BEFORE THE DEPARTMENT OF TRANSPORTATION

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 18.4.110, 18.4.111, and 18.4.112 and the repeal of ARM 18.4.101, 18.4.113, 18.4.114, and 18.4.115 pertaining to electronic submission of transportation construction bids

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NOTICE OF PROPOSED AMENDMENT AND REPEAL   NO PUBLIC HEARING CONTEMPLATED

 

TO: All Concerned Persons

 

1. On July 8, 2018, the Department of Transportation proposes to amend and repeal the above-stated rules.

 

2. The Department of Transportation will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact Department of Transportation no later than 5:00 p.m. on June 29, 2018, to advise us of the nature of the accommodation that you need. Please contact Jake Goettle, Department of Transportation, Engineering Construction Contracting Bureau, P.O. Box 201001, Helena, Montana, 59620-1001; telephone (406) 444-6015; fax (406) 444-2486; TTY Service (406) 444-7696 or (800) 335-7592; or e-mail jgoettle@mt.gov.

 

3. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

            18.4.110 DEFINITIONS For the purposes of this subchapter, and unless the context expressly indicates otherwise:

            (1) "Asymmetric cryptosystem" means a computer algorithm or series of algorithms which utilize two different keys with the following characteristics:

            (a) one key signs a given message;

            (b) one key verifies a given message; and

            (c) the keys have the property that, knowing one key, it is computationally infeasible to discover the other key.

            (2) "Certificate" means an electronic record that:

            (a) identifies the certification authority issuing it;

            (b) identifies its subscriber;

            (c) contains a public key that corresponds to a private key under the control of the subscriber;

            (d) specifies its operational period; and

            (e) is digitally signed by the certification authority issuing it.

            (3) "Certification authority" means a person or entity that issues a certificate, or in the case of certain certification processes, certifies amendments to an existing certificate.

            (4)  (1)  "Department" means the Montana Department of Transportation.

            (5) "Digital signature" means a type of electronic signature that encrypts a record by using a cryptosystem in a manner that a person who has the unencrypted record, the encrypted record, and the signer's key can accurately determine:

            (a) whether the encryption of the record to an electronic record was created using the private key that corresponds to the signer's public key; and

            (b) whether the record has been altered since the record was encrypted into an electronic record.

            (6) "Digitally signed communication" is a message that has been processed by a computer in such a manner that legally ties the message to the individual that signed the message.

            (7) "Identification" means the document or documents presented to a certification authority to establish the identity of a subscriber.

            (8) "Key" means a password or table used to decipher encrypted electronic data.

            (9) "Key pair" means a private key and its corresponding public key in a cryptosystem, as part of which the public key verifies the signature made by the private key.

            (10) "Message" means a digital representation of information intended to serve as a written communication with the department.

            (11) "Person" means a human being or any organization capable of signing a document, either legally or as a matter of fact.

            (12) "Practice statement" means documentation of the practices, procedures and controls employed by a certification authority.

            (13) "Private key" is a key of a key pair used to create a digital signature.

            (14) "Public key" is the key of a key pair used to verify a digital signature.

            (15) "Record" includes any paper, correspondence, form, book, photograph, microfilm, map, drawing, or other document, including a copy of any of them, that has been made or received by a state agency in connection with the transaction of the official business of that entity and all other documents required by law to be filed with or kept by that agency.

            (16) "Proof of identification" means the document or documents presented to a certification authority to establish the identity of a subscriber.

            (17) "Signer" means the person who signs a digitally acceptable technology to uniquely link the message with the person sending it.

            (18) "State agency" means a department, board, commission, authority, or other governmental entity of the executive branch of state government, including the Montana university system.

            (19) "Subscriber" means a person holding a private key that corresponds to a public key listed or identified in a certificate and who is the person to whom digitally signed records verified by reference to the certificate are to be attributed.

            (20) "Technology" means the computer infrastructure hardware and/or software-based method or process used to create digital signatures. 

