North Carolina § 136-28 - 1. Letting of contracts to bidders after advertisement; exceptions.

§ 136-28. 1. Letting of contracts to bidders after advertisement; exceptions.

All contracts over five million dollars ($5,000,000) that the Department of Transportation may let for construction, maintenance, operations, or repair necessary to carry out the provisions of this Chapter, shall be let to a responsible bidder after public advertising under rules and regulations to be made and published by the Department of Transportation. The right to reject any and all bids shall be reserved to the Board of Transportation. Contracts for construction or repair for federal aid projects entered into pursuant to this section shall not contain the standardized contract clauses prescribed by 23 U.S.C. § 112(e) and 23 C.F.R. § 635.109 for differing site conditions, suspensions of work ordered by the engineer or significant changes in the character of the work. For those federal aid projects, the Department of Transportation shall use only the contract provisions for differing site conditions, suspensions of work ordered by the engineer, or significant changes in the character of the work developed by the North Carolina Department of Transportation and approved by the Board of Transportation. For contracts let to carry out the provisions of this Chapter in which the amount of work to be let to contract for transportation infrastructure construction or repair is five million dollars ($5,000,000) or less, and for transportation infrastructure maintenance, excluding resurfacing, that is five million dollars ($5,000,000) per year or less, at least three informal bids shall be solicited. The term "informal bids" is defined as bids in writing, received pursuant to a written request, without public advertising. All such contracts shall be awarded to the lowest responsible bidder. Where public advertising is used for a contract subject to this subsection, the Highway Division shall post the advertisement at least 14 calendar days prior to the letting date of the contract. The Secretary of Transportation shall keep a record of all bids submitted, which record shall be subject to public inspection at any time after the bids are opened. The Highway Divisions shall publish the results of a bidding process no later than three business days after the contract bid upon is awarded. Notwithstanding any provision of G.S. 136-28.5 to the contrary, and except as prohibited by other State or federal law, the Department of Transportation shall, at the time and place bids solicited for a contract subject to this section are opened, make public all cost estimates prepared by the Department for the purpose of comparing the bids. The construction, maintenance, and repair of ferryboats and all other marine floating equipment and the construction and repair of all types of docks by the Department of Transportation shall be deemed highway construction, maintenance, or repair for the purpose of G.S. 136-28.1 and Chapter 44A and Chapter 143C of the General Statutes, the State Budget Act. In cases of a written determination by the Secretary of Transportation that the requirement for compatibility does not make public advertising feasible for the repair of ferryboats, the public advertising as well as the soliciting of informal bids may be waived. The construction, maintenance, and repair of the highway rest area buildings and facilities, weight stations and the Department of Transportation's participation in the construction of welcome center buildings shall be deemed highway construction, maintenance, or repair for the purpose of G.S. 136-28.1 and 136-28.3 and Chapter 143C of the General Statutes, the State Budget Act. The Department of Transportation may enter into contracts for construction, maintenance, or repair without complying with the bidding requirements of this section upon a determination of the Secretary of Transportation or the Secretary's designee that an emergency exists and that it is not feasible or not in the public interest for the Department of Transportation to comply with the bidding requirements. For purposes of this section, the term "emergency" includes any of the following that is unanticipated, results in detours or deters the free movement of goods and services, and requires an estimated expenditure of ten million dollars ($10,000,000) or less in construction, maintenance, or repair costs: A bridge closure. A road closure. A weight restriction. Notwithstanding any other provision of law, the Department of Transportation may solicit proposals under rules and regulations adopted by the Department of Transportation for all contracts for professional engineering services and other kinds of professional or specialized services necessary in connection with the planning, operations, design, maintenance, repair, and construction of transportation infrastructure. In order to promote engineering and design quality and ensure maximum competition by professional firms of all sizes, the Department may establish fiscal guidelines and limitations necessary to promote cost-efficiencies in overhead, salary, and expense reimbursement rates. The right to reject any and all proposals is reserved to the Board of Transportation. The Department of Transportation may enter into contracts for research and development with educational institutions and nonprofit organizations