CHAPTER 70:07:02
CLASSIFICATION AND BIDDING CAPACITY RATING
Section
70:07:02:01 Classification and rating committee -- Membership -- Powers and duties.
70:07:02:02 Committee to keep record of proceedings.
70:07:02:03 Classification and maximum bidding capacity rating.
70:07:02:04 Procedure for obtaining or renewing classification and capacity rating.
70:07:02:05 Financial records confidential.
70:07:02:06 Time limit for statements.
70:07:02:07 Preference for work classification.
70:07:02:08 Work classification.
70:07:02:09 Assignment of work classification and maximum bidding capacity rating.
70:07:02:10 Effective period of work classification and rating.
70:07:02:11 Determination of current bidding capacity of prospective bidders.
70:07:02:11.01 Obligation to inform department of changes to certification of surety.
70:07:02:12 Repealed.
70:07:02:13 Ineligibility for assignment and classification rating.
70:07:02:14 Repealed.
70:07:02:15 Repealed.
70:07:02:16 Procedure for review of decision of committee.
70:07:02:17 Reclassification procedure.
70:07:02:18 Submission of supplemental information.
70:07:02:19 Repealed.
70:07:02:20 Prior experience requirements.
70:07:02:01. Classification and rating committee -- Membership -- Powers and duties. The classification and rating committee shall consist of four members from the department selected by the commission. The committee may act for the department on all matters specified in this chapter. The secretary may appoint alternates to serve if committee members are unavailable.
Source: SL 1975, ch 16, § 1; 8 SDR 45, effective October 28, 1981; 10 SDR 30, effective October 4, 1983; 13 SDR 129, 13 SDR 134, effective July 1, 1987; 15 SDR 142, effective March 26, 1989; transferred from § 70:01:05:22, 19 SDR 154, effective April 11, 1993; 40 SDR 121, effective January 6, 2014; 47 SDR 38, effective October 6, 2020.
General Authority: SDCL 31-5-10.
Law Implemented: SDCL 31-5-10.
70:07:02:02. Committee to keep record of proceedings. The committee shall keep a record of its proceedings relating to all prospective bidders.
Source: SL 1975, ch 16, § 1; 8 SDR 45, effective October 28, 1981; 13 SDR 129, 13 SDR 134, effective July 1, 1987; transferred from § 70:01:05:24, 19 SDR 154, effective April 11, 1993; 40 SDR 121, effective January 6, 2014.
General Authority: SDCL 31-5-10.
Law Implemented: SDCL 31-5-10.
70:07:02:03. Classification and maximum bidding capacity rating. Unless the amount being bid is less than $250,000, a prospective bidder shall obtain a work classification and maximum bidding capacity rating before the bid opening on a construction contract.
Source: SL 1975, ch 16, § 1; 6 SDR 109, effective May 29, 1980; 8 SDR 45, effective October 28, 1981; 8 SDR 170, effective June 21, 1982; 13 SDR 159, effective May 3, 1987; 13 SDR 129, 13 SDR 134, effective July 1, 1987; transferred from § 70:01:05:02, 19 SDR 154, effective April 11, 1993; 40 SDR 121, effective January 6, 2014; 47 SDR 38, effective October 6, 2020.
General Authority: SDCL 31-5-10.
Law Implemented: SDCL 31-5-10.
70:07:02:04. Procedure for obtaining or renewing classification and capacity rating. To obtain or renew a work classification and maximum bidding capacity rating a prospective bidder shall submit a prequalification statement to the committee, on a form approved by the department. In the prequalification statement, the prospective bidder shall include a description of the prospective bidder's equipment, organization, prior experience, and any suspension or debarment or proposed suspension or debarment by any governmental agency. At its discretion, the committee may request additional information.
In addition to the prospective bidder's prequalification statement, the prospective bidder shall furnish financial documentation in accordance with either of the following:
(1) The prospective bidder may furnish a certification of surety from a bonding firm authorized to do business in this state stating the maximum bonding coverage the surety will issue on the prospective bidder's behalf for both a single contract and for all of the prospective bidder's work including uncompleted contracts; or
(2) The prospective bidder may submit a separate statement of financial position audited by an independent certified public accountant. The opinion page of the audit statement shall include the audit firm's name, address, telephone number, and signature of a member of the firm.
Source: SL 1975, ch 16, § 1; 8 SDR 45, effective October 28, 1981; 8 SDR 98, effective February 24, 1982; 13 SDR 129, 13 SDR 134, effective July 1, 1987; transferred from § 70:01:05:03, 19 SDR 154, effective April 11, 1993; 25 SDR 145, effective May 30, 1999; 40 SDR 121, effective January 6, 2014; 47 SDR 38, effective October 6, 2020; 49 SDR 47, effective November 21, 2022.
