091-3 Wyo. Code R. §§ 3-5 - [Effective until 3/20/2025] Bid waivers

(a) If the Director determines that competitive negotiation is not feasible for a contract with an estimated value equal to fifteen thousand dollars ($15,000.00) or less, the contract may be let by noncompetitive negotiation under Section 7 of this chapter without a bid waiver from the Commission or the Governor.

(b) If the Director determines that competitive sealed bidding is not feasible or practical for a contract with an estimated value in excess of fifteen thousand dollars ($15,000), the Director may submit their written determination to the Commission and seek approval for the contract to be let by competitive negotiation under Section 8 of this chapter. The Commission may approve such a bid waiver in accordance with the following:

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

(A) Whether the Commission attempted to advertise for competitive sealed bids but was unsuccessful despite its good faith attempts under Section 12 of this chapter. If the Commission received one or more bids, the Commission 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 sealed bids or any other requirements under this chapter.

(ii) Except as otherwise outlined in this chapter, the Commission 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 Director;

(B) A situation in which only one source is available for the services or materials, whether due to bidder domicile 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 Commission has complied with Section 6 of this chapter.

(iii) The Commission shall have ten (10) business days to review the Director's request and make a determination. The Commission 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 Commission may make a determination based on available information.

(c) If the Director determines that competitive negotiation is not feasible or practical for a contract with an estimated value in excess of fifteen thousand dollars ($15,000.00), the Director 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 subsection (b). The Director's written determination and its request for noncompetitive negotiation shall be based on factors including, but not limited to:

(i) Whether the Commission initiated a competitive negotiation process but received an inadequate number of responses to its solicitations despite the Commission's good faith attempts to secure bids as required in Section 8 of this chapter. If the Commission received one or more responses, the Commission shall explain why the bids 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 Commission has complied with Section 6 of this chapter regarding emergency contracting; or

(v) Whether a prototype agreement exists where the Commission may reuse a previously developed design or product.

(d) The Director shall submit bid waiver applications on standard bid waiver forms adopted by the Commission.

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

Notes

091-3 Wyo. Code R. §§ 3-5

Adopted, Eff. 7/17/2024, exp. 11/14/2024 (Emergency). Amended, Eff. 11/20/2024, exp. 3/20/2025 (Emergency).