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H0403aa....................................................by STATE AFFAIRS
ADMINISTRATION DEPARTMENT - Amends, repeals and adds to existing law
relating to the Department of Administration to revise miscellaneous
provisions for the Division of Public Works, Division of Purchasing and
Information and Risk Management.
01/24 House intro - 1st rdg - to printing
01/25 Rpt prt - to St Aff
02/05 Rpt out - to Gen Ord
02/11 Rpt out amen - to engros
02/12 Rpt engros - 1st rdg - to 2nd rdg as amen
02/13 2nd rdg - to 3rd rdg as amen
02/18 3rd rdg as amen - PASSED - 62-8-0
AYES -- Anderson, Andrus, Bayer, Bedke, Bell, Bilbao, Black, Block,
Bock, Boe, Bolz, Bowers, Brackett, Bradford, Chadderdon, Chew, Clark,
Collins, Crane, Durst, Eskridge, Hagedorn, Hart, Henbest(Burgoyne),
Henderson, Jaquet, Killen, King, Kren, Lake, LeFavour, Loertscher,
Luker, Marriott, Mathews, McGeachin, Moyle, Nielsen, Nonini,
Pasley-Stuart, Patrick, Pence, Raybould, Ringo(Cooke), Roberts,
Ruchti, Rusche, Sayler, Schaefer, Shepherd(02), Shirley, Shively,
Smith(24), Smith(30)(Stanek), Snodgrass, Stevenson, Thayn, Thomas,
Trail, Wills, Wood(27), Mr. Speaker
NAYS -- Barrett, Chavez, Harwood, Labrador, Mortimer, Shepherd(08),
Vander Woude, Wood(35)
Absent and excused -- None
Floor Sponsor - Black
Title apvd - to Senate
02/19 Senate intro - 1st rdg - to St Aff
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-ninth Legislature Second Regular Session - 2008IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 403 BY STATE AFFAIRS COMMITTEE 1 AN ACT 2 RELATING TO THE DEPARTMENT OF ADMINISTRATION; REPEALING SECTION 58-330, IDAHO 3 CODE, RELATING TO THE INTEGRATED PROPERTY RECORDS SYSTEM; AMENDING SECTION 4 67-5701, IDAHO CODE, TO PROVIDE THAT THE DIRECTOR MAY PROMULGATE RULES; 5 AMENDING SECTION 67-5704, IDAHO CODE, TO PROVIDE ADVANCE PAYMENTS AND 6 INTERACCOUNT TRANSACTIONS TO AGENCIES AND INSTITUTIONS OF STATE GOVERN- 7 MENT; AMENDING SECTION 67-5706, IDAHO CODE, TO PROVIDE A CORRECT CODE REF- 8 ERENCE; AMENDING SECTION 67-5708, IDAHO CODE, TO PROVIDE THAT THE DEPART- 9 MENT OF ADMINISTRATION MAY PAY COSTS INCURRED IN THE OPERATION AND MANAGE- 10 MENT OF STATE PROPERTIES FROM RENTS RECEIVED AND TO MAKE TECHNICAL CORREC- 11 TIONS; AMENDING SECTION 67-5708A, IDAHO CODE, TO DELETE OBSOLETE DATES AND 12 TO PROVIDE THAT THE DIRECTOR SHALL MAINTAIN A CURRENT INVENTORY OF ALL 13 LEASES OF FACILITIES USED BY STATE AGENCIES; AMENDING SECTION 67-5709, 14 IDAHO CODE, TO PROVIDE CORRECT TERMINOLOGY, TO PROVIDE REMITTANCE TO THE 15 FACILITIES SERVICES FUND AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SEC- 16 TION 67-5710, IDAHO CODE, TO REMOVE OBSOLETE DATES AND TO MAKE TECHNICAL 17 CORRECTIONS; AMENDING SECTION 67-5710A, IDAHO CODE, TO PROVIDE CORRECT 18 TERMINOLOGY AND TO REVISE REQUIREMENTS OF PLANS AND SPECIFICATION 19 APPROVAL; AMENDING SECTION 67-5710B, IDAHO CODE, TO REVISE DEFINITIONS AND 20 TO MAKE A TECHNICAL CORRECTION; AMENDING SECTION 67-5711, IDAHO CODE, TO 21 REVISE DESCRIPTIVE LANGUAGE, TO REMOVE REFERENCE TO THE RULES OF THE PER- 22 MANENT BUILDING FUND ADVISORY COUNCIL AND TO PROVIDE CORRECT TERMINOLOGY; 23 AMENDING SECTION 67-5711A, IDAHO CODE, TO REVISE PROCEDURES FOR DESIGN- 24 BUILD CONTRACTING; AMENDING SECTION 67-5711C, IDAHO CODE, TO REVISE PROCE- 25 DURES FOR AWARDING CONTRACTS FOR PUBLIC WORKS PROJECTS AND TO DEFINE A 26 TERM; AMENDING SECTION 67-5711D, IDAHO CODE, TO REVISE PROCEDURES FOR 27 ENERGY SAVINGS PERFORMANCE CONTRACTS AND TO DELETE A CODE REFERENCE; 28 AMENDING SECTION 67-5712, IDAHO CODE, TO PROVIDE CORRECT TERMINOLOGY; 29 AMENDING SECTION 67-5713, IDAHO CODE, TO REVISE PROCEDURES FOR CONSTRUC- 30 TION AND ALTERATION OF STATE CORRECTIONAL FACILITIES; AMENDING SECTION 31 67-5716, IDAHO CODE, TO REVISE DEFINITIONS; AMENDING SECTION 67-5717, 32 IDAHO CODE, TO REVISE POWERS AND DUTIES OF THE ADMINISTRATOR OF THE DIVI- 33 SION OF PURCHASING; AMENDING SECTION 67-5718, IDAHO CODE, TO PROVIDE A 34 CORRECT CODE REFERENCE AND TO REVISE PROCEDURES FOR OPENING OF BIDS; 35 AMENDING SECTION 67-5718A, IDAHO CODE, TO PROVIDE CORRECT CODE REFERENCES; 36 AMENDING SECTION 67-5720, IDAHO CODE, TO ALLOW FOR PURCHASE IN THE OPEN 37 MARKET WITHOUT COMPETITIVE BIDDING; REPEALING SECTION 67-5721, IDAHO CODE, 38 RELATING TO ACQUISITION OF NONOWNED PROPERTY; AMENDING SECTION 67-5723, 39 IDAHO CODE, TO DELETE LANGUAGE REGARDING RULES RELATING TO DISCOUNTS; 40 AMENDING SECTION 67-5724A, IDAHO CODE, TO PROVIDE CORRECT CODE REFERENCES; 41 AMENDING SECTION 67-5725, IDAHO CODE, TO REVISE LANGUAGE RELATING TO 42 RECORDS ASSOCIATED WITH THE AWARD OF A CONTRACT AND TO PROVIDE CODE REFER- 43 ENCES; AMENDING SECTION 67-5726, IDAHO CODE, TO REVISE LANGUAGE PROVIDING 44 WHEN A VENDOR SHALL BE INELIGIBLE FOR THE AWARD OF A CONTRACT AND TO 45 REVISE PROCEDURES; REPEALING SECTION 67-5727, IDAHO CODE, RELATING TO 46 MAINTENANCE OF STOCKS; AMENDING SECTION 67-5727A, IDAHO CODE, TO PROVIDE 2 1 CORRECT CODE REFERENCES; AMENDING SECTION 67-5729, IDAHO CODE, TO REVISE 2 LANGUAGE RELATING TO APPLICATION OF THE ADMINISTRATIVE PROCEDURE ACT; 3 AMENDING SECTION 67-5730, IDAHO CODE, TO REVISE LANGUAGE RELATING TO QUAL- 4 IFICATION AND DISQUALIFICATION OF VENDORS, TO PROVIDE FOR A STANDARD OF 5 REVIEW AND TO MAKE TECHNICAL CORRECTIONS; REPEALING SECTION 67-5732, IDAHO 6 CODE, RELATING TO ADDITIONAL RULES; AMENDING SECTION 67-5733, IDAHO CODE, 7 TO REVISE APPEALS PROCEDURES FOR THE DIVISION OF PURCHASING AND TO PROVIDE 8 FOR A STANDARD OF REVIEW; AMENDING SECTION 67-5734, IDAHO CODE, TO REVISE 9 A CODE CITATION AND TO REMOVE REFERENCE TO THE ORDER OF THE DETERMINATIONS 10 OFFICER; AMENDING SECTION 67-5735, IDAHO CODE, TO REVISE PROCESSING PROCE- 11 DURES FOR REIMBURSEMENT OF CONTRACTORS; AMENDING SECTION 67-5736, IDAHO 12 CODE, TO REVISE ACCEPTANCE PROCEDURES; AMENDING SECTION 67-5737, IDAHO 13 CODE, TO PROVIDE CORRECT CODE REFERENCES; AMENDING SECTION 67-5740, IDAHO 14 CODE, TO PROVIDE CORRECT CODE REFERENCES AND TO MAKE TECHNICAL CORREC- 15 TIONS; AMENDING SECTION 67-5741, IDAHO CODE, TO PROVIDE CORRECT CODE REF- 16 ERENCES; AMENDING SECTION 67-5742, IDAHO CODE, TO PROVIDE CORRECT CODE 17 REFERENCES; AMENDING SECTION 67-5743, IDAHO CODE, TO PROVIDE CORRECT CODE 18 REFERENCES; AMENDING SECTION 67-5744, IDAHO CODE, TO DELETE REFERENCE TO 19 THE SURPLUS PROPERTY REVOLVING FUND AND TO MAKE TECHNICAL CORRECTIONS; 20 AMENDING SECTION 67-5745A, IDAHO CODE, TO PROVIDE CORRECT CODE REFERENCES; 21 AMENDING SECTION 67-5745C, IDAHO CODE, TO PROVIDE CORRECT CODE REFERENCES; 22 AMENDING SECTION 67-5747, IDAHO CODE, TO REVISE POWERS AND DUTIES REGARD- 23 ING INFORMATION TECHNOLOGY AND RELATED EQUIPMENT AND TO PROVIDE CORRECT 24 CODE REFERENCES; AMENDING SECTION 67-5748, IDAHO CODE, TO PROVIDE CORRECT 25 CODE REFERENCES; AMENDING SECTION 67-5751, IDAHO CODE, TO REMOVE REFERENCE 26 TO MICROFILMING SERVICES AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SEC- 27 TION 67-5753, IDAHO CODE, TO REMOVE REFERENCE TO MICROFILM SERVICES AND TO 28 MAKE A TECHNICAL CORRECTION; AMENDING SECTION 67-5773, IDAHO CODE, TO 29 REMOVE REFERENCE TO THE RISK MANAGEMENT ADVISORY COMMITTEE; AMENDING SEC- 30 TION 67-5776, IDAHO CODE, TO PROVIDE CORRECT TERMINOLOGY AND TO MAKE TECH- 31 NICAL CORRECTIONS; AND PROVIDING SEVERABILITY. 32 Be It Enacted by the Legislature of the State of Idaho: 33 SECTION 1. That Section 58-330, Idaho Code, be, and the same is hereby 34 repealed. 35 SECTION 2. That Section 67-5701, Idaho Code, be, and the same is hereby 36 amended to read as follows: 37 67-5701. DEPARTMENT CREATED -- APPOINTMENT OF DIRECTOR -- DUTIES. There 38 is hereby created the department of administration. The governor shall, sub- 39 ject to the advice and consent of the senate, appoint a director of adminis- 40 tration who shall serve at the pleasure of the governor and who shall receive 41 such salary as fixed by the governor. The director of administration may pro- 42 mulgate rules and shall exercise all the powers and duties necessary to carry 43 out the proper administration of the department of administration. The depart- 44 ment of administration shall, for the purposes of section 20, article IV, of 45 the constitution of the state of Idaho, be an executive department of the 46 state government. 47 SECTION 3. That Section 67-5704, Idaho Code, be, and the same is hereby 48 amended to read as follows: 49 67-5704. ADVANCE PAYMENTS AND INTERACCOUNT TRANSACTIONS. Any unit of the 3 1 department of administration providing services to departments, agencies and 2 institutions of state government as authorized in this chapter may charge and 3 receive payment in advance of performance thereof for a period of time not to 4 exceed the current appropriation of the department requesting such services. 5 Such payments may be used for personnel costs and operating expenditures of 6 the unit providing the services. 7 SECTION 4. That Section 67-5706, Idaho Code, be, and the same is hereby 8 amended to read as follows: 9 67-5706. ALLOCATION OF OFFICE SPACE. The division of public works shall 10 have the power and duty to allocate all space, owned or leased in the city of 11 Boise in the name of the state, except as provided by section67-570767-1602, 12 Idaho Code, for the occupancy of the various state departments, agencies and 13 institutions. Allocations of space will be made on the basis of functional 14 need and statutory requirements and in conformity with standards and criteria 15 adopted by the permanent building fund advisory council. In approving the 16 allocations of space, the division shall first consult with and consider the 17 recommendations and advice of the directors or executive heads of the various 18 departments, agencies or institutions. 19 SECTION 5. That Section 67-5708, Idaho Code, be, and the same is hereby 20 amended to read as follows: 21 67-5708. LEASING OF FACILITIES FOR STATE USE -- CONTROL OF PARKING. The 22 department of administration shall negotiate for, approve, and make any and 23 all lease or rental agreements for facilities to be used by the various state 24 departments, agencies and institutions in the state of Idaho. 25 For purposes of this section and sections 67-5708A and 67-5709, Idaho 26 Code, the term "facility or facilities" may be used interchangeably and shall 27 mean real property and improvements, including buildings and structures of any 28 kind, excluding water rights not appurtenant to other facilities, and state 29 endowment lands. 30 The department of administration shall managemulti-agencymultiagency 31 facilities constructed, acquired or refurbished through the state building 32 authority as established in chapter 64, title 67, Idaho Code, and shall sub- 33 lease the facilities to various state departments, agencies, and institutions 34 in the state of Idaho. The department of administration is directed to operate 35 any facilities acquired for the state and to enter into rental contracts and 36 lease agreements consistent with the use of the facilities for state purposes 37 when so authorized. The department of administration may pay costs incurred in 38 the operation and management of such properties from rents received. 39 The director may authorize and enter into leases of state capitol mall 40 real estate andmulti-agencymultiagency facilities constructed through the 41 state building authority, not needed for state purposes, to other governmental 42 entities or to nonprofit organizations upon such terms as are just and equita- 43 ble. 44 The administrator of the division of public works shall promulgate rules 45 for the control of the parking of motor vehicles in the state capitol mall. 46 Any person who shall violate any of the provisions of the rules shall be sub- 47 ject to a fine of not less than two dollars ($2.00) nor more than twenty-five 48 dollars ($25.00); provided however, that any person who shall violate any of 49 the provisions of the rules concerning the altering, counterfeiting or misuse 50 of parking permits shall be subject to a fine of not more than fifty dollars 51 ($50.00). 4 1 Every magistrate and every court having jurisdiction of criminal offenses 2 and the violation of public laws committed in the county of Ada shall have 3 jurisdiction to hear and determine violations of the provisions of the rules 4 and to fix, impose and enforce payment of fines therefor. Alleged violations 5 of the parking rules are not subject to the provisions of chapter 52, title 6 67, Idaho Code.The department of administration may pay costs incurred in the7operation and management of those properties from rents received therefrom.8 When a facility of the state of Idaho is authorized by concurrent resolu- 9 tion, and a maximum cost for the facility has been set by concurrent resolu- 10 tion, the administrator of the division of public works may enter into lease- 11 purchase or other time-purchase agreements with the Idaho state building 12 authority or other party for the facility. 13 SECTION 6. That Section 67-5708A, Idaho Code, be, and the same is hereby 14 amended to read as follows: 15 67-5708A. STATE FACILITIES MANAGEMENT -- COMPARATIVE LEASE COST ANALYSIS 16 AND ACCOUNTABILITY. (1) The director of the department of administration shall 17establish a program to identify andmaintain a current inventory of all leases 18 of facilities used in any manner for the conduct of functions of state govern- 19 ment now or hereafter entered into by any state department, agency or institu- 20 tion.Not later than January 1, 1999, all departments, agencies and institu-21tions shall submit copies of all leases of facilities to the director.The 22submittedinventory shall record the essential terms of the leases, including 23 the rental rate, term of the lease, description of the facilities, the size of 24 the facilities, and the governmental use of the facilities. 25 (2)The director of the department of administration shall establish a26program for evaluation of all leases of facilities in effect on or to be27entered into after January 1, 1999.No department, agency or institution may 28 enter into or renew any lease of facilitiesafter January 1, 1999,until a 29 comprehensive analysis is performed by that department, agency or institution 30 in accord with standards and criteria established by the director of the 31 department of administration. The comprehensive analysis shall address, at a 32 minimum, an evaluation of the need for facilities, space utilization effi- 33 ciency, long-term needs and objectives, and viable alternatives to meet facil- 34 ity needs, including acquiring facilities with appropriated funds and leasing 35 facilities through the state building authority. Departments, agencies and 36 institutions shall consult with the director when performing the comprehensive 37 analysis and, with the director's assistance, shall select the alternative 38 that best serves long-term needs and objectives and that provides suitable 39 facilities at the lowest responsible cost to the taxpayer measured over the 40 time the facilities are expected to be needed, or forty (40) years, whichever 41 is less. Departments, agencies and institutions shall include a summary of the 42 comprehensive analysis annually in their budget requests to the governor and 43 the legislature, and shall include in that summary, where appropriate, the 44 time necessary to implement their selection. 45 For purposes of this section, consideration of the "lowest responsible 46 cost," shall take into account the estimated residual asset value of facili- 47 ties acquired with appropriated funds, or acquired through the state building 48 authority or other lease-purchase arrangements and the use of public lands, 49 wherever practicable, that are owned or can be timely acquired by the state. 50 SECTION 7. That Section 67-5709, Idaho Code, be, and the same is hereby 51 amended to read as follows: 5 1 67-5709. MANAGEMENT OF STATE FACILITIES. The director of the department 2 of administration may pay personnel costs and operating expenditures incurred 3 in the operation and management of the state capitol mall and themulti-agency4 multiagency facilities constructed through the state building authority from 5 the rents received.therefrom.Proceeds accruing from such rental contracts 6 and lease agreements after payment of personnel costs and operating expendi- 7 tures which are in excess of two hundred thousand dollars ($200,000) at the 8 end of the fiscal year shall be deposited to the credit of the permanent 9 buildingaccountfund. Proceeds from the rental of parking spaces in the capi- 10 tol mall shall be deposited upon receipt to the credit of thepermanent build-11ing accountfacilities services fund. Said proceeds shallnotbe expended 12withoutpursuant to an appropriationand shall only be appropriatedfor the 13 security, maintenance and upkeep of the state capitol mall. 14 SECTION 8. That Section 67-5710, Idaho Code, be, and the same is hereby 15 amended to read as follows: 16 67-5710. PERMANENT BUILDING FUND ADVISORY COUNCIL -- APPROVAL OF USE OF 17 FUND -- DUTIES OF ADMINISTRATOR OF PUBLIC WORKS. There is hereby created in 18 the division of public works a permanent building fund advisory council which 19 shall be appointed by the governor. This council shall be composed of one (1) 20 member of the senate, one (1) member of the house of representatives, a citi- 21 zen engaged in the contracting business, a citizen engaged in the banking 22 business, and a citizen who is a member of the business community not engaged 23 in contracting or banking. The senate member and the house of representatives 24 member shall be appointed for a fixed term of two (2) years. All other council 25 members shall be appointed for a fixed term of three (3) years. Theterms of26office of members of the council holding office prior to July 1, 1996, shall27expire on the following dates: contracting business member on July 1, 1996;28senate member and house of representative member on December 1, 1996; business29community member on July 1, 1997; and banking member on July 1, 1998. On or30after July 1, 1996, thegovernor shall appoint members of the council as terms 31 of existing members expire. All members of the council shall serve at the 32 pleasure of the governor. The administrator of public works and the responsi- 33 ble heads of the agencies for which appropriations for construction, 34 renovations, remodelings or repairs are made pursuant to chapter 11, title 57, 35 Idaho Code, shall consult, confer and advise with the permanent building fund 36 advisory council in connection with all decisions concerning the administra- 37 tion of these appropriations and the planning and construction or execution of 38 work or works pursuant thereto. The approval of the permanent building fund 39 advisory council shall be a condition precedent to the undertaking of planning 40 or construction. 41 The administrator of public works is hereby directed to work in close 42 cooperation with the responsible heads of institutions and agencies for which 43 appropriations are made herein and no building proposals shall be approved by 44 the administrator of public works nor any planning or work undertaken by that 45 officer pursuant to these appropriations without the prior approval of the 46 responsible chief officer of the institutions and agencies for whom appropria- 47 tions are made herein. 48 SECTION 9. That Section 67-5710A, Idaho Code, be, and the same is hereby 49 amended to read as follows: 50 67-5710A. REQUIREMENT OF PLANS AND SPECIFICATION APPROVAL BY PERMANENT 51 BUILDING FUND ADVISORY COUNCIL AND DELEGATION OF PROJECT OVERSIGHT BY THE 6 1 ADMINISTRATOR FOR THE DIVISION OF PUBLIC WORKS. 2 (1) (a) Unless an emergency exists as defined in section 67-5711B, Idaho 3 Code,anno new construction may be undertaken and no existingpublic4worksbuilding or other structure maynotbe altered, repaired, con-5structedor improved on property owned or occupied by any state institu- 6 tion, department, commission, board or agency, if the estimated cost of 7 work exceeds the limit established in section 67-5711, Idaho Code, and 8 except for those institutions and agency exemptions listed in section 9 67-5711, Idaho Code, without regard to source of funding, until the loca- 10 tion, design, plans and specifications are approved by the permanent 11 building fund advisory council and the project supervised by the division 12 of public works or its designee. 