without soliciting bids or proposals. The Department of Transportation may enter into contracts for applied research and experimental work without soliciting bids or proposals; provided, however, that if the research or work is for the purpose of testing equipment, materials, or supplies, the provisions of Article 3 of Chapter 143 of the General Statutes shall apply. However, the Department of Transportation shall: (i) submit all proposed contracts for supplies, materials, printing, equipment, and contractual services that exceed one million dollars ($1,000,000) authorized by this subsection to the Attorney General or the Attorney General's designee for review as provided in G.S. 114-8.3; and (ii) include in all proposed contracts to be awarded by the Department of Transportation under this subsection a standard clause which provides that the State Auditor and internal auditors of the Department of Transportation may audit the records of the contractor during and after the term of the contract to verify accounts and data affecting fees and performance. The Department of Transportation shall not award a cost plus percentage of cost agreement or contract for any purpose. The Department of Transportation is encouraged to solicit proposals when contracts are entered into with private firms when it is in the public interest to do so. The Department of Transportation may negotiate and enter into contracts with public utility companies for the lease, purchase, installation, and maintenance of generators for electricity for its ferry repair facilities. Repealed by Session Laws 2002-151, s. 1, effective October 9, 2002. The Department of Transportation may accept bids under this section by electronic means and may issue rules governing the acceptance of these bids. For purposes of this subsection "electronic means" is defined as means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. The Department of Transportation may enter into contracts for public-private participation in providing litter removal from State right-of-way. Selection of firms to perform this work shall be made using a best value procurement process and shall be without regard to other provisions of law regarding the Adopt-A-Highway Program administered by the Department. Acknowledgement of sponsors may be indicated by appropriate signs that shall be owned by the Department of Transportation. The size, style, specifications, and content of the signs shall be determined in the sole discretion of the Department of Transportation. The Department of Transportation may issue guidelines, rules, and policies necessary to administer this subsection. The Department of Transportation may enter into contracts for public-private participation at State-owned rest areas. Selection of firms shall be made using a best value procurement process. Recognition of sponsors in the program may be indicated by appropriate acknowledgment for any services provided. The size, style, specifications, and content of the acknowledgment shall be determined in the sole discretion of the Department. Revenues generated pursuant to a contract initiated under this subsection shall be shared with Department of Transportation at a predetermined percentage or rate, and shall be earmarked by the Department to maintain the State owned rest areas from which the revenues are generated. The Department of Transportation may issue guidelines, rules, and policies necessary to administer this subsection. History (1971, c. 972, s. 1; 1973, c. 507, ss. 5, 16; c. 1194, ss. 4, 5; 1977, c. 464, ss. 7.1, 16; 1979, c. 174; 1981, c. 200, ss. 1, 2; c. 859, s. 68; 1985, c. 122, s. 2; 1985 (Reg. Sess., 1986), c. 955, s. 46; c. 1018, s. 2; 1987, c. 400; 1989, c. 78; c. 749, ss. 2, 3; 1995, c. 167, s. 1; 1997-196, s. 1; 1999-25, ss. 2, 3; 2001-424, ss. 27.9(a), 27.9(b); 2002-151, s. 1; 2006-68, s. 1; 2006-203, s. 75; 2007-439, ss. 3, 4; 2009-266, s. 1; 2009-475, s. 12; 2010-194, s. 19; 2011-145, s. 28.3; 2011-326, s. 15(t); 2013-340, s. 2.1; 2016-94, ss. 35.5(a), 35.6(a); 2018-5, s. 34.15.) Cross References. - As to Highway Fund and Highway Trust Fund Small Project Bidding, see G.S. 136-28.10. As to provisions similiar to those in former subsection (j) pertaining to design-build construction of transportation projects, see G.S. 136-28.11. Editor's Note. - Session Laws 1998-212, s. 27 was codified as subsection (j) of this section at the direction of the Revisor of Statutes. Session Laws 1998-212, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations and Capital Improvement Appropriations Act of 1998.' " Session Laws 1998-212, s. 30.