General Authority: SDCL 31-5-10.
Law Implemented: SDCL 31-5-10, 31-5-10.1, 31-5-10.2, 31-5-10.3.
70:07:02:05. Financial records confidential. A financial statement submitted under this chapter is a confidential record exempt from disclosure pursuant to SDCL subdivision 1-27-1.6(2).
Source: SL 1975, ch 16, § 1; 8 SDR 45, effective October 28, 1981; 13 SDR 129, 13 SDR 134, effective July 1, 1987; transferred from § 70:01:05:21, 19 SDR 154, effective April 11, 1993; 40 SDR 121, effective January 6, 2014.
General Authority: SDCL 31-5-10.
Law Implemented: SDCL 31-5-10.
70:07:02:06. Time limit for statements. A prospective bidder who wishes to receive or renew a work classification and maximum bidding capacity rating shall submit the prequalification statement and financial documentation to the committee at least 14 days before the opening of the prospective bidder's bid, unless a shorter time frame is approved by the committee.
Source: SL 1975, ch 16, § 1; 8 SDR 45, effective October 28, 1981; 8 SDR 170, effective June 21, 1982; 13 SDR 129, 13 SDR 134, effective July 1, 1987; transferred from § 0:01:05:04, 19 SDR 154, effective April 11, 1993; 25 SDR 145, effective May 30, 1999; 40 SDR 121, effective January 6, 2014; 47 SDR 38, effective October 6, 2020.
General Authority: SDCL 31-5-10.
Law Implemented: SDCL 31-5-10.
Cross-References: Reclassification procedure, § 70:07:02:17.
70:07:02:07. Preference for work classification. Each completed prospective bidder prequalification statement must indicate the types of work for which classification is requested, but the indication is not binding upon the committee.
Source: SL 1975, ch 16, § 1; 8 SDR 45, effective October 28, 1981; 13 SDR 129, 13 SDR 134, effective July 1, 1987; transferred from § 70:01:05:05, 19 SDR 154, effective April 11, 1993; 25 SDR 145, effective May 30, 1999; 40 SDR 121, effective January 6, 2014; 47 SDR 38, effective October 6, 2020.
General Authority: SDCL 31-5-10.
Law Implemented: SDCL 31-5-10.
70:07:02:08. Work classification. Types of work are classified as follows:
(1) Major grading;
(2) Minor grading;
(3) Portland cement concrete paving;
(4) Portland cement concrete repair, including spall repair, joint repair, and pavement grinding;
(5) Asphalt concrete paving and microsurfacing;
(6) Asphalt surface treatment and asphalt crack sealing;
(7) New bridge construction;
(8) Bridge rehabilitation, including deck overlays, fatigue retrofit, steel and concrete repair, and rail retrofit;
(9) Minor structure construction, including cast in place box culverts, pre-cast multi-beam deck bridges, and mechanically stabilized earth large panel retaining walls;
(10) Lighting and signals;
(11) Signing, delineation, and pavement marking;
(12) Underground work and utilities, including storm sewer, sanitary sewer, waterline, drainage pipe, and precast box culvert;
(13) Incidental construction, including fencing, guardrail, railroad crossings, mechanically stabilized earth modular block retaining walls, gravel surfacing, base course, landscaping, and erosion control;
(14) Miscellaneous concrete construction, including sidewalk, bike path, multi-use path, and curb and gutter;
(15) Bridge painting; and
(16) High friction surface treatment and bridge deck polymer chip seal.
The committee may approve a prospective bidder in one or more types of work.
The committee may prequalify a prospective bidder on a project by project basis for one or more types of work or specialty work not specifically covered by the foregoing classifications.
Source: SL 1975, ch 16, § 1; 8 SDR 45, effective October 28, 1981; 13 SDR 129, 13 SDR 134, effective July 1, 1987; transferred from § 70:01:05:06, 19 SDR 154, effective April 11, 1993; 25 SDR 145, effective May 30, 1999; 40 SDR 121, effective January 6, 2014; 47 SDR 38, effective October 6, 2020.
General Authority: SDCL 31-5-10.
Law Implemented: SDCL 31-5-10.
70:07:02:09. Assignment of work classification and maximum bidding capacity rating. The committee may assign a work classification and maximum bidding capacity rating based on the following factors:
(1) The prospective bidder's ability to finance the work as shown by the prospective bidder's audited financial statement, surety statement, surety bond, independent audit, or debt records and other financial documents;
(2) The ownership, sufficiency, condition, and availability of the prospective bidder's equipment;
(3) The work abilities and experience of the prospective bidder and its personnel; and
(4) The quality and timeliness of the prospective bidder's work on contracts with the department and other awarding authorities.
A maximum bidding capacity rating may not exceed ten times the amount of a prospective bidder's working capital. The committee may consider a bank line of credit to increase the prospective bidder's working capital. The prospective bidder shall describe the line of credit on a form furnished by the committee.
