in writing and communi-
26 cate such response to the objector and all other contractors seeking
27 to prequalify, adjusting bidding timeframes if necessary. After a
28 review of qualification submittals, the political subdivision may
29 select licensed contractors that meet the prequalification standards.
30 If any licensed contractor submits a statement of qualifications but
31 is not selected as a qualified bidder, the political subdivision
32 shall supply a written statement of the reason or reasons why the
33 contractor failed to meet prequalification standards.
34 (iv) Any licensed contractor that fails the prequalification stage
35 can appeal any such determination to the governing board within seven
36 (7) days after transmittal of the prequalification results to contest
37 the determination. If the governing board sustains the decision that
38 a contractor fails to meet prequalification standards, it shall state
39 its reason or reasons for the record. A governing board decision con-
40 cerning prequalification may be appealed to the public works contrac-
41 tors license board no more than fourteen (14) days following any
42 decision on appeal made by the governing board. The public works con-
43 tractors license board shall decide any such appeal within thirty-
44 five (35) days of the filing of a timely appeal. The public works
45 contractors license board shall allow participation, written or oral,
46 by the appealing contractor and the political subdivision, either by
47 employing a hearing officer or otherwise. The public works contrac-
48 tors license board shall not substitute its judgment for that of the
49 political subdivision, limiting its review to determining whether the
50 decision of the governing board is consistent with the announced
51 prequalification standards, whether the prequalification standards
52 comport with the law and whether the governing board's decision is
53 supported by the entirety of the record. The decision of the public
54 works contractors license board shall be written and shall state the
55 reason or reasons for the decision. Category B prequalification pro-
6
1 cedures that are appealed shall be stayed during the pendency of the
2 prequalification appeal until the public works contractors license
3 board completes its review, but in no instance more than forty-nine
4 (49) days after the appellate decision of the governing board regard-
5 ing prequalification. Any licensed public works contractor affected
6 by a decision on appeal by the public works contractors license board
7 may, within twenty-eight (28) days of the final decision, seek judi-
8 cial review as provided by chapter 52, title 67, Idaho Code.
9 (v) Following the conclusion of the prequalification administra-
10 tive procedures, the bidding stage shall proceed by the setting of a
11 time, date and place for the public opening of bids. A In circum-
12 stances involving prequalified prime contractors, a notice soliciting
13 bids shall be transmitted to prequalified bidders at least fourteen
14 (14) days before the date of opening the bids. In circumstances
15 involving prequalified specialty or subordinate contractors, the
16 notice soliciting bids shall be published in the same manner applica-
17 ble to category A bids. The notice shall succinctly describe the
18 project to be constructed. Copies of specifications, bid forms,
19 bidder's instructions, contract documents, and general and special
20 instructions shall be made available upon request and payment of a
21 reasonable plan copy fee by any prequalified eligible bidder.
22 (vi) Written objections to specifications or bidding procedures
23 must be received by the clerk, secretary or other authorized official
24 of the political subdivision at least three (3) business days before
25 the date and time upon which bids are scheduled to be opened.
26 (vii) All category B bids shall be presented or otherwise delivered
27 under sealed cover to the clerk or other authorized agent of the
28 political subdivision designated by the instructions to bidders with
29 a concise statement marked on the outside generally identifying the
30 expenditure to which the bid pertains.
31 (viii) If the political subdivision deems it is in the political
32 subdivision's best interest, it may require the bidder to provide bid
33 security in an amount equal to at least five percent (5%) of the
34 amount bid. If required, a bid shall not be considered unless one (1)
35 of the forms of bidder's security is enclosed with it, and unless the
36 bid is submitted in a form which substantially complies with the form
37 provided by the political subdivision. The political subdivision may
38 require that the bid security be in one (1) of the following forms:
39 (A) Cash;
40 (B) A cashier's check made payable to the political subdivi-
41 sion;
42 (C) A certified check made payable to the political subdivi-
43 sion; or
44 (D) A bidder's bond executed by a qualified surety company,
45 made payable to the political subdivision.
46 (ix) Any category B bid received by a political subdivision may not
47 be withdrawn after the date and time set in the notice for opening of
48 bids. When sealed bids have been received, they shall be opened in
49 public at a designated place and time, thereafter to be compiled and
50 submitted to the governing board for award. If identical bids are
51 received, the governing board may choose the bidder it prefers. If
52 the successful bidder fails to execute the contract, the amount of
53 his bidder's security may be forfeited to the political subdivision,
54 in the sole discretion of the political subdivision, and the proceeds
55 shall be deposited in a designated fund out of which the expenses for
7
1 procuring substitute performance are paid.
2 (x) The political subdivision may, on the refusal or failure of
3 the successful bidder to execute the contract, award the contract to
4 the qualified bidder submitting the next lowest responsive bid. If
5 the governing board awards the contract to the next lowest qualified
6 bidder, the amount of the lowest qualified bidder's security, if for-
7 feited, shall be applied by the political subdivision to the differ-
8 ence between the lowest responsive bid and the next lowest responsive
9 bid, and the surplus, if any, shall be returned to the lowest bidder
10 if cash or check is used, or to the surety on the bidder's bond if a
11 bond is used, less reasonable administrative costs not to exceed
12 twenty-five percent (25%) of the amount of the bidder's security.
13 (xi) In its discretion, the governing board may reject all bids
14 presented and re-bid, or the governing board may, after finding it to
15 be a fact, pass a resolution declaring that the project sought to be
16 accomplished by the expenditure can be performed more economically by
17 purchasing goods and services on the open market. If no bids are
18 received, the governing board may make the expenditure without fur-
19 ther competitive bidding procedures.
20 (xii) If the governing board of any political subdivision chooses to
21 award a competitively bid contract involving the procurement of pub-
22 lic works construction to a bidder other than the apparent low bid-
23 der, the political subdivision shall declare its reason or reasons on
24 the record and shall communicate such reason or reasons in writing to
25 all persons who have submitted a competing bid.
26 (xiii) If any participating bidder objects to such award, such bidder
27 shall respond in writing to the notice from the political subdivision
28 within seven (7) calendar days of the date of transmittal of the
29 notice, setting forth in such response the express reason or reasons
30 that the award decision of the governing board is in error. Thereaf-
31 ter, staying performance of any procurement until after addressing
32 the contentions raised by the objecting bidder, the governing board
33 shall review its decision and determine whether to affirm its prior
34 award, modify the award, or choose to re-bid, setting forth its rea-
35 son or reasons therefor. After completion of the review process, the
36 political subdivision may proceed as it deems to be in the public
37 interest.
STATEMENT OF PURPOSE
RS 15147
This legislation makes a number of technical corrections to House
Bill 263, relating to local government procurement and public
works bidding and contracting. This legislation clarifies
reporting requirements to the State Tax Commission and makes
minor clarifications to language relating to procurement of
public works construction.
FISCAL NOTE
There is no fiscal impact to the state or local governments.
Contact
Name: Representative Max Black
Phone: 208-332-1000
Name: David Bennion, Chair
Public Works Contractor Licensing Board
Phone: 208-867-2338
STATEMENT OF PURPOSE/FISCAL NOTE H 337