On April 15, 2020, the Division of Local Government Services issued Local Finance Notice 2020-10, providing emergency procurement procedures to be used by local contracting units during the COVID-19 pandemic, and resulting State of Emergency. The Notice provides guidance concerning the advertisement, receipt, and opening of bids, as well for remote broadcasting of the bid opening process.
Advertisements for Bids
Due to the current circumstances, it may be unrealistic to expect bidders/responders to be able to issue a response within the (usual) ten-day response period to respond to requests for bids/proposals. Accordingly, when possible (and unless a public exigency necessitates otherwise), local contracting units should specify in the advertisement, a return date for bids/proposals that is beyond the minimum specified in the statute. Further, these advertisements should encourage responses via certified mail or overnight delivery so as to avoid any unnecessary physical contact while still confirming delivery dates. If a local contracting unit is unable to accommodate hand deliveries or its ability to accept hand deliveries is limited (due to building closure or restricted public access), the local contracting unit must describe the modified acceptance procedures in full in the advertisement.
Public Bid Openings
If adequate social distancing cannot be observed, local contracting units should not hold in-person bid openings. However, if appropriate social distancing can be maintained, local contracting units are encouraged to hold in-person bid openings. If an indoor venue is unable to accommodate in-person bid openings because there would be insufficient space for people to social distance, local contracting units may consider using an outdoor venue (or larger indoor venue). Even if local contracting units make in-person bid openings available, they should also provide an option to bidders/responders and the public to have remote access, live viewing of the bid opening.
When in-person accommodations cannot be implemented, local contracting units may broadcast the bid opening either live at the contracting unit’s facility via web-based conference call or online livestreaming with both video and audio capability. In order to provide transparency for the public and instill confidence in the public bidding process, local contracting units may implement additional measures to livestream the bid opening such as using more than one camera or, if one camera is used, provide all viewers with sufficient scope and coverage of the bid opening process.
If a local contracting unit provides remote access methods for the bid opening, then explicit instructions for remotely accessing the bid opening must be included in the advertisement and any document providing instructions to bidders. A statement that in-person attendance is prohibited because of restrictions on public gatherings under the State of Emergency must be included in the advertisement, as well.
Remote Bid Opening Procedure to be Used by Local Contracting Units
At any bid opening being remotely broadcast via web-based conference call or livestreamed online, the local contracting unit must make sure that the bid opening occurs within range of the camera(s) and microphone(s) so that the broadcast audio and visual quality is adequate. As to the bid opening process, a representative of the local contracting unit shall clearly and audibly:
- Announce the title of the bid;
- Display the front and back of each sealed bid package before bids are opened (to demonstrate that the bid packages have not been opened/tampered with);
- Read all contents of the bid aloud, including price(s); and
- At a minimum, note the presence of any documents required to be part of the bid submission.
At the close of the bid opening, the local contracting unit must fully scan and post the low bidder’s bid package to the contracting unit’s website. However, in the interest of maintaining full transparency for the public, the local contracting unit should scan and post all bids to its website, if possible. If there is more than one low bidder, then all received bids must be posted to the contracting unit’s website. The local contracting unit must also provide all bidders with instructions (including the full web address) about how to access the bid results online.
Local contracting units must record and maintain copies of all bid openings conducted via remote meeting technology. These recordings must be stored in the event of any bid challenges.
In the event you have specific questions or concerns about your obligations under the law, please contact our office for additional guidance.