15-1-113. Contracts for public improvements.

(a) All contracts for any type of public improvement, excluding contracts for professional services or where the primary purpose is emergency work or maintenance, for any city or town or joint powers board wherein at least one (1) member is a municipality shall be advertised for bid or for response if a request for proposal or qualification for construction manager agent, construction manager at risk or design-builder is used, if the estimated cost, including all related costs, exceeds a bid threshold of thirty-five thousand dollars ($35,000.00), except that a contract for the purchase or lease of a new automobile or truck shall be advertised regardless of cost and if there is an automobile or truck for trade-in, it shall be included as a part of the advertisement and bid. The requirements of W.S. 15-1-112(a) do not apply to any city or town trading in an automobile or truck on the purchase of a new automobile or truck.

(b) The advertisement shall be published on two (2) different occasions, at least seven (7) days apart, in a newspaper having general circulation in the city or town, or if a joint powers board in any city or town which is a member of the board. The published notice shall state the place, date and time when the bids or proposals will be received and bids will be publicly opened and the place where interested persons may obtain complete specifications of work to be performed.

(c) If the contract is let for bid, the contract shall be let to the lowest bidder who shall be determined qualified and responsible in the sole discretion of the governing body. The governing body may use alternate design and construction delivery methods as defined under W.S. 16-6-701 if deemed appropriate. The governing body may reject all bids or responses submitted if it finds that none of them would serve the public interest. For contracts in excess of five hundred thousand dollars ($500,000.00), cities, towns and joint powers boards may prequalify contractors who wish to submit bids or responses based on such criteria as the project type and experience, expertise, professional qualifications, past performance, staff proposed, schedule proposed, financial strength, qualification of supervisors proposed to be used, technical solutions proposed or references.

(d) Every contract shall be executed by the mayor or in his absence or disability, by the president or other presiding officer of the governing body and by the clerk or designee of the governing body. The successful bidder or respondent shall furnish to the city, town or joint powers board a bond as specified in the advertisement, or if the contract price is one hundred fifty thousand dollars ($150,000.00) or less, any other form of financial guarantee satisfactory to the city, town or joint powers board. The bond or other form of financial guarantee shall meet the requirements of W.S. 16-6-112.

(e) Before advertising for a bid for any work on the construction of any public improvements and except as provided under W.S. 16-6-707 for alternate design and construction delivery methods, detailed plans and specifications shall be prepared, together with an estimate of the probable cost and a form of the proposed contract. Except as provided under W.S. 16-6-701 through 16-6-706, no contract may provide for the monthly retention of more than ten percent (10%) of the contract price on the amount of work done during the month, as shown by the estimate of the city or town engineer or designated local official. No progress payment may be made until the city or town engineer or designated local official has furnished the estimate, together with a certificate that the amount of work estimated to have been done conforms in all material respects with the requirements of the contract. A joint powers board may designate an official of any member city or town to perform the functions required by this subsection.

(f) In advertising for any bid, the forms of guarantee required under this section and approved by the city, town or joint powers board shall be specified. In addition, bidders shall be required to accompany each bid with a bid bond or if the bid is one hundred fifty thousand dollars ($150,000.00) or less, any other form of bid guarantee approved by the city, town or joint powers board, equal to at least five percent (5%) of the total bid amount, with sufficient surety and payable to the city, town or joint powers board. The bid guarantee shall be forfeited as liquidated damages if the bidder, upon the letting of the contract to him, fails to enter into the contract within thirty (30) days after it is presented to him for that purpose or fails to proceed with the performance of the contract. The bid guarantee shall be retained by the city, town or joint powers board until proper bond or other form of security satisfactory to the city, town or joint powers board to secure performance of the contract has been filed and approved. The right to reject any bid is reserved in all bid advertisements. All bids shall be numbered consecutively before they are opened and no further bids may be received after the advertised time of opening bids and any bid is publicly opened. The city, town or joint powers board shall give all persons who desire an opportunity to inspect all bids when they are opened. No bid may be considered unless accompanied by a bid guarantee in the required amount.

(g) No contract for which a bond or other form of financial guarantee approved by the city, town or joint powers board is required may be assigned or transferred in any manner except by operation of law or consent of the governing body endorsed on the contract. Assignment by any other means renders the contract null and void as to any further performance by the contractor or the assignee, without any act on the part of the city, town or joint powers board. The city, town or joint powers board may at once proceed to relet the contract or may at its discretion proceed to complete the contract as agent at the expense of the contractor and his sureties.

(h) Before any contractor or his representative receives a final payment on any contract for which a bond or other financial guarantee is required, the city, town or joint powers board shall publish in a newspaper of general circulation in the city or town, or in the case of a joint powers board in any member city or town, at least ten (10) days prior to the final payment, a notice to the effect that persons having claims for labor and material furnished the contractor shall present them to the city, town or joint powers board prior to the date specified for payment.

(j) Any officer or employee of the city, town or joint powers board who aids any bidder or respondent in securing a contract to furnish labor, material or supplies at a higher or lower price than that proposed by any other bidder or respondent, or who favors one bidder or respondent over another by giving or withholding information, or who willfully misleads any bidder or respondent in regard to the character of the material or supplies called for, or who knowingly certifies to a greater amount or different kind of material or supplies than has been actually received, is guilty of malfeasance, which renders his office vacant.

(k) If an officer or employee is charged under subsection (j) of this section:

(i) The officer or employee:

(A) Is entitled to a hearing before the governing body;

(B) Shall be served a copy of the charge at least ten (10) working days before the hearing;

(C) May present a defense in person or by counsel; and

(D) May have the finding of the governing body appealed to the district court.

(ii) The governing body of the city, town or joint powers board shall hold a hearing on its own motion or when the charge is signed by at least ten (10) qualified electors of the city or town, or in the case of a joint powers board ten (10) qualified electors of any member city or town and:

(A) May compel attendance and testimony of witnesses and production of papers;

(B) Shall make findings of fact and conclusions of law; and

(C) Shall render a conclusive decision upon a majority vote of the governing body.

(m) Any officer or employee of the city, town or joint powers board found guilty of malfeasance with regard to a contract shall be punished by a fine of not more than one thousand dollars ($1,000.00).

(n) If any person to whom a contract has been awarded has colluded with any person to prevent any other competing bids being made, or has entered into an agreement by which he has made a higher or lower bid than some other person for the purpose of dividing the contract or profits therefrom between two (2) or more bidders, the contract is null and void, and the mayor or manager or joint powers board shall advertise for new bids or upon approval of the governing body provide for the work to be done under the mayor's, manager's or board's own supervision and control.

(o) Any contract made in violation of the provisions of this section is void, and any money paid on account of the contract by the city, town or joint powers board may be recovered without restitution of the property or benefits received or retained.

(p) Every contract of the kind specified in this section shall contain a provision expressly referring to this section and making it a part of the contract.

(q) A public improvement shall not be divided into smaller units for the sole purpose of avoiding the advertising requirement of this section.

(r) For purposes of this section "related costs" includes, but are not limited to, labor, labor burden, materials, transportation, storage, equipment, associated overhead and associated depreciation.

(s) As used in this section, a contract for public improvement shall not include an arrangement in which a municipality can accomplish an energy or water efficiency project without upfront capital costs or capital appropriations by compensating an energy or water efficiency contractor over time from guaranteed savings in energy or water costs that result from the project.