13 (b) Facilities to bebuiltconstructed, altered, repaired or improved 14 with funds under the control of a nonstate entity, and owned or occupied 15 by state entities, must have plans and specifications prepared, and all 16 plans and specifications must be reviewed and approved by the permanent 17 building fund advisory council prior to the advertising, bidding, con- 18 struction,and/oralteration, repair or improvement or negotiation for 19 construction, alteration, repair or improvement of the facilities. 20 (2) (a) The administrator for the division of public works may delegate 21 control over design, construction and all other aspects of a public works 22or maintenanceproject which costs less than one hundred fifty thousand 23 dollars ($150,000), to agencies of state government on a project-by- 24 project basis, ifa responsible party ofthe state agency requests that 25 delegation in writing and the permanent building fund advisory council 26 approves the delegation. 27 (i) The state agency to whom control is delegated shall assume all 28 responsibility for project budgets and shall receive funds appropri- 29 ated for the project upon application and approval by the permanent 30 building fund advisory council. 31 (ii) Delegation of project control does not exempt the state agency 32 from complying with public works statutes, life safety and building 33 codes or other applicable codes and regulations. The state agency 34 also must comply with anyguidelinespolicies or procedures for 35 design and construction adopted by the division of public works and 36 the permanent building fund advisory council. 37 (iii) State agencies that receive delegated projects may not have 38 access to permanent building fund advisory council contingency funds 39 unless approved by the permanent building fund advisory council or 40 authorized by appropriation. 41 (iv) Prior, written approval from the administrator must be granted 42 for any public works utilizing sole source or limited competition. No 43 agency will be delegated the ability to declare an emergency as 44 defined in section 67-5711B, Idaho Code. 45 (v) The permanent building fund advisory council may elect to audit 46 any delegated project for compliance with applicable statutes, codes, 47andregulations, rules, policies or procedures. 48 (vi) The delegated state agency will use standard documents for pro- 49 fessional services contracts and for construction contracts as 50 adopted by the division of public works. 51 (vii) Delegation is subject to cancellation by the administrator for 52 the division of public works with the concurrence of the permanent 53 building fund advisory council. 54 SECTION 10. That Section 67-5710B, Idaho Code, be, and the same is hereby 7 1 amended to read as follows: 2 67-5710B. DEFINITIONS. As used inthis chaptersections 67-5705 through 3 67-5713, Idaho Code: 4 (1) "Preventive maintenance" means: 5 (a) Corrective repairs or replacements used for existing state-owned, or 6 state operated facilities, which result from a systematic program in which 7 wear, tear, and change are anticipated and continuous corrective actions 8 are required to be taken to ensure peak efficiency and to minimize deteri- 9 oration. It includes systematic inspection, adjustment, lubrication, 10 replacement of components, as well as performance testing and analysis; 11 and 12 (b) Repairs and replacements with an estimated useful life of less than 13 five (5) years; and 14 (c) Repairs and replacements which are funded in the state agency's oper- 15 ating budget; and 16 (d) Repairs and replacements which can be accomplished by the agency's 17 existing physical plant staff; and 18 (e) Repairs and replacements which do not require the services of archi- 19 tects, engineers, and other professionally licensed consultants to inves- 20 tigate conditions, prepare recommendations for corrective action, prepare 21 plans and specifications, and supervise the execution of corrective proj- 22 ects. 23 (2) "Public works" means: 24 (a) Any new construction, building, alteration,or repair, including 25 equipping and furnishing, demolition or improvement of any land, building, 26 structure including utilities, or remodeling or renovation of existing 27 buildings, or other physical facilities, to make physical changes necessi- 28 tated by changes inthe programuse, to meet standards required by appli- 29 cable codes, to correct other conditions hazardous to health and safety of 30 persons which are not covered by codes, or to effect a permanent improve- 31 ment to the facility for any reason including aesthetics or appearance; 32 (b) Site improvement or developments which constitute permanent improve- 33 ments to real property; and 34 (c) Purchase and installation of fixed equipment necessary for the opera- 35 tion of new, remodeled, or renovated buildings and other physical facili- 36 ties for the conduct of programsinitiallyhoused therein to include any 37 equipment that is made a permanent fixture of the building; and38(d) Purchase of the services of architects, engineers, and other consul-39tants to prepare plans, program documents, life cycle cost studies, energy40analysis, and other studies associated with any new building, alteration,41repair, demolition or improvement and to supervise the construction or42execution of such projects. 43 SECTION 11. That Section 67-5711, Idaho Code, be, and the same is hereby 44 amended to read as follows: 45 67-5711.CONSTRUCTION, ALTERATION, EQUIPPING, FURNISHING AND REPAIR46 SUPERVISION OF PUBLICBUILDINGS ANDWORKS PROJECTS AND EXEMPTIONS. The direc- 47 tor of the department of administration, or his designee, of the state of 48 Idaho, is authorized and empowered, subject to the approval of the permanent 49 building fund advisory council, as required, to provide or secure all plans 50 and specifications for, to let all contracts for, and to have charge of and 51 supervision ofthe construction, alteration, equipping and furnishing, repair,52maintenance other than preventive maintenance of any and all buildings,8 1improvements of public works of the state of Idaho, the cost of which con-2struction, alteration, equipping and furnishing, repair, maintenancea project 3 for public works, other than preventive maintenance, the estimated cost of 4 which exceeds the sum of one hundred thousand dollars ($100,000) for labor, 5 materials and equipment, which sum shall exclude design costs, bid advertising 6 and related bidding expenses, provided, that the director or his designee, 7 and permanent building fund advisory council shall, in the letting of con- 8 tracts under this section, comply with the procedure for the calling of bids 9 provided in section 67-5711C, Idaho Code; provided, however, that this section 10 shall not apply tothe construction, alteration, equipping or furnishing or11repair or maintenance other than preventive maintenance of public buildingsa 12 project for public works or program of preventive maintenance under the juris- 13 diction and control of the board of regents of the university of Idaho; pro- 14 vided further, that the bidding procedures required by this section and sec- 15 tion 67-5711C, Idaho Code, shall not apply to performance contracts as pro- 16 vided in section 67-5711D, Idaho Code; provided further, that projects for 17 public works for the Idaho transportation department, the department of fish 18 and game, the department of parks and recreation, the department of lands, and 19 the department of water resources and water resource board, except for admin- 20 istrative office buildings and all associated improvements, are exempt from 21 the provisions of this section that relate to the administration and review of 22 such projects by the director of the department of administration or his des- 23 ignee and by the permanent building fund advisory council. This exemption 24 shall not relieve the Idaho transportation department, the department of fish 25 and game, the department of parks and recreation, the department of lands, and 26 the department of water resources and water resource board in the letting of 27 contracts for public works projects, from complying with the procedures of 28 section 67-5711C, Idaho Code, related to the advertising and bidding for con- 29 tracts.The permanent building fund advisory council may adopt rules consis-30tent with existing law, including rules for a program of inspection and main-31tenance, to carry out the provisions of this chapter.32 SECTION 12. That Section 67-5711A, Idaho Code, be, and the same is hereby 33 amended to read as follows: 34 67-5711A. DESIGN-BUILD CONTRACTING AUTHORIZED -- FINAL AGENCY ACTION -- 35 STANDARD OF REVIEW. Notwithstanding any other provisions of law to the con- 36 trary, the director of the department of administration, or his designee, is 37 authorized and empowered, subject to the approval of the permanent building 38 fund advisory council, to employ the use of the design-build method of con- 39 struction in the letting of any and all contracts forthe construction, alter-40ation, equipping, furnishing and repair of any and all buildings, improve-41ments, or otherpublic worksof the state of Idahosubject to its administra- 42 tion and review. For the purposes of this section, a design-build contract is 43 a contract for a public works project between thestate of Idahodivision of 44 public works and a nongovernmental party in which the nongovernmental party 45contracting with the state of Idahoagrees to both design and build thestruc-46ture, roadway, or other items specified in the contractproject. An award of a 47 contract under this section, or under section 67-2320, Idaho Code, shall be 48 the final agency action, shall not be considered a contested case under, and 49 the judicial review provisions of, chapter 52, title 67, Idaho Code, shall not 50 apply. In any subsequent judicial review of the final agency action on a con- 51 tract award under this section, or under section 67-2320, Idaho Code, the 52 court shall reverse the agency's action only if the challenging party proves 53 by clear and convincing evidence both that its substantial rights have been 9 1 prejudiced by the agency action and that the agency's action was arbitrary, 2 capricious or an abuse of discretion. 3 SECTION 13. That Section 67-5711C, Idaho Code, be, and the same is hereby 4 amended to read as follows: 5 67-5711C.CONSTRUCTION OFCONTRACTS FOR PUBLIC WORKS PROJECTS -- COMPETI- 6 TIVE SEALED BIDDING -- FINAL AGENCY ACTION -- STANDARD OF REVIEW. (1) Allcon-7structioncontracts for public works projects shall be awarded to the lowest 8 responsive and responsibleand responsivebidder after receipt of competitive 9 sealed bidding except as otherwise provided in this section and in sections 10 67-2320, 67-5711A, 67-5711B, 67-5711D and 67-5713, Idaho Code. As used in this 11 section, the word "sealed" does not preclude acceptance of electronically 12 sealed and submitted bids in addition to bids manually sealed and submitted. 13 (a) A bidder is responsive if its bid complies with the invitation to bid 14 in all material respects and is submitted in accordance with all applica- 15 ble laws. A bid must be responsive to be eligible to be the lowest respon- 16 sive and responsible bid. 17 (b) A responsible bidder shall mean a bidder whose bid is responsive and 18 who is determined to have the capacity to successfully complete the work, 19 and such determination may include, without limitation, consideration of 20 skill, experience, quality of previous work, suitability to the particular 21 project, financial resources, human resources, management ability, busi- 22 ness judgment and integrity. 23 (c) The lowest responsive and responsible bidder is the responsible bid- 24 der whose bid is responsive and whose bid reflects the lowest acquisition 25 price to be paid by the state; except that when specifications are valued 26 or responsibility factors are analyzed, the results of such analyses and 27 the relative score of valued specifications shall be weighed, as set out 28 in the invitation to bid, in determining the lowest acquisition price. 29 (2) An invitation for bids shall be issued and shall include a project 30 description and all contractual terms and conditions applicable to the public 31 works projects and shall include the factors to be considered for evaluating 32 the responsibility of bidders. 33 (3) Adequate public notice of the invitation for bids shall be given at 34 least fourteen (14) days prior to the date set forth therein for the opening 35 of bids. Such noticeshallmay be electronic or may include publication at 36 least fourteen (14) days prior to bid opening in a newspaper of general circu- 37 lation in the area where the work is located. 38 (4) When prequalification is deemed in the best interest of the state, 39 competitive bidding procedures shall be open only to licensed public works 40 contractors that meet preliminary supplemental qualifications. The solicita- 41 tion for bids in a prequalified bidder public works project shall consist of 42 two (2) stages, an initial stage for identifying prequalified contractors, 43 either prime or specialty contractors, followed by a stage during which bid 44 prices will be accepted only from prequalified contractors. Notice of the 45 prequalification stage shall be given in the same manner that notice of open 46 competitive bidding is provided. Prequalification standards must be premised 47 upon demonstrated technical competence, experience constructing similar facil- 48 ities, prior experience with the state, available nonfinancial resources, 49 equipment and personnel as they relate to the subject project, and overall 50 performance history based upon a contractor's entire body of work. Any request 51 for qualifications must include the standards for evaluating the qualifica- 52 tions of prospective bidders. Licensed contractors desiring to be prequalified 53 to bid on a project must submit a written response to a request for qualifica- 10 1 tions. After a review of qualification submittals, licensed contractors that 2 meet the prequalification standards shall be notified. Thereafter, bids may be 3 solicited from contractors that meet the prequalification standards. The 4 department may promulgate rules or develop procedures to implement the 5 prequalification process. 6 (5)Bids shall be opened publicly at the time and place designated in the7invitation for bids. The amount of each bid and such other relevant informa-8tion as may be specified by rules, together with the name of each bidder,9shall be entered on a record and the record shall be open to public inspection10 All sealed bids received shall be opened at the time and place specified in 11 the invitation for bid and a record of each bid shall then and there be made. 12 After the time of the award all bids and bid documents shall be open to public 13 inspection in accordance with the provisions of sections 9-337 through 9-347, 14and 67-5725,Idaho Code. 15 (6) With respect to a project for public works other than preventive 16 maintenance, having a written cost estimate of greater than twenty-five thou- 17 sand dollars ($25,000) but less than thepublic workslimit established in 18 section 67-5711, Idaho Code, the agency, if it does not perform the work with 19 existing physical plant staff, must award a written contract to the lowest 20 responsive and responsibleand responsivebidder after soliciting at least 21 three (3) documented informal bids from contractors licensed in Idaho to per- 22 form public works contracts, if reasonably available. Adequate public notice 23 of the invitation for informal bids shall be given at least seven (7) days 24 prior to the date set forth therein for the receipt of the informal bids. Such 25 notice may be electronic or may include publication at least seven (7) days 26 prior to bid opening in a newspaper of general circulation in the area where 27 the work is located; or the agency may advertise the invitation for bids in 28 appropriate trade journals, and otherwise notify persons believed to be inter- 29 ested in the award of a contract. Informal bids must be submitted by the con- 30 tractor in writing in response to a prepared written document describing the 31 project's scope of work in sufficient detail so as to enable a contractor 32 familiar with such work to prepare a responsible bid. Nothing herein exempts 33 an agency from the responsibility of utilizing formal plans and specifications 34 if the work involves the public health or safety as described in chapters 3 35 and 12, title 54, Idaho Code. The agency must document receipt of the informal 36 bids in the project file. 37 (7) Any personal property including goods, parts, supplies and equipment 38 which is to be supplied or provided by a state agency for use in any public 39 works,project, or preventive maintenance programs, whether the public works,40 project, or preventive maintenance program is constructed, undertaken or per- 41 formed by agency in-house personnel, or by delegation pursuant to section 42 67-5710A, Idaho Code, or otherwise provided or supplied by the agency to a 43 contractor, the personal property, goods, parts, supplies or equipment sup- 44 plied or provided by the agency must be purchased or procured by the agency 45 through the division of purchasing in accordance with the Idaho Code. 46 (8) The administrator of the division of public works may reject any and 47 all bids prior to award if he determines such rejection is in the best inter- 48 est of the state of Idaho. If no responsive and responsible bids are received 49 after competitive sealed bidding is performed pursuant to this section, the 50 administrator of the division of public works may negotiate, award and enter 51 into a contract as he determines to be in the best interest of the state of 52 Idaho. 53 (9) A determination of nonresponsiveness or nonresponsibility under this 54 section or an award of a contract under this section shall be the final agency 55 action, shall not be considered a contested case under, and the judicial 11 1 review provisions of, chapter 52, title 67, Idaho Code, shall not apply. In 2 any subsequent judicial review of a determination of nonresponsiveness or of 3 nonresponsibility or of the award of a contract under this section, the court 4 shall reverse the agency's action only if the challenging party proves by 5 clear and convincing evidence, both that its substantial rights have been 6 prejudiced by the agency action and that the agency's action was arbitrary, 7 capricious or an abuse of discretion. 8 SECTION 14. That Section 67-5711D, Idaho Code, be, and the same is hereby 9 amended to read as follows: 10 67-5711D. ENERGY SAVINGS PERFORMANCE CONTRACTS. (1) Definitions. As used 11 in this section: 12 (a) "Cost-savings measure" means any facility improvement, repair or 13 alteration, or any equipment, fixture or furnishing to be added or used in 14 any facility that is designed to reduce energy consumption and energy 15 operating costs or increase the energy efficiency of facilities for their 16 appointed functions that are cost effective. "Cost-savings measure" 17 includes, but is not limited to, one (1) or more of the following: 18 (i) Procurement of low-cost energy supplies of all types, includ- 19 ing electricity, natural gas and water; 20 (ii) Insulating the building structure or systems in the building; 21 (iii) Storm windows or doors, caulking or weather stripping, 22 multiglazed windows or door systems, heat-absorbing or heat- 23 reflective glazed and coated window and door systems, additional 24 glazing, reductions in glass area or other window and door system 25 modifications that reduce energy consumption; 26 (iv) Automated or computerized energy control systems; 27 (v) Heating, ventilation or air conditioning system modifications 28 or replacements; 29 (vi) Replacing or modifying lighting fixtures to increase the 30 energy efficiency of the lighting system; 31 (vii) Energy recovery systems; 32 (viii) Cogeneration systems that produce steam or forms of energy 33 such as heat, as well as electricity, for use primarily within a 34 building or complex of buildings; 35 (ix) Installing new or modifying existing day lighting systems; 36 (x) Installing or modifying renewable energy and alternate energy 37 technologies; 38 (xi) Building operation programs that reduce energy costs includ- 39 ing, but not limited to, computerized programs, training and other 40 similar activities; 41 (xii) Steam trap improvement programs that reduce energy costs; 42 (xiii) Devices that reduce water consumption; and 43 (xiv) Any additional building infrastructure improvements that pro- 44 duce energy cost savings, significantly reduce energy consumption or 45 increase the energy efficiency of the facilities for their appointed 46 functions and are in compliance with all applicable state building 47 codes. 