            (21) "Verify a digital signature" means to use the public key listed in a valid certificate, by means of a security procedure, to evaluate a digitally signed electronic record so that the evaluation concluded that:

            (a) the digital signature was created using the private key corresponding to the public key listed in the certificate; and

            (b) the electronic record has not been altered since its digital signature was created.

            (2)  "Electronic bid submission" means a bid submitted via an electronic process established by the department by which bidders submit proposals or bids for contracts using a secure bid service provider selected by the department.

 

AUTH:  30-18-118, 60-2-201, MCA

IMP:  30-18-104, 30-18-107, 30-18-109, 30-18-113, 30-18-114, 30-18-116, 30-18-117, 60-2-112, 60-2-113, 60-2-114, 60-2-201, MCA

 

REASON: The proposed amendments to ARM 18.4.110 are necessary to eliminate definitions of archaic terms that are no longer used throughout the administrative rules. The proposed amendment to (2) will add a definition of electronic bid submission as the term is used in the following proposed rule amendments.  The proposed amendments to the authorizing and implementation statutory citations will add citations to the department's rule-making authority and statutes being implemented under Title 60, chapter 2, MCA.

 

            18.4.111 SUBMISSION OF TRANSPORTATION CONSTRUCTION BID 

            (1) Any person may, but is not required to, Except as stated in (4), a person must submit a transportation construction bid to the department using a message and digitally signed communication so long as such bid conforms to the rules contained in this subchapter and any other applicable laws, rules and policies an electronic bid and the electronic bid submission process established by the department.

            (2) The bid must be received by submitted to the department by the date and time specified in the notice of bid or other similar document.

            (3) The bidder is solely responsible for ensuring the message and digitally signed communication are received by the department by the due date and time.

            (4) Any person availing itself of these rules in order to submit a transportation construction bid agrees to all of the provisions of these rules.

            (3) Technical difficulties in accessing or posting to the department's bid service do not excuse late electronic bid submission.

            (4) The department may accept a non-electronic bid submission for specific projects as designated in the notice of bid or contract special provisions.  The bidder is solely responsible for ensuring a non-electronic bid submission is received by the department by the due date and time.

 

AUTH: 30-18-118, 60-2-201, MCA

IMP:  30-18-104, 30-18-107, 30-18-109, 30-18-113, 30-18-114, 30-18-116, 30-18-117, 60-2-112, 60-2-113, 60-2-114, 60-2-201, MCA

 

REASON: The proposed amendment is necessary to implement a mandatory electronic bid submission process for all construction bids within the department's Engineering Division. An optional electronic bid submission process has been in place since 2004 and is now widely used by bidders to submit bids via the internet and the department's service provider Bid Express™. This process will remain the same but will be expanded to become mandatory for all bidders.  The proposed amendment will also create an exception to allow non-electronic bid submissions for a small number of contracts through special provisions. The proposed amendment will also delete unnecessary and archaic language from the rule.  The proposed amendments to the authorizing and implementation statutory citations will add citations to the department's rule-making authority and statutes being implemented under Title 60, chapter 2, MCA.

 

            18.4.112 ELECTRONICALLY TRANSMITTED BID ELECTRONIC BID SUBMISSION (1) In order for an electronically transmitted electronic bid to be deemed properly submitted, the message bid must, at a minimum, contain the following: all information required in the bid package and a digital signature.

            (a) name and address of the bidder;

            (b) name and appropriate designation of the project being bid upon;

            (c) all items required in the notice of bid; and

            (d) the digitally signed communication of the person bidding.

            (2) Any bidder wishing to bid by electronic transmission must be preapproved in writing to do so by the department.

            (3) The electronically transmitted bid must be submitted using an acceptable technology as set forth in ARM 18.4.113.

            (2) A bidder must be authorized by the department before submission of electronic bids.

            (3) A bidder must use the secure electronic bid service selected by the department.

