By Attorney Maria Brownell
On Friday, April 24, 2020, Governor Reynolds signed a new proclamation that temporarily suspends certain requirements under the public bidding law involving the distribution, receipt, opening, or recording of paper documents to further mitigate the spread of COVID-19. By a subsequent proclamation, the Chapter 26-related suspensions are set to expire on May 27, 2020 at 11:59 p.m., unless terminated earlier or extended in writing. Currently, only bid openings scheduled to take place on or before May 27, 2020, are covered by the proclamation unless its terms are otherwise terminated or extended in writing by the Governor.
The proclamation temporarily suspends requirements related to the physical handling of paper bids, bid security, and bid documents. Electronic or digital bid documents will meet the requirements of section 26.3(2) that would otherwise require paper bid documents be made available. In addition, during the disaster proclamation period, bids may be received and opened electronically rather than in person. Note, however, the date and time of bid opening and the designee for opening bids must still be specified in the notice to bidders.
Several provisions related to the receipt and opening of bid envelopes have been temporarily suspended. The date and time each bid is received by the governmental entity, and the name of the person receiving the bid, does not need to be recorded on a physical paper envelope containing the bid. In addition, paper copies of bid security need not be returned if bid security has been submitted electronically.
The requirements of Chapter 26 are not otherwise suspended by any of the Governor’s disaster emergency proclamations. The governmental entity must still require bid security, must award the contract to the lowest responsive, responsible bidder, and must follow the posting and publication requirements for Notices to Bidders and Notices of Public Hearings.
The proclamation includes authorization to designate an electronic bidding service as part of the bidding process. Governmental entities considering any form of substitute document management practices under the current proclamation should work with their architect, engineer, or construction manager and contact legal counsel with questions or for more information.