48 (b) "Director" means the director of the department of administration or 49 the director's designee. 50 (c) "Energy cost savings" means any expenses that are eliminated or 51 avoided on a long-term basis as a result of equipment installed or modi- 52 fied, or services performed by a qualified energy service company or a 53 qualified provider, but does not include merely shifting personnel costs 12 1 or similar short-term cost savings. 2 (d) "Financial grade energy audit" means a comprehensive building energy 3 systems audit performed by a professional engineer licensed in the state 4 of Idaho for the purpose of identifying and documenting feasible energy 5 and resource conservation measures and cost-savings factors. 6 (e) "Performance contract" means a contract between the director or the 7 public entity and a qualified provider or a qualified energy service com- 8 pany for evaluation, recommendation and implementation of one (1) or more 9 cost-savings measures. A performance contract may be structured as either: 10 (i) A guaranteed energy savings performance contract, which shall 11 include, at a minimum, the design and installation of equipment and, 12 if applicable, operation and maintenance of any of the measures 13 implemented. Guaranteed annual savings must meet or exceed the total 14 annual contract payments made by the director or the user agency or 15 the public entity for such contract, including financing charges to 16 be incurred over the life of the contract; or 17 (ii) A shared savings contract, which shall include provisions mutu- 18 ally agreed upon by the director and the qualified provider or quali- 19 fied energy service company as to the rate of payments based upon 20 energy cost savings and a stipulated maximum energy consumption level 21 over the life of the contract. 22 (f) "Person" means an individual, corporation, partnership, firm, associ- 23 ation, limited liability company, limited liability partnership or other 24 such entity as recognized by the state of Idaho. 25 (g) "Public entity" means the cities, counties and school districts or 26 any political subdivision within the state of Idaho. 27 (h) "Qualified energy service company" means a person with a record of 28 established projects or with demonstrated technical, operational, finan- 29 cial and managerial capabilities to implement performance contracts and 30 who currently holds an Idaho public works contractor license. 31 (i) "Qualified provider" means a person who is experienced in the design, 32 implementation and installation of energy efficiency and facility improve- 33 ment measures, who has the ability to secure necessary financial measures 34 to support energy savings guarantees and the technical capabilities to 35 ensure such measures generate energy cost savings, and who currently holds 36 an Idaho public works contractor license. 37 (2) Performance contracts. The director of the department of administra- 38 tion, subject to the approval of the permanent building fund advisory council, 39 or any Idaho public entity may enter into a performance contract with a quali- 40 fied provider or qualified energy service company to reduce energy consumption 41 or energy operating costs. Cost-savings measures implemented under such con- 42 tracts shall comply with all applicable state and local building codes. 43 (3) Requests for qualifications. The director of the department of admin- 44 istration or the public entity shall request qualifications from qualified 45 providers and qualified energy service companies inviting them to submit 46 information describing their capabilities in the areas of: 47 (a) Design, engineering, installation, maintenance and repairs associated 48 with performance contracts; 49 (b) Experience in conversions to a different energy or fuel source, so 50 long as it is associated with a comprehensive energy efficiency retrofit; 51 (c) Postinstallation project monitoring, data collection and reporting of 52 savings; 53 (d) Overall project experience and qualifications; 54 (e) Management capability; 55 (f) Ability to assess the availability of long-term financing; 13 1 (g) Experience with projects of similar size and scope; and 2 (h) Other factors determined by the director or the public entity to be 3 relevant and appropriate relating to the ability of the qualified provider 4 or qualified energy service company to perform the project. 5 (4) Notice. Adequate public notice of the request for qualifications 6 shall be given at least fourteen (14) days prior to the date set forth therein 7 for the opening of the responses to the request for qualifications. Such 8 notice may be provided electronically or by publication in a newspaper of gen- 9 eral circulation in the area where the work is located. 10 (5) Public inspection. After the time of award, aAll records of the 11 department or an agency or the public entity relating to the award of a per- 12 formance contract shall be open to public inspection in accordance with the 13 provisions of sections 9-337 through 9-347,and 67-5725,Idaho Code. 14 (6) Award of performance contract. 15 (a) The director or public entity shall select up to three (3) qualified 16 providers or qualified energy service companies who have responded to the 17 request for qualifications. Factors to be considered in selecting the suc- 18 cessful qualified provider or qualified energy service company shall 19 include, but not be limited to: 20 (i) Fee structure; 21 (ii) Contract terms; 22 (iii) Comprehensiveness of the proposal and cost-savings measures; 23 (iv) Experience of the qualified provider or qualified energy ser- 24 vice company; 25 (v) Quality of the technical approach of the qualified provider or 26 qualified energy service company; and 27 (vi) Overall benefits to the state or the public entity. 28 (b) Notwithstanding the provisions of section 67-5711C, Idaho Code, the 29 director or the public entity may, following the request for qualifica- 30 tions and the expiration of the specified notice period, award the perfor- 31 mance contract to the qualified provider or qualified energy service com- 32 pany which best meets the needs of the project and whose proposal may or 33 may not represent the lowest cost among the proposals submitted pursuant 34 to this section. An award of a contract under this section shall be the 35 final agency action, shall not be considered a contested case under, and 36 the judicial review provisions of, chapter 52, title 67, Idaho Code, shall 37 not apply. In any subsequent judicial review of the final agency action on 38 a contract award under this section, the court shall reverse the agency's 39 action only if the challenging party proves by clear and convincing evi- 40 dence, both that its substantial rights have been prejudiced by the agency 41 action and that the agency's action was arbitrary, capricious or an abuse 42 of discretion. 43 (c) Upon award of the performance contract, the successful qualified pro- 44 vider or qualified energy service company shall prepare a financial grade 45 energy audit which, upon acceptance by the director or the public entity, 46 shall become a part of the final performance contract. 47 (7) Installment payment and lease-purchase agreements. Pursuant to this 48 section, the director or the public entity may enter into a performance con- 49 tract, payments for which shall be made by the user agency or public entity. 50 Such performance contracts may be financed as installment payment contracts or 51 lease-purchase agreements for the purchase and installation of cost-savings 52 measures. Financing implemented through another person other than the quali- 53 fied provider or qualified energy service company is authorized. 54 (8) Terms of performance contract. 55 (a) Each performance contract shall provide that all payments between 14 1 parties, except obligations upon termination of the contract before its 2 expiration, shall be made over time and that the objective of such perfor- 3 mance contract is the implementation of cost-savings measures and energy 4 cost savings. 5 (b) A performance contract, and payments provided thereunder, may extend 6 beyond the fiscal year in which the performance contract becomes effec- 7 tive, subject to appropriation by the legislature or by the public entity, 8 for costs incurred in future fiscal years. The performance contract may 9 extend for a term not to exceed twenty-five (25) years. The permissible 10 length of the contract may also reflect the useful life of the cost- 11 savings measures. 12 (c) Performance contracts may provide for payments over a period of time 13 not to exceed deadlines specified in the performance contract from the 14 date of the final installation of the cost-savings measures. 15 (d) Performance contracts entered pursuant to this section may be amended 16 or modified, upon agreement by the director or the public entity and the 17 qualified provider or qualified energy service company, on an annual 18 basis. 19 (9) Monitoring and reports. During the term of each performance contract, 20 the qualified provider or qualified energy service company shall monitor the 21 reductions in energy consumption and cost savings attributable to the cost- 22 savings measures installed pursuant to the performance contract and shall 23 annually prepare and provide a report to the director or the public entity 24 documenting the performance of the cost-savings measures. 25 SECTION 15. That Section 67-5712, Idaho Code, be, and the same is hereby 26 amended to read as follows: 27 67-5712. PROJECTION OF BUILDING REQUIREMENTS REPORT. The permanent build- 28 ing fund advisory council and the director of the department of administration 29worksshall on or before September 1 next preceding each regular session of 30 the legislature prepare and submit to the governor a projection ofbuilding31 all public works requirements of all departments, agencies and institutions. 32and agencies of Idaho.Such projection shall include all requests for new 33 buildings, maintenance and repair of existing state owned buildings. 34 SECTION 16. That Section 67-5713, Idaho Code, be, and the same is hereby 35 amended to read as follows: 36 67-5713. CONSTRUCTION AND ALTERATION OF STATE CORRECTIONAL FACILITIES. 37 The administrator of the division of public works is authorized and empowered, 38 subject to the approval of the permanent building fund advisory council, to 39 use appropriated funds or other fund sources to construct or alter, either in 40 whole or in part, state owned correctional facilitiesbyusing inmate labor 41 for the purpose of providing meaningful work and rehabilitation programs for 42 inmates,confined therein,or to have such construction or alteration accom- 43 plished by the competitive bid process as authorized by section 67-5711, Idaho 44 Code, whichever the permanent building fund advisory council deems most appro-45priate.Further providing that nNo construction or alteration by inmate labor 46 shall be authorized,unless final plans and specifications for such construc- 47 tion or alteration have beenaccomplishedprepared by a licensed architect or 48 engineerappointed at the direction of the council,and such final plans and 49 specifications have been approved by the council.Further providing thatAny 50 such construction or alteration shall be performed under the directcharge and51 supervision of the administrator of the division of public works. 15 1 SECTION 17. That Section 67-5716, Idaho Code, be, and the same is hereby 2 amended to read as follows: 3 67-5716. DEFINITIONS OF TERMS. (1) Acquisition. The process of procuring 4 or purchasing property by the state of Idaho. 5 (2) Procurement. Obtaining property for state use by lease, rent, or any 6 manner other than by purchase or gift. 7 (3) Property. Goods, services, parts, supplies and equipment, both tangi- 8 ble and intangible, including, but nonexclusively, designs, plans, programs, 9 systems, techniques and any rights and interests in such property. 10 (4) Goods. Items of personal property, not qualifying as equipment, parts 11 or supplies. 12 (5) Services. Personal services, in excess of personnel regularly 13 employed for whatever duration and/or covered by personnel system standards, 14 for which bidding is not prohibited or made impractical by statute, rules or 15 generally accepted ethical practices. 16 (6) Parts. Items of personal property acquired for repair or replacement 17 of unserviceable existing items. 18 (7) Supplies. Items of personal property having an expendable quality or 19 during their normal use are consumed and which require or suggest acquisition 20 in bulk. 21 (8) Equipment. Items of personal property which have a normal useful life 22 expectancy of two (2) or more years. 23 (9) Component. An item of property normally assembled with other items 24 into a unified productive whole at the site of use, which items belong to 25 functional classes that may be interchangeable units of similar function but 26 differing operational or productive capabilities. 27 (10) Vendor. A person or entity capable of supplying property to the 28 state. 29 (11) Bidder. A vendor who has submitted a bid on a specific item or items 30 of property to be acquired by the state. 31 (12) Lowest responsible bidder. The responsible bidder whose bid reflects 32 the lowest acquisition price to be paid by the state; except that when speci- 33 fications are valued or comparative performance examinations are conducted, 34 the results of such examinations and the relative score of valued specifica- 35 tions will be weighed, as set out in the specifications, in determining the 36 lowest acquisition price. A bid must be responsive to be eligible to be the 37 lowest responsible bid. 38 (13) Contractor. A bidder who has been awarded an acquisition contract. 39 (14) Agency. All officers, departments, divisions, bureaus, boards, com- 40 missions and institutions of the state, including the public utilities commis- 41 sion, but excluding other legislative and judicial branches of government, and 42 excluding the governor, the lieutenant governor, the secretary of state, the 43 state controller, the state treasurer, the attorney general, and the superin- 44 tendent of public instruction. 45 (15) Bid. A written offer toperform a contract to purchase or supply46property orprovide services in response to an invitation for bid or request 47 for proposal. 48 (16) Recyclable. Materials that still have useful physical, chemical or 49 biological properties after serving their original purposes and can, there- 50 fore, be reasonably reused or recycled for the same or other purposes. 51 (17) Recycled-content product. A product containing postconsumer waste 52 and/or secondary waste as defined in this section. 53 (18) Postconsumer waste. A finished material which would normally be dis- 54 posed of as a solid waste, having completed its life cycle as a consumer item. 16 1 (19) Secondary waste. Fragments of products or finished products of a man- 2 ufacturing process, which has converted a virgin resource into a commodity of 3 real economic value and may include a postconsumer waste. 4 SECTION 18. That Section 67-5717, Idaho Code, be, and the same is hereby 5 amended to read as follows: 6 67-5717. POWERS AND DUTIES OF THE ADMINISTRATOR OF THE DIVISION OF PUR- 7 CHASING. The administrator of the division of purchasing: 8 (1) Shall acquire, according to the provisions ofthis chaptersections 9 67-5714 through 67-5744, Idaho Code, all property for state agencies; 10 (2) Shall acquire all property, unless excepted, by competitive bid, and 11 shall specifically require competitive bids for property to be rented, leased 12 or purchased through a deferred payment plan; 13 (3) Shall determine, based upon the requirements contained in the speci- 14 fication and matter relating to responsibility, the lowest responsible bidder 15 in all competitively bid acquisition contracts; 16 (4) Shall enter into all contracts and agreements, and any modifications 17 thereto, for the acquisition of any and all property on behalf of and in the 18 name of the state; 19 (5) Shall, when economically feasible and practical, consolidate requisi- 20 tions and acquire property in amounts as large as can be efficiently managed 21 and controlled; 22 (6) May, in the evaluation of paper product bids, give those items that 23 meet the recycled content standards as specified by the administrator a five 24 percent (5%) purchasing preference. As such, those qualifying paper products 25 may be considered to cost five percent (5%) less when choosing the lowest 26 responsible bidder; 27 (7) May appoint a deputy, who shall have power to act for him and in his 28 place while absent, which deputy shall be bonded to the state of Idaho as pre- 29 scribed by chapter 8, title 59, Idaho Code; 30 (8) May require from any contractor the submission of a performance bond 31 or other performance guarantee for such sum as will, in the opinion of the 32 administrator, guarantee the faithful performance of such contract, and the 33 amount and requirement therefor shall be set out in the specifications; 34 (9) May enter into open contracts for the acquisition of property com- 35 monly used by the various agencies, based upon actual or estimated require- 36 ments; 37 Unless an acquiring agency can show a substantial difference between the 38 required capabilities and the capabilities provided by such property available 39 on open contract, all agencies must utilize such property available on such 40 contracts and failure to comply with this provision will subject the officers 41 responsible for the acquisition to thepenalties set forth in this chapter42 penalty prescribed in section 67-5734(3), Idaho Code; 43 (10) May enter into contracts, including leases and rentals, for periods 44 of time exceeding one (1) year provided that such contracts contain no penalty 45 to or restriction upon the state in the event cancellation is necessitated by 46 a lack of financing for any such contract or contracts; 47 (11)Is authorized and empowered to formulateMay promulgate rules in the 48 conduct of the office of the division of purchasing, subject to the approval 49 of the director of the department of administration, and such rules may 50 address specifications development, performance testing and the submission and 51 evaluation of bids; 52 (12) In accordance with established rules and written policies of the 53 division, may enter into negotiations for acquisitions; 17 1 (13) May inspect property delivered by a contractor to determine whether 2 it meets minimum bid specifications; 3 (14) May classify, after review with the various agencies, the require- 4 ments of the state for all property which may be acquired and adopt standards 5 of quality for property, and establish standard specifications for acquisi- 6 tion. Each standard specification shall, until revised or rescinded, apply 7 alike in terms and effect to each future acquisition of the classified prop- 8 erty. 9 SECTION 19. That Section 67-5718, Idaho Code, be, and the same is hereby 10 amended to read as follows: 11 67-5718. REQUISITIONS FOR PROPERTY -- NOTICE -- FORM -- GUARANTEE -- PRO- 12 CEDURE FOR BIDDING. (1) The administrator of the division of purchasing shall 13 not make or cause to be made any acquisition until a requisition for the prop- 14 erty to be acquired has been submitted to his office by the requisitioning 15 agency, certifying to the satisfaction of the administrator that there are 16 proper funds or sufficient balance in appropriations out of which the amount 17 of the requisition may lawfully be paid, except as provided to the contrary 18 under provisions ofthis chaptersection 67-5720, Idaho Code, allowing emer- 19 gency purchases. 20 (2) Notice shall be posted of all acquisitions of property, unless other- 21 wise excepted by rules of the division. The notice may be posted 22 electronically. The administrator shall also cause all invitations to bid and 23 requests for proposals to be posted manually in a conspicuous place in the 24 office. The notice shall describe the property to be acquired in sufficient 25 detail to apprise a bidder of the exact nature or functionality of the prop- 26 erty required; and shall set forth the bid opening date, time and location. 