Beginning with the September 5, 2014 bid letting, and then with all subsequent bid lettings, MDOT will implement the revised “DBE Information at Time of Bid” process on projects with a DBE participation goal of 6% and greater.
You will recall that the use of the previously implemented “DBE Information at Time of Bid” process was suspended by MDOT prior to the May letting at MITA’s request. MITA made that request due to numerous day-of-bid and post-bid submittal issues on several projects in the March and April lettings that resulted in all bids being rejected on many of those projects.
Under the revised “DBE Information at Time of Bid” process the onerous day-of-bid submittal by the three lowest as-submitted bidders has been eliminated.
However, under the revised process all bidders must, at the time they submit their bid, input the overall DBE percentage they have attained at the time of the bid within an Expedite “DBE Goal” folder set up for that purpose. The DBE Goal folder will only appear in Expedite for those projects that have a DBE participation goal of 6% and greater, and it will look similar to the “Designated and Specialty Items” and “Warranty Obligations” folders bidders are accustomed to seeing in Expedite.
When inputting the overall DBE percentage they have attained at the time of bid the bidder will enter a numeric number, with or without a decimal point, and without a percent sign (i.e. 6, 6.0, 6.35), in the field provided in the DBE Goal folder.
If a bidder doesn’t open the DBE Goal folder, or opens the folder but doesn’t input the DBE percentage they have attained, the DBE Goal folder will stay “red”. As you know, Expedite will allow the submittal of a bid with a “red” folder but not without warning the bidder of an error and allowing the bidder to back up, and investigate and correct identified errors.
You should NEVER submit a bid with a “red” DBE Goal folder because failure to provide the overall DBE percentage you have attained at the time of bid will result in the rejection of an “as-checked” low bid. Also, bids, other than the low bid, where the overall DBE percentage is not provided within the DBE Goal folder will not be considered.
The next step in the revised process involves the submittal of DBE participation information by the determined low bidder (low bidder). Within three business days of MDOT’s transmittal of the contract documents, the low bidder must submit (and the MDOT must receive) their signed DBE Participation Sheets, or if the low bidder is unable to meet the project DBE participation goal, a Request for Modification/Waiver and their Good Faith Effort (GFE) documentation.
As the low bidder’s DBE information submittal is now considered a condition for award, MDOT may grant an extension of the submittal deadline when it is requested in writing and when an extension would not impair MDOT’s interests. If the low bidder fails to meet the three business day submittal deadline, or an extended deadline, MDOT may award the contract to the second low bidder, or exercise its discretion similar to the situation where the low bidder fails to return the signed contract, bond forms, or other documents required for award within the specified timeframes. This is a significant change from the previous DBE Information at Time of Bid process where failure by the low bidder to meet the submittal deadline resulted in mandatory rejection of their low bid. However, a low bidder will be discouraged from “cherry picking” projects by simply failing to submit the required DBE information, as under the revised process failure to submit the DBE information within the three business day submittal deadline, or an extended deadline, will result in MDOT’s collection of the bidder’s bid guaranty.
If the low bidder submits signed DBE Participation Sheets showing the DBE participation goal is met, no further action is required by the process.
If the low bidder is unable to meet the DBE participation goal and they submit a Request for Modification/Waiver the MDOT GFE review process follows the same accelerated timeframes as they were specified in the previous DBE Information at Time of Bid process. Those GFE review process steps and timeframes are the following:
• Within three business days of MDOT’s receipt of the low bidder’s Request for Modification/Waiver the GFE Committee will meet and issue a determination.
• Within two business days of receipt of an adverse determination from the GFE Committee, the low bidder may appeal that decision.
• Within two business days of MDOT’s receipt of the low bidder’s appeal, the Appeal Panel will meet and issue their determination.
• In the event the low bidder’s request for modification/waiver is denied, MDOT will reject the low bid.
One procedural caveat that the revised DBE Information at Time of Bid process adds to the GFE review proceedings is that if the low bidder’s request for modification/waiver is made within 14 calendar days of the bid letting, MDOT can request DBE quote information from the second and third as-checked low bidders. As the federal regulations allow it, MDOT believes that reviewing what other bidders did in terms of DBE participation helps them in their evaluation of the low bidders good faith effort. To maintain the fairness in the GFE review the GFE Committee and the Appeal Panel will only consider DBE quote information submitted by the second and third low bidders that supports the overall DBE percentage they submitted at the time of bid. As the second and third low bidders have no real obligation to provide MDOT this DBE quote information MDOT has included a provision in the process that says they may affect the bidding privileges of unresponsive bidders to their requests.
Overall this revised DBE Information at Time of Bid process is a significant improvement over the previously implemented process as it eliminates the onerous day of bid submittals, and it eliminates the risk of having your bid rejected or not considered for failure to comply with a paper submittal process.
In noting these improvements however, all bidders must understand that if the project being bid has a DBE participation goal of 6% and greater, a DBE Goal folder will be included in the Expedite bid file, and you must input the overall DBE percentage you have attained at the time of bid in that DBE Goal folder. If you fail to enter the DBE percentage you have attained and you submit your bid with the DBE Goal folder “red”, your bid will be rejected if you are the low bidder or not considered if you are other than the low bidder.
To view MDOT’s Contractor Announcement about the DBE Information at Time of Bid implementation click here.
To view the Special Provision for Disadvantaged Business Enterprises Information at Time of Bid click here.
If you have any questions about the revised DBE Information at Time of Bid process contact Glenn Bukoski at glennbukoski@mi-ita.com or in the MITA office at 517-347-8336.
