027-3 Wyo. Code R. §§ 3-5 - Bid waivers

(a) If the principal representative of a procuring agency determines that competitive negotiation is not feasible for a contract with an estimated value equal to fifty thousand dollars ($50,000.00) or less, the contract may be let by noncompetitive negotiation under Section 7 of this chapter without a bid waiver from the Department or the Governor.

(b) If the principal representative of a procuring agency determines that competitive bidding is not feasible or practical for a contract with an estimated value in excess of fifty thousand dollars ($50,000), the principal representative may submit his or her written determination to the Department and seek approval for the contract to be let by competitive negotiation under Section 8 of this chapter. The Department Director may approve such a bid waiver in accordance with W.S. 9-2-3006(a)(iii) and the following:

(i) A principal representative's written determination and request for approval of competitive negotiation shall be based on factors including, but not limited to:

(A) Whether the procuring agency attempted to advertise for competitive sealed bids, but was unsuccessful despite its good faith attempts under Section 12 of this chapter. If the procuring agency received one or more bids, the agency shall explain why the bids received were inadequate;

(B) Whether competitive sealed bidding is impractical or infeasible due to a lack of competition in the industry;

(C) Whether competitive sealed bidding is impractical or infeasible because only a small number of potential bidders are uniquely qualified for the work due to circumstances, geographic disparities, experience with the project, or proprietary techniques or technologies; or

(D) Whether competitive sealed bidding is impractical or infeasible due to time or other constraints that prevent completion of advertisement for competitive bids or any other requirements under this chapter.

(ii) Except as otherwise outlined in this chapter, the Department Director shall only approve bid waiver applications for competitive negotiation in limited circumstances, including but not limited to:

(A) Advertising or re-advertising the project for competitive sealed bid is not feasible or practical as determined by the procuring agency's principal representative;

(B) A situation in which only one source is available for the capital construction project services or materials, whether due to residency requirement limitations or proprietary technology; or

(C) An emergency situation necessitates the immediate start of work or an expedited return to normal state service operations and the immediate commencement of the work is necessary for those operations to resume and the procuring agency has complied with Section 6 of this chapter.

(iii) The Department shall have ten (10) business days to review the procuring agency's request and make a determination. The Department may request additional information to reach a determination, which shall pause the review time until the requested information has been submitted. If the requested information is not provided within five (5) business days, the Department may make a determination based on available information.

(c) If the principal representative of a procuring agency determines that competitive negotiation is not feasible or practical for a contract with an estimated value in excess of fifty thousand dollars ($50,000.00), the principal representative may submit their written determination to the Governor or the Governor's designee, and seek approval for the contract to be let by noncompetitive negotiation under Section 7 of this chapter. The Governor or the Governor's designee may approve such a bid waiver request in accordance with W.S. 9-2-3006(a)(iii). A principal representative's written determination and its request for noncompetitive negotiation shall be based on factors including, but not limited to:

(i) Whether the procuring agency initiated a competitive negotiation process but received an inadequate number of responses to its solicitations despite the agency's good faith attempts to secure bids or proposals as required in Section 8 of this chapter. If the procuring agency received one or more responses, the agency shall explain why the bids or proposals received were inadequate;

(ii) Whether competitive negotiation is not practical or feasible because of a lack of competition in the industry;

(iii) Whether competitive negotiation is not practical or feasible because a single entity is uniquely qualified for the work due to circumstances, geographic disparities, experience with the project, or proprietary techniques or technologies;

(iv) Whether an emergency necessitates the immediate start of work to continue, or expedite the return to, normal state service operations and the procuring agency has complied with Section 6 of this chapter regarding emergency contracting; or

(v) Whether a prototype agreement exists where the procuring agency may reuse previous designs.

(d) A procuring agency shall submit bid waiver applications on standard bid waiver forms adopted by the Department.

(e) Upon approval of a bid waiver by the Department Director, the Governor, or their designees, as applicable, the procuring agency may proceed to let the contract as stipulated in the bid waiver.

Notes

027-3 Wyo. Code R. §§ 3-5

Adopted, Eff. 4/13/2021.