27 (3) To enhance small business bidding opportunities, the administrator 28 shall seek a minimum of three (3) bids from vendors having a significant Idaho 29 economic presence as defined in section 67-2349, Idaho Code. 30 (4) All sealed bids received shall be opened at the time and place speci- 31 fied,and in the public view,and a record of each bid shall then and there be 32 made. Contracts shall be awarded to and orders placed with the lowest respon- 33 sible bidder on the basis of initial proposals received or, if applicable, 34 following receipt and evaluation of best and final offers or negotiations. The 35 administrator shall have the right to reject any and all bids pursuant to 36 rules established for the division. 37 (5) Where both the bids and quality of property offered are the same, 38 preference shall be given to property of local and domestic production and 39 manufacture or from bidders having a significant Idaho economic presence as 40 defined in the Idaho Code. In connection with the award of any contract for 41 the placement of any order for state printing, binding, engraving or statio- 42 nery work, the provisions of sections 60-101 and 60-103, Idaho Code, shall 43 apply to the extent that the same may be inconsistent with any requirements 44 contained in this section. 45 (6) As used in this section, the word "sealed" does not preclude accep- 46 tance of electronically sealed and submitted bids in addition to bids manually 47 sealed and submitted. 48 SECTION 20. That Section 67-5718A, Idaho Code, be, and the same is hereby 49 amended to read as follows: 50 67-5718A. ACQUISITION OF PROPERTY BY CONTRACT -- AWARD TO MORE THAN ONE 51 BIDDER -- STANDARDS FOR MULTIPLE AWARDS -- APPROVAL BY ADMINISTRATOR. (1) Not- 18 1 withstanding any provision ofthis chaptersections 67-5714 through 67-5744, 2 Idaho Code, to the contrary, the administrator of the division of purchasing 3 may make an award of a contract to two (2) or more bidders to furnish the same 4 or similar property where more than one (1) contractor is necessary: 5 (a) To furnish the types of property and quantities required by state 6 agencies; 7 (b) To provide expeditious and cost-efficient acquisition of property for 8 state agencies; or 9 (c) To enable state agencies to acquire property which is compatible with 10 property previously acquired. 11 (2) No award of a contract to multiple bidders shall be made under this 12 section unless the administrator of the division of purchasing makes a written 13 determination showing that multiple awards satisfy one (1) or more of the cri- 14 teria set forth in this section. 15 (3) Where a contract for property has been awarded to two (2) or more 16 bidders in accordance with this section, a state agency shall make purchases 17 from the contractor whose terms and conditions regarding price, availability, 18 support services and delivery are most advantageous to the agency. 19 (4) A multiple award of a contract for property under this section shall 20 not be made when a single bidder can reasonably serve the acquisition needs of 21 state agencies. A multiple award of a contract shall only be made to the num- 22 ber of bidders necessary to serve the acquisition needs of state agencies. 23 SECTION 21. That Section 67-5720, Idaho Code, be, and the same is hereby 24 amended to read as follows: 25 67-5720. ACQUISITION IN OPEN MARKET -- EMERGENCY PURCHASES. (1) The 26 administrator may allow: 27 (a) The purchase of property in the open market,provided such items are28not available from the maintenance of stocks authorized by section2967-5727, Idaho Codewithout competitive bidding, where the administrator 30 finds that a particular savings to the state may be had through the use of 31 educational discounts, acquisition of federal surplus or excess property, 32 reverse public auctions, where there is only one (1) vendor for the prop- 33 erty to be acquired or under other circumstances approved by thedirector34of the department of administrationadministrator. 35 (b) The purchase of property by open purchase when immediate delivery of 36 property is required by the public exigencies and the administrator of the 37 division of purchasing has declared that an emergency exists, but at all 38 times such purchases shall be made under the direction of the administra- 39 tor. 40 (2) When there is only one (1) vendor for the property to be acquired, 41 unless the property is required for a life-threatening situation or a situa- 42 tion that is immediately detrimental to the public welfare or property, notice 43 of a sole source procurement shall be published. The notice may be electronic. 44 Payment vouchers for emergency acquisitions must contain upon their faces the 45 justification for such purchases. 46 SECTION 22. That Section 67-5721, Idaho Code, be, and the same is hereby 47 repealed. 48 SECTION 23. That Section 67-5723, Idaho Code, be, and the same is hereby 49 amended to read as follows: 50 67-5723. DISCOUNTS.-- NEGOTIATIONS FOR REQUIRED RULES, REGULATIONS AND19 1PROCEDURES.Whenever any employee of an agency is charged with the responsi- 2 bility of acquiring property for and in behalf of the state, he shall, when- 3 ever and wherever possible, negotiate discounts normally given in the ordinary 4 course of business, including, but not limited to, discounts for prompt pay- 5 ment and discounts for bulk acquisitions. 6It shall be the duty of the administrator to prescribe by rules and regu-7lations the manner by which to obtain such discounts, and to do whatever is8necessary to implement such rules and regulations.9 SECTION 24. That Section 67-5724A, Idaho Code, be, and the same is hereby 10 amended to read as follows: 11 67-5724A. ACQUISITION OF PROPERTY -- GENERAL SERVICES ADMINISTRATION FED- 12 ERAL SUPPLY SCHEDULE CONTRACTS. Notwithstanding any provision inthis chapter13 sections 67-5714 through 67-5744, Idaho Code, to the contrary, the administra- 14 tor of the division of purchasing may, instead of soliciting bids, contract 15 for services or property at a price equal to or less than the contractor's 16 current federal supply contract price for sales to the general services admin- 17 istration of the United States without the use of competitive bids so long as 18 the contractor has indicated a willingness in writing to extend such contrac- 19 tor pricing, terms and conditions to the administrator and the administrator 20 considers the price to be advantageous to the state. 21 SECTION 25. That Section 67-5725, Idaho Code, be, and the same is hereby 22 amended to read as follows: 23 67-5725.PRESERVATION OFPUBLIC RECORDS -- WRITTEN CONTRACTS -- VOID CON- 24 TRACTS.The administrator shall preserve all records of bids and acquisitions25in his office, and information with respect thereto, in such form as he shall26prescribe for a period of three (3) years after the date of final action, or27for a period of time as may be proscribed by the record retention guideline28schedule approved by the director of the department of administration. The29recordsAfter the award of a contract, all bids or proposals and documents 30 associated with the contract shall be subject to disclosure according to chap- 31 ter 3, title 9, Idaho Code. Notwithstanding the foregoing, when an invitation 32 to bid or a request for proposals is canceled prior to award of a purchase 33 order or contract, the administrator shall immediately return all bids or pro- 34 posals to the submitting vendor and those bids or proposals shall not be sub- 35 ject to disclosure under chapter 3, title 9, Idaho Code. 36 Every contract made by the administrator in behalf of the state shall be 37 reduced to writing and signed by the contracting parties with their names at 38 the end thereof and filed in the office of the administrator, together with 39 all bids, specifications, and all other documents and records associated with 40 the acquisition or intended acquisition. 41 All contracts or agreements made in violation of the provisions ofthis42chaptersections 67-5714 through 67-5744, Idaho Code, shall be void and any 43 sum of money advanced by the state of Idaho in consideration of any such con- 44 tract or agreement shall be repaid forthwith. In the event of refusal or delay 45 when repayment is demanded by the proper officer of the state of Idaho, under 46 whose authority such contract or agreement shall have been made or entered 47 into, every person so refusing or delaying, together with his surety or sure- 48 ties, shall be forthwith prosecuted at law for the recovery of such sum of 49 money so advanced. 50 SECTION 26. That Section 67-5726, Idaho Code, be, and the same is hereby 20 1 amended to read as follows: 2 67-5726. PROHIBITIONS. (1) No contract or order or any interest therein 3 shall be transferred by the contractor or vendor to whom such contract or 4 order is given to any other party, without the approval in writing of the 5 administrator. Transfer of a contract without approval shall cause the annul- 6 ment of the contract so transferred, at the option of the state. All rights of 7 action, however, for any breach of such contract by the contracting parties 8 are reserved to the state. No member of the legislature or any officer or 9 employee of any branch of the state government shall directly, himself, or by 10 any other person in trust for him or for his use or benefit or on his account, 11 undertake, execute, hold or enjoy, in whole or in part, any contract or agree- 12 ment made or entered into by or on behalf of the state of Idaho, if made by, 13 through, or on behalf of the department in which he is an officer or employee; 14 or if made by, through or on behalf of any other department unless the same is 15 made after competitive bids. 16 (2) Except as provided by section 67-5718, Idaho Code, no officer or 17 employee shall influence or attempt to influence the award of a contract to a 18 particular vendor, or to deprive or attempt to deprive any vendor of an acqui- 19 sition contract. 20 (3) No officer or employee shall conspire with a vendor or its agent, and 21 no vendor or its agent shall conspire with an officer or employee, to influ- 22 ence or attempt to influence the award of a contract, or to deprive or attempt 23 to deprive a vendor of an acquisition award. 24 (4) No officer or employee shall fail to utilize an open contract without 25 justifiable cause for such action. No officer or employee shall accept prop- 26 erty which he knows does not meet specifications or substantially meet the 27 original performance test results. 28 (5) Deprivation, influence or attempts thereat shall not include written 29 reports, based upon substantial evidence, sent to the administrator of the 30 division of purchasing concerning matters relating to the responsibility of 31 vendors. 32 (6) No vendor or related party, or subsidiary, or affiliate of a vendor 33 maysubmit a bid to obtain a contractbe eligible for an award of a contract 34 to provide property to the state, if the vendor or related party, or affiliate 35 or subsidiarywas paid forprovided services utilized inpreparing the bid36specifications or if the servicesor that have influenced the procurement 37 process. The administrator shall determine if services have been utilized in 38 or have influenced the procurement process and such determination shall be the 39 final agency action, shall not be considered a contested case under, and the 40 judicial review provisions of, chapter 52, title 67, Idaho Code, shall not 41 apply. In any subsequent judicial review of the final agency action on a 42 determination under this section, the court shall reverse the agency's action 43 only if the challenging party proves by clear and convincing evidence, both 44 that its substantial rights have been prejudiced by the agency action and that 45 the agency's action was arbitrary, capricious or an abuse of discretion. 46 SECTION 27. That Section 67-5727, Idaho Code, be, and the same is hereby 47 repealed. 48 SECTION 28. That Section 67-5727A, Idaho Code, be, and the same is hereby 49 amended to read as follows: 50 67-5727A. PARTICIPATION IN GROUP DISCOUNT PURCHASING. (1) In addition to 51 other means of procuring stocks of commonly used items, the division adminis- 21 1 trator may authorize an agency to become a participating member of a group 2 discount purchasing organization, if the administrator finds that: 3 (a) The items to be acquired are at least equal in quality to similar 4 items or the same items that the agency uses; 5 (b) The items to be acquired are less costly to the state than if 6 acquired by other means authorized inthis chaptersections 67-5714 7 through 67-5744, Idaho Code; 8 (c) The state's participation in the organization is formalized by a 9 written contract that extends for no longer than one (1) year at a time; 10 and 11 (d) The state's entrance fee, or participation fee, in the organization 12 is based on criteria applied to all other members of the organization, 13 provides no ownership rights. 14 (2) Any contract entered into under the provisions of this section shall 15 be maintained on file with the division, as well as with the agency entering 16 into the contract. 17 (3) Items acquired shall be used solely by state departments and agencies 18 and may not be transferred from state ownership until useful life is extin- 19 guished and may not be provided to individuals except those in the custody of 20 the state or to those receiving direct personal services from the state. 21 SECTION 29. That Section 67-5729, Idaho Code, be, and the same is hereby 22 amended to read as follows: 23 67-5729. APPLICATION OF ADMINISTRATIVE PROCEDURE ACT. All rules of the 24 division of purchasing shall be adopted in accordance with the provisions of 25 chapter 52, title 67, Idaho Code. Only appeals conducted as contested cases 26 pursuant to section 67-5733(1)(c)(iii), Idaho Code, shall be subject to the 27 judicial review provisions of chapter 52, title 67, Idaho Code. This section 28 shall not impair any contract right or contract remedy which may exist between 29 the state and a properly licensed contractor or vendor. 30 The determinations officer provided inthis chaptersection 31 67-5733(1)(c)(iii), Idaho Code, may subpoena witnesses and evidence and 32 administer oaths. 33In the event that a determinations officer is appointed pursuant to the34provisions of section 67-5733, Idaho Code, any vendor who has submitted a bid35in the process under review shall, notwithstanding any other disability, have36standing to intervene in the proceeding as a party and such intervenor may37participate in the purchase appeal or appeal from any final order entered in a38contested case conducted under section 67-5733(1)(c)(iii), Idaho Code.39 SECTION 30. That Section 67-5730, Idaho Code, be, and the same is hereby 40 amended to read as follows: 41 67-5730. QUALIFICATION OF VENDORS -- DISQUALIFICATION OF VENDORS -- 42 NOTICE -- APPEALS -- STANDARD OF REVIEW. (1) No vendor shall be allowed to 43 submit a bid unless such vendor is qualified. All vendors are qualified unless 44 disqualified. 45 (2) Vendors may be disqualified by the administrator for any of the fol- 46 lowing reasons: 47 (a) Failure to perform according to the terms of any agreement; 48 (b) Attempts by whatever means to cause acquisition specifications to be 49 drawn so as to favor a specific vendor; 50 (c) Use of the provisions ofthis chaptersections 67-5714 through 51 67-5744, Idaho Code, to obstruct or unreasonably delay acquisitions by the 22 1 state. Obstruction is hereby defined as a lack of success in more than 2 fifty percent (50%) of thespecificationchallenges made in each of three 3 (3) different acquisitions during any twenty-four (24) month period; 4 (d) Perjury in a vendor disqualification hearing; 5 (e) To knowingly violate the provisions ofthis chaptersections 67-5714 6 through 67-5744, Idaho Code; or 7 (f) Debarment, suspension or ineligibility from federal contracting of 8 the vendor, any of its principals or any of its affiliates. 9 (3) A vendor shall be notified by registered mail within ten (10) days of 10 disqualification and may, within thirty (30) days of the receipt of such 11 notice, request of the director of the department of administration a hearing 12 before a determinations officer. Any hearings shall be held in accordance with 13 chapter 52, title 67, Idaho Code. 14 (4) A determinations officer appointed pursuant to this section shall 15 conduct a contested case hearing and upon conclusion of the hearing shall pre- 16 pare findings of fact, conclusions of law and a recommended order for the 17 director of the department of administration. In lieu of disqualification, the 18 determinations officer may recommend to the director of the department of 19 administration specific conditions to the vendor's continued participation in 20 acquisitions by the state. Upon receipt of the findings of fact, conclusions 21 of law and recommended order, the director shall enter a final order sustain- 22 ing, conditioning or reversing the decision of the administrator on the dis- 23 qualification. Such final order shall not be considered a contested case 24 under, and the judicial review provisions of, chapter 52, title 67, Idaho 25 Code, shall not apply. No action in law or equity shall lie against the agency 26 or its employees if the vendor does not first timely request a hearing pursu- 27 ant to subsection (3) of this section. In any subsequent judicial review of 28 the final agency action on a contract award under this section, the court 29 shall reverse the agency's action only if the challenging party proves by 30 clear and convincing evidence, both that its substantial rights have been 31 prejudiced by the agency action and that the agency's action was arbitrary, 32 capricious or an abuse of discretion. 33 (5) Disqualification or conditions may be imposed for a period of not 34 less than six (6) months or not more than five (5) years. 35 (6) During the term of disqualification, a vendor disqualified under this 36 section shall not be eligible for award of any contract under sections 67-5714 37 through 67-5744, Idaho Code, and any bid submitted by it shall be rejected and 38 returned. 39 SECTION 31. That Section 67-5732, Idaho Code, be, and the same is hereby 40 repealed. 41 SECTION 32. That Section 67-5733, Idaho Code, be, and the same is hereby 42 amended to read as follows: 43 67-5733. DIVISION OF PURCHASING -- APPEALS -- STANDARD OF REVIEW. 44 (1) (a) There shall be, beginning with the day ofreceipt ofthe required 45 notice, a period ofnot more thanten (10) working days in which any 46 vendor, qualified and able to sell or supply the items to be acquired,may 47notify in writing the administrator of the division of purchasing of his48intention tochallenge the specifications. The challenge shall be in writ- 49 ing to the administrator of the division of purchasing and shall specifi- 50 cally state the exact nature ofhisthe challenge. The specific challenge 51 shall describe the location of the challenged portionor clausein the 52 specifications,document,unless the challenge concerns an omission, and 23 1 shall explain why any provision should be struck, added or altered, and 2 contain suggested corrections. 3 Upon receipt of the challenge, the administrator of the division of 4 purchasing shall:either5 (i) Ddeny the challenge, and such denial shall beconsideredthe 6 final agencydecision,action; orhe shall7 (ii) Ppresent the matter to the director of the department of admin- 8 istration for appointment of a determinations officer to review the 9 record and submit a recommended order to the administrator regarding 10 the specifications challenge. 11 If the director of the department of administration appoints a deter- 12 minations officer,then all vendors, who are invited to bid on the prop-13erty sought to be acquired, shall be notified of the appeal and the14appointment of determinations officerthe administrator of the division of 15 purchasing shall provide notice of such appointment and any vendor may, 16 within five (5) days of such notice, indicate in writingtheirhis agree- 17 ment or disagreement with the challenge.within five (5) days.The notice 18 to the vendors may be electronic.Any vendor may note his agreement or19disagreement with the challenge. The determinations officer may, on his20own motion, refer the challenge portion and any related portions of the21challenge to the author of the specification to be rewritten with the22advice and comments of the vendors capable of supplying the property;23rewrite the specification himself and/or reject all or any part of any24challenge. If specifications are to be rewritten, the matter shall be con-25tinued until the determinations officer makes a final determination of the26acceptability of the revised specifications.27The administrator shall reset the bid opening no later than fifteen28(15) days after final determination of challenges or the amendment of the29specifications. If the administrator denies the challenge, then the bid30opening date shall not be resetUpon receipt of the determinations 31 officer's recommendation, the administrator may accept or reject the rec- 32 ommendation in whole or in part and such acceptance or rejection shall be 33 the final agency action. 