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 1998-99 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 1998-99 fiscal year." Session Laws 1998-212, s. 30.5, is a severability clause. Section 136-28.3, referred to in subsection (d) of this section, has been repealed. For present provisions as to performance bonds, see G.S. 44A-25 et seq. Session Laws 1993, c. 561, s. 65(b) provides: "(b) The letting of contracts under this section is not subject to any of the provisions of G.S. 135-28.1 relating to the letting of contracts. The Department may waive the bonding requirements of Chapter 44A of the General Statutes and the licensing requirements of Chapter 87 for contracts awarded under this section." Session Laws 1993, c. 561, s. 65(a) and (c), provides "(a) Notwithstanding the provisions of G.S. 136-28.4(b), for Highway Fund or Highway Trust Fund projects of three hundred thousand dollars ($300,000) or less, the Board of Transportation may, after soliciting at least three informal bids in writing from Small Business Enterprises, award contracts to the lowest responsible bidder. The Department of Transportation may identify projects likely to attract increased participation by Small Business Enterprises, and restrict the solicitation and award to those bidders. The Board of Transportation may delegate full authority to award contracts, adopt necessary rules, and administer the provisions of this section to the Secretary of Transportation. "(c) The Secretary of Transportation shall report quarterly to the Joint Legislative Transportation Oversight Committee on the implementation of this section." Session Laws 1997-443, s. 32.11, provides that the Department of Transportation may enter into a design-build-warrant contract to develop, with Federal Highway Administration participation, a Congestion Avoidance and Reduction for Autos and Trucks (CARAT) system of traffic management in the Charlotte-Mecklenburg urban areas. Notwithstanding any other provision of law, contractors, their employees, and Department of Transportation employees involved in this project only do not have to be licensed by occupational licensing boards, and for the purpose of entering into contracts, the Department of Transportation is exempted from the provisions of G.S. 136-28.1, 143-52, 143-53, 143-58, 143-128, and 143-129; these exemptions are limited and available only to the extent necessary to comply with federal rules, regulations, and policies for completion of this project. The Department shall report quarterly to the Joint Legislative Transportation Oversight Committee on the project. For prior similar provisions, see Session Laws 1991 (Reg. Sess., 1992), c. 900, s. 94, Session Laws 1993, c. 321, s. 162, and Session Laws 1995, c. 324, s. 18.14. Session Laws 1997-443, s. 35.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 1997-99 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 1997-99 fiscal biennium." Session Laws 2006-203, s. 126, provides, in part: "Prosecutions for offenses committed before the effective date of this act [July 1, 2007] are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions." Session Laws 2009-475, s. 15, provides: "The General Assembly finds that it is in the public interest of the State of North Carolina to ensure expeditious awards of ARRA funds to maximize the economic recovery impact of the ARRA. It is the policy of the State to provide fair regulation, oversight, and transparency for the use of ARRA funds and to quickly and efficiently complete the awards of grants and contracts under the ARRA. It is also the policy of this State that, due to the historic level of federal and State oversight of ARRA grant and contract awards, restraint should be exercised in the granting of legal and injunctive relief that might forestall awards to programs and contractors." Session Laws 2013-340, s. 4, made the amendment to subsections (a) and (b) by Session Laws 2013-340, s. 2.1, applicable to transportation project bids solicited on or after August 1, 2013. Session Laws 2016-94, s. 35.5(b), provides: "The Department of Transportation shall provide an annual report by May 1 to the chairs of the House of Representatives Committee on Transportation Appropriations and the Senate Appropriations Committee on Department of Transportation on the impact of the implementation of this section, specifically the impact of the implementation of this section on small businesses." Session Laws 2016-94, s. 35.5(c), made the amendment to this section by Session Laws 2016-94, s. 35.5(a), effective July 1, 2016, and applicable to bids solicited on or after that date. Session Laws 2016-94, s. 35.6(b), made the amendment to this section by Session Laws 2016-94, s. 35.6(a), effective July 1, 2016, and applicable to bids solicited on or after that date. Session Laws 2016-94, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2016.'" Session Laws 2016-94, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2016-2017 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2016-2017 fiscal year." Session Laws 2016-94, s. 39.7, is a severability clause. Session Laws 2018-5, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2018.'" Session Laws 2018-5, s. 39.7, is a severability clause. Session Laws 2019-231, s. 4.20, provides: "The Department of Transportation, Ferry Division, may enter into a contract to lease a passenger ferry vessel for operation between Hatteras and Ocracoke from May 20, 2019, to September 5, 2019, without complying with the provisions of Article 8 of Chapter 143 of the General Statutes, G.S. 136-28.1, or any other provision of law to the contrary. Of the funds appropriated in this act to the Department, any lease entered into pursuant to this section shall not exceed one million dollars ($1,000,000)." Session Laws 2019-231, s. 5.