 

AUTH:  30-18-118, 60-2-201, MCA

IMP:  30-18-104, 30-18-107, 30-18-109, 30-18-113, 30-18-114, 30-18-116, 30-18-117, 60-2-112, 60-2-113, 60-2-114, 60-2-201, MCA

 

REASON: The proposed amendment is necessary to delete unnecessary and archaic language from the rule. The proposed amendment will also add updated language describing the electronic bid submission process which has been in use by the department since 2004 but will now become mandatory for use by all bidders.  The proposed amendments to the authorizing and implementation statutory citations will add citations to the department's rule-making authority and statutes being implemented under Title 60, chapter 2, MCA.

 

4. The department proposes to repeal the following rules:

 

            18.4.101 ADMINISTRATION OF ENGINEERING DIVISION RULES

 

AUTH: 2-4-103, 2-4-201, 2-4-202, MCA

IMP:  2-4-103, 2-4-201, 2-4-202, MCA

 

REASON: The department's biennial rule review identified this rule for repeal to remove outdated, archaic language that is no longer used by the department.

 

18.4.113 ACCEPTABLE TECHNOLOGY

 

AUTH: 30-18-118, MCA

IMP:  30-18-104, 30-18-107, 30-18-109, 30-18-113, 30-18-114, 30-18-116, 30-18-117, MCA

 

REASON: The department's biennial rule review identified this rule for repeal to remove outdated, archaic language that is no longer used by the department.

 

            18.4.114 PRIVATE AND PUBLIC KEYS

 

AUTH: 30-18-118, MCA

IMP:  30-18-104, 30-18-107, 30-18-109, 30-18-113, 30-18-114, 30-18-116, 30-18-117, MCA

 

REASON: The department's biennial rule review identified this rule for repeal to remove outdated, archaic language that is no longer used by the department.

 

            18.4.115 VERIFICATION

 

AUTH: 30-18-118, MCA

IMP:  30-18-104, 30-18-107, 30-18-109, 30-18-113, 30-18-114, 30-18-116, 30-18-117, MCA

 

REASON: The department's biennial rule review identified this rule for repeal to remove outdated, archaic language that is no longer used by the department.

 

5. Concerned persons may submit their data, views, or arguments concerning the proposed actions in writing to: Jake Goettle, Department of Transportation, Engineering Construction Contracting Bureau, P.O. Box 201001, Helena, Montana, 59620-1001; telephone (406) 444-6015; fax (406) 444-2486; TTY Service (406) 444-7696 or (800) 335-7592; or e-mail jgoettle@mt.gov, and must be received no later than 5:00 p.m., July 6, 2018.

 

6. If persons who are directly affected by the proposed actions wish to express their data, views, or arguments orally or in writing at a public hearing, they must make written request for a hearing and submit this request along with any written comments to Jake Goettle at the above address no later than 5:00 p.m., July 6, 2018.

 

7. If the agency receives requests for a public hearing on the proposed action from either 10 percent or 25, whichever is less, of the persons directly affected by the proposed action; from the appropriate administrative rule review committee of the Legislature; from a governmental subdivision or agency; or from an association having not less than 25 members who will be directly affected, a hearing will be held at a later date. Notice of the hearing will be published in the Montana Administrative Register. Ten percent of those directly affected has been determined to be 7 persons based upon the 73 contractors who submitted bids in 2017.

 

8. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in paragraph 5 above or may be made by completing a request form at any rules hearing held by the department.

 

9. An electronic copy of this proposal notice is available on the Department of Transportation website at www.mdt.mt.gov.

 

10. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

11. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment and repeal of the above-referenced rules will not significantly and directly impact small businesses.

 

12. With regard to the requirements of 2-15-142, MCA, the department has determined that the amendment and repeal of the above-referenced rules will not have direct tribal implications.

 

 

/s/ Carol Grell Morris                                   /s/ Pat Wise             

Carol Grell Morris                                        Pat Wise

Rule Reviewer                                             Deputy Director

                                                                     Department of Transportation

 

Certified to the Secretary of State May 29, 2018.