34 The final decision of thedeterminations officer oradministrator on 35 the challenge to specifications shall not be considered a contested case 36within the meaning of the administrative procedure actunder, and shall 37 not be subject to judicial review under the provisions of, chapter 52, 38 title 67, Idaho Code; provided that a vendordisagreeing with specifica-39tionswho challenged the specifications in accordance with subsection 40 (1)(a) of this section may include suchdisagreementchallenge as a reason 41 for asking for appointment of a determinations officer pursuant to subsec- 42 tion67-5733(1)(c), Idaho Codeof this section. 43 (b) There shall be, beginning with the day following receipt of notice of 44 rejection, a period of five (5) working days in which a bidder whose bid 45 was found nonresponsive may appeal such decision to the director of the 46 department of administration. The appeal shall be in writing and shall set 47 forth in specific terms the reasons why the nonresponsiveness decision is 48 thought to be erroneous. A nonresponsive bid, within the meaning of this49chapter,is a bid which does not comply with the bid invitation,andspec- 50 ificationsand shall not apply to a vendor whose bid is considered but who51is determined not to be the lowest responsible bidder as defined in this52chapteror applicable legal requirements. The director shall: 53 (i) Deny the application and such denial shall be the final agency 54 action; or 55 (ii) Appoint a determinations officer to review the record and sub- 24 1 mit a recommended order to the director to affirm or reverse the 2administrator'sdecision of bid nonresponsiveness. 3 The determinations officer in making this recommendation may rely on 4 the documents of record, statements of employees of the state of Idaho 5 participating in any phase of the selection process, and statements of any 6 vendor submitting a bid. The determinations officer shall not be required 7 to solicit statements from any person. The director shall, upon receipt 8 of a written recommendation from the determinations officer,sustain, mod-9ifyenter a final order sustaining, modifying orreversereversing the 10 administrator's nonresponsive bid decision. An appeal conducted under the 11 provisions of this subsection shall not be considered a contested case 12 under, and shall not be subject to judicial review under, the provisions 13 of chapter 52, title 67, Idaho Code. 14 (c) A responsive vendorwhose bid is consideredmay, within five (5) 15 working days following receipt of notice that he is not the lowest respon- 16 sible bidder,applyappeal the selection decision to the director of the 17 department of administration.for appointment of a determinations officer.18 Theapplicationappeal shall be in writing and shall set forth in specific 19 terms the reasons why theadministrator'sselection decision is thought to 20 be erroneous. Upon receipt of the application, the director shall within 21threefive (35) working days: 22 (i) Deny the application, and such denial shall beconsideredthe 23 final agencydecisionaction; or 24 (ii) Appoint a determinations officer to review the record to deter- 25 mine whether theadministrator'sselection of the lowest responsible 26 bidder is correct; or 27 (iii) Appoint a determinations officer with authority to conduct a 28 contested case hearing in accordance with the provisions of chapter 29 52, title 67, Idaho Code. 30 A determinations officer appointed pursuant to subsection 3167-5733(1)(c)(ii), Idaho Code,of this section shall inform the director 32 by written recommendation whether, in his opinion, theadministrator's33 selection of the lowest responsible bidder is correct. The determinations 34 officer in making this recommendation may rely on the documents of record, 35 statements of employees of the state of Idaho participating in any phase 36 of the selection process, and statements of any vendor submitting a bid. A 37 contested case hearing shall not be allowed and the determinations officer 38 shall not be required to solicit statements from any person. Upon receipt 39 of the recommendation from the determinations officer, the director shall 40sustain, modifyenter a final order sustaining, modifying orreverse41 reversing the decisionof the administratoron the selection of the lowest 42 responsible bidder or the director may appoint a determinations officer 43 pursuant to subsection67-5733(1)(c)(iii), Idaho Codeof this section. 44 A determinations officer appointed pursuant to subsection67-573345 (1)(c)(iii), Idaho Code,of this section shall conduct a contested case 46 hearing and upon conclusion of the hearing shall prepare findings of fact, 47 conclusions of law and a recommended order for the director of the depart- 48 ment of administration. Upon receipt of the findings of fact, conclusions 49 of law and recommended order, the director shall enter a final order sus- 50 taining, modifying or reversing the decision of the administrator on the 51 selection of the lowest responsible bidder. 52 (d) In the case of a sole source procurement, there shall be a period of 53not more thanfive (5) working days from the last date ofpublicrequired 54 notice in which any vendor, able to sell or supply the item(s) to be55acquired,may notify the administrator of the division of purchasing, in25 1writing,of hisintention tochallenge to the sole source procurement.and2briefly explain the nature of tThe challenge shall be in writing and shall 3 set forth in specific terms the reason why the sole source determination 4 is thought to be erroneous. 5 Upon receipt of the challenge, the director shall either: 6 (i) Deny the application; or 7 (ii) Appoint a determinations officer to review the record and submit 8 a recommended order to the director to affirm or reverse the 9administrator'ssole source determination. 10 The determinations officer in making this recommendation may rely on 11 the documents of record, statements of employees of the state of Idaho 12 participating in any phase of the selection process, and statements of 13 vendors. The determinations officer shall not be required to solicit 14 statements from any person. The director,shall,upon receipt of a written 15 recommendation from the determinations officer,sustain, modifyshall 16 enter a final order sustaining, modifying orreversereversing the 17administrator'ssole source determination. An appeal conducted under the 18 provisions of this subsection shall not be considered a contested case 19 under, and shall not be subject to judicial review under, the provisions 20 of chapter 52, title 67, Idaho Code. 21 (e) The administrator of the division of purchasing may, on his own ini- 22 tiative, file a complaint with the director fora hearing beforethe 23 appointment of a determinations officer. The director shall appoint a 24 determinations officerwho shallto review the record and make a written 25 recommendationsto the director.and tThe director shall render whatever 26 decision is necessary to resolve the complaint. 27 (2)The director of the department of administration is hereby authorized28and directed to appoint a determinations officer whenever one is required by29this chapter. The officer shall meet and render whatever determination is30called for.Whena complaintan appeal is filed pursuant to subsection67-573331 (1)(b), Idaho Codeof this section, no bid may be awarded until the final 32 decision is rendered by the director of the department of administration; pro- 33 vided that in all other cases where a determinations officer is appointed by 34 the director, the directorshall have the power tomay allow the acquisition 35 contract to be awarded to the successful bidder prior toor after the decision36of the determinations officerhis final decision if he determines such award 37 to be in the best interest of the state.Any determinations officer appointed38pursuant to this section shall exist only for the duration of unresolved com-39plaints on an acquisition and shall be dismissed upon resolution of all such40complaints. TheA determinations officer shall be guided in his determination 41 by the best economic interests of the state for both the near future and more 42 extended periods of time. In addition to the powers conferred,on the determi-43nations officer,the director of the department of administration may: impose 44 the penalty prescribed by section 67-5734(3), Idaho Code; enjoin any activity 45 which violatesthis chaptersections 67-5714 through 67-5744, Idaho Code; 46 direct that bids be accepted or rejected, or sustained; direct that specifica- 47 tions be rejected, sustained or modified; and direct further legal action. 48 (3) Challenges or appeals conducted pursuant to subsection67-573349 (1)(a), (1)(b), (1)(c)(i),or(1)(c)(ii), (1)(d) or (1)(e) of this section 50Idaho Code,shall not be consideredto bea contested case as that term is 51 defined in the administrative procedure act, and the judicial review provi- 52 sions of chapter 52, title 67, Idaho Code, shall not apply. No action shall 53 lie against the agency or its employees if the vendor does not make a timely 54 challenge, appeal or request for appointment of a determinations officer under 55 this section. In any subsequent judicial review of the final agency action on 26 1 a challenge or appeal conducted pursuant to subsection (1)(a), (1)(b), (1)(c), 2 (1)(d) or (1)(e) of this section, the court shall reverse the agency's action 3 only if the challenging or appealing party proves by clear and convincing evi- 4 dence, both that its substantial rights have been prejudiced by the agency 5 action and that the agency's action was arbitrary, capricious or an abuse of 6 discretion. An appeal conducted pursuant to subsection67-5733(1)(c)(iii),7Idaho Codeof this section, shall be conducted as a contested case according 8 to the provisions of chapter 52, title 67, Idaho Code. 9 SECTION 33. That Section 67-5734, Idaho Code, be, and the same is hereby 10 amended to read as follows: 11 67-5734. PENALTIES. (1) Any person convicted of a violation of subsection 12 (1),or (2), or (6)of section 67-5726, Idaho Code, shall be guilty of a mis- 13 demeanor. 14 (2) Any person convicted of a violation of subsection (3) of section 15 67-5726, Idaho Code, shall be guilty of a felony. 16 (3) Any officer or employee found to have violated the provisions of sub- 17 section (4) of section 67-5726, Idaho Code, may, by order of the determina-18tions officer,be suspended without pay for not more than ninety (90) working 19 days, have a reprimand entered in his personnel file, or both. 20 SECTION 34. That Section 67-5735, Idaho Code, be, and the same is hereby 21 amended to read as follows: 22 67-5735. PROCESSING -- REIMBURSEMENT OF CONTRACTOR. Within ten (10) days 23 after the property acquired is delivered ascalled for by the bid specifica-24tionsrequired, the acquiring agency shall complete all processing required of 25 that agency to permit the contractor to be reimbursed according to the terms 26 of the bid. Within ten (10) days of receipt of the documents necessary to per- 27 mit reimbursement of the contractor according to the terms of the contract, 28 the state controller shall cause a warrant to be issued in favor of the con- 29 tractor and delivered. Contracts let or entered into by or through the divi- 30 sion of purchasing are exempt from the provisions of section 67-2302, Idaho 31 Code; provided, however, that late contract payments may be assessed interest 32 by the vendor at the rate set forth in section 63-3045, Idaho Code, unless 33 another rate is established by contract. 34 SECTION 35. That Section 67-5736, Idaho Code, be, and the same is hereby 35 amended to read as follows: 36 67-5736. ACCEPTANCE. No propertyto be acquired by an agencyshall be 37 accepted by the acquiring agencywhichif such property does not meet the min- 38 imum bid specifications. 39 SECTION 36. That Section 67-5737, Idaho Code, be, and the same is hereby 40 amended to read as follows: 41 67-5737. PROVISIONS OFTHIS CHAPTERSECTIONS 67-5714 THROUGH 67-5744, 42 IDAHO CODE, CONTROLLING -- SEVERABILITY.Except as provided in section4367-5718, Idaho Code, iInsofar as the provisions ofthis chaptersections 44 67-5714 through 67-5744, Idaho Code, or the application of such provision to 45 any person or circumstance is declared invalid for any reason, such declara- 46 tion shall not affect the validity of the remaining portions ofthis chapter47 sections 67-5714 through 67-5744, Idaho Code. 27 1 SECTION 37. That Section 67-5740, Idaho Code, be, and the same is hereby 2 amended to read as follows: 3 67-5740. ADDITIONAL AUTHORITY AND DUTIES OF THE ADMINISTRATOR OF THE 4 DIVISION OF PURCHASING. (a1) The administrator of the division of purchasing 5 is authorized and empowered (1a) to acquire from the United States of America 6 under and in conformance with the provisions ofsection 203(j) of the Federal7Property and Administrative Services Act of 1949, as amended, hereinafter8referred to as the "Act,"40 U.S.C. sec. 549, donations of personal property 9 through state agencies such property, including equipment, materials, books, 10 or other supplies under the control of any department or agency of the United 11 States of America as may be usable and necessary for purposes of education, 12 public health or civil defense, including research for any such purpose, and 13 for such other purposes as may now or hereafter be authorized by federal law; 14 (2b) to warehouse such property; and (3c) to distribute such property within 15 the state to tax-supported medical institutions, hospitals, clinics, health 16 centers, school systems, schools, colleges, and universities within the state, 17 to other nonprofit medical institutions, hospitals, clinics, health centers, 18 schools, colleges and universities which have been held exempt from taxation 19 under section 501(c)(3) (26 U.S.C. sec. 501(c)(3)) of the United States Inter- 20 nal Revenue Code of 1954, to civil defense organizations of the state, or 21 political subdivisions and instrumentalities thereof, which are established 22 pursuant to state law, and to such other types of institutions or activities 23 as may now be or hereafter become eligible under federal law to acquire such 24 property. 25 (b2) The administrator is hereby authorized to receive applications from 26 eligible institutions for the acquisition of federal surplus real property, 27 investigate the same, obtain expression of views respecting such applications 28 from the appropriate health or educational authorities of the state, make rec- 29 ommendations regarding the need of such applicant for the property, the merits 30 of its proposed program of utilization, the suitability of the property for 31 such purposes, and otherwise assist in the processing of such applications for 32 acquisition of real and related personal property of the United States under 33section 203(k) of the act40 U.S.C. sec. 549. 34 (c3) For the purpose of executing its authority underthis chaptersec- 35 tions 67-5740 through 67-5744, Idaho Code, the administrator is authorized and 36 empowered to adopt, amend, or rescind such rules and prescribe such require- 37 ments as may be deemed necessary and take such other action as is deemed nec- 38 essary and suitable, in the administration ofthis chaptersections 67-5740 39 through 67-5744, Idaho Code, to assure maximum utilization by and benefit to 40 health, educational and civil defense and other eligible institutions and 41 organizations within the state from property distributed underthis chapter42 sections 67-5740 through 67-5744, Idaho Code. 43 (d4) The administrator, subject to approval of the director of adminis- 44 tration, is authorized and empowered to appoint advisory boards or committees, 45 who shall be compensated as provided by section 59-509(b), Idaho Code, and to 46 employ such personnel and to fix their compensation and prescribe their 47 duties, as are deemed necessary and suitable for the administration ofthis48chaptersections 67-5740 through 67-5744, Idaho Code. Expenditures incurred 49 hereunder shall be paid as are other claims against the state. 50 (e5) The administrator is authorized and empowered to make such certifi- 51 cations, take such action, make such expenditures and enter into such con- 52 tracts, agreements and undertakings for and in the name of the state,(includ- 53 ing cooperative agreements with any federal agencies providing for utilization 54 by and exchange between them of the property, facilities, personnel and ser- 28 1 vices of each by the other), require such reports and make such investigations 2 as may be required by law or regulation of the United States of America in 3 connection with the disposal of real property and the receipt, warehousing, 4 and distribution of personal property received by him from the United States 5 of America; provided, that all expenditures, contracts, agreements and under- 6 takings for and in the name of the state shall have the approval of the state 7 board of examiners. 8 (f6) The administrator is authorized and empowered to act as aclearing9houseclearinghouse of information for the public and private nonprofit insti- 10 tutions, organizations and agencies referred to insubparagraphsubsection 11 (a1) of this section, and other institutions eligible to acquire federal sur- 12 plus real property, to locate both real and personal property available for 13 acquisition from the United States of America, to ascertain the terms and con- 14 ditions under which such property may be obtained, to receive requests from 15 theabove mentionedabovementioned institutions, organizations and agencies 16 and to transmit to them all available information in reference to such prop- 17 erty, and to aid and assist such institutions, organizations and agencies in 18 every way possible in the consummation of acquisitions or transactions hereun- 19 der. 20 (g7) The administrator, in the administration ofthis chaptersections 21 67-5740 through 67-5744, Idaho Code, shall cooperateto the fullest extent22consistent with the provisions of the act,with the departments or agencies of 23 the United States of America and shall file a state plan of operation, operate 24 in accordance therewith, and take such action as may be necessary to meet the 25 minimum standard prescribedin accordance with the act,and make such reports 26 in such form and containing such information as the United States of America 27 or any of its departments or agencies may from time to time require, and it 28 shall comply with the laws of the United States of America and the rules and 29 regulations of any of the departments or agencies of the United States of 30 America governing the allocation, transfer, use or accounting for, property 31 donable or donated to the state. 32 (h8) The administrator, with approval of the board of examiners, is 33 authorized to contract with agencies of other states responsible for the 34 handling of surplus property for: 35 (1a) The acquisition, warehousing, and distribution of surplus property 36 on behalf of the state of Idaho and the delivery of surplus property 37 within the state of Idaho; and 38 (2b) The acquisition, warehousing, and distribution of surplus property 39 on behalf of other states and the delivery of surplus property in other 40 states; provided, that any contract negotiated under the authority of this 41subparagraphparagraph (2b) shall obligate the other states to pay the 42 cost of the surplus property and the administrative costs incurred in the 43 acquisition, warehousing, and distribution of the surplus property; and 44 (3c) The furnishing of any services to the state of Idaho concerning the 45 acquisition, warehousing, and distribution of surplus property, and the 46 sorting, dividing into lots, crating, preparing for shipment, and any 47 other handling of surplus property for the state of Idaho. 