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socrateaser
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 33504
Experience:  Retired (mostly)
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We are a construction company and recently we provided a bid

Resolved Question:

We are a construction company and recently we provided a bid to the State of Hawaii to do a project for them. As part of the bidding process you are allowed to ask questions that could clarify or even change the specifications prior to bid time. The questions and the states answers to the questions each company asks is disseminated out to all bidders this way no single company can get an unfair advantage. The answers then become an addendum to the original contract drawings and or specifications. Well the State of Hawaii did not do it that way, they answered only our questions to us and only by email so no official change to contract specifications. Is this allowed?
Submitted: 1 year ago.
Category: Legal
Expert:  socrateaser replied 1 year ago.
Hello,

Hawaii Admin. Rules 3-122-108(b) provides: "(1) All information contained in answers to the questionnaire shall be and remain confidential. Questionnaires so submitted shall be returned to the bidders after having served their purpose. (2) Any government officer or employee who knowingly divulges or permits to be divulged any information to any person not lawfully entitled thereto shall be fined not more than $250.00. [Eff. DEC 15 1995] (Auth: HRS §§103D-202, 103D-310) (Imp: HRS §103D-310)"

 

As you can see, the actual regulation prohibits disclosure of any information.


Consequently, the state appears to be acting in accordance with the law.

Please let me know if I can be of further assistance.
Customer: replied 1 year ago.


I disagree with your answer. The statue you refer to clearly states (the answer to the questionnaire shall remain confidential) but there is no questionnaire involved it is just questions we have asked to clarify ambiguities in the plans or specs. For all federal jobs we have bid these questions are answered and become part of contract. Please research more because I believe the statue you refer to is about something entirely different.

Expert:  socrateaser replied 1 year ago.
I'll be happy to investigate further. Before doing so, can you please clarify your statement re "federal jobs." Your original question concerned an RFQ for the State of Hawaii, which is clearly not the United States of America (federal) -- and the law would be different. I just want to make sure we're comparing apples and apples here. Have your previous contracts all been with the federal government (USA)?

Thanks in advance.
Customer: replied 1 year ago.

we have many contracts with both the Stae of Hawaii and Federal. yes know they are different but we have had the State answer pre bid questions before and it was put out as an ademdem to the plans for all bidders to see prior to bidding. this time it is different and want to know why

Expert:  socrateaser replied 1 year ago.

Okay, I think I have found what you are looking for. Thanks for your patience. See below (subsection (f)).

 

Hawaii Admin. Rules § 3-122-16.05 Pre-bid or pre-proposal conference.

 

(a) The purpose of a pre-bid or pre-proposal conference is to explain the procurement requirements and allow potential offerors to ask questions.

 

  • (1) An agency may hold a pre-bid or pre-proposal conference and require or not require attendance by all prospective bidders as a condition for submitting an offer for solicitations that have special or unusual requirements, e.g., requiring physical inspection.
  • (2) For construction, including design-build projects, pursuant to section 103D-303.5, HRS, an agency shall hold a pre-bid or preproposal conference and invite all interested parties to attend.

 

(b) If conference attendance is mandatory for submission of an offer, the requirement:

 

  • (1) Shall be stated in the public notice issued pursuant to section 3-122 16.03; and
  • (2) Prominently in the solicitation or if the decision to hold a mandatory pre-bid or preproposal conference is made after the issuance of the solicitation, the mandatory requirement shall be announced in an addendum.

 

(c) A pre-bid or pre-proposal conference shall be announced to all prospective offerors in the public notice issued pursuant to section 3-122 16.03 and in the solicitation, or if the decision to hold a pre-bid or pre-proposal conference is made after the issuance of the solicitation, the conference shall be announced in an addendum.

 

(d) The conference should be held long enough after the solicitation has been issued to allow offerors to become familiar with the solicitation, but sufficiently before the deadline for receipt of offers to allow consideration of the conference results in preparing their offers.

 

(e) Unless a change is made by written addendum as provided in section 3 122-16.06, nothing stated at the pre-bid or pre-proposal conference shall change the solicitation.

 

(f) A summary of the conference, in addition to any changes to the solicitation, shall be issued by deadline for receipt of offers to allow consideration of the summary results and changes to all those prospective offerors known to have received a solicitation. [Eff and comp MAR 21 2008 J (Auth: HRS §§103D-202, 103D-303.5) (Imp: HRS §§103D-302, 103D-303.5)

 

Hope this helps.

 

Customer: replied 1 year ago.

not quite but getting closer. after the prebid but prior to bid time there is some questions. Our questions was only answered to us and not by addendem so actually the answers were not official and aperently the state answered other contractor questions the same way. This is not correct so I'm looking for the law that justifies my statement.

Expert:  socrateaser replied 1 year ago.
I have thoroughly searched the Hawaii Revised Code and Administrative Rules. For your convenience, I have also scanned the procurement regulations and generated optical character recognition on the scanned file so that you can search the regulations at your convenience, so as to verify my (lack of) findings (click here).

At this point, it is my opinion that there is no support for the procedure to which you refer -- it does not exist in the law or regulation of the State of Hawaii. I cannot dispositively prove a "negative," but I quite certain that if you were to ask the state procurement officer for the legal authority supporting his/her actions concerning the publishing of questions with respect to the bid process, that he/she will be unable to provide any direct support for the process.

Were I in your position, I would do just that, and ask for a citation to legal authority to support the Q&A publishing process. There may be an internal policy guide published by the department with which you are dealing. Such internal guides are not law, because they have not been subjected to the formal regulatory or legislative process. However, bureaucrats frequently attempt to use a guide as if it were authoritative. Once the matter gets into court, the judge will reject the policy guide and review the actual law and regulations to determine whether or not the policy being used is within the authority of the agency.

I wish I could give you something dispositive, however, the best I can do is to explain how agencies operate. I will be quite surprised to find that the actual outcome of this issue differs from my explanation.

Hope this helps.
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 33504
Experience: Retired (mostly)
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