(2) Exceptions in Competitive Sealed Bidding Procedures. The process of competitive sealed bidding as required by subsection (1) must be performed in accordance with the procedures outlined in Article 5 of this code subject to the following exceptions:

1. (a) Invitation for Bids. Instead of Section 11-35-1520(2), Section 11-35-1520(3), and Section 11-35-1520(4), invitations for bids for each state construction project subject to subsection (1) must be made in the following manner. Each using agency must be responsible for developing a formal invitation for bids for each state construction project subject to subsection (1). The invitation must include, but not be limited to, all contractual terms and conditions applicable to the procurement. A copy of each invitation for bids must be filed with the State Engineer's Office and must be advertised formally in an official state government publication. The manner in which this official state government publication must be published, the content of the publication itself, the frequency of the publication, the method of subscription to the publication, and the manner by which the publication is distributed must be established by regulation of the board.

2. (b) Bid Acceptance. Instead of Section 11-35-1520(6), the following provision applies. Bids must be accepted unconditionally without alteration or correction, except as otherwise authorized in this code. The using agency's invitation for bids must set forth all requirements of the bid including, but not limited to:

   1. (i) The using agency, in consultation with the architect-engineer assigned to the project, shall identify by specialty in the invitation for bids all subcontractors, who are expected to perform work for the prime contractor to or about the construction when those subcontractors' contracts are each expected to exceed three percent of the prime contractor's total base bid. In addition, the using agency, in consultation with the architect- engineer assigned to the project, may identify by specialty in the invitation for bids any subcontractors who are expected to perform work which is vital to the project. The determination of which subcontractors are included in the list provided in the invitation for bids is not protestable pursuant to Section 11-35-4210 or another provision of this code. A bidder in response to an invitation for bids shall set forth in his bid the name of only those subcontractors to perform the work as identified in the invitation for bids. If the bidder determines to use his own employees to perform a portion of the work for which he would otherwise be required to list a subcontractor and if the bidder is qualified to perform that work under the terms of the invitation for bids, the bidder shall list himself in the appropriate place in his bid and not subcontract that work except with the approval of the using agency for good cause shown.
   2. (ii) Failure to complete the list provided in the invitation for bids renders the bidder's bid unresponsive.
   3. (iii) A prime contractor whose bid is accepted may not substitute a person as subcontractor in place of the subcontractor listed in the original bid, except for one or more of the following reasons:
   4. (aa) upon a showing satisfactory to the using agency by the contractor that a subcontractor who was listed is not financially responsible;
   5. (bb) upon a showing satisfactory to the using agency by the contractor that the scope of work bid by a listed subcontractor did not include a portion of the work required in the plans and specifications, and the exclusion is not clearly set forth in the listed subcontractor's original bid;
   6. (cc) upon a showing satisfactory to the using agency made by the contractor within four working days of the bid opening that the subcontractor was listed as a result of an inadvertent clerical error;
   7. (dd) upon a showing satisfactory to the using agency by the contractor that the listed subcontractor failed or refused to submit a performance and payment bond when requested by the prime contractor after the subcontractor had represented to the prime contractor that he could obtain a performance and payment bond;
   8. (ee) upon a showing satisfactory to the using agency by the contractor that the listed subcontractor is required to be licensed and does not have the license by the time it is required by law;
   9. (ff) when the listed subcontractor fails or refuses to perform his subcontract;
   10. (gg) when the work of the listed subcontractor is found by the using agency to be substantially unsatisfactory;
   11. (hh) upon mutual agreement of the contractor and subcontractor;
   12. (ii) with the consent of the using agency for good cause shown.
   13. (iv) The request for substitution must be made to the using agency in writing. This written request does not give rise to a private right of action against the prime contractor in the absence of actual malice.
   14. (v) Where substitution is allowed, the prime contractor, before obtaining prices from another subcontractor, shall attempt in good faith to negotiate a subcontract with at least one subcontractor whose bid was received before the submission of the prime contractor's bid. This section does not affect a contractor's ability to request withdrawal of a bid in accordance with the provisions of this code and the regulations promulgated pursuant to it.
   15. (vi) The using agency shall send all responsive bidders a copy of the bid tabulation within ten working days following the bid opening.

3. (c) Instead of Section 11-35-1520(10) the following provisions apply. Unless there is a compelling reason to reject bids as prescribed by regulation of the board, notice of an intended award of a contract to the lowest responsive and responsible bidder whose bid meets the requirements set forth in the invitation for bids must be given by posting the notice at a location that is specified in the invitation for bids. The invitation for bids and the posted notice must contain a statement of the bidder's right to protest pursuant to Section 11-35-4210(1) and the date and location of posting must be announced at bid opening. In addition to posting notice, the using agency promptly shall send all responsive bidders a copy of the notice of intended award and of the bid tabulation. The mailed notice must indicate the posting date and must contain a statement of the bidder's right to protest pursuant to Section 11-35-4210(1).

   After ten days' notice is given, the using agency may enter into a contract with the bidder named in the notice in accordance with the provisions of this code and of the bid solicited. The procurement officer must comply with Section 11-35-1810.

   If, at bid opening, only one bid is received and determined to be responsive and responsible and within the agency's construction budget, award may be made without the ten-day waiting period.

4. (d) Negotiations after Unsuccessful Competitive Sealed Bidding. Instead of Section 11-35-1540, the following provisions apply:

   1. (1) When bids received pursuant to an invitation for bids exceed available funds, and it is determined in writing by the agency that circumstances do not permit the delay required to resolicit competitive sealed bids, and the base bid, less any deductive alternates, does not exceed available funds by an amount greater than ten percent of the construction budget established for that portion of the work, a contract may be negotiated pursuant to this section with the lowest responsible and responsive bidder. The using agency may change the scope of the work to reduce the cost to be within the established construction budget but may not reduce the cost below the established construction budget more than ten percent without a written request by the agency and the written approval of the chief procurement officer based on the best interest of the State.
   2. (2) When the lowest base bid received pursuant to an invitation for bids exceeds approved available funds and the using agency is able to identify additional funds for the project, as certified by the appropriate fiscal officers, in the amount of the difference between the lowest base bid and the approved available funds for the project, the using agency shall submit its request to use such additional funds to the board and the Joint Bond Review Committee in accordance with Sections 2-47-40 and 2-47-50.