48 SECTION 38. That Section 67-5741, Idaho Code, be, and the same is hereby 49 amended to read as follows: 50 67-5741. DELEGATION OF DUTIES -- BONDING OF AGENCY PERSONNEL. The direc- 51 tor of the department of administration may delegate to any employees of the 52 division of purchasing such authority as he deems reasonable and proper for 53 the effective administration ofthis actsections 67-5740 through 67-5744, 29 1 Idaho Code. The director may utilize the services of officers and employees of 2 any of the state departments and any other governmental agencies of the state 3 receiving surplus property under the provisions ofthis actsections 67-5740 4 through 67-5744, Idaho Code, and all such departments and agencies are hereby 5 authorized to assist and cooperate with the director in the administration of 6this actsections 67-5740 through 67-5744, Idaho Code. Any person in the 7 employ of the division of purchasing agency may in the discretion of the gov- 8 ernor be required to execute and deliver to the governor a bond payable to the 9 state in such amount as may be fixed by the governor, conditioned upon the 10 proper care, disbursement, and accounting of all funds and the proper care, 11 distribution, and accounting of all property received from the United States 12 under the authority ofthis actsections 67-5740 through 67-5744, Idaho Code; 13 provided, however, the governor may accept an adequate indemnity bond covering 14 all or part of the persons so accountable and responsible. 15 SECTION 39. That Section 67-5742, Idaho Code, be, and the same is hereby 16 amended to read as follows: 17 67-5742. DELEGATION OF AUTHORITY TO ACQUIRE SURPLUS PROPERTY. Any provi- 18 sion of law to the contrary notwithstanding, the governing board, or in case 19 there be none, the executive head, of any state department, instrumentality, 20 or agency or of any county, city, school district or other political subdivi- 21 sion may by order or resolution confer upon any officer or employee thereof 22 continuing authority from time to time to secure the transfer to it of surplus 23 property underthis actsections 67-5740 through 67-5744, Idaho Code, and to 24 obligate the state or political subdivision to the extent necessary to comply 25 with the terms and conditions of such transfers. The authority conferred upon 26 any such officer or employee by any such order or resolution shall remain in 27 effect unless and until the order or resolution is duly revoked and written 28 notice of such revocation shall have been received by the administrator of the 29 division of purchasing. 30 SECTION 40. That Section 67-5743, Idaho Code, be, and the same is hereby 31 amended to read as follows: 32 67-5743. TRANSFER CHARGES. The administrator of the division of purchas- 33 ing is hereby authorized to make charges and to assess fees from the recipient 34 of any surplus property acquired and distributed underthis actsections 35 67-5740 through 67-5744, Idaho Code. Any charges made or fees assessed by the 36 administrator for the acquisition, warehousing, distribution, or transfer of 37 any property of the United States of America for educational, public health or 38 civil defense purposes, including research, shall be limited to those reason- 39 ably related to the costs of care and handling in respect to its acquisition, 40 receipt, warehousing, distribution or transfer by the surplus property agency 41 and, in the case of real property, such charges and fees shall be limited to 42 the reasonable administrative costs of the division incurred in effecting 43 transfer. 44 SECTION 41. That Section 67-5744, Idaho Code, be, and the same is hereby 45 amended to read as follows: 46 67-5744. SURPLUS PROPERTY FUND MAINTAINED -- CHARGES AND FEES, DEPOSI- 47 TION.The surplus property revolving fund, as created by chapter 161, laws of481957, is hereby maintained and continued to carry out the provisions of sec-49tions 67-5740--67-5744, Idaho Code.The charges or fees received by the divi- 30 1 sion of purchasing for acquisition, warehousing, distribution or transfer of 2 surplus property shall be deposited and credited to thesaidsurplus property 3 revolving fund, which fund shall be available for expenditure in administering 4 the provisions of sections 67-5740--through 67-5744, Idaho Code, including 5 payment of the actual expenses of current operations and the purchase of nec- 6 essary equipment, and the acquisition and maintenance of a working capital 7 reserve within the surplus property revolving fund. Any prior appropriation 8 made to the revolving fund is hereby declared to be exempt from the provisions 9 of theSstandardAappropriationsAact of 1945. 10 The amount of the working capital reserve in any fiscal year shall be 11 determined by the director of the department of administration and shall not 12 exceed an amount equivalent to the estimated cost of operation of the surplus 13 property function of the division for the next succeeding fiscal year; pro- 14 vided, however, that accounts receivable which are uncollectible and all lia- 15 bilities incurred in the performance of sections 67-5740--through 67-5744, 16 Idaho Code, including the unrepaid balance of the amount heretofore appropri- 17 ated to the surplus property revolving fund from the general fund of the state 18 of Idaho, shall be deducted from current assets in determining, as of the end 19 of any fiscal year, the amount of working capital reserve for the next suc- 20 ceeding fiscal year. 21 In any fiscal year the director of administration may transfer from the 22 surplus property revolving fund to the general fund of the state of Idaho any 23 sum not exceeding the unrepaid balance of the amount heretofore appropriated 24 to the surplus property revolving fund. Upon termination or repeal of sections 25 67-5740--through 67-5744, Idaho Code, any balance remaining in said revolv- 26 ing fund not exceeding the unrepaid balance of the amount heretofore appropri- 27 ated to the surplus property revolving fund is hereby transferred to and made 28 a part of the general fund of the state, and any balance remaining in the said 29 revolving fund in excess of the said unrepaid balance shall be disposed for 30 the benefit of qualified public health, educational, civil defense, and other 31 organizations or institutions within the state of Idaho in accordance with the 32 requirements of federal law. 33 SECTION 42. That Section 67-5745A, Idaho Code, be, and the same is hereby 34 amended to read as follows: 35 67-5745A. DEFINITIONS. As used inthis chaptersections 67-5745 through 36 67-5748, Idaho Code: 37 (1) "Information technology" means all present and future forms of com- 38 puter hardware, computer software and services used or required for automated 39 data processing, computer-related office automation or telecommunications. 40 (2) "State agencies" means all state agencies or departments, boards, 41 commissions, councils and institutions of higher education, but shall not 42 include the elected constitutional officers and their staffs, the legislature 43 and its staffs or the judiciary. 44 (3) "Telecommunications" means all present and future forms of hardware, 45 software or services used or required for transmitting voice, data, video or 46 images over a distance. 47 SECTION 43. That Section 67-5745C, Idaho Code, be, and the same is hereby 48 amended to read as follows: 49 67-5745C. GENERAL POWERS AND DUTIES OF THE COUNCIL. The council shall: 50 (1) Review and evaluate the information technology and telecommunications 51 systems presently in use by state agencies; 31 1 (2) Prepare statewide short-range and long-range information technology 2 and telecommunications systems plans to meet the needs of state agencies; 3 (3) Within the context of its strategic plans, establish statewide infor- 4 mation technology and telecommunications policies, standards, guidelines, con- 5 ventions and comprehensive risk assessment criteria that will assure uniform- 6 ity and compatibility of such systems within state agencies; 7 (4) Recommend and coordinate the use and application of state agencies' 8 information technology and telecommunications resources; 9 (5) Review and approve large-scale information technology and telecommu- 10 nications projects including, but not limited to, risk assessment 11 methodologies used by state agencies using council risk assessment criteria, 12 for state agencies; 13 (6) Review state agencies' compliance with statewide information technol- 14 ogy and telecommunications systems plans; 15 (7) Recommend cost-efficient procedures for state agencies' acquisition 16 and procurement of information technology and telecommunications systems; 17 (8) Upon request, provide technical expertise to state government and any 18 other governmental entity; 19 (9) Maintain a continuous and comprehensive inventory of information 20 technology and telecommunications systems within state agencies; 21 (10) In accordance with statutes governing the availability or confidenti- 22 ality of public records and information, establish guidelines for the acces- 23 sing of public information by the public; 24 (11) On an annual basis, publish a report of the activities of the council 25 for provision to the governor and the legislature; 26 (12) Recommend the enactment or promulgation of any statutes or rules nec- 27 essary to carry out the statewide information technology and telecommunica- 28 tions systems plans; 29 (13) Enter into contracts for professional services and assistance not 30 otherwise available in state government; 31 (14) Encourage and promote the development and growth of the information 32 technology industry in the state in accordance with sound business principles 33 and practices; 34 (15) Encourage and promote cooperative information technology efforts and 35 activities between the state, private enterprise and the public; 36 (16) Encourage and support education and training opportunities relating 37 to information technology and telecommunications; and 38 (17) Perform any additional functions consistent with the purpose ofthis39actsections 67-5745 through 67-5748, Idaho Code, which are necessary and 40 appropriate for the proper conduct of the council. 41 SECTION 44. That Section 67-5747, Idaho Code, be, and the same is hereby 42 amended to read as follows: 43 67-5747. POWERS AND DUTIES. (1) The department of administration is 44 hereby authorized and directed: 45 (a) (i) To control and approve the acquisition and installation of all 46 information technology and communications equipment and facilities 47 for all departments and institutions of state government, except as 48 provided in subparagraphs (ii), (iii) and (iv) of this subsection; 49 (ii) To coordinate the acquisition and installation of all informa- 50 tion technology and communications equipment and facilities forthe51institutions of higher education andthe elected officers in the 52 executive department; 53 (iii) To coordinate the acquisition and installation of all informa- 32 1 tion technology and communications equipment and facilities for the 2 legislative and judicial departments; 3 (iv) Provided however, that the acquisition and installation of all 4 public safety radio and microwave equipment shall be under the con- 5 trol of the military division. 6 In approving or coordinating the acquisition or installation of informa- 7 tion technology and communications equipment or facilities, the department 8 shall first consult with and consider the recommendations and advice of 9 the directors or executive heads of the various departments or institu- 10 tions. Any acquisition or installation of any information technology and 11 communications equipment or facilities that is contrary to the 12 department's recommendation, or is not in harmony with the state's overall 13 plan for information technology and communications and information shar- 14 ing, shall be reported in writing to the governor and the legislature. 15 (b) To receive and hold, upon order of the board of examiners, physical 16 custody and control of such existing information technology and communi- 17 cations equipment and facilities utilized by or in the possession of any 18 department or institution, as may be necessary to carry out the purposes 19 ofthis chaptersections 67-5745 through 67-5748, Idaho Code. 20 (c) To providea system ofinformation technology and communications sys- 21 tems for all departments and institutions of state government. The depart- 22 ment may prescribe adequate rules or guidelines for the use of anycommu-23nicationsrelated equipment and facilities now in use or hereafter made 24 available. Funds received pursuant to this subsection shall be appropri- 25 ated for payment of information technology, communication and telephone 26 charges incurred by the various agencies and institutions of state govern- 27 ment. 28 (d) To provide a means whereby political subdivisions of the state may 29 utilize thestateinformation technology and communications system, upon 30 such terms and under such conditions as the department may establish. 31 (e) To accept federal funds granted by congress or by executive order for 32 all or any of the purposes ofthis chaptersections 67-5745 through 33 67-5748, Idaho Code, as well as gifts and donations from individuals and 34 private organizations or foundations. 35 SECTION 45. That Section 67-5748, Idaho Code, be, and the same is hereby 36 amended to read as follows: 37 67-5748. TRANSFER OF FUNDS, EQUIPMENT, FACILITIES, AND EMPLOYEES. In 38 order to provide for the orderly implementation ofthis chaptersections 39 67-5745 through 67-5748, Idaho Code, and to provide an economical, efficient, 40 and effective system of information technology and telecommunications for the 41 state, the board of examiners may order such transfer of appropriated funds, 42 custody and control of equipment and facilities, and employees to the depart- 43 ment of administration as may be necessary to carry out the purposes ofthis44actsections 67-5745 through 67-5748, Idaho Code. 45 SECTION 46. That Section 67-5751, Idaho Code, be, and the same is hereby 46 amended to read as follows: 47 67-5751. RECORDS MANAGEMENT. The director of the department of adminis- 48 tration may develop subject to the provisions of chapter 52, title 67, Idaho 49 Code, rules and procedures pertaining to the management of all state records. 50 "Records" shall mean;: any document, book, paper, photograph, sound recording, 51 or other material, regardless of physical form or characteristics, made or 33 1 received pursuant to law or in connection with the transaction of official 2 state business. Library and archive material made, acquired, or preserved 3 solely for reference, exhibition, or historical purposes, extra copies of doc- 4 uments preserved only for convenience of reference, and stocks of publications 5 and of processed documents are not included within the definition of records 6 as used in this section. 7 Rules, or if rules are not adopted, guidelines and procedures shall be 8 established: 9 (a1) Pertaining to retention periods for all state records. 10 (b2) Establishing a standard filing system for all state agencies. 11 (c3) Prescribing conditions and procedures for destruction of state 12 records. 13 (d4) Ensuring efficient utilization of manpower, building space, and sup- 14 plies with regard to paper flow and forms usage. 15(e) Pertaining to proper and efficient utilization of microfilming ser-16vices.17 SECTION 47. That Section 67-5753, Idaho Code, be, and the same is hereby 18 amended to read as follows: 19 67-5753.MICROFILMINGSTORAGE SERVICES.The director of administration20shall develop a microfilming facility to provide microfilming services to21state agencies when, in his judgment, such a facility would be in the best22interests of the state. Microfilming equipment and related equipment under the23control of other state agencies at the time of this development shall become24the property of the department of administration at the direction of the25director of administration.26 The director of the department of administration shall provide storage for 27 inactive records at the request of state agencies. 28 SECTION 48. That Section 67-5773, Idaho Code, be, and the same is hereby 29 amended to read as follows: 30 67-5773. POWERS AND DUTIES -- RISK MANAGEMENT. (1) The director of the 31 department of administration shall: 32 (a) Determine the nature and extent of needs for insurance coverages of 33 all kinds, other than life and disability insurances, as to risks and 34 property of all offices, departments, divisions, boards, commissions, 35 institutions, agencies and operations of the government of the state of 36 Idaho, the premiums on which are payable in whole or in part from funds of 37 the state. 38 (b) Determine the character, terms, and amounts of insurance coverages 39 required by such needs. 40 (c) Within funds available therefor from each respective office, depart- 41 ment, division, board, commission, institution, agency or operation with 42 respect to coverage to be provided to it, negotiate for, procure, pur- 43 chase, and have placed or continued in effect all such insurance coverages 44 and services as may reasonably be obtainable, whether from insurers or 45 brokers duly authorized to transact business in this state. 46 (d) Administer all such coverages on behalf of the insured, including 47 making and settlement of loss claims arising thereunder. The director, 48 with the advice of the attorney general, may cause suit to be brought with 49 respect to any such coverage or loss. 50 (e) Within available funds and personnel, make periodic inspection or 51 appraisal of premises, property and risks as to conditions affecting 34 1 insurability, risk, and premium rate, and submit a written report of each 2 such inspection or appraisal together with recommendations, if any, to the 3 officer, department, or agency in direct charge of such premises, property 4 or risks. 5 (f) Perform such other duties and exercise such other powers as are pro- 6 vided by law. 7(g) Establish a risk management advisory committee. The director shall8consult with the advisory committee in the performance of those duties9enumerated above.10 (2) As to all such needs and coverages, the director shall give due con- 11 sideration to information furnished by and recommendations of any office, 12 department, division, board, commission, institution or agency. 13 SECTION 49. That Section 67-5776, Idaho Code, be, and the same is hereby 14 amended to read as follows: 15 67-5776. RETAINED RISKS ACCOUNTFUND -- PURPOSES -- AMOUNT -- LIMIT -- 16 APPROPRIATION -- INVESTMENT. (1) There is hereby createdan account in the17agency asset fundin the state treasuryto be designatedthe "retained risk 18accountfund." Theaccountfund shall be used solely for payment of premiums, 19 costs of maintaining the operation of the risk management office, or upon 20 losses not otherwise insured and suffered by the state as to property and 21 risks which at the time of the loss were eligible for such payment under 22 guidelines theretofore issued by the director of the department of administra- 23 tion. 24 (2) In addition to moneys, if any, appropriated to theaccountfund by 25 the legislature, the director shall deposit with the state treasurer for 26 credit to the retained riskaccountfund: 27 (a)tThe gross amount of all premiums and surcharges received under sec- 28 tion 67-5777, Idaho Code; 29 (b)aAll refunds received on account of insurance policies canceled 30 before expiration; 31 (c)aAll refunds or returns under experience rating arrangements with 32 insurers; 33 (d)sSavings from amounts otherwise appropriated for the purchase of 34 insurance or conduct of the risk management office operation; 35 (e)aAll net proceeds of the sale of salvage resulting from losses paid 36 out of the retained riskaccountfund. 37 (3) The director may from time to time develop guidelines as to proper- 38 ties and risks eligible for payment out of the retained riskaccountfund, and 39 as to making of claim and proof of loss. 40 (4) All moneys placed in theaccountfund are hereby perpetually appro- 41 priated for the purposes of this section. All expenditures from theaccount42 fund shall be paid out in warrants drawn by the state controller upon presen- 43 tation of proper vouchers from the director of the department of administra- 44 tion. 45 (5) Pending such use, surplus moneys in theaccountfund shall be 46 invested by the state treasurer in the same manner as provided under section 47 67-1210, Idaho Code, with respect to other surplus or idle moneys in the state 48 treasury. Interest earned on the investments shall be returned to theaccount49 fund. 50 SECTION 50. SEVERABILITY. The provisions of this act are hereby declared 51 to be severable and if any provision of this act or the application of such 52 provision to any person or circumstance is declared invalid for any reason, 35 1 such declaration shall not affect the validity of the remaining portions of 2 this act.
