Maine Bid Depository System
Frequently Asked Questions
What is the Maine Construction Bid Depository?
The Maine Construction Bid Depository is basically a "mail delivery
system" that receives sealed bids from specified subcontractors and
delivers them to the general contractors to whom they were addressed
with a file copy of each separate price proposal being delivered to
the project owner.
What is the purpose of the Maine Construction Bid Depository?
The purpose of the Bid Depository is to improve the bidding process
by helping ensure the sanctity of the sub-bids, and to provide
adequate time for review of sub-bids by the general contractors so
that they may more accurately complete their bids.
Who administers the Maine Construction Bid Depository?
The Bid Depository is administered by the Associated General
Contractors of Maine (AGC Maine). It has a broad-based Advisory
Committee to provide project owners and awarding authorities with
advice on matters concerning the administration of the Bid
Depository system.
What is the legal status of the Maine Construction Bid Depository?
The use of the Maine Construction Bid Depository is not required by
law. However, the benefits to the bidding process and the reduction
of possible errors in bidding from the use of the Bid Depository has
resulted in its being used for most publicly bid projects. Who
determines which trades are to be "file bid"? Work to be "file bid"
should be commonly-accepted bid packages. An industry-wide group has
developed recommendations for work to be file bid but the final
determination on trades to be "file bid" is made by the owner and
designer.
How does a sub-bidder know that "file bids" are required on a
specific project?
The project "Advertisement for Bids" should clearly state by the use
of specification section titles and numbers, the scope of work that
is to be covered by each file bid. Does the use of the Maine
Construction Bid Depository guarantee that all General Contractors
will receive sub-bids for all required trades? No. The Bid
Depository only delivers the proposals that have been received. It
is the responsibility of each general contractor to contact
sub-bidders prior to the deadline for submission of sub-bids to
ensure that they will receive sub-bids.
How are bids submitted to the Maine Construction Bid Depository?
Prior to the deadline for submission of sub-bids, subcontractors
must deliver to the Bid Depository, a large white envelope
containing the following:
1. Individual sealed PINK envelopes, addressed to each general
contractor to whom the subcontractor desires to bid, containing a
bid proposal.
2. A GREEN envelope containing a copy of the bid, listing those
general contractors intentionally omitted, if any. If different
price proposals were given to different general contractors, this
envelope must contain a copy of each different price proposal and an
indication of which proposal was given to each general contractor.
If a general contractor bids to himself on a certain trade, the
green envelope must contain a statement of qualifications of the
general contractor to perform that sub-trade.
3. A BID BOND, if required, should be enclosed separately from the
pink and green envelopes. Can a subcontractor decline to bid to
certain general contractors? Yes. Sub-bidders do not have to bid to
every general contractor. This is premised on the fact that
sub-bidders should not be required to work with general contractors
for whom they choose not to work.
Can a subcontractor bid different prices to general contractors?
Yes. Sub-bidders may submit different prices to different general
contractors. In the eyes of most subcontractors, most general
contractors are not created equally, and those subcontractors should
have the opportunity to reflect their respective experiences in
their prices. If a sub-bidder chooses to bid different prices, he
needs to make copies of all the different prices he has bid and
place those copies in the green envelope to the owner.
Do subcontractors have to submit a bid bond?
The requirements for a bid bond come from the owner or designer but
it should be noted that practically all projects bid through the
file sub bid system do require that subcontractors submit a bid
bond. The file sub bid system’s general conditions and regulations
say that if a bid bond is required, it shall be inserted in the
white envelope separate from the green and pink envelopes.
Does the Bid Depository open the sub-bids?
No. The bid depository only opens the white envelope containing the
sealed pink envelopes (bids to general contractors), sealed green
envelopes (copies of the bids to the owner), and the bid bond. The
Bid Depository sees no prices. If a bidder is interested in knowing
where he stands in relation to other bidders, he needs to check with
the bidding general contractors.
What happens to the file sub-bids after they have been submitted to
the bid depository?
Bid Depository personnel (AGC Maine staff) open the white envelopes
at the AGC Maine office in Augusta and sort the pink envelopes
according to bidding general contractors and the green envelopes are
placed in a separate pile. A record is kept of who submits a file
sub-bid and to whom they are bidding. The depository also notes the
existence of a bid bond for each sub-bid. A letter is compiled
listing the names and addresses of all sub- bidders and the
sub-trades they are bidding. The letter also lists the names and
addresses of all bidding general contractors. That letter is sent to
all sub-bidders, general contractors, and the owner. Unless they are
personally picked up at the AGC Maine office, the pink envelopes are
sent by mail to the general contractors at their own risk. The Bid
Depository does not assume responsibility for lost mail. The Bid
Depository sends all the green envelopes, plus the bid bonds, to the
owner or designer. What if a sub-bid is submitted to the Bid
Depository after the deadline for the submission of bids? If a
sub-bid is received after the "closing time", the sub-bid will not
be processed by the Bid Depository and will be returned to the
sub-bidder, unopened.
