[Code of Federal Regulations]
[Title 23, Volume 1]
[Revised as of April 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 23CFR635.114]

[Page 177]
 
                           TITLE 23--HIGHWAYS
 
 CHAPTER I--FEDERAL HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
 
PART 635--CONSTRUCTION AND MAINTENANCE--Table of Contents
 
                     Subpart A--Contract Procedures
 
Sec. 635.114  Award of contract and concurrence in award.

    (a) Federal-aid contracts shall be awarded only on the basis of the 
lowest responsive bid submitted by a bidder meeting the criteria of 
responsibility as may have been established by the SHA in accordance 
with Sec. 635.110. Award shall be within the time established by the SHA 
and subject to the prior concurrence of the Division Administrator.
    (b) The SHA shall formally request concurrence by the Division 
Administrator in the award of all Federal-aid contracts. Concurrence in 
award by the Division Administrator is a prerequisite to Federal 
participation in construction costs and is considered as authority to 
proceed with construction, unless specifically stated otherwise. 
Concurrence in award shall be formally approved and shall only be given 
after receipt and review of the tabulation of bids.
    (c) Following the opening of bids, the SHA shall examine the unit 
bid prices of the apparent low bid for reasonable conformance with the 
engineer's estimated prices. A bid with extreme variations from the 
engineer's estimate, or where obvious unbalancing of unit prices has 
occurred, shall be thoroughly evaluated.
    (d) Where obvious unbalanced bid items exist, the SHA's decision to 
award or reject a bid shall be supported by written justification. A bid 
found to be mathematically unbalanced, but not found to be materially 
unbalanced, may be awarded.
    (e) When a low bid is determined to be both mathematically and 
materially unbalanced, the Division Administrator will take appropriate 
steps to protect the Federal interest. This action may be concurrence in 
a SHA decision not to award the contract. If, however, the SHA decides 
to proceed with the award and requests FHWA concurrence, the Division 
Administrator's action may range from nonconcurrence to concurrence with 
contingency conditions limiting Federal participation.
    (f) If the SHA determines that the lowest bid is not responsive or 
the bidder is not responsible, it shall so notify and obtain the 
Division Administrator's concurrence before making an award to the next 
lowest bidder.
    (g) If the SHA rejects or declines to read or consider a low bid on 
the grounds that it is not responsive because of noncompliance with a 
requirement which was not clearly identified in the bidding documents, 
it shall submit justification for its action. If such justification is 
not considered by the Division Administrator to be sufficient, 
concurrence will not be given to award to another bidder on the contract 
at the same letting.
    (h) Any proposal by the SHA to reject all bids received for a 
Federal-aid contract shall be submitted to the Division Administrator 
for concurrence, accompanied by adequate justification.
    (i) In the event the low bidder selected by the SHA for contract 
award forfeits the bid guarantee, the SHA may dispose of the amounts of 
such forfeited guarantees in accordance with its normal practices.
    (j) A copy of the executed contract between the SHA and the 
construction contractor should be furnished to the Division 
Administrator as soon as practicable after execution.