3705.1 If all bids submitted pursuant to competitive sealed bidding under § 3703 result in bid prices in excess of the funds available for the purchase, a negotiated award may be made in accordance with this section; provided, that the Superintendent or his or her designee first determines in writing the following:

1. (a) That there are not additional funds available which would permit an award to the lowest responsive and responsible bidder; and
2. (b) The best interests of the school system will not permit the delay attendant to a resolicitation under revised specifications and for revised quantities.

3705.2 If there is more than one (1) bidder, competitive negotiations under § 3704 shall be conducted with the three (3) (or two (2) if there are only two) bidders determined in writing to be the lowest responsive and responsible bidders to the competitive sealed bid invitation.

3705.3 Competitive negotiations shall be conducted as follows:

1. (a) If discussions pertaining to the revision of the specifications or quantities are held with any potential offeror among the three (or two) bidders, all other potential offerors shall be afforded an opportunity to take part in those discussions; and
2. (b) A Request for Proposal based upon revised specifications or quantities shall be issued as promptly as possible, shall provide for an expeditious response to the revised requirements, and shall be awarded upon the basis of the lowest bid price or lowest evaluated price submitted.

3705.4 If, after competitive sealed bidding, it is determined in writing that there is only one (1) responsive and responsible bidder, a non-competitive negotiated award may be made to that bidder.

SOURCE: Final Rulemaking published at 30 DCR 3771, 3776 (July 29, 1983).