If a certification of surety is furnished in accordance with subdivision 70:07:02:04(1), then the maximum bidding capacity rating may not exceed the maximum bonding coverage for all the prospective bidder's work; and the prospective bidder may not submit a bid for more than the maximum bonding coverage for a single contract.
If an audited financial statement is furnished, the prospective bidder may not bid more than 50 percent of the maximum bidding capacity on any single construction contract.
Source: SL 1975, ch 16, § 1; 8 SDR 45, effective October 28, 1981; 13 SDR 129, 13 SDR 134, effective July 1, 1987; transferred from § 70:01:05:07, 19 SDR 154, effective April 11, 1993; 25 SDR 145, effective May 30, 1999; 40 SDR 121, effective January 6, 2014; 47 SDR 38, effective October 6, 2020; 49 SDR 47, effective November 21, 2022.
General Authority: SDCL 31-5-10.
Law Implemented: SDCL 31-5-10, 31-5-10.1, 31-5-10.2, 31-5-10.3.
70:07:02:10. Effective period of work classification and rating. If the prospective bidder submits an audited statement of financial position in accordance with subdivision 70:07:02:04(2), any work classification and maximum bidding capacity rating granted by the committee is effective for the period specified by the committee, but not more than 18 months from the date of the balance sheet. If a certification of surety is submitted in accordance with subdivision 70:07:02:04(1), any work classification and maximum bidding capacity rating granted by the committee must expire upon the expiration or rescission of the certification of surety. If requested in writing by the prospective bidder, the committee may extend the effective date of the work classification and maximum bidding capacity rating one time for not more than 60 days. The prospective bidder must make the request and receive the extension before the opening of any bid affected by the extension.
Source: SL 1975, ch 16, § 1; 8 SDR 45, effective October 28, 1981; 8 SDR 98, effective February 24, 1982; 13 SDR 129, 13 SDR 134, effective July 1, 1987; transferred from § 70:01:05:08, 19 SDR 154, effective April 11, 1993; 25 SDR 145, effective May 30, 1999; 40 SDR 121, effective January 6, 2014; 47 SDR 38, effective October 6, 2020; 49 SDR 47, effective November 21, 2022.
General Authority: SDCL 31-5-10.
Law Implemented: SDCL 31-5-10, 31-5-10.1, 31-5-10.2, 31-5-10.3.
70:07:02:11. Determination of current bidding capacity of prospective bidders. For any given department bid letting, the contracts awarded to a bidder may not total more than the bidder's current bidding capacity. The current bidding capacity is arrived at by subtracting from the maximum bidding capacity rating the dollar amount of all uncompleted bonded work wherever located.
Source: SL 1975, ch 16, § 1; 8 SDR 45, effective October 28, 1981; 13 SDR 129, 13 SDR 134, effective July 1, 1987; transferred from § 70:01:05:10, 19 SDR 154, effective April 11, 1993; 40 SDR 121, effective January 6, 2014; 47 SDR 38, effective October 6, 2020; 49 SDR 47, effective November 21, 2022.
General Authority: SDCL 31-5-10.
Law Implemented: SDCL 31-5-10, 31-5-10.1, 31-5-10.2, 31-5-10.3.
70:07:02:11.01. Obligation to inform department of changes to certification of surety. If a prospective bidder's certification of surety is rescinded or if the bonding amount stated in the certification is reduced, the prospective bidder shall notify the department of the recission or the reduction. The prospective bidder shall provide the department with written notice within five days after the prospective bidder receives notice of the recission or reduction in coverage.
Source: 49 SDR 47, effective November 21, 2022.
General Authority: SDCL 31-5-10.
Law Implemented: SDCL 31-5-10, 31-5-10.1, 31-5-10.2, 31-5-10.3.
70:07:02:12. Allowable deductions for determining maximum bidding capacity rating. Repealed.
Source: SL 1975, ch 16, § 1; 8 SDR 45, effective October 28, 1981; 13 SDR 129, 13 SDR 134, effective July 1, 1987; transferred from § 70:01:05:11, 19 SDR 154, effective April 11, 1993; 25 SDR 145, effective May 30, 1999; 40 SDR 121, effective January 6, 2014; 47 SDR 38, effective October 6, 2020.
70:07:02:13. Ineligibility for assignment of classification and rating. The committee shall declare a prospective bidder ineligible to be prequalified if the prospective bidder:
(1) Violated a state law, a federal law, or a rule, regulation or order of a federal or state department or agency pertaining to the construction, maintenance, repair, or supervision of highways;
(2) Submitted a falsified prequalification statement, audited financial statement, or certification of surety; or
(3) Is deficient in any of the factors listed in § 70:07:02:09.
