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S1025......................................................by STATE AFFAIRS PURCHASING - STATE - Amends existing law to revise the state procurement statutes to permit certain notices and solicitations to be posted electronically; to permit bids to be submitted electronically; to remove the vendor registration requirement; and to allow vendors to register online to be notified of bid opportunities. 01/18 Senate intro - 1st rdg - to printing 01/19 Rpt prt - to St Aff 02/01 Rpt out - rec d/p - to 2nd rdg 02/02 2nd rdg - to 3rd rdg 02/06 3rd rdg - PASSED - 33-0-1(1 vacant) AYES -- Andreason, Boatright, Branch(Bartlett), Brandt, Bunderson, Burtenshaw, Cameron, Danielson, Darrington, Davis, Deide, Dunklin, Frasure, Geddes, Goedde, Hawkins, Ingram, Ipsen, Keough, King-Barrutia, Lee, Lodge, Noh, Richardson, Sandy, Schroeder, Sorensen, Stegner, Stennett, Thorne, Wheeler, Whitworth, Williams, NAYS -- None Absent and excused -- Risch Vacant -- Dist. #4 Floor Sponsor -- Richardson Title apvd - to House 02/07 House intro - 1st rdg - to St Aff 02/16 Rpt out - rec d/p - to 2nd rdg 02/19 2nd rdg - to 3rd rdg 02/22 3rd rdg - PASSED - 61-0-9 AYES -- Barraclough, Barrett, Bedke, Bell, Bieter, Black, Bolz, Bradford, Bruneel, Callister, Campbell, Chase, Clark, Collins, Crow, Cuddy, Deal, Denney, Ellis, Ellsworth, Eskridge, Field(13), Field(20), Hadley, Harwood, Henbest, Higgins, Hornbeck, Jaquet, Jones, Kellogg, Kendell, Kunz, Lake, Langford, Loertscher, Mader, Marley, McKague, Meyer, Mortensen, Moss, Moyle, Pearce, Pischner, Pomeroy, Raybould, Roberts, Robison, Sali, Schaefer, Sellman, Shepherd, Smith, Smylie, Stevenson, Stone, Tilman, Trail, Wheeler, Young NAYS -- None Absent and excused -- Boe, Gagner, Gould, Hammond, Montgomery, Ridinger, Swan, Wood, Mr. Speaker Floor Sponsor -- Smylie Title apvd - to Senate 02/23 To enrol 02/26 Rpt enrol - Pres signed 02/27 Sp signed 02/28 To Governor 03/06 Governor signed Session Law Chapter 36 Effective: 07/01/01
|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-sixth Legislature First Regular Session - 2001IN THE SENATE SENATE BILL NO. 1025 BY STATE AFFAIRS COMMITTEE 1 AN ACT 2 RELATING TO THE DIVISION OF PURCHASING; AMENDING SECTION 67-5716, IDAHO CODE, 3 TO REVISE DEFINITIONS AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 4 67-5717, IDAHO CODE, TO REVISE POWERS AND DUTIES OF THE ADMINISTRATOR OF 5 THE DIVISION OF PURCHASING AND TO MAKE A TECHNICAL CORRECTION; AMENDING 6 SECTION 67-5718, IDAHO CODE, TO REVISE PROCEDURES FOR REQUISITIONS FOR 7 PROPERTY; AMENDING SECTION 67-5718A, IDAHO CODE, TO DELETE REFERENCE TO 8 AND DEFINITIONS RELATED TO INFORMATION TECHNOLOGY, TO PROVIDE THAT THE 9 ADMINISTRATOR MAY AWARD MULTIPLE CONTRACTS UNDER SPECIFIED CRITERIA AND TO 10 MAKE A TECHNICAL CORRECTION; AMENDING SECTION 67-5720, IDAHO CODE, TO PRO- 11 VIDE PROCEDURES FOR ACQUISITION OF PROPERTY IN THE OPEN MARKET, TO PROVIDE 12 FOR EMERGENCY PURCHASES AND TO REVISE NOTICE REQUIREMENTS; AMENDING SEC- 13 TION 67-5722, IDAHO CODE, TO DELETE REFERENCE TO REGISTERED VENDORS; 14 AMENDING SECTION 67-5726, IDAHO CODE, TO DELETE REFERENCE TO REGISTERED 15 VENDORS AND TO MAKE A GRAMMATICAL CORRECTION; AMENDING SECTION 67-5727A, 16 IDAHO CODE, TO DELETE REFERENCE TO REGISTERED VENDORS AND TO MAKE A TECH- 17 NICAL CORRECTION; AMENDING SECTION 67-5729, IDAHO CODE, TO DELETE REFER- 18 ENCE TO REGISTERED VENDORS AND TO PROVIDE TECHNICAL CORRECTIONS; AMENDING 19 SECTION 67-5730, IDAHO CODE, TO REVISE PROCEDURES PROVIDING FOR A QUALI- 20 FIED VENDOR, TO PROVIDE CRITERIA FOR HOW A VENDOR MAY BE DISQUALIFIED, TO 21 DELETE THE REQUIREMENT OF AND REFERENCE TO A REGISTERED VENDOR AND TO MAKE 22 A TECHNICAL CORRECTION; AMENDING SECTION 67-5732, IDAHO CODE, TO PROVIDE 23 FOR RULES ADDRESSING SPECIFICATIONS DEVELOPMENT, PERFORMANCE TESTING AND 24 SUBMISSION AND EVALUATION OF BIDS; AND AMENDING SECTION 67-5733, IDAHO 25 CODE, TO REVISE THE APPEALS PROCESS. 26 Be It Enacted by the Legislature of the State of Idaho: 27 SECTION 1. That Section 67-5716, Idaho Code, be, and the same is hereby 28 amended to read as follows: 29 67-5716. DEFINITIONS OF TERMS. (1) Acquisition. The process of procuring 30 or purchasing property by the state of Idaho. 31 (2) Procurement. Obtaining property for state use by lease, rent, or any 32 manner other than by purchase or gift. 33 (3) Property. Goods, services, parts, supplies and equipment, both tangi- 34 ble and intangible, including, but nonexclusively, designs, plans, programs, 35 systems, techniques and any rights and interests in such property. 36 (4) Goods. Items of personal property, not qualifying as equipment, parts 37 or supplies. 38 (5) Services. Personal services, in excess of personnel regularly 39 employed for whatever duration and/or covered by personnel system standards, 40 for which bidding is not prohibited or made impractical by statute, rules or 41 generally accepted ethical practices. 42 (6) Parts. Items of personal property acquired for repair or replacement 43 of unserviceable existing items. 2 1 (7) Supplies. Items of personal property having an expendable quality or 2 duringitstheir normal useisare consumed and which requiresor suggests3 acquisition in bulk. 4 (8) Equipment. Items of personal property which have a normal useful life 5 expectancy of two (2) or more years. 6 (9) Component. An item of property normally assembled with other items 7 into a unified productive whole at the site of use, which items belong to 8 functional classes that may be interchangeable units of similar function but 9 differing operational or productive capabilities. 