Addenda

General
All bidders must bid the project on the same or comparable basis so no particular advantage or disadvantage accrues to any potential bidder or to the LG. Since an addendum issued during an advertisement period could have a profound impact, not just on bid prices but also on the basis for bid comparisons, all prospective bidders must be made aware of each addendum as expeditiously as possible.
The definition of “expeditious,” in terms of an adequate time frame to get an addendum out to all prospective bidders prior to the bid opening, is subjective. Each case should be judged on the complexity of the addendum. The most important consideration in an addendum process is to give all potential bidders enough time to fully evaluate the effect of the changes and to adjust their bid accordingly. The LG should develop policy guidance identifying an adequate time frame.
Since an addendum constitutes a deviation from the TxDOT-approved PS&E, the obligation of federal-aid funds may be impacted by the change. Therefore, TxDOT must approve an addendum prior to release to the prospective bidders. Any approval or concurrence will be based on the LG’s assurance that all potential bidders will receive the approved addendum.
Federal Requirement
  1. 23 CFR §635.112(c)
    – Requires:
    1. addenda containing a major change to the plans and/or specifications must be approved by FHWA/TxDOT prior to release to prospective bidders;
    2. minor addenda must be identified prior to, or with the request for, concurrence in award;
    3. addenda must be sent to all bidders; and
    4. bidders must acknowledge receipt of all addenda (failure to acknowledge addenda renders a bid non-responsive).
  2. 23 CFR §635.112(i)(4)
    – For design-build projects, requires:
    1. addenda resulting in major changes to the request for proposals must be approved by FHWA/TxDOT prior to release to offerors;
    2. addenda must be sent to all offerors; and
    3. the LG must provide assurance that all offerors received all addenda prior to requesting concurrence in award.
  3. 23 CFR §635.114(b)
    – Requires FHWA must formally concur in the award of all federal-aid contracts. This 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.
State Requirement
  1. Texas Local Government Code §271.0065
    – Requires all bidders to have the opportunity to bid on the same items on equal terms. Applies to municipalities, counties, and other LGs.
  2. Texas Transportation Code §366.185
    – Requires a RTA to develop competitive bidding procedures to award contracts to the lowest responsible bidder complying with the authority’s criteria.
  3. Texas Transportation Code
    §§370.184
    and
    370.185
    – Requires a RMA to adopt rules governing award of contracts. A contract may be let by a competitive bidding procedure to the lowest responsible bidder complying with the authority’s criteria.
Required Practices
In general, TxDOT must approve addenda prior to release to prospective bidders. The
LGPM Guide
provides practices that must be followed by the LG and TxDOT for approval of major and minor addenda for various types of projects.