The period of ineligibility may be up to 36 months.
Source: SL 1975, ch 16, § 1; 8 SDR 45, effective October 28, 1981; 13 SDR 129, 13 SDR 134, effective July 1, 1987; transferred from § 70:01:05:18, 19 SDR 154, effective April 11, 1993; 40 SDR 197, effective May 27, 2014; 47 SDR 38, effective October 6, 2020; 49 SDR 47, effective November 21, 2022.
General Authority: SDCL 31-5-10.
Law Implemented: SDCL 31-5-10, 31-5-10.1, 31-5-10.2, 31-5-10.3.
70:07:02:14. Ineligibility for false statements. Repealed.
Source: SL 1975, ch 16, § 1; 8 SDR 45, effective October 28, 1981; 13 SDR 129, 13 SDR 134, effective July 1, 1987; transferred from § 70:01:05:19, 19 SDR 154, effective April 11, 1993; 25 SDR 145, effective May 30, 1999; repealed, 40 SDR 197, effective May 27, 2014.
70:07:02:15. Ineligibility following grant of rating. Repealed.
Source: SL 1975, ch 16, § 1; 8 SDR 45, effective October 28, 1981; 13 SDR 129, 13 SDR 134, effective July 1, 1987; transferred from § 70:01:05:17, 19 SDR 154, effective April 11, 1993; 40 SDR 121, effective January 6, 2014; 47 SDR 38, effective October 6, 2020.
70:07:02:16. Procedure for review of decision of committee. A prospective bidder may, within 14 days after receipt of notice of a decision of the committee, ask the secretary to review that decision by submitting a request in writing setting forth the decision to be reviewed and the change in the decision being requested, along with any supporting information or documentation. The secretary shall issue a written decision within five business days following receipt of the request for review and any supporting information or documentation. The decision of the secretary constitutes final agency action.
Source: SL 1975, ch 16, § 1; 8 SDR 45, effective October 28, 1981; 13 SDR 129, 13 SDR 134, effective July 1, 1987; transferred from § 70:01:05:23, 19 SDR 154, effective April 11, 1993; 40 SDR 121, effective January 6, 2014; 47 SDR 38, effective October 6, 2020.
General Authority: SDCL 31-5-10.
Law Implemented: SDCL 31-5-10.
Cross-Reference: Classification and rating committee -- Membership -- Powers and duties, § 70:07:02:01.
70:07:02:17. Reclassification procedure. A holder of a work classification and maximum bidding capacity rating may request a different or additional work classification or a higher maximum bidding capacity rating, or both, by submitting a new prequalification statement and any revised financial documentation to the committee at least 14 days before the opening of any affected bids, unless a shorter time frame is approved by the committee. Any changes to a work classification or maximum bidding capacity rating take effect on the day granted by the committee.
Source: SL 1975, ch 16, § 1; 8 SDR 45, effective October 28, 1981; 13 SDR 129, 13 SDR 134, effective July 1, 1987; transferred from § 70:01:05:15, 19 SDR 154, effective April 11, 1993; 25 SDR 145, effective May 30, 1999; 40 SDR 121, effective January 6, 2014; 47 SDR 38, effective October 6, 2020.
General Authority: SDCL 31-5-10.
Law Implemented: SDCL 31-5-10.
Cross-Reference: Time limit for statements, § 70:07:02:06.
70:07:02:18. Submission of supplemental information. The committee may require a prospective bidder who holds a work classification and maximum bidding capacity rating to submit supplemental documentation or other information relating to any of the factors set out in § 70:07:02:09. The prospective bidder shall submit the supplemental documentation or information within 14 days of the request, unless a longer time period is specified in writing by the committee.
Source: SL 1975, ch 16, § 1; 8 SDR 45, effective October 28, 1981; 13 SDR 129, 13 SDR 134, effective July 1, 1987; transferred from § 70:01:05:16, 19 SDR 154, effective April 11, 1993; 25 SDR 145, effective May 30, 1999; 40 SDR 121, effective January 6, 2014; 47 SDR 38, effective October 6, 2020.
General Authority: SDCL 31-5-10.
Law Implemented: SDCL 31-5-10.
70:07:02:19. Renewal of prospective bidder's prequalification. Repealed.
Source: 40 SDR 121, effective January 6, 2014; 47 SDR 38, effective October 6, 2020.
70:07:02:20. Prior experience requirements. Only work performed by the prospective bidder in the previous five years shall be considered by the committee, unless the bidder demonstrates, to the satisfaction of the committee, that earlier experience is relevant to the bidder's work classification and maximum bidding capacity rating.
Source: 40 SDR 121, effective January 6, 2014; 47 SDR 38, effective October 6, 2020.
General Authority: SDCL 31-5-10.
Law Implemented: SDCL 31-5-10.
