Bill Text: HI SB2928 | 2012 | Regular Session | Introduced

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Bill Title: Procurement; Competitive Sealed Proposals; Small Purchases; Remedies

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2012-01-27 - (S) Referred to PGM/CPN, WAM. [SB2928 Detail]

Download: Hawaii-2012-SB2928-Introduced.html

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THE SENATE	S.B. NO.	2928
TWENTY-SIXTH LEGISLATURE, 2012
STATE OF HAWAII

A BILL FOR AN ACT

 

 

relating to Procurement.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 

     SECTION 1.  Section 103D-303, Hawaii Revised Statutes, is amended by amending subsection (f) to read as follows:

     "(f)  [Discussions may be conducted with responsible offerors who submit proposals determined to be reasonably likely to be selected for a contract award for the purpose of clarification to assure full understanding of, and responsiveness to, the solicitation requirements.] For purposes of evaluation, when provided for in the request for proposals, the contracting agency may:

     (1)  Make an award or awards based solely on the ranking of proposals;

     (2)  Establish a priority list of offerors for the purpose of conducting discussions or negotiations;

     (3)  Conduct discussions with offerors on a priority list established pursuant to paragraph (2) to assure full understanding and evaluation of the solicitation requirements.  Offerors shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals, and revisions may be permitted after submissions and prior to award for the purpose of obtaining best and final offers.  In conducting discussions, there shall be no disclosure of any information derived from proposals submitted by competing [offerors.] offerors;

     (4)  Conduct serial negotiations with offerors on a priority list established pursuant to paragraph (2), beginning with the highest-ranked offeror; and

     (5)  Conduct competitive simultaneous negotiations with offerors on a priority list established pursuant to paragraph (2);

provided that in conducting serial or competitive simultaneous negotiations, the contracting agency shall not disclose to an offeror the substance of negotiations with or the proposal of any competing offeror unless, before the disclosure, the contracting agency notifies all offerors with whom the contracting agency will engage in negotiations of the contracting agency's intent to disclose such information."

     SECTION 2.  Section 103D-305, Hawaii Revised Statutes, is amended to read as follows:

     "§103D-305  Small purchases; prohibition against parceling.  (a)  Procurements of less than $100,000 for goods or services, or $250,000 for construction shall be made in accordance with procedures set forth in rules adopted by the policy board that are designed to ensure administrative simplicity and as much competition as is practicable; provided that multiple expenditures shall not be created at the inception of a transaction or project so as to evade the requirements of this chapter; and provided further that procurement requirements shall not be artificially divided or parceled so as to constitute a small purchase under this section.

     (b)  Procurements of greater than $50,000 for construction under subsection (a) shall require security by a performance bond delivered to the purchasing agency that is:

     (1)  In a form prescribed by the rules of the policy board;

     (2)  Executed by a surety company authorized to do business in this State; and

     (3)  In an amount equal to one hundred per cent of the price specified in the contract,

or shall otherwise be secured by a performance bond in a manner satisfactory to the purchasing agency.

     (c)  Procurements of $25,000 to less than $100,000 shall be made in accordance with small purchase procedures; provided that small purchase procurements through an electronic system shall be required after the policy board has adopted rules for electronic procurement and provided training to the affected agency.

     (d)  Procurements of goods or services not exceeding $5,000 may be awarded in any manner deemed practical or convenient by the contracting agency, including by direct selection or award; provided that this subsection shall not apply to:

     (1)  Procurements for construction, which shall be subject to rules adopted by the policy board; and

     (2)  Procurements for goods or services included on mandatory state procurement office price or vendor lists, price schedules, or other lists and schedules, if use of the list or schedule is required by the chief procurement officer."

     SECTION 3.  Section 103D-701, Hawaii Revised Statutes, is amended to read as follows:

     "§103D-701  Authority to resolve protested solicitations and awards.  (a)  Any actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation or award of a contract may protest to the chief procurement officer or a designee as specified in the solicitation[.], except as provided in subsection (b); provided that the protest shall be submitted in writing to the board established pursuant to subsection (b) within five working days after the aggrieved person knows or should have known of the facts giving rise thereto, or in any event within five working days after the posting of award of the contract under section 103D-302 or 103D‑303; provided further that the party initiating the protest by submitting the protest to the board shall pay to the department of commerce and consumer affairs a cash or protest bond equivalent to fifteen per cent of the estimated value of the contract. 

