SECTION 20.207. Competitive Sealed Bidding

(a) Bid submission.

(1) A state agency shall:

(A) solicit proposals under this subchapter by making available an invitation for bids that contains all the information needed to make a responsive bid, the factors other than price that will be used to determine best value for the state, and the criteria that will be used to evaluate factors other than price; and

(B) give public notice of the invitation for bids on the ESBD and distribute notice to the CMBL in the manner provided in this subchapter.

(2) A bidder may withdraw its bid by written request at any time prior to the bid due date and time.

(3) A bid received after the bid due date and time established by the bid invitation is a late bid and will not be considered.

(4) A bid received which does not contain adequate bid identification information on the outside of the envelope will be opened to obtain such information and will then be processed as any other bid. If the incorrect information on the envelope causes the bid not to be considered in making an award, the bid will be considered invalid and rejected.

(5) Bids by facsimile are not allowed except under exceptional circumstances and with the written approval of the purchasing agency prior to the bid due date and time.

(6) An unsigned bid is not valid and will be disqualified.

(7) When formal bids are required, bids may not be taken or accepted by telephone.

(8) To claim a preference identified in Subchapter D, Division 2, of this chapter, a bidder shall mark the appropriate box on the preference form and provide sufficient documentation to demonstrate a determination that the bidder may receive the preference. If the appropriate box is not marked, a preference will not be granted unless other documents included in the bid sufficiently demonstrate that the bidder may receive the preference and is requesting the preference.

(9) Bids will not be rejected for failure to return an addendum with the bid, if the change is noted on the bid or the product or service specification would not be changed by the addendum. It is the agency's discretion to determine whether the failure to attach an addendum renders the bid nonresponsive.

(10) By signing and submitting a bid to a state agency, a bidder affirms that it has not given or offered any economic opportunity, employment, gift, loan, gratuity, special discount, trip, favor, or service to a public servant in connection with the bid, and that it does not intend to give or offer any of the foregoing in the future. Signing a bid with a false statement shall void the bid and any resulting contract.

(b) Bid evaluation.

(1) A state agency may accept or reject any bid or any part of a bid or waive minor technicalities in a bid, if doing so would be in the state's best interest.

(2) A bid price may not be altered or amended after the bid due date and time except to correct mathematical errors in extension.

(3) No increase in price will be considered after the bid due date and time. A bidder may reduce its price provided it is the lowest and best bidder and is otherwise entitled to the award.

(4) Bid prices are considered firm for acceptance for 30 days from the bid due date and time for open market purchases and 60 days for term contracts, unless otherwise specified in the invitation for bids.

(5) A bid containing a self-evident error may be withdrawn by the bidder prior to an award.

(6) Bid prices which are subject to unlimited escalation will not be considered. A bidder may offer a predetermined limit of escalation in its bid and the bid will be evaluated on the basis of the full amount of the escalation.

(7) A bid containing a material failure to comply with the advertised specifications shall be rejected.

(8) All bids must be based on "F.O.B. destination" delivery terms unless otherwise specified.

(9) If requested in the invitation for bids, samples must be submitted or the bid will be rejected. A state agency may require samples when essential to the assessment of product quality during bid evaluation. A state agency is not required to return samples.

(10) When brand names are specified, bids on alternate brands will be considered if they otherwise meet specification requirements, unless the solicitation is designated as proprietary.

(11) Expedited payment discounts are acceptable but are not considered in making an award. All cash discounts offered will be taken if they are earned by the agency.

(12) No electrical item may be purchased unless the item meets applicable safety standards of federal and state law.

(c) Contract Award.

(1) All awards shall be made to the bidder that offers best value to the state, in compliance with the best value criteria in the invitation for bids while conforming to the advertised specifications.

(2) In case of tie bids that cannot be resolved by application of one or more preferences described in §20.306 of this title (relating to Preferences), an award may be made by drawing lots.

(3) A state agency shall document and retain the reasons for making an award in the contract file.

Source Note: The provisions of this §20.207 adopted to be effective January 24, 2017, 42 TexReg 233; amended to be effective May 1, 2022, 47 TexReg 2557