10 (10) Vendor. A person or entity capable of supplying property to the 11 state. 12 (11) Bidder. Aregisteredvendor who has submitted a bid on a specific 13 item or items of property to be acquired by the state. 14 (12) Lowest responsible bidder. The responsible bidder whose bid reflects 15 the lowest acquisition price to be paid by the state; except that when speci- 16 fications are valued or comparative performance examinations are conducted, 17 the results of such examinations and the relative score of valued specifica- 18 tions will be weighed, as set out in the specifications, in determining the 19 lowest acquisition price. 20 (13) Contractor. A bidder who has been awarded an acquisition contract. 21 (14)Registered vendor. A qualified vendor registered with the administra-22tor of thedivision of purchasing.23(15)Agency. All officers, departments, divisions, bureaus, boards, com- 24 missions and institutions of the state, including the public utilities commis- 25 sion, but excluding other legislative and judicial branches of government, and 26 excluding the governor, the lieutenant governor, the secretary of state, the 27 state controller, the state treasurer, the attorney general, and the superin- 28 tendent of public instruction. 29 (165) Bid. A written offer to perform a contract to purchase or supply 30 property or services in response to an invitation for bid or request for pro- 31 posal. 32 (176) Recyclable. Materials that still have useful physical, chemical or 33 biological properties after serving their original purposes and can, there- 34 fore, be reasonably reused or recycled for the same or other purposes. 35 (187) Recycled-content product. A product containing postconsumer waste 36 and/or secondary waste as defined in this section. 37 (198) Postconsumer waste. A finished material which would normally be dis- 38 posed of as a solid waste, having completed its life cycle as a consumer item. 39 (2019) Secondary waste. Fragments of products or finished products of a 40 manufacturing process, which has converted a virgin resource into a commodity 41 of real economic value and may include a postconsumer waste. 42 SECTION 2. That Section 67-5717, Idaho Code, be, and the same is hereby 43 amended to read as follows: 44 67-5717. POWERS AND DUTIES OF THE ADMINISTRATOR OF THE DIVISION OF PUR- 45 CHASING. The administrator of the division of purchasing: 46 (1) Shall acquire, according to the provisions of this chapter, all prop- 47 erty for state agencies; 48 (2) Shall acquire all property, unless excepted, by competitive bid, and 49 shall specifically require competitive bids for property to be rented, leased 50 or purchased through a deferred payment plan; 51 (3) Shall determine, based upon the requirements contained in the speci- 52 fication and matter relating to responsibility, the lowest responsible bidder 53 in all competitively bid acquisition contracts; 3 1 (4) Shall enter into all contracts and agreements, and any modifications 2 thereto, for the acquisition of any and all propertyinon behalf of and in 3 the name of the state; 4 (5) Shall, when economically feasible and practical, consolidate requisi- 5 tions and acquire property in amounts as large as can be efficiently managed 6 and controlled; 7 (6) May, in the evaluation of paper product bids, give those items that 8 meet the recycled content standards as specified by the administrator a five 9 percent (5%) purchasing preference. As such, those qualifying paper products 10 may be considered to cost five percent (5%) less when choosing the lowest 11 responsible bidder; 12 (7) May appoint a deputy, who shall have power to act for him and in his 13 place while absent, which deputy shall be bonded to the state of Idaho as pre- 14 scribed by chapter 8, title 59, Idaho Code; 15 (8) May require from any contractor the submission of a performance bond 16 for such sum as will, in the opinion of the administrator, guarantee the 17 faithful performance of such contract, and the amount and requirement therefor 18 shall be set out in the specifications; 19 (9) May enter into open contracts for the acquisition of property com- 20 monly used by the various agencies, based upon actual or estimated require- 21 ments; 22 Unless an acquiring agency can show a substantial difference between the 23 required capabilities and the capabilities provided by such property available 24 on open contract, all agencies must utilize such property available on such 25 contracts and failure to comply with this provision will subject the officers 26 responsible for the acquisition to the penalties set forth in this chapter; 27 (10) May enter into contracts, including leases and rentals, for periods 28 of time exceeding one (1) year provided that such contracts contain no penalty 29 to or restriction upon the state in the event cancellation is necessitated by 30 a lack of financing for any such contract or contracts; 31 (11) Is authorized and empowered to formulate rules in the conduct of the 32 office of the division of purchasing, subject to the approval of the director 33 of the department of administration; 34 (12) In accordance with established rules of the division, mayaccept com-35petitive sealed proposals andenter into negotiations for acquisitions;for36which competitive sealed bidding is not practicable or advantageous to the37state;38 (13) May inspect property delivered by a contractor to determine whether 39 it meets minimum bid specifications; 40 (14) May classify, after review with the various agencies, the require- 41 ments of the state for all property which may be acquired and adopt standards 42 of quality for property, and establish standard specifications for acquisi- 43 tion. Each