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-ninth Legislature Second Regular Session - 2008Moved by Black Seconded by Smith (30) IN THE HOUSE OF REPRESENTATIVES HOUSE AMENDMENT TO H.B. NO. 403 1 AMENDMENT TO THE BILL 2 On page 2 of the printed bill, delete lines 33 and 34; and renumber sub- 3 sequent sections accordingly. 4 CORRECTION TO TITLE 5 On page 1, delete lines 2 and 3, and insert: 6 "RELATING TO THE DEPARTMENT OF ADMINISTRATION; AMENDING SECTION". 2 Moved by Black Seconded by Smith (30) IN THE HOUSE OF REPRESENTATIVES HOUSE AMENDMENTS TO H.B. NO. 403 1 AMENDMENT TO SECTION 13 2 On page 9 of the printed bill, in line 35, delete "or may" and insert: 3 "and shall"; on page 10, in line 10, following "opened" insert: "publicly"; 4 and in line 47, delete "he determines". 5 AMENDMENT TO SECTION 19 6 On page 17, in line 30, following "opened" insert: "publicly".
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-ninth Legislature Second Regular Session - 2008IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 403, As Amended BY STATE AFFAIRS COMMITTEE 1 AN ACT 2 RELATING TO THE DEPARTMENT OF ADMINISTRATION; AMENDING SECTION 67-5701, IDAHO 3 CODE, TO PROVIDE THAT THE DIRECTOR MAY PROMULGATE RULES; AMENDING SECTION 4 67-5704, IDAHO CODE, TO PROVIDE ADVANCE PAYMENTS AND INTERACCOUNT TRANSAC- 5 TIONS TO AGENCIES AND INSTITUTIONS OF STATE GOVERNMENT; AMENDING SECTION 6 67-5706, IDAHO CODE, TO PROVIDE A CORRECT CODE REFERENCE; AMENDING SECTION 7 67-5708, IDAHO CODE, TO PROVIDE THAT THE DEPARTMENT OF ADMINISTRATION MAY 8 PAY COSTS INCURRED IN THE OPERATION AND MANAGEMENT OF STATE PROPERTIES 9 FROM RENTS RECEIVED AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 10 67-5708A, IDAHO CODE, TO DELETE OBSOLETE DATES AND TO PROVIDE THAT THE 11 DIRECTOR SHALL MAINTAIN A CURRENT INVENTORY OF ALL LEASES OF FACILITIES 12 USED BY STATE AGENCIES; AMENDING SECTION 67-5709, IDAHO CODE, TO PROVIDE 13 CORRECT TERMINOLOGY, TO PROVIDE REMITTANCE TO THE FACILITIES SERVICES FUND 14 AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 67-5710, IDAHO CODE, 15 TO REMOVE OBSOLETE DATES AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SEC- 16 TION 67-5710A, IDAHO CODE, TO PROVIDE CORRECT TERMINOLOGY AND TO REVISE 17 REQUIREMENTS OF PLANS AND SPECIFICATION APPROVAL; AMENDING SECTION 18 67-5710B, IDAHO CODE, TO REVISE DEFINITIONS AND TO MAKE A TECHNICAL COR- 19 RECTION; AMENDING SECTION 67-5711, IDAHO CODE, TO REVISE DESCRIPTIVE LAN- 20 GUAGE, TO REMOVE REFERENCE TO THE RULES OF THE PERMANENT BUILDING FUND 21 ADVISORY COUNCIL AND TO PROVIDE CORRECT TERMINOLOGY; AMENDING SECTION 22 67-5711A, IDAHO CODE, TO REVISE PROCEDURES FOR DESIGN-BUILD CONTRACTING; 23 AMENDING SECTION 67-5711C, IDAHO CODE, TO REVISE PROCEDURES FOR AWARDING 24 CONTRACTS FOR PUBLIC WORKS PROJECTS AND TO DEFINE A TERM; AMENDING SECTION 25 67-5711D, IDAHO CODE, TO REVISE PROCEDURES FOR ENERGY SAVINGS PERFORMANCE 26 CONTRACTS AND TO DELETE A CODE REFERENCE; AMENDING SECTION 67-5712, IDAHO 27 CODE, TO PROVIDE CORRECT TERMINOLOGY; AMENDING SECTION 67-5713, IDAHO 28 CODE, TO REVISE PROCEDURES FOR CONSTRUCTION AND ALTERATION OF STATE COR- 29 RECTIONAL FACILITIES; AMENDING SECTION 67-5716, IDAHO CODE, TO REVISE DEF- 30 INITIONS; AMENDING SECTION 67-5717, IDAHO CODE, TO REVISE POWERS AND 31 DUTIES OF THE ADMINISTRATOR OF THE DIVISION OF PURCHASING; AMENDING SEC- 32 TION 67-5718, IDAHO CODE, TO PROVIDE A CORRECT CODE REFERENCE AND TO 33 REVISE PROCEDURES FOR OPENING OF BIDS; AMENDING SECTION 67-5718A, IDAHO 34 CODE, TO PROVIDE CORRECT CODE REFERENCES; AMENDING SECTION 67-5720, IDAHO 35 CODE, TO ALLOW FOR PURCHASE IN THE OPEN MARKET WITHOUT COMPETITIVE BID- 36 DING; REPEALING SECTION 67-5721, IDAHO CODE, RELATING TO ACQUISITION OF 37 NONOWNED PROPERTY; AMENDING SECTION 67-5723, IDAHO CODE, TO DELETE LAN- 38 GUAGE REGARDING RULES RELATING TO DISCOUNTS; AMENDING SECTION 67-5724A, 39 IDAHO CODE, TO PROVIDE CORRECT CODE REFERENCES; AMENDING SECTION 67-5725, 40 IDAHO CODE, TO REVISE LANGUAGE RELATING TO RECORDS ASSOCIATED WITH THE 41 AWARD OF A CONTRACT AND TO PROVIDE CODE REFERENCES; AMENDING SECTION 42 67-5726, IDAHO CODE, TO REVISE LANGUAGE PROVIDING WHEN A VENDOR SHALL BE 43 INELIGIBLE FOR THE AWARD OF A CONTRACT AND TO REVISE PROCEDURES; REPEALING 44 SECTION 67-5727, IDAHO CODE, RELATING TO MAINTENANCE OF STOCKS; AMENDING 45 SECTION 67-5727A, IDAHO CODE, TO PROVIDE CORRECT CODE REFERENCES; AMENDING 46 SECTION 67-5729, IDAHO CODE, TO REVISE LANGUAGE RELATING TO APPLICATION OF 2 1 THE ADMINISTRATIVE PROCEDURE ACT; AMENDING SECTION 67-5730, IDAHO CODE, TO 2 REVISE LANGUAGE RELATING TO QUALIFICATION AND DISQUALIFICATION OF VENDORS, 3 TO PROVIDE FOR A STANDARD OF REVIEW AND TO MAKE TECHNICAL CORRECTIONS; 4 REPEALING SECTION 67-5732, IDAHO CODE, RELATING TO ADDITIONAL RULES; 5 AMENDING SECTION 67-5733, IDAHO CODE, TO REVISE APPEALS PROCEDURES FOR THE 6 DIVISION OF PURCHASING AND TO PROVIDE FOR A STANDARD OF REVIEW; AMENDING 7 SECTION 67-5734, IDAHO CODE, TO REVISE A CODE CITATION AND TO REMOVE REF- 8 ERENCE TO THE ORDER OF THE DETERMINATIONS OFFICER; AMENDING SECTION 9 67-5735, IDAHO CODE, TO REVISE PROCESSING PROCEDURES FOR REIMBURSEMENT OF 10 CONTRACTORS; AMENDING SECTION 67-5736, IDAHO CODE, TO REVISE ACCEPTANCE 11 PROCEDURES; AMENDING SECTION 67-5737, IDAHO CODE, TO PROVIDE CORRECT CODE 12 REFERENCES; AMENDING SECTION 67-5740, IDAHO CODE, TO PROVIDE CORRECT CODE 13 REFERENCES AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 67-5741, 14 IDAHO CODE, TO PROVIDE CORRECT CODE REFERENCES; AMENDING SECTION 67-5742, 15 IDAHO CODE, TO PROVIDE CORRECT CODE REFERENCES; AMENDING SECTION 67-5743, 16 IDAHO CODE, TO PROVIDE CORRECT CODE REFERENCES; AMENDING SECTION 67-5744, 17 IDAHO CODE, TO DELETE REFERENCE TO THE SURPLUS PROPERTY REVOLVING FUND AND 18 TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 67-5745A, IDAHO CODE, TO 19 PROVIDE CORRECT CODE REFERENCES; AMENDING SECTION 67-5745C, IDAHO CODE, TO 20 PROVIDE CORRECT CODE REFERENCES; AMENDING SECTION 67-5747, IDAHO CODE, TO 21 REVISE POWERS AND DUTIES REGARDING INFORMATION TECHNOLOGY AND RELATED 22 EQUIPMENT AND TO PROVIDE CORRECT CODE REFERENCES; AMENDING SECTION 23 67-5748, IDAHO CODE, TO PROVIDE CORRECT CODE REFERENCES; AMENDING SECTION 24 67-5751, IDAHO CODE, TO REMOVE REFERENCE TO MICROFILMING SERVICES AND TO 25 MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 67-5753, IDAHO CODE, TO 26 REMOVE REFERENCE TO MICROFILM SERVICES AND TO MAKE A TECHNICAL CORRECTION; 27 AMENDING SECTION 67-5773, IDAHO CODE, TO REMOVE REFERENCE TO THE RISK MAN- 28 AGEMENT ADVISORY COMMITTEE; AMENDING SECTION 67-5776, IDAHO CODE, TO PRO- 29 VIDE CORRECT TERMINOLOGY AND TO MAKE TECHNICAL CORRECTIONS; AND PROVIDING 30 SEVERABILITY. 31 Be It Enacted by the Legislature of the State of Idaho: 32 SECTION 1. That Section 67-5701, Idaho Code, be, and the same is hereby 33 amended to read as follows: 34 67-5701. DEPARTMENT CREATED -- APPOINTMENT OF DIRECTOR -- DUTIES. There 35 is hereby created the department of administration. The governor shall, sub- 36 ject to the advice and consent of the senate, appoint a director of adminis- 37 tration who shall serve at the pleasure of the governor and who shall receive 38 such salary as fixed by the governor. The director of administration may pro- 39 mulgate rules and shall exercise all the powers and duties necessary to carry 40 out the proper administration of the department of administration. The depart- 41 ment of administration shall, for the purposes of section 20, article IV, of 42 the constitution of the state of Idaho, be an executive department of the 43 state government. 44 SECTION 2. That Section 67-5704, Idaho Code, be, and the same is hereby 45 amended to read as follows: 46 67-5704. ADVANCE PAYMENTS AND INTERACCOUNT TRANSACTIONS. Any unit of the 47 department of administration providing services to departments, agencies and 48 institutions of state government as authorized in this chapter may charge and 49 receive payment in advance of performance thereof for a period of time not to 50 exceed the current appropriation of the department requesting such services. 3 1 Such payments may be used for personnel costs and operating expenditures of 2 the unit providing the services. 3 SECTION 3. That Section 67-5706, Idaho Code, be, and the same is hereby 4 amended to read as follows: 5 67-5706. ALLOCATION OF OFFICE SPACE. The division of public works shall 6 have the power and duty to allocate all space, owned or leased in the city of 7 Boise in the name of the state, except as provided by section67-570767-1602, 8 Idaho Code, for the occupancy of the various state departments, agencies and 9 institutions. Allocations of space will be made on the basis of functional 10 need and statutory requirements and in conformity with standards and criteria 11 adopted by the permanent building fund advisory council. In approving the 12 allocations of space, the division shall first consult with and consider the 13 recommendations and advice of the directors or executive heads of the various 14 departments, agencies or institutions. 15 SECTION 4. That Section 67-5708, Idaho Code, be, and the same is hereby 16 amended to read as follows: 17 67-5708. LEASING OF FACILITIES FOR STATE USE -- CONTROL OF PARKING. The 18 department of administration shall negotiate for, approve, and make any and 19 all lease or rental agreements for facilities to be used by the various state 20 departments, agencies and institutions in the state of Idaho. 21 For purposes of this section and sections 67-5708A and 67-5709, Idaho 22 Code, the term "facility or facilities" may be used interchangeably and shall 23 mean real property and improvements, including buildings and structures of any 24 kind, excluding water rights not appurtenant to other facilities, and state 25 endowment lands. 26 The department of administration shall managemulti-agencymultiagency 27 facilities constructed, acquired or refurbished through the state building 28 authority as established in chapter 64, title 67, Idaho Code, and shall sub- 29 lease the facilities to various state departments, agencies, and institutions 30 in the state of Idaho. The department of administration is directed to operate 31 any facilities acquired for the state and to enter into rental contracts and 32 lease agreements consistent with the use of the facilities for state purposes 33 when so authorized. The department of administration may pay costs incurred in 34 the operation and management of such properties from rents received. 35 The director may authorize and enter into leases of state capitol mall 36 real estate andmulti-agencymultiagency facilities constructed through the 37 state building authority, not needed for state purposes, to other governmental 38 entities or to nonprofit organizations upon such terms as are just and equita- 39 ble. 40 The administrator of the division of public works shall promulgate rules 41 for the control of the parking of motor vehicles in the state capitol mall. 42 Any person who shall violate any of the provisions of the rules shall be sub- 43 ject to a fine of not less than two dollars ($2.00) nor more than twenty-five 44 dollars ($25.00); provided however, that any person who shall violate any of 45 the provisions of the rules concerning the altering, counterfeiting or misuse 46 of parking permits shall be subject to a fine of not more than fifty dollars 47 ($50.00). 48 Every magistrate and every court having jurisdiction of criminal offenses 49 and the violation of public laws committed in the county of Ada shall have 50 jurisdiction to hear and determine violations of the provisions of the rules 51 and to fix, impose and enforce payment of fines therefor. Alleged violations 4 1 of the parking rules are not subject to the provisions of chapter 52, title 2 67, Idaho Code.The department of administration may pay costs incurred in the3operation and management of those properties from rents received therefrom.4 When a facility of the state of Idaho is authorized by concurrent resolu- 5 tion, and a maximum cost for the facility has been set by concurrent resolu- 6 tion, the administrator of the division of public works may enter into lease- 7 purchase or other time-purchase agreements with the Idaho state building 8 authority or other party for the facility. 9 SECTION 5. That Section 67-5708A, Idaho Code, be, and the same is hereby 10 amended to read as follows: 11 67-5708A. STATE FACILITIES MANAGEMENT -- COMPARATIVE LEASE COST ANALYSIS 12 AND ACCOUNTABILITY. (1) The director of the department of administration shall 13establish a program to identify andmaintain a current inventory of all leases 14 of facilities used in any manner for the conduct of functions of state govern- 15 ment now or hereafter entered into by any state department, agency or institu- 16 tion.Not later than January 1, 1999, all departments, agencies and institu-17tions shall submit copies of all leases of facilities to the director.The 18submittedinventory shall record the essential terms of the leases, including 19 the rental rate, term of the lease, description of the facilities, the size of 20 the facilities, and the governmental use of the facilities. 21 (2)The director of the department of administration shall establish a22program for evaluation of all leases of facilities in effect on or to be23entered into after January 1, 1999.No department, agency or institution may 24 enter into or renew any lease of facilitiesafter January 1, 1999,until a 25 comprehensive analysis is performed by that department, agency or institution 26 in accord with standards and criteria established by the director of the 27 department of administration. The comprehensive analysis shall address, at a 28 minimum, an evaluation of the need for facilities, space utilization effi- 29 ciency, long-term needs and objectives, and viable alternatives to meet facil- 30 ity needs, including acquiring facilities with appropriated funds and leasing 31 facilities through the state building authority. Departments, agencies and 32 institutions shall consult with the director when performing the comprehensive 33 analysis and, with the director's assistance, shall select the alternative 34 that best serves long-term needs and objectives and that provides suitable 35 facilities at the lowest responsible cost to the taxpayer measured over the 36 time the facilities are expected to be needed, or forty (40) years, whichever 37 is less. Departments, agencies and institutions shall include a summary of the 38 comprehensive analysis annually in their budget requests to the governor and 39 the legislature, and shall include in that summary, where appropriate, the 40 time necessary to implement their selection. 41 For purposes of this section, consideration of the "lowest responsible 42 cost," shall take into account the estimated residual asset value of facili- 43 ties acquired with appropriated funds, or acquired through the state building 44 authority or other lease-purchase arrangements and the use of public lands, 45 wherever practicable, that are owned or can be timely acquired by the state. 46 SECTION 6. That Section 67-5709, Idaho Code, be, and the same is hereby 47 amended to read as follows: 48 67-5709. MANAGEMENT OF STATE FACILITIES. The director of the department 49 of administration may pay personnel costs and operating expenditures incurred 50 in the operation and management of the state capitol mall and themulti-agency51 multiagency facilities constructed through the state building authority from 5 1 the rents received.therefrom.Proceeds accruing from such rental contracts 2 and lease agreements after payment of personnel costs and operating expendi- 3 tures which are in excess of two hundred thousand dollars ($200,000) at the 4 end of the fiscal year shall be deposited to the credit of the permanent 5 buildingaccountfund. Proceeds from the rental of parking spaces in the capi- 6 tol mall shall be deposited upon receipt to the credit of thepermanent build-7ing accountfacilities services fund. Said proceeds shallnotbe expended 8withoutpursuant to an appropriationand shall only be appropriatedfor the 9 security, maintenance and upkeep of the state capitol mall. 10 SECTION 7. That Section 67-5710, Idaho Code, be, and the same is hereby 11 amended to read as follows: 12 67-5710. PERMANENT BUILDING FUND ADVISORY COUNCIL -- APPROVAL OF USE OF 13 FUND -- DUTIES OF ADMINISTRATOR OF PUBLIC WORKS. There is hereby created in 14 the division of public works a permanent building fund advisory council which 15 shall be appointed by the governor. This council shall be composed of one (1) 16 member of the senate, one (1) member of the house of representatives, a citi- 17 zen engaged in the contracting business, a citizen engaged in the banking 18 business, and a citizen who is a member of the business community not engaged 19 in contracting or banking. The senate member and the house of representatives 20 member shall be appointed for a fixed term of two (2) years. All other council 21 members shall be appointed for a fixed term of three (3) years. Theterms of22office of members of the council holding office prior to July 1, 1996, shall23expire on the following dates: contracting business member on July 1, 1996;24senate member and house of representative member on December 1, 1996; business25community member on July 1, 1997; and banking member on July 1, 1998. On or26after July 1, 1996, thegovernor shall appoint members of the council as terms 27 of existing members expire. All members of the council shall serve at the 28 pleasure of the governor. The administrator of public works and the responsi- 29 ble heads of the agencies for which appropriations for construction, 30 renovations, remodelings or repairs are made pursuant to chapter 11, title 57, 31 Idaho Code, shall consult, confer and advise with the permanent building fund 32 advisory council in connection with all decisions concerning the administra- 33 tion of these appropriations and the planning and construction or execution of 34 work or works pursuant thereto. The approval of the permanent building fund 35 advisory council shall be a condition precedent to the undertaking of planning 36 or construction. 