     If the initiating party prevails in the procurement protest, the cash or protest bond shall be returned to that party.  If the initiating party does not prevail in the procurement protest, the cash or protest bond shall be deposited in the general fund.

     (b)  There is established within the state procurement office a procurement protest board for the purposes of determining whether or not a protest is frivolous.  The board shall be composed of eleven members appointed by the governor as provided in section 26-34.  The members of the board shall serve without compensation but shall be reimbursed for expenses, including travel expenses, necessary for the performance of their duties.  The members shall choose a chair from among them, and the chair shall designate three members of the board to preside over each protest submitted to the board.  The board, through the panel composed of three members, shall determine in writing within five working days after a protest is submitted to the board whether or not the protest is frivolous.  If the board determines that a protest is frivolous, the aggrieved person shall not be entitled to protest to the chief procurement officer or a designee.

     (c)  Except as provided in sections 103D-303 and 103D-304, a protest shall be submitted in writing within five working days after [the aggrieved person knows or should have known of the facts giving rise thereto; provided that a protest of an award or proposed award shall in any event be submitted in writing within five working days after the posting of award of the contract under section 103D-302 or 103D-303, if no request for debriefing has been made, as applicable; provided further that no protest based upon the content of the solicitation shall be considered unless it is submitted in writing prior to the date set for the receipt of offers.] a determination by the procurement protest board that the protest is not frivolous.

     [(b)] (d)  The chief procurement officer or a designee, prior to the commencement of an administrative proceeding under section 103D-709 or an action in court pursuant to section 103D‑710, may settle and resolve a protest concerning the solicitation or award of a contract.  This authority shall be exercised in accordance with rules adopted by the policy board.

     [(c)] (e)  If the protest is not resolved by mutual agreement, the chief procurement officer or a designee shall promptly issue a decision in writing to uphold or deny the protest.  The decision shall:

     (1)  State the reasons for the action taken; and

     (2)  Inform the protestor of the protestor's right to an administrative proceeding as provided in this part, if applicable.

     [(d)] (f)  A copy of the decision under subsection [(c)] (e) shall be mailed or otherwise furnished immediately to the protestor and any other party intervening.

     [(e)] (g)  A decision under subsection [(c)] (e) shall be final and conclusive, unless any person adversely affected by the decision commences an administrative proceeding under section 103D-709.

     [(f)] (h)  In the event of a timely protest under subsection [(a),] (c), no further action shall be taken on the solicitation or the award of the contract until the chief procurement officer makes a written determination that the award of the contract without delay is necessary to protect substantial interests of the State.

     [(g)] (i)  In addition to any other relief, when a protest is sustained and the protestor should have been awarded the contract under the solicitation but is not, then the protestor shall be entitled to the actual costs reasonably incurred in connection with the solicitation, including bid or proposal preparation costs but not attorney's fees.

     (j)  As used in this section, "estimated value of the contract" means the lowest responsible and responsive bid under section 103D-302, or the bid amount of the responsible offeror whose proposal is determined in writing to be the most advantageous under section 103D-303, as applicable."

     SECTION 4.  No later than twenty days prior to the convening of each regular session of the legislature, the administrator of the state procurement office, in consultation with the director of commerce and consumer affairs, shall report to the comptroller all protests filed pursuant to chapter 103D, part VII, Hawaii Revised Statutes, during the preceding calendar year, including the disposition of the protests and the lapsing of any funds appropriated by the legislature for a program expenditure as a result of a protest.

     SECTION 5.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 6.  This Act shall take effect upon its approval.

 

INTRODUCED BY:	_____________________________

 

 

Report Title:

Procurement; Competitive Sealed Proposals; Small Purchases; Remedies

 

Description:

Authorizes a contracting agency procuring goods, services, or construction using competitive sealed proposals to award a contract based solely on the ranking of offerors, to establish a priority list for the purpose of conducting discussions and negotiations, and to conduct discussions or negotiations.  Authorizes a contracting agency to procure goods or services not exceeding $5,000 in any manner deemed practical by the contracting agency, with certain exceptions.  Creates a board within the state procurement office to determine whether a procurement protest is frivolous.  If a protest is found frivolous by the board, prohibits the aggrieved person from submitting the protest to the chief procurement officer or designee.  Requires an aggrieved party to pay DCCA a cash or protest bond equivalent to 15% of the estimated value of the contract to submit a protest.  Requires the administrator of the state procurement office, in consultation with the director of commerce and consumer affairs, to annually report to the comptroller all procurement protests filed in the preceding calendar year.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.