standard specification shall, until revised or rescinded, apply 44 alike in terms and effect to each future acquisition of the classified prop- 45 erty. 46 SECTION 3. That Section 67-5718, Idaho Code, be, and the same is hereby 47 amended to read as follows: 48 67-5718. REQUISITIONS FOR PROPERTY -- NOTICE -- FORM -- GUARANTEE -- PRO- 49 CEDURE FOR BIDDING. (1) The administrator of the division of purchasing shall 50 not make or cause to be made any acquisition until a requisition for the prop- 51 erty to be acquired has beenfiled insubmitted to his office, and such requi-52sition must bear the certificate of the head of the agency making the requisi-53tionby the requisitioning agency, certifying to the satisfaction of the 4 1 administrator that there are proper funds or sufficient balance in appropria- 2 tions out of which the amount of the requisition may lawfully be paid, except 3 as provided to the contrary under provisions of this chapter allowing emer- 4 gency purchases. 5If the property to be acquired may reasonably be expected to cost in6excess of twenty-five thousand dollars ($25,000) if purchased, or one thousand7dollars ($1,000) per month if procured, there must be accompanying the requi-8sition a copy of the specifications proposed for use in the acquisition. Upon9receipt of the requisition, notice must be commenced within a reasonable10period of time and must allow not less than ten (10) days from notice to bid11opening date.12Provided, however, that in cases where the total value of the property to13be acquired is not in excess of twenty-five thousand dollars ($25,000) if pur-14chased, or one thousand dollars ($1,000) per month if procured, the adminis-15trator shall notify registered vendors in such manner as he deems appropriate.16To enhance small business bidding opportunities, the administrator shall seek17a minimum of three (3) bids from registered vendors having a significant Idaho18economic presence as defined in the Idaho Code. If he finds that it is imprac-19tical or impossible to obtain three (3) bids for the proposed transaction, he20may acquire the property in any manner he deems best. For any acquisition not21otherwise requiring specifications, the same may be required by rule drawn by22the administrator.23Provided further, however, that in connection with the award of any con-24tract for the placement of any order for state printing, binding, engraving or25stationery work, the provisions of sections 60-101 and 60-103, Idaho Code,26shall apply to the extent that the same may be inconsistent with any require-27ments contained in this section.28 (2) Notice shall besent to each registered vendor of the property to be29acquired, except that if there are more than ten (10) registered vendors for30the property to be acquired, the administrator of the division of purchasing31may, in his discretion, limit the notices sent to ten (10). Nothing shall pre-32vent all registered vendors from bidding on the property to be acquiredposted 33 of all acquisitions of property, unless otherwise excepted by rules of the 34 division. The notice may be posted electronically. The administrator shall 35 also cause all invitations to bid and requests for proposals to be posted man- 36 ually in a conspicuous place inhisthe office. The notice shall describe the 37 property to be acquired in sufficient detail to apprise a bidder of the exact 38 nature or functionality of the property required; and shallgive the time39when, and the place where, bids will be opened. The bid opening date shall be40set forth in the specifications. Each bid shall be in writing, sealed and41marked, "sealed bid for ...., to be opened ...., 19.." and shall be mailed or42delivered to the office of the administrator of the division of purchasing at43Boise, Idahoset forth the bid opening date, time and location. 44 (3) To enhance small business bidding opportunities, the administrator 45 shall seek a minimum of three (3) bids from vendors having a significant Idaho 46 economic presence as defined in section 67-2349, Idaho Code. 47 (4) All sealed bids received shall be opened at the time and place speci- 48 fied,in the invitation for bids,and in the public view, and a record of each 49 bid shall then and there be made. Contracts shall be awarded to and orders 50 placed with the lowest responsible bidder. If the competitive sealed proposal51method is used, award shall be made to the lowest responsible bidderon the 52 basis of initial proposals received or, if applicable, following receipt and 53 evaluation of best and final offers or negotiations. The administrator shall 54 have the right to reject any and all bids pursuant to rules established for 55 the division. 5 1 (5) Where both the bids and quality of property offered are the same, 2 preference shall be given to property of local and domestic production and 3 manufacture or from bidders having a significant Idaho economic presence as 4 defined in the Idaho Code. In connection with the award of any contract for 5 the placement of any order for state printing, binding, engraving or statio- 6 nery work, the provisions of sections 60-101 and 60-103, Idaho Code, shall 7 apply to the extent that the same may be inconsistent with any requirements 8 contained in this section. 9 (6) As used in this section, the word "sealed" does not preclude accep- 10 tance of electronically sealed and submitted bids in addition to bids manually 11 sealed and submitted. 