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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 - 2001
IN 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 during its their normal use is are consumed and which requires or suggests
3 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. A registered vendor 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-
22 tor of the division 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 property in on 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, may accept com-
35 petitive sealed proposals and enter into negotiations for acquisitions; for
36 which competitive sealed bidding is not practicable or advantageous to the
37 state;
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 been filed in submitted to his office, and such requi-
52 sition must bear the certificate of the head of the agency making the requisi-
53 tion by 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.
5 If the property to be acquired may reasonably be expected to cost in
6 excess of twenty-five thousand dollars ($25,000) if purchased, or one thousand
7 dollars ($1,000) per month if procured, there must be accompanying the requi-
8 sition a copy of the specifications proposed for use in the acquisition. Upon
9 receipt of the requisition, notice must be commenced within a reasonable
10 period of time and must allow not less than ten (10) days from notice to bid
11 opening date.
12 Provided, however, that in cases where the total value of the property to
13 be acquired is not in excess of twenty-five thousand dollars ($25,000) if pur-
14 chased, or one thousand dollars ($1,000) per month if procured, the adminis-
15 trator shall notify registered vendors in such manner as he deems appropriate.
16 To enhance small business bidding opportunities, the administrator shall seek
17 a minimum of three (3) bids from registered vendors having a significant Idaho
18 economic presence as defined in the Idaho Code. If he finds that it is imprac-
19 tical or impossible to obtain three (3) bids for the proposed transaction, he
20 may acquire the property in any manner he deems best. For any acquisition not
21 otherwise requiring specifications, the same may be required by rule drawn by
22 the administrator.
23 Provided further, however, that in connection with the award of any con-
24 tract for the placement of any order for state printing, binding, engraving or
25 stationery work, the provisions of sections 60-101 and 60-103, Idaho Code,
26 shall apply to the extent that the same may be inconsistent with any require-
27 ments contained in this section.
28 (2) Notice shall be sent to each registered vendor of the property to be
29 acquired, except that if there are more than ten (10) registered vendors for
30 the property to be acquired, the administrator of the division of purchasing
31 may, in his discretion, limit the notices sent to ten (10). Nothing shall pre-
32 vent all registered vendors from bidding on the property to be acquired posted
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 in his the 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 shall give the time
39 when, and the place where, bids will be opened. The bid opening date shall be
40 set forth in the specifications. Each bid shall be in writing, sealed and
41 marked, "sealed bid for ...., to be opened ...., 19.." and shall be mailed or
42 delivered to the office of the administrator of the division of purchasing at
43 Boise, Idaho set 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 proposal
51 method is used, award shall be made to the lowest responsible bidder on 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 OF INFORMATION TECHNOLOGY PROPERTY 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 similar information
19 technology property 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,
28 all present and future forms of computer hardware, computer software, or
29 services used or required for automated data processing, computer related
30 office automation or telecommunications.
31 (b) "Telecommunications" includes, but is not limited to, all present and
32 future forms of hardware, software or services used or required for trans-
33 mitting 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 awards satisfies satisfy one (1) or more
37 of the criteria set forth in this section.
38 (43) Where a contract for information technology property 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 for information technology property
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. ACQUISITION OF MINOR ITEMS IN OPEN MARKET -- EMERGENCY PUR-
51 CHASES. (1) The administrator may allow, under rules prescribed,:
6
1 (a) Tthe purchase of minor items of property in the open market, provided
2 such items are not available from the maintenance of stocks authorized by
3 section 67-5727, Idaho Code,. When where 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 property
12 required may be acquired by open purchase, but at all times such purchases
13 shall be made under the direction of the administrator. The administrator
14 may, in his discretion, declare an emergency when he finds that particular
15 savings to the state may be had through the use of educational discounts,
16 acquisition of federal surplus or excess property, when there is only one
17 (1) vendor for the property to be acquired, or under other circumstances
18 approved 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-
23 cation at least ten (10) working days prior to the award of the contract The
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 permit each registered vendors 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
10 are is 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 particular registered vendor, or to deprive or attempt to deprive any regis-
14 tered vendor 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 a registered vendor 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
26 registered vendors.
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 at lease least 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; and
48 (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. Only purchase appeals 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 licensed or registered contractor or vendor.
12 The determinations officer provided in section 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, any registered vendor 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. REGISTRATION QUALIFICATION OF VENDORS -- RULES AND PROCEDURE --
24 FAILURE TO BID -- DISQUALIFICATION OF VENDORS -- NOTICE -- APPEALS. (1) No
25 vendor shall be allowed to submit a bid unless such vendor is qualified. and
26 has registered prior to the time of the bid opening. All vendors are qualified
27 unless disqualified. Qualified vendors shall be registered at any time upon
28 request and submission of information required by rule of the administrator of
29 the division of purchasing which shall include, but not be limited to, the
30 following: name of the vendor, an official address and telephone number at
31 which to receive notices from the administrator of the division of purchasing
32 and a list of the property which the vendor would sell or supply to the state,
33 and this list may be stated in terms of a general class of property in place
34 of a specific itemization. A ten dollar ($10.00) biennial registration fee
35 shall accompany the request, which moneys shall be deposited in the general
36 account of the state treasury.
37 Notice of renewal shall be mailed to the registered vendor at least sixty
38 (60) days prior to the expiration date of the vendor's registration. Failure
39 to renew the registration and pay the biennial registration fee shall result
40 in removal of the vendor from the list of qualified vendors.
41 Registered vendors may be removed from the list of registered vendors for
42 failure to participate by submitting a bid in five (5) consecutive acquisi-
43 tions of property which such vendor is registered to supply to the state, and
44 for which the vendor has been notified of intended acquisition; provided, how-
45 ever, that submission of a no-bid response shall not be deemed failure on the
46 part of the vendor to participate. A vendor so removed shall be given notice
47 of removal and shall be eligible for re-registration at any time unless other-
48 wise 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 fifty per cent percent (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 all
28 requirements including alternatives, to set forth all methods and procedures
29 to be used in the submission and evaluation of bids, and such other matters as
30 are necessary to facilitate the bidding process;
31 (2) A rule providing a means for interested vendors to cause alteration
32 of any specification issued if such alteration will improve the
33 competitiveness of bidding;
34 (3) Rules establishing the procedures for performance tests, where prac-
35 tical and advisable, and requiring equipment tested during the bidding proce-
36 dure to substantially meet or exceed those test results prior to acceptance by
37 the state;
38 (4) Rules controlling acquisition of components which shall prevent sub-
39 stantial changes in the performance of equipment through multiple successive
40 acquisitions;
41 (5) Rules requiring, when practical, specifications to describe the func-
42 tion sought, the end results desired and the effect to be achieved by the
43 property to be acquired;
44 (6) Special rules for specific categories of property, that because of
45 the nature of the property and its distinguishability from other types of
46 property, require specialized treatment to insure a more effective bidding
47 process.
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-
2 tered as qualified 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 all registered vendors, who are
16 invited to bid on the property sought to be acquired, shall be sent a copy
17 of both the notice to challenge notified 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. Any registered vendor 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 the registered vendors 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 shall appoint a determi-
45 nations officer to hear the challenge and, upon receipt of the written
46 recommendation of the determinations officer, sustain, modify or reverse
47 the approval for the sole source procurement. If unregistered, the vendor
48 issuing the challenge shall be required to register as a vendor to the
49 state either:
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 this chapter section 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 appeals filed conducted 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 appeal filed conducted 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