Can a subcontractor amend his bid after he has filed it with the bid
depository?
A subcontractor may amend the bid provided that the amendment is
received prior to the sub-bid closing time. The amendment normally
comes in the form of a faxed letter to the depository containing
adds or deducts from the original price. If the amendment discloses
the amount of the subcontract price, the system will declare the bid
void.
Can a subcontractor provide a bid after bid closing to a general
contractor to whom he had missed bidding?
Yes, however, he must do so at least 24 hours before the closing
time of the general contractor bid. In such a case, the
subcontractor must never disclose the amount to the Bid Depository.
He must write a letter to the depository stating, "We missed bidding
to (Black Construction) on (ABC High School). Please consider our
bid addressed to (White Construction) as if it were submitted to
(Black Construction)." After receiving this letter, the depository
will then fax it on to the designer or owner, and it is the
responsibility of the subcontractor to notify the general contractor
to whom he is extending his bid.
Does the general contractor have to carry the low subcontractor?
No. Just as the subcontractor does not have to bid to every general
contractor, a general contractor does not have to carry any
sub-bidder he does not wish to carry.
Can a general contractor’s proposal be disqualified for carrying an
invalid or informal sub-bid?
No. If a general contractor does carry a bid that the owner
determines to be informal or invalid (and the owner is the only one
who can make that determination), the state’s Instructions to
Bidders say that that determination will be made only after the
opening of the general contractor bids. In that case, the invalid
sub-bid will be thrown out (the owner has the decision to pull, or
not pull, the bid bond), and the next acceptable sub bidder will be
substituted. The general contractor bids will then be recalculated
to determine who the low general contractor is. The only way an
owner may disqualify a general contractor’s proposal is when the
proposal contains a sub-trade proposal that has not been filed
through the file sub-bid system.
Can an owner force a general contractor to substitute or use a
subcontractor that has filed a lower sub-proposal?
No. The owner cannot force the general contractor to use any
subcontractor that is not acceptable to the general contractor nor
force a subcontractor to work with a general contractor with whom
they do not wish to work. The general contractor has submitted what
they consider is their best price based on the team they have
selected and this is the basis for determining the low bid. After a
decision has been made by the owner on the successful general
contractor, the general contractor may be requested to substitute a
subcontractor with appropriate price adjustment but the change can
only occur if there is agreement on the substitution by both the
general contractor and the subcontractor.
Can a general contractor change the carried filed subcontractor if
the owner selects an Alternate(s) that would have determined another
sub-contractor to have the lowest proposal total?
Yes, but only if they have indicated on their bid submission that
the acceptance of an Alternate by the owner result in a change if
the subcontractor to perform the work covered by that file bid
section. Normally, the General Contractor Proposal Form includes a
requirement for the general bidder to indicate on the proposal if
the acceptance of an alternate will result in a change in
subcontractor. This present a complication as it is usually
impossible for a general contractor to anticipate all possible
combinations of alternates. Owners should not use the selection of
Alternates as a method of changing the low bidder. This is also one
reason that should be encouraged to keep the number of alternates to
an absolute minimum AND not create that cover multiple file bid
sections. Once the low bidder has been determined, any change in
subcontractors only reduce the contract amount.
How does the general contractor deal with a low filed sub-bid that
does not recognize all the required specified sections?
The general contractor’s bid must make sure all specified sections
are covered. The general contractor is bidding a complete job to the
owner, and it is his responsibility to ensure that it is complete.
Where file bids are concerned, the general contractor has the option
of using or not using a sub-bid that did not cover all required
sections. If the general contractor uses the incomplete sub-bid, he
is at risk for any cost not covered in the sub-bid he used. If the
sub-bid is clear that it does not cover all required sections, it
may be disqualified by the owner as being "non-responsive". Who can
disqualify a bid submitted to the Bid Depository prior to the
deadline? Only the owner has the authority to disqualify or reject
an on-time bid submitted to the Bid Depository. The owner must have
legitimate reasons for the disqualification or rejection. If the
owner desires, he may request the assistance of the Bid Depository
Advisory Committee to resolve any issues relating to compliance with
the rules of the Bid Depository.
What happens if a subcontractor wants to withdraw his bid?
Most Instructions to Bidders do not permit a subcontractor to
withdraw the bid for a fixed period of time or prior to the
submission of the bids by the general contractors. If the
subcontractor has made a legitimate error that can be demonstrated,
the owner should be contacted and requested to declare the sub-bid
as invalid because of the error. If the sub-bidder wants to withdraw
the bid without documented or justifiable reason, the sub-bidder
risks the owner calling the bid bond.
If a general contractor can perform a certain sub-trade using his
own forces, can he file a sub-bid to himself through the system? Who
determines whether or not that general contractor is qualified to
bid to himself?