12 SECTION 4. That Section 67-5718A, Idaho Code, be, and the same is hereby 13 amended to read as follows: 14 67-5718A. ACQUISITION OFINFORMATION TECHNOLOGYPROPERTY BY CONTRACT -- 15 AWARD TO MORE THAN ONE BIDDER -- STANDARDS FOR MULTIPLE AWARDS -- APPROVAL BY 16 ADMINISTRATOR. (1) Notwithstanding any provision of this chapter to the con- 17 trary, the administrator of the division of purchasing may make an award of a 18 contract to two (2) or more bidders to furnish the same or similarinformation19technologyproperty where more than one (1) contractor is necessary: 20 (a) To furnish the types of property and quantities required by state 21 agencies; 22 (b) To provide expeditious and cost-efficient acquisition of property for 23 state agencies; or 24 (c) To enable state agencies to acquire property which is compatible with 25 property previously acquired. 26 (2)As used in this section:27(a) "Information technology property" includes, but is not limited to,28all present and future forms of computer hardware, computer software, or29services used or required for automated data processing, computer related30office automation or telecommunications.31(b) "Telecommunications" includes, but is not limited to, all present and32future forms of hardware, software or services used or required for trans-33mitting voice, data, video or images over a distance.34(3)No award of a contract to multiple bidders shall be made under this 35 section unless the administrator of the division of purchasing makes a written 36 determination showing that multiple awardssatisfiessatisfy one (1) or more 37 of the criteria set forth in this section. 38 (43) Where a contract forinformation technologyproperty has been 39 awarded to two (2) or more bidders in accordance with this section, a state 40 agency shall make purchases from the contractor whose terms and conditions 41 regarding price, availability, support services and delivery are most advanta- 42 geous to the agency. 43 (54) A multiple award of a contract forinformation technologyproperty 44 under this section shall not be made when a single bidder can reasonably serve 45 the acquisition needs of state agencies. A multiple award of a contract shall 46 only be made to the number of bidders necessary to serve the acquisition needs 47 of state agencies. 48 SECTION 5. That Section 67-5720, Idaho Code, be, and the same is hereby 49 amended to read as follows: 50 67-5720. ACQUISITIONOF MINOR ITEMSIN OPEN MARKET -- EMERGENCY PUR- 51 CHASES. (1) The administrator may allow, under rules prescribed,: 6 1 (a) Tthe purchase ofminor items ofproperty in the open market, provided 2 such items are not available from the maintenance of stocks authorized by 3 section 67-5727, Idaho Code,. Whenwhere the administrator finds that a 4 particular savings to the state may be had through the use of educational 5 discounts, acquisition of federal surplus or excess property, reverse pub- 6 lic auctions, where there is only one (1) vendor for the property to be 7 acquired or under other circumstances approved by the director of the 8 department of administration. 9 (b) The purchase of property by open purchase when immediate delivery of 10 property is required by the public exigencies and the administrator of the 11 division of purchasing has declared that an emergency exists,the property12required may be acquired by open purchase,but at all times such purchases 13 shall be made under the direction of the administrator.The administrator14may, in his discretion, declare an emergency when he finds that particular15savings to the state may be had through the use of educational discounts,16acquisition of federal surplus or excess property, when there is only one17(1) vendor for the property to be acquired, or under other circumstances18approved by the director of the department of administration.19 (2) When there is only one (1) vendor for the property to be acquired, 20 unless the property is required for a life-threatening situation or a situa- 21 tion that is immediately detrimental to the public welfare or property, notice 22 of a sole source procurement shall be published.in a public, statewide publi-23cation at least ten (10) working days prior to the award of the contractThe 24 notice may be electronic. Payment vouchers for emergency acquisitions must 25 contain upon their faces the justification for such purchases. 26 SECTION 6. That Section 67-5722, Idaho Code, be, and the same is hereby 27 amended to read as follows: 28 67-5722. SALE, TRADE-IN OR EXCHANGE OF STATE PERSONAL PROPERTY. Whenever 29 any agency owns any property no longer economical to use, the administrator of 30 the division of purchasing may dispose of such property by exchanging the same 31 in part payment for new property, as provided for in this section. The admin- 32 istrator of the division of purchasing shall include in his request for bids a 33 full description of the property to be exchanged as part payment and shall 34 permiteach registeredvendors to examine the same, and the contract shall be 35 awarded on the basis of net cost to the state after allowance for the property 36 to be exchanged in part payment. In addition, the administrator of the divi- 37 sion of purchasing may permit an exchange of property in part payment for new 38 property acquisitions from contracts for the same or similar property. 39 Exchange of property will be permitted only when it is determined by the 40 administrator of the division of purchasing that all other methods of disposal 41 of the property sought to be exchanged will yield a lesser monetary return to 42 the state. 43 In accordance with the internal management policies, guidelines or 44 instructions of the board of examiners, the head of any agency may declare as 45 surplus any item of personal property. 