37 The administrator of public works is hereby directed to work in close 38 cooperation with the responsible heads of institutions and agencies for which 39 appropriations are made herein and no building proposals shall be approved by 40 the administrator of public works nor any planning or work undertaken by that 41 officer pursuant to these appropriations without the prior approval of the 42 responsible chief officer of the institutions and agencies for whom appropria- 43 tions are made herein. 44 SECTION 8. That Section 67-5710A, Idaho Code, be, and the same is hereby 45 amended to read as follows: 46 67-5710A. REQUIREMENT OF PLANS AND SPECIFICATION APPROVAL BY PERMANENT 47 BUILDING FUND ADVISORY COUNCIL AND DELEGATION OF PROJECT OVERSIGHT BY THE 48 ADMINISTRATOR FOR THE DIVISION OF PUBLIC WORKS. 49 (1) (a) Unless an emergency exists as defined in section 67-5711B, Idaho 50 Code,anno new construction may be undertaken and no existingpublic51worksbuilding or other structure maynotbe altered, repaired, con-6 1structedor improved on property owned or occupied by any state institu- 2 tion, department, commission, board or agency, if the estimated cost of 3 work exceeds the limit established in section 67-5711, Idaho Code, and 4 except for those institutions and agency exemptions listed in section 5 67-5711, Idaho Code, without regard to source of funding, until the loca- 6 tion, design, plans and specifications are approved by the permanent 7 building fund advisory council and the project supervised by the division 8 of public works or its designee. 9 (b) Facilities to bebuiltconstructed, altered, repaired or improved 10 with funds under the control of a nonstate entity, and owned or occupied 11 by state entities, must have plans and specifications prepared, and all 12 plans and specifications must be reviewed and approved by the permanent 13 building fund advisory council prior to the advertising, bidding, con- 14 struction,and/oralteration, repair or improvement or negotiation for 15 construction, alteration, repair or improvement of the facilities. 16 (2) (a) The administrator for the division of public works may delegate 17 control over design, construction and all other aspects of a public works 18or maintenanceproject which costs less than one hundred fifty thousand 19 dollars ($150,000), to agencies of state government on a project-by- 20 project basis, ifa responsible party ofthe state agency requests that 21 delegation in writing and the permanent building fund advisory council 22 approves the delegation. 23 (i) The state agency to whom control is delegated shall assume all 24 responsibility for project budgets and shall receive funds appropri- 25 ated for the project upon application and approval by the permanent 26 building fund advisory council. 27 (ii) Delegation of project control does not exempt the state agency 28 from complying with public works statutes, life safety and building 29 codes or other applicable codes and regulations. The state agency 30 also must comply with anyguidelinespolicies or procedures for 31 design and construction adopted by the division of public works and 32 the permanent building fund advisory council. 33 (iii) State agencies that receive delegated projects may not have 34 access to permanent building fund advisory council contingency funds 35 unless approved by the permanent building fund advisory council or 36 authorized by appropriation. 37 (iv) Prior, written approval from the administrator must be granted 38 for any public works utilizing sole source or limited competition. No 39 agency will be delegated the ability to declare an emergency as 40 defined in section 67-5711B, Idaho Code. 41 (v) The permanent building fund advisory council may elect to audit 42 any delegated project for compliance with applicable statutes, codes, 43andregulations, rules, policies or procedures. 44 (vi) The delegated state agency will use standard documents for pro- 45 fessional services contracts and for construction contracts as 46 adopted by the division of public works. 47 (vii) Delegation is subject to cancellation by the administrator for 48 the division of public works with the concurrence of the permanent 49 building fund advisory council. 50 SECTION 9. That Section 67-5710B, Idaho Code, be, and the same is hereby 51 amended to read as follows: 52 67-5710B. DEFINITIONS. As used inthis chaptersections 67-5705 through 53 67-5713, Idaho Code: 7 1 (1) "Preventive maintenance" means: 2 (a) Corrective repairs or replacements used for existing state-owned, or 3 state operated facilities, which result from a systematic program in which 4 wear, tear, and change are anticipated and continuous corrective actions 5 are required to be taken to ensure peak efficiency and to minimize deteri- 6 oration. It includes systematic inspection, adjustment, lubrication, 7 replacement of components, as well as performance testing and analysis; 8 and 9 (b) Repairs and replacements with an estimated useful life of less than 10 five (5) years; and 11 (c) Repairs and replacements which are funded in the state agency's oper- 12 ating budget; and 13 (d) Repairs and replacements which can be accomplished by the agency's 14 existing physical plant staff; and 15 (e) Repairs and replacements which do not require the services of archi- 16 tects, engineers, and other professionally licensed consultants to inves- 17 tigate conditions, prepare recommendations for corrective action, prepare 18 plans and specifications, and supervise the execution of corrective proj- 19 ects. 20 (2) "Public works" means: 21 (a) Any new construction, building, alteration,or repair, including 22 equipping and furnishing, demolition or improvement of any land, building, 23 structure including utilities, or remodeling or renovation of existing 24 buildings, or other physical facilities, to make physical changes necessi- 25 tated by changes inthe programuse, to meet standards required by appli- 26 cable codes, to correct other conditions hazardous to health and safety of 27 persons which are not covered by codes, or to effect a permanent improve- 28 ment to the facility for any reason including aesthetics or appearance; 29 (b) Site improvement or developments which constitute permanent improve- 30 ments to real property; and 31 (c) Purchase and installation of fixed equipment necessary for the opera- 32 tion of new, remodeled, or renovated buildings and other physical facili- 33 ties for the conduct of programsinitiallyhoused therein to include any 34 equipment that is made a permanent fixture of the building; and35(d) Purchase of the services of architects, engineers, and other consul-36tants to prepare plans, program documents, life cycle cost studies, energy37analysis, and other studies associated with any new building, alteration,38repair, demolition or improvement and to supervise the construction or39execution of such projects. 40 SECTION 10. That Section 67-5711, Idaho Code, be, and the same is hereby 41 amended to read as follows: 42 67-5711.CONSTRUCTION, ALTERATION, EQUIPPING, FURNISHING AND REPAIR43 SUPERVISION OF PUBLICBUILDINGS ANDWORKS PROJECTS AND EXEMPTIONS. The direc- 44 tor of the department of administration, or his designee, of the state of 45 Idaho, is authorized and empowered, subject to the approval of the permanent 46 building fund advisory council, as required, to provide or secure all plans 47 and specifications for, to let all contracts for, and to have charge of and 48 supervision ofthe construction, alteration, equipping and furnishing, repair,49maintenance other than preventive maintenance of any and all buildings,50improvements of public works of the state of Idaho, the cost of which con-51struction, alteration, equipping and furnishing, repair, maintenancea project 52 for public works, other than preventive maintenance, the estimated cost of 53 which exceeds the sum of one hundred thousand dollars ($100,000) for labor, 8 1 materials and equipment, which sum shall exclude design costs, bid advertising 2 and related bidding expenses, provided, that the director or his designee, 3 and permanent building fund advisory council shall, in the letting of con- 4 tracts under this section, comply with the procedure for the calling of bids 5 provided in section 67-5711C, Idaho Code; provided, however, that this section 6 shall not apply tothe construction, alteration, equipping or furnishing or7repair or maintenance other than preventive maintenance of public buildingsa 8 project for public works or program of preventive maintenance under the juris- 9 diction and control of the board of regents of the university of Idaho; pro- 10 vided further, that the bidding procedures required by this section and sec- 11 tion 67-5711C, Idaho Code, shall not apply to performance contracts as pro- 12 vided in section 67-5711D, Idaho Code; provided further, that projects for 13 public works for the Idaho transportation department, the department of fish 14 and game, the department of parks and recreation, the department of lands, and 15 the department of water resources and water resource board, except for admin- 16 istrative office buildings and all associated improvements, are exempt from 17 the provisions of this section that relate to the administration and review of 18 such projects by the director of the department of administration or his des- 19 ignee and by the permanent building fund advisory council. This exemption 20 shall not relieve the Idaho transportation department, the department of fish 21 and game, the department of parks and recreation, the department of lands, and 22 the department of water resources and water resource board in the letting of 23 contracts for public works projects, from complying with the procedures of 24 section 67-5711C, Idaho Code, related to the advertising and bidding for con- 25 tracts.The permanent building fund advisory council may adopt rules consis-26tent with existing law, including rules for a program of inspection and main-27tenance, to carry out the provisions of this chapter.28 SECTION 11. That Section 67-5711A, Idaho Code, be, and the same is hereby 29 amended to read as follows: 30 67-5711A. DESIGN-BUILD CONTRACTING AUTHORIZED -- FINAL AGENCY ACTION -- 31 STANDARD OF REVIEW. Notwithstanding any other provisions of law to the con- 32 trary, the director of the department of administration, or his designee, is 33 authorized and empowered, subject to the approval of the permanent building 34 fund advisory council, to employ the use of the design-build method of con- 35 struction in the letting of any and all contracts forthe construction, alter-36ation, equipping, furnishing and repair of any and all buildings, improve-37ments, or otherpublic worksof the state of Idahosubject to its administra- 38 tion and review. For the purposes of this section, a design-build contract is 39 a contract for a public works project between thestate of Idahodivision of 40 public works and a nongovernmental party in which the nongovernmental party 41contracting with the state of Idahoagrees to both design and build thestruc-42ture, roadway, or other items specified in the contractproject. An award of a 43 contract under this section, or under section 67-2320, Idaho Code, shall be 44 the final agency action, shall not be considered a contested case under, and 45 the judicial review provisions of, chapter 52, title 67, Idaho Code, shall not 46 apply. In any subsequent judicial review of the final agency action on a con- 47 tract award under this section, or under section 67-2320, Idaho Code, the 48 court shall reverse the agency's action only if the challenging party proves 49 by clear and convincing evidence both that its substantial rights have been 50 prejudiced by the agency action and that the agency's action was arbitrary, 51 capricious or an abuse of discretion. 52 SECTION 12. That Section 67-5711C, Idaho Code, be, and the same is hereby 9 1 amended to read as follows: 2 67-5711C.CONSTRUCTION OFCONTRACTS FOR PUBLIC WORKS PROJECTS -- COMPETI- 3 TIVE SEALED BIDDING -- FINAL AGENCY ACTION -- STANDARD OF REVIEW. (1) Allcon-4structioncontracts for public works projects shall be awarded to the lowest 5 responsive and responsibleand responsivebidder after receipt of competitive 6 sealed bidding except as otherwise provided in this section and in sections 7 67-2320, 67-5711A, 67-5711B, 67-5711D and 67-5713, Idaho Code. As used in this 8 section, the word "sealed" does not preclude acceptance of electronically 9 sealed and submitted bids in addition to bids manually sealed and submitted. 10 (a) A bidder is responsive if its bid complies with the invitation to bid 11 in all material respects and is submitted in accordance with all applica- 12 ble laws. A bid must be responsive to be eligible to be the lowest respon- 13 sive and responsible bid. 14 (b) A responsible bidder shall mean a bidder whose bid is responsive and 15 who is determined to have the capacity to successfully complete the work, 16 and such determination may include, without limitation, consideration of 17 skill, experience, quality of previous work, suitability to the particular 18 project, financial resources, human resources, management ability, busi- 19 ness judgment and integrity. 20 (c) The lowest responsive and responsible bidder is the responsible bid- 21 der whose bid is responsive and whose bid reflects the lowest acquisition 22 price to be paid by the state; except that when specifications are valued 23 or responsibility factors are analyzed, the results of such analyses and 24 the relative score of valued specifications shall be weighed, as set out 25 in the invitation to bid, in determining the lowest acquisition price. 26 (2) An invitation for bids shall be issued and shall include a project 27 description and all contractual terms and conditions applicable to the public 28 works projects and shall include the factors to be considered for evaluating 29 the responsibility of bidders. 30 (3) Adequate public notice of the invitation for bids shall be given at 31 least fourteen (14) days prior to the date set forth therein for the opening 32 of bids. Such noticeshallmay be electronic and shall include publication at 33 least fourteen (14) days prior to bid opening in a newspaper of general circu- 34 lation in the area where the work is located. 35 (4) When prequalification is deemed in the best interest of the state, 36 competitive bidding procedures shall be open only to licensed public works 37 contractors that meet preliminary supplemental qualifications. The solicita- 38 tion for bids in a prequalified bidder public works project shall consist of 39 two (2) stages, an initial stage for identifying prequalified contractors, 40 either prime or specialty contractors, followed by a stage during which bid 41 prices will be accepted only from prequalified contractors. Notice of the 42 prequalification stage shall be given in the same manner that notice of open 43 competitive bidding is provided. Prequalification standards must be premised 44 upon demonstrated technical competence, experience constructing similar facil- 45 ities, prior experience with the state, available nonfinancial resources, 46 equipment and personnel as they relate to the subject project, and overall 47 performance history based upon a contractor's entire body of work. Any request 48 for qualifications must include the standards for evaluating the qualifica- 49 tions of prospective bidders. Licensed contractors desiring to be prequalified 50 to bid on a project must submit a written response to a request for qualifica- 51 tions. After a review of qualification submittals, licensed contractors that 52 meet the prequalification standards shall be notified. Thereafter, bids may be 53 solicited from contractors that meet the prequalification standards. The 54 department may promulgate rules or develop procedures to implement the 10 1 prequalification process. 2 (5)Bids shall be opened publicly at the time and place designated in the3invitation for bids. The amount of each bid and such other relevant informa-4tion as may be specified by rules, together with the name of each bidder,5shall be entered on a record and the record shall be open to public inspection6 All sealed bids received shall be opened publicly at the time and place speci- 7 fied in the invitation for bid and a record of each bid shall then and there 8 be made. After the time of the award all bids and bid documents shall be open 9 to public inspection in accordance with the provisions of sections 9-337 10 through 9-347,and 67-5725,Idaho Code. 11 (6) With respect to a project for public works other than preventive 12 maintenance, having a written cost estimate of greater than twenty-five thou- 13 sand dollars ($25,000) but less than thepublic workslimit established in 14 section 67-5711, Idaho Code, the agency, if it does not perform the work with 15 existing physical plant staff, must award a written contract to the lowest 16 responsive and responsibleand responsivebidder after soliciting at least 17 three (3) documented informal bids from contractors licensed in Idaho to per- 18 form public works contracts, if reasonably available. Adequate public notice 19 of the invitation for informal bids shall be given at least seven (7) days 20 prior to the date set forth therein for the receipt of the informal bids. Such 21 notice may be electronic or may include publication at least seven (7) days 22 prior to bid opening in a newspaper of general circulation in the area where 23 the work is located; or the agency may advertise the invitation for bids in 24 appropriate trade journals, and otherwise notify persons believed to be inter- 25 ested in the award of a contract. Informal bids must be submitted by the con- 26 tractor in writing in response to a prepared written document describing the 27 project's scope of work in sufficient detail so as to enable a contractor 28 familiar with such work to prepare a responsible bid. Nothing herein exempts 29 an agency from the responsibility of utilizing formal plans and specifications 30 if the work involves the public health or safety as described in chapters 3 