SOUTH CAROLINA BUDGET AND CONTROL BOARD

1. SOUTH CAROLINA BUDGET AND CONTROL BOARD Safeguard your Bid: Tips for Avoiding Informalities John R. Stevens, CPPB, CPM State Procurement Officer

2. Avoiding a “Non-Responsive” Determination • Common Problems: • Late bids • South Carolina Law Clause • Indemnification • Modifications to other terms and conditions • Failure to complete the bidding schedule • Improper extension of unit prices • Failure to include required documentation • Regulation References • Source Selection differences

3. Late Bids • Regulation 19-445.2070, G. • Exceptions to Rejection Procedures.Any bid received after the procurement officer of the governmental body or his designee has declared that the time set for bid opening has arrived, shall be rejected unless the bid had been delivered to the location specified in the solicitation or the governmental bodies' mail room which services that location prior to the bid opening.

4. South Carolina Law Clause CHOICE-OF-LAW (JAN 2006): The Agreement, any dispute, claim, or controversy relating to the Agreement, and all the rights and obligations of the parties shall, in all respects, be interpreted, construed, enforced and governed by and under the laws of the State of South Carolina, except its choice of law rules. As used in this paragraph, the term "Agreement" means any transaction or agreement arising out of, relating to, or contemplated by the solicitation. Also see DISPUTES (JAN 2006), (1) Choice-of-Forum and (2) Service of Process Reference Unisys Corp. v. SC Budget & Control Board, 246 S.C. 158, 551 S.E.2d 263 (2001).

5. Indemnification • NON-INDEMNIFICATION (JAN 2006): Any term or condition is void to the extent it requires the State to indemnify anyone. • Reference Letter to Wayne F. Rush, S.C. Attorney Gen. Op. of September 29, 2004. • INDEMNIFICATION - THIRD PARTY CLAIMS (JAN 2006): Notwithstanding any limitation in this agreement, Contractor shall defend and indemnify the State of South Carolina, its instrumentalities, agencies, departments, boards, political subdivisions and all their respective officers, agents and employees against all suits or claims of any nature (and all damages, settlement payments, attorneys' fees, costs, expenses, losses or liabilities attributable thereto) by any third party which arise out of, or result in any way from, any defect in the goods or services acquired hereunder or from any act or omission of Contractor, its subcontractors, their employees, workmen, servants or agents. (partial text only)

6. Unacceptable Modifications to other Terms and Conditions Examples: Offer Supersedes: XYZ Co. proposal, if awarded, will supersede any terms and conditions specified or outlined in the State bid/proposal documents. Fuel surcharges: If fuel prices increase above the fuel base price per gallon, the Charterer will be billed a fuel surcharge as a pass through expense, for any fuel price increases. All fuel surcharges must be paid prior to departure of last flight operating for the season.

7. Failure to complete the bidding schedule Example: Leaving line items blank or marking “N/A” in a space when the solicitation includes the following clause: OFFERING BY ITEM OR LOT (JAN 2006): Offers may be submitted for complete lots or for one or more items not within lots. Failure to offer on all items within a single lot will be reason for rejection.

8. Improper Extension of Unit Prices • Regulation 19-445.2085. Correction or Withdrawal of Bids; Cancellation of Awards. • B. Correction Creates Low Bid.To maintain the integrity of the competitive sealed bidding system, a bidder shall not be permitted to correct a bid mistake after bid opening that would cause such bidder to have the low bid unless the mistake is clearly evident from examining the bid document; for example, extension of unit prices or errors in addition. • Note: If bidding online in SCEIS, enter only unit prices, not extended totals.

9. Failure to include required documentation • See Part IV of each solicitation document entitled, “Information for Offerors to Submit.” • Also see Part V, “Qualifications.” • These sections of the solicitation identify the minimum information required to be included with your offer. Failure to submit information required by Part IV may render your offer, “non-responsive.”

10. Rejection of Individual Bids • Regulation 19-445.2070 • A. General Application.Any bid which fails to conform to the essential requirements of the invitation for bids shall be rejected.

11. Rejection of Individual Bids (cont.) • C. Any bid which fails to conform to the delivery schedule, to permissible alternates thereto stated in the invitation for bids, or to other material requirements of the solicitation may be rejected as nonresponsive.

12. Rejection of Individual Bids (cont.) • D. Modification of Requirements by Bidder.(1) Ordinarily a bid should be rejected when the bidder attempts to impose conditions which would modify requirements of the invitation for bids or limit his liability to the State, since to allow the bidder to impose such conditions would be prejudicial to other bidders. For example, bids should be rejected in which the bidder:

13. Rejection of Individual Bids (cont.) • (a) attempts to protect himself against future changes in conditions, such as increased costs, if total possible cost to the State cannot be determined;(b) fails to state a price and in lieu thereof states that price shall be "price in effect at time of delivery;"(c) states a price but qualified such price as being subject to "price in effect at time of delivery;"

14. Rejection of Individual Bids (cont.) • (d) when not authorized by the invitation, conditions or qualifies his bid by stipulating that his bid is to be considered only if, prior to date of award, bidder receives (or does not receive) award under a separate procurement;(e) requires the State to determine that the bidder's product meets state specifications; or(f) limits the rights of the State under any contract clause.

15. Rejection of Individual Bids (cont.) • (2) Bidders may be requested to delete objectionable conditions from their bid provided that these conditions do not go to the substance, as distinguished from the form, of the bid or work an injustice on other bidders. Bidder should be permitted the opportunity to furnish other information called for by the Invitation for Bids and not supplied due to oversight, so long as it does not affect responsiveness.

16. Rejection of Individual Bids (cont.) • E. Price Unreasonableness.Any bid may be rejected if the procurement officer determines in writing that it is unreasonable as to price.F. Bid Security Requirement.When a bid security is required and a bidder fails to furnish it in accordance with the requirements of the invitation for bids, the bid shall be rejected.

17. Rejection of Individual Bids (cont.) • G. Exceptions to Rejection Procedures.Any bid received after the procurement officer of the governmental body or his designee has declared that the time set for bid opening has arrived, shall be rejected unless the bid had been delivered to the location specified in the solicitation or the governmental bodies' mail room which services that location prior to the bid opening.

18. Also see… • 19-445.2077. Bid Samples and Descriptive Literature. • http://www.scstatehouse.gov/coderegs/c019.php#19-445.2000

19. Differences in Source Selection Methods See handout • Clarifications vs.Discussions & Negotiations

20. WHO SHOULD YOU CONTACT? • The procurement staff member assigned to the solicitation (see the top of the cover page). Ask questions during the question and answer period defined on the cover page. • Voight Shealy, Materials Management Officer • 803-737-0635 or vshealy@mmo.sc.gov • John Stevens, State Procurement Officer (Supplies & Services) • (803)-737-0612 or jrstevens@mmo.sc.gov • Norma Hall, State Information Technology Procurement Officer • (803)-737-0642 or nhall@mmo.sc.gov

21. WE ARE HERE TO HELP! • Call us @ (803)-737-0600 • Visit our website at: www.procurement.sc.gov