46 SECTION 7. That Section 67-5726, Idaho Code, be, and the same is hereby 47 amended to read as follows: 48 67-5726. PROHIBITIONS. (1) No contract or order or any interest therein 49 shall be transferred by the contractor or vendor to whom such contract or 50 order is given to any other party, without the approval in writing of the 51 administrator. Transfer of a contract without approval shall cause the annul- 7 1 ment of the contract so transferred, at the option of the state. All rights of 2 action, however, for any breach of such contract by the contracting parties 3 are reserved to the state. No member of the legislature or any officer or 4 employee of any branch of the state government shall directly, himself, or by 5 any other person in trust for him or for his use or benefit or on his account, 6 undertake, execute, hold or enjoy, in whole or in part, any contract or agree- 7 ment made or entered into by or on behalf of the state of Idaho, if made by, 8 through, or on behalf of the department in which he is an officer or employee; 9 or if made by, through or on behalf of any other department unless the same 10areis made after competitive bids. 11 (2) Except as provided by section 67-5718, Idaho Code, no officer or 12 employee shall influence or attempt to influence the award of a contract to a 13 particularregisteredvendor, or to deprive or attempt to deprive anyregis-14teredvendor of an acquisition contract. 15 (3) No officer or employee shall conspire with a vendor or its agent, and 16 no vendor or its agent shall conspire with an officer or employee, to influ- 17 ence or attempt to influence the award of a contract, or to deprive or attempt 18 to deprive aregisteredvendor of an acquisition award. 19 (4) No officer or employee shall fail to utilize an open contract without 20 justifiable cause for such action. No officer or employee shall accept prop- 21 erty which he knows does not meet specifications or substantially meet the 22 original performance test results. 23 (5) Deprivation, influence or attempts thereat shall not include written 24 reports, based upon substantial evidence, sent to the administrator of the 25 division of purchasing concerning matters relating to the responsibility of 26registeredvendors. 27 (6) No vendor or related party, or subsidiary, or affiliate of a vendor 28 may submit a bid to obtain a contract to provide property to the state, if the 29 vendor or related party, or affiliate or subsidiary was paid for services uti- 30 lized in preparing the bid specifications or if the services influenced the 31 procurement process. 32 SECTION 8. That Section 67-5727A, Idaho Code, be, and the same is hereby 33 amended to read as follows: 34 67-5727A. PARTICIPATION IN GROUP DISCOUNT PURCHASING. (1) In addition to 35 other means of procuring stocks of commonly used items, the division adminis- 36 trator may authorize an agency to become a participating member of a group 37 discount purchasing organization, if the administrator finds that: 38 (a) The items to be acquired are atleaseleast equal in quality to simi- 39 lar items or the same items that the agency uses; 40 (b) The items to be acquired are less costly to the state than if 41 acquired by other means authorized in this chapter; 42 (c) The state's participation in the organization is formalized by a 43 written contract that extends for no longer than one (1) year at a time; 44 and 45 (d) The state's entrance fee, or participation fee, in the organization 46 is based on criteria applied to all other members of the organization, 47 provides no ownership rights; and48(e) The supplier is a registered vendor. 49 (2) Any contract entered into under the provisions of this section shall 50 be maintained on file with the division, as well as with the agency entering 51 into the contract. 52 (3) Items acquired shall be used solely by state departments and agencies 53 and may not be transferred from state ownership until useful life is extin- 8 1 guished and may not be provided to individuals except those in the custody of 2 the state or to those receiving direct personal services from the state. 3 SECTION 9. That Section 67-5729, Idaho Code, be, and the same is hereby 4 amended to read as follows: 5 67-5729. APPLICATION OF ADMINISTRATIVE PROCEDURE ACT. All rules of the 6 division of purchasing shall be adopted in accordance with the provisions of 7 chapter 52, title 67, Idaho Code. Onlypurchaseappeals conducted as contested 8 cases pursuant to section 67-5733(1)(c)(iii), Idaho Code, shall be subject to 9 the judicial review provisions of chapter 52, title 67, Idaho Code. This sec- 10 tion shall not impair any contract right or contract remedy which may exist 11 between the state and a properly licensedor registeredcontractor or vendor. 12 The determinations officer provided insection 67-5733, Idaho Code,this 13 chapter may subpoena witnesses and evidence and administer oaths. 14 In the event that a determinations officer is appointed pursuant to the 15 provisions of section 67-5733, Idaho Code, anyregisteredvendor who has sub- 16 mitted a bid in the process under review shall, notwithstanding any other dis- 17 ability, have standing to intervene in the proceeding as a party and such 18 intervenor may participate in the purchase appeal or appeal from any final 19 order entered in a contested case conducted under section 67-5733(1)(c)(iii), 20 Idaho Code. 21 SECTION 10. That Section 67-5730, Idaho Code, be, and the same is hereby 22 amended to read as follows: 23 67-5730.REGISTRATIONQUALIFICATION OF VENDORS --RULES AND PROCEDURE --24FAILURE TO BID --DISQUALIFICATION OF VENDORS -- NOTICE -- APPEALS. (1) No 25 vendor shall be allowed to submit a bid unless such vendor is qualified.and26has registered prior to the time of the bid opening.All vendors are qualified 27 unless disqualified.Qualified vendors shall be registered at any time upon28request and submission of information required by rule of the administrator of29the division of purchasing which shall include, but not be limited to, the30following: name of the vendor, an official address and telephone number at31which to receive notices from the administrator of the division of purchasing32and a list of the property which the vendor would sell or supply to the state,33and this list may be stated in terms of a general class of property in place34of a specific itemization. A ten dollar ($10.00) biennial registration fee35shall accompany the request, which moneys shall be deposited in the general36account of the state treasury.37Notice of renewal shall be mailed to the registered vendor at least sixty38(60) days prior to the expiration date of the vendor's registration. Failure39to renew the registration and pay the biennial registration fee shall result40in removal of the vendor from the list of qualified vendors.41Registered vendors may be removed from the list of registered vendors for42failure to participate by submitting a bid in five (5) consecutive acquisi-43tions of property which such vendor is registered to supply to the state, and44for which the vendor has been notified of intended acquisition; provided, how-45ever, that submission of a no-bid response shall not be deemed failure on the46part of the vendor to participate. A vendor so removed shall be given notice47of removal and shall be eligible for re-registration at any time unless other-48wise disqualified.49 (2) Vendors may be disqualified for any of the following reasons: 50 (a) Failure to perform according to the terms of any agreement; 51 (b) Attempts by whatever means to cause acquisition specifications to be 9 1 drawn so as to favor a specific vendor; 2 (c) Use of the provisions of this chapter to obstruct or unreasonably 3 delay acquisitions by the state. Obstruction is hereby defined as a lack 4 of success in more than fiftyper centpercent (50%) of the specification 5 challenges made in each of three (3) different acquisitions during any 6 twenty-four (24) month period; 7 (d) Perjury in a vendor disqualification hearing; 8 (e) To knowingly violate the provisions of this chapter; or 9 (f) Debarment, suspension or ineligibility from federal contracting of 10 the vendor, its principals or affiliates. 11 (3) A vendor shall be notified by registered mail within ten (10) days of 12 disqualification and may, within thirty (30) days of the receipt of such 13 notice, request of the director of the department of administration a hearing 14 before a determinations officer. Any hearings shall be held in accordance with 15 chapter 52, title 67, Idaho Code. 16 (4) In lieu of disqualification, the determinations officer may recommend 17 to the director of the department of administration specific conditions to the 18 vendor's continued participation in acquisitions by the state. 19 (5) Disqualification or conditions may be imposed for a period of not 20 less than six (6) months or not more than five (5) years. 21 SECTION 11. That Section 67-5732, Idaho Code, be, and the same is hereby 22 amended to read as follows: 23 67-5732. RULES. In addition to any other rules promulgated by the admin- 24 istrator, he shall adopt rules which shall serve to enhance the intent of this 25 chapter. Among the subjects addressed shall be rules addressing specifications 26 development, performance testing and the submission and evaluation of bids.:27(1) Rules requiring specifications to be in writing, to contain all28requirements including alternatives, to set forth all methods and procedures29to be used in the submission and evaluation of bids, and such other matters as30are necessary to facilitate the bidding process;31(2) A rule providing a means for interested vendors to cause alteration32of any specification issued if such alteration will improve the33competitiveness of bidding;34(3) Rules establishing the procedures for performance tests, where prac-35tical and advisable, and requiring equipment tested during the bidding proce-36dure to substantially meet or exceed those test results prior to acceptance by37the state;38(4) Rules controlling acquisition of components which shall prevent sub-39stantial changes in the performance of equipment through multiple successive40acquisitions;41(5) Rules requiring, when practical, specifications to describe the func-42tion sought, the end results desired and the effect to be achieved by the43property to be acquired;44(6) Special rules for specific categories of property, that because of45the nature of the property and its distinguishability from other types of46property, require specialized treatment to insure a more effective bidding47process.48 SECTION 12. That Section 67-5733, Idaho Code, be, and the same is hereby 49 amended to read as follows: 50 67-5733. DIVISION OF PURCHASING -- APPEALS. 51 (1) (a) There shall be, beginning with the day of receipt of notice, a 10 1 period of not more than ten (10) working days in which any vendor,regis-2tered asqualified and able to sell or supply the items to be acquired, 3 may notify in writing the administrator of the division of purchasing of 4 his intention to challenge the specifications and shall specifically state 5 the exact nature of his challenge. The specific challenge shall describe 6 the location of the challenged portion or clause in the specification doc- 7 ument, unless the challenge concerns an omission, explain why any provi- 8 sion should be struck, added or altered, and contain suggested correc- 9 tions. 10 Upon receipt of the challenge, the administrator of the division of 11 purchasing shall either deny the challenge, and such denial shall be con- 12 sidered the final agency decision, or he shall present the matter to the 13 director of the department of administration for appointment of a determi- 14 nations officer. If the director of the department of administration 15 appoints a determinations officer, then allregisteredvendors, who are 16 invited to bid on the property sought to be acquired, shall besent a copy17of both the notice to challengenotified of the appeal and the appointment 18 of determinations officer and may indicate in writing their agreement or 19 disagreement with the challenge within five (5) days. The notice to the 20 vendors may be electronic. Anyregisteredvendor may note his agreement 21 or disagreement with the challenge. The determinations officer may, on his 22 own motion, refer the challenge portion and any related portions of the 23 challenge to the author of the specification to be rewritten with the 24 advice and comments of theregisteredvendors capable of supplying the 25 property; rewrite the specification himself and/or reject all or any part 26 of any challenge. If specifications are to be rewritten, the matter shall 27 be continued until the determinations officer makes a final determination 28 of the acceptability of the revised specifications. 29 The administrator shall reset the bid opening no later than fifteen 30 (15) days after final determination of challenges or the amendment of the 31 specifications. If the administrator denies the challenge, then the bid 32 opening date shall not be reset. 33 The final decision of the determinations officer or administrator on 34 the challenge to specifications shall not be considered a contested case 35 within the meaning of the administrative procedure act; provided that a 36 vendor disagreeing with specifications may include such disagreement as a 37 reason for asking for appointment of a determinations officer pursuant to 38 section 67-5733(1)(c), Idaho Code. 39 (b) There shall be, beginning with the day following receipt of notice of 40 rejection, a period of five (5) working days in which a bidder whose bid 41 was found nonresponsive may appeal such decision to the director of the 42 department of administration. A nonresponsive bid, within the meaning of 43 this chapter, is a bid which does not comply with the bid invitation and 44 specifications and shall not apply to a vendor whose bid is considered but 45 who is determined not to be the lowest responsible bidder as defined in 46 this chapter. The director shall: 47 (i) Deny the application; or 48 (ii) Appoint a determinations officer to review the record and submit 49 a recommended order to the director to affirm or reverse the 50 administrator's decision of bid nonresponsiveness. 51 The director shall, upon receipt of a written recommendation from the 52 determinations officer, sustain, modify or reverse the administrator's 53 nonresponsive bid decision. An appeal conducted under the provisions of 54 this subsection shall not be considered a contested case and shall not be 55 subject to judicial review under the provisions of chapter 52, title 67, 11 1 Idaho Code. 2 (c) A vendor whose bid is considered may, within five (5) working days 3 following receipt of notice that he is not the lowest responsible bidder, 4 apply to the director of the department of administration for appointment 5 of a determinations officer. The application shall set forth in specific 6 terms the reasons why the administrator's decision is thought to be erro- 7 neous. Upon receipt of the application, the director shall within three 8 (3) working days: 9 (i) Deny the application, and such denial shall be considered the 10 final agency decision; or 11 (ii) Appoint a determinations officer to review the record to deter- 12 mine whether the administrator's selection of the lowest responsible 13 bidder is correct; or 14 (iii) Appoint a determinations officer with authority to conduct a 15 contested case hearing in accordance with the provisions of chapter 16 52, title 67, Idaho Code. 17 A determinations officer appointed pursuant to section 18 67-5733(1)(c)(ii), Idaho Code, shall inform the director by written recom- 19 mendation whether, in his opinion, the administrator's selection of the 20 lowest responsible bidder is correct. The determinations officer in making 21 this recommendation may rely on the documents of record, statements of 22 employees of the state of Idaho participating in any phase of the selec- 23 tion process, and statements of any vendor submitting a bid. A contested 24 case hearing shall not be allowed and the determinations officer shall not 25 be required to solicit statements from any person. Upon receipt of the 26 recommendation from the determinations officer, the director shall sus- 27 tain, modify or reverse the decision of the administrator on the selection 28 of the lowest responsible bidder or the director may appoint a determina- 29 tions officer pursuant to section 67-5733(1)(c)(iii), Idaho Code. 30 A determinations officer appointed pursuant to section 31 67-5733(1)(c)(iii), Idaho Code, shall conduct a contested case hearing and 32 upon conclusion of the hearing shall prepare findings of fact, conclusions 33 of law and a recommended order for the director of the department of 34 administration. Upon receipt of the findings of fact, conclusions of law 35 and recommended order, the director shall enter a final order sustaining, 36 modifying or reversing the decision of the administrator on the selection 37 of the lowest responsible bidder. 