Yes, the system allows a general contractor to bid to himself as
long as he submits a statement of his qualifications to perform that
trade with his sub bid. Such a statement could include a list of
equipment, names of key personnel, references, relevant licenses,
and a list of other projects on which they have performed the
sub-trade work. The system does not prescribe or require what
qualifications need to be submitted; that is up to the owner or
designer. The system only specifies the procedure for submitting the
statement. It is the owner’s responsibility to determine the
qualifications of the general contractor to perform the sub-trade in
question, and unless the designer/owner has written in very specific
qualifications in the bidding documents that a general contractor
must meet in order to bid to himself, the owner has broad discretion
in making that determination.
Who enforces the file sub bid system?
The simple answer is the owner. The use of the system and the
incorporation of the system’s general conditions and regulations
into the bidding documents bring with it a responsibility for the
owner and designer to enforce the regulations. By incorporating
these requirements into the project manual, the designer has a
responsibility to enforce the requirements the same as any other
portion of the project manual. The State of Maine Bureau of General
Services may be considered the enforcer to the extent that it has
the legal responsibility to review and approve the plans and
specifications of State projects before they go out to bid and to
the extent that they have limited oversight of the construction of
local school projects.
If a subcontractor or general contractor feels he has been treated
unfairly, is there recourse?
Yes. If a subcontractor or general contractor believes they have
been treated unfairly, they should file a formal written complaint
with the project owner or awarding authority with a copy of the
complaint sent to the project designer and the Maine Construction
Bid Depository. The file sub bid system Advisory Committee was set
up to receive complaints from aggrieved parties and advise the owner
on proper procedures. The owner may, or may not, choose to accept
that advice. The Advisory Committee is made up of two
representatives each from the following industry groups: general
contractors, subcontractors, owners, engineers, and architects.
Complaints need to be in writing and submitted to the AGC Maine
office. The complaints are forwarded to Advisory Committee members
through fax or email with a short note from the Administrator of the
system providing a few supplementary facts that may not be contained
in the complaint. In considering the complaint, the Committee is
instructed to be guided by two criteria: (1) was anyone harmed?; and
(2) did anyone attempt to gain an advantage? The answers received
from the Committee members may be unanimous, but not always. A
letter will then be sent from the Committee to the owner summarizing
all the members’ responses. As noted before, it is then up to the
owner to accept, or not accept, that advice. An aggrieved party may
request an opinion from the Advisory Committee without filing a
formal complaint where there is a belief the Bid Depository
procedures were violated. The response to this request is only sent
to the party requesting it and is not sent to the project owner or
awarding authority.
What happens if the architect sends out a late addendum?
Architects should observe the time-honored rule of sending out
addendum not less than 3 business days prior to the sub-bid closing
date if there is any item listed in the addendum pertaining to file
bid work. Most design firms realize the risk of sending out late
addenda, notably that plan holders may not receive it in time and
therefore, may not include it in their bids. However, what happens
if, for whatever reason, an architect chooses to issue that late
addendum? The file sub-bid system has no authority to declare that
addendum invalid just because it is late. Therefore, it is the
responsibility, and indeed, good business practice, of
subcontractors to check with the designer on the existence of all
addenda and their contents.
Are subcontractors required to acknowledge all addenda?
The system’s general conditions and regulations say that failure of
the subcontractor to acknowledge addenda may result in the
disqualification of his bid, so it is extremely advisable for every
subcontractor to acknowledge every addendum even if it does not
apply to their trade. However, the word "may" in the previous
paragraph leaves the question open to owner discretion.
Occasionally, the Advisory Committee is asked to intervene give an
opinion in a situation in which a subcontractor has not acknowledged
an addendum.
Should that subcontractor’s bid be declared informal for not having
acknowledged every addendum?
The Advisory Committee has advised owners in the past that a
subcontractor’s bid should only be thrown out (disqualified) if the
unacknowledged addendum applies directly to that subcontractor’s
trade. However, failure to acknowledge all addenda does present a
risk to the bidder.
Should the designer/owner open the green envelopes before the
general contractor bid?
There should be no reason for the designer to open the green
envelopes other than to check, after the general contractor bid,
that the bids that were filed were the same ones that were carried
by the general contractors. Opening the green envelopes in between
the subcontractor bid and the general contractor bid (presumably to
"check prices") serves very little purpose because those prices may
bear little resemblance to the final general contractor prices. It
may also possibly add confusion by the designer examining the sub
bids, allegedly discovering an irregularity and attempting to deal
with that irregularity prior to the general contractor bid. If such
a sub bid defect is present, it should be addressed after the
general contractor bid.
End of FAQ's (If you should require any further information about
the rules and procedures governing the Maine Construction Bid
Depository, please contact John O'Dea, Administrator of the
Depository, at 207-622-4741 or at
jodea@agcmaine.org .)