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2019-2021 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2019-2021 fiscal biennium." Session Laws 2019-231, s. 5.5, is a severability clause. Session Laws 2020-57, s. 2.5, provides: "Notwithstanding the provisions of Article 8 of Chapter 143 of the General Statutes, G.S. 136-28.1, and any other provision of law to the contrary, and pending completion of a successful route verification, the Department of Transportation, Ferry Division, shall lease a passenger ferry vessel for operation between Hatteras and Ocracoke. The term of the lease shall end no later than September 10, 2020. Of the funds appropriated to the Department of Transportation Contingency Fund in S.L. 2019-231 for the 2019-2020 fiscal year, the sum of up to one million one hundred forty-six thousand one hundred seventy-nine dollars ($1,146,179) shall be used by the Division to lease and operate the ferry." Session Laws 2021-33, s. 3, provides: "Notwithstanding Article 8 of Chapter 143 of the General Statutes, G.S. 136-28.1, and any other provision of law to the contrary, the Department of Transportation, Ferry Division, shall lease a passenger ferry vessel for operation between Hatteras and Ocracoke. The term of the lease shall end no later than August 15, 2021. Except as otherwise provided in this section, of the funds appropriated in S.L. 2020-91 from the Highway Fund to the Department of Transportation, the sum of seven hundred thousand dollars ($700,000) in nonrecurring funds shall be used by the Division to lease and operate the ferry. The Division shall exercise the opt-out clause of the lease when the Division determines the State-owned ferry for passenger service on the Hatteras-Ocracoke route can be operationalized within 30 days if the cost of opting out is less than the cost of completing the term of the lease. Following the expiration or termination of the lease, any remaining funds shall be deposited in the Ferry Systemwide reserve account established in G.S. 136-82(f2) for use in accordance with that subsection.” Session Laws 2021-108, s. 3(b), provides: "Of the funds appropriated from the Highway Fund to the Department of Transportation for the 2021-2022 fiscal year, the Department may use up to two hundred twenty thousand dollars ($220,000) in nonrecurring funds to extend the passenger ferry lease authorized by Section 3 of S.L. 2021-33, as amended by subsection (a) of this section.” Effect of Amendments. - Session Laws 2006-68, s. 1, effective July 1, 2006, in subsection (a), substituted "23 C.F.R. § 635.109" for "23 C.F.R. § 635.131(a)" in the next-to-last sentence; and rewrote the last sentence. Session Laws 2007-439, ss. 3 and 4, effective August 23, 2007, added subsections ( l ) and (m). Session Laws 2009-266, s. 1, effective August 1, 2009, in subsection (a), inserted "maintenance" in the first sentence; in subsection (b), in the first sentence, substituted "For contracts let to carry out the provisions of this Chapter" for "In those cases" at the beginning, substituted "for construction" for "highway construction, maintenance" and inserted "and for maintenance, excluding resurfacing, that is one million two hundred thousand dollars ($1,200,000) per year or less," near the middle; in subsection (e), substituted "the Secretary's designee" for "the State Highway Administrator" near the middle; and, in subsection (f), in the first sentence, substituted "the planning, design, maintenance, repair, and construction of transportation infrastructure" for "highway construction, maintenance, or repair" at the end. Session Laws 2009-475, s. 12, effective February 17, 2009, in subsection (a), inserted "operations" near the middle of the first sentence; and in the first sentence of subsection (b), inserted "transportation infrastructure" twice. Session Laws 2011-145, s. 28.3, effective July 1, 2011, in the first sentence of subsections ( l ) and (m), deleted "as many as two pilot" preceding "contracts"; in subsection ( l ), in the first sentence, substituted "public-private" for "public private," and in the last sentence, inserted "guidelines," substituted "administer this subsection" for "implement this section," and made a minor stylistic change; and in subsection (m), in the first sentence, deleted "in providing real-time traveller information" following "participation," in the second sentence, deleted "to perform this work" following "firms," and in the last sentence, deleted "a pilot program initiated under" following "administer." Session Laws 2011-326, s. 15(t), effective June 27, 2011, in the second sentence of subsection (h), deleted "statewide and agency term" following "(i) submit all proposed" and inserted "and after." Session Laws 2013-340, s. 2.1, effective August 1, 2013, substituted "two million five hundred thousand dollars ($2,500,000)" for "one million two hundred thousand dollars ($1,200,000)" in subsection (a) and twice in subsection (b). For applicability, see editor's note. Session Laws 2016-94, s. 35.5(a), effective July 1, 2016, in subsection (a), substituted "five million dollars ($5,000,000)" for "two million five hundred thousand dollars ($2,500,000)" near the beginning and made a stylistic change; substituted "five million dollars ($5,000,000)" for "two million five hundred thousand dollars ($2,500,000)" twice in subsection (b); and inserted "operations" following "in connection with planning" in subsection (f). For applicability, see Editor's note. Session Laws 2016-94, s. 35.6(a), effective July 1, 2016, added the fourth and last sentences in subsection (b); and added subsection (b1). Session Laws 2018-5, s. 34.15, effective July 1, 2018, in subsection (e), added the last sentence in the introductory paragraph and added subdivisions (e)(1) through (e)(3).