38 (d) In the case of a sole source procurement, there shall be a period of 39 not more than five (5) working days from the last date of public notice in 40 which any vendor, able to sell or supply the item(s) to be acquired, may 41 notify the administrator of the division of purchasing, in writing, of his 42 intention to challenge the sole source procurement and briefly explain the 43 nature of the challenge. 44 Upon receipt of the challenge, the director shallappoint a determi-45nations officer to hear the challenge and, upon receipt of the written46recommendation of the determinations officer, sustain, modify or reverse47the approval for the sole source procurement. If unregistered, the vendor48issuing the challenge shall be required to register as a vendor to the49stateeither: 50 (i) Deny the application; or 51 (ii) Appoint a determinations officer to review the record and submit 52 a recommended order to the director to affirm or reverse the 53 administrator's sole source determination. 54 The director shall, upon receipt of a written recommendation from the 55 determinations officer, sustain, modify or reverse the administrator's 12 1 sole source determination. An appeal conducted under the provisions of 2 this subsection shall not be considered a contested case and shall not be 3 subject to judicial review under the provisions of chapter 52, title 67, 4 Idaho Code. 5 (e) The administrator of the division of purchasing may, on his own ini- 6 tiative, file a complaint with the director for a hearing before a deter- 7 minations officer. The director shall appoint a determinations officer who 8 shall make written recommendations to the director and the director shall 9 render whatever decision is necessary to resolve the complaint. 10 (2) The director of the department of administration is hereby authorized 11 and directed to appoint a determinations officer whenever one is required by 12 this chapter. The officer shall meet and render whatever determination is 13 called for. When a complaint is filed pursuant to section 67-5733(1)(b), Idaho 14 Code, no bid may be awarded until the final decision is rendered by the direc- 15 tor of the department of administration; provided that in all other cases 16 where a determinations officer is appointed by the director, the director 17 shall have the power to allow the acquisition contract to be awarded to the 18 successful bidder prior to or after the decision of the determinations officer 19 if he determines such award to be in the best interest of the state. Any 20 determinations officer appointed pursuant to thischaptersection shall exist 21 only for the duration of unresolved complaints on an acquisition and shall be 22 dismissed upon resolution of all such complaints. The determinations officer 23 shall be guided in his determination by the best economic interests of the 24 state for both the near future and more extended periods of time. In addition 25 to the powers conferred on the determinations officer, the director of the 26 department of administration may: impose the penalty prescribed by section 27 67-5734(3), Idaho Code; enjoin any activity which violates this chapter; 28 direct that bids be rejected, or sustained; direct that specifications be 29 rejected, sustained or modified; and direct further legal action. 30 (3) Challenges or appealsfiledconducted pursuant to section 31 67-5733(1)(a), (1)(b), (1)(c)(i) or (1)(c)(ii), Idaho Code, shall not be con- 32 sidered to be a contested case as that term is defined in the administrative 33 procedure act. An appealfiledconducted pursuant to section 34 67-5733(1)(c)(iii), Idaho Code, shall be conducted as a contested case accord- 35 ing to the provisions of chapter 52, title 67, Idaho Code.
STATEMENT OF PURPOSE RS 10517C1 The current statutes governing the Division of Purchasing have not been significantly changed since their enactment in 1974. In their current form, certain of these statutes no longer serve their original goals of promoting competition and obtaining the best value for the state, often because they have not kept pace with real-world business developments, including technology.The proposed legislation will modernize the procurement statutes in limited but fundamental areas. These changes will allow the state to take advantage of new technologies enabling agencies to operate more effectively in today's marketplace. They include: permitting certain notices and solicitations to be posted electronically; permitting bids to be submitted electronically, thus allowing the state and its vendors to use and take advantage of certain new technology; and removing the statutory vendor registration requirement; vendors will be able to "register" on-line to be notified of bid opportunities. The proposed changes will make participation by vendors easier, thus encouraging added competition which results in lower prices and better values to government and its taxpayers. The transformation to "digital purchasing" that the proposed changes will support will not be immediate. The paper system will be maintained to accommodate vendors' needs during the transformation. FISCAL IMPACT Approximately $40,000 decrease per year to the General Fund by the elimination of the registered vendor requirement that will need to be replaced in the Division of Purchasing budget with General Fund moneys. However, it is anticipated that the administrative efficiencies that will result from this legislation will result in cost savings to the State and its agencies. CONTACT Name: Joanna L. Guilfoy, Deputy Attorney General Agency: Department of Administration Phone: 332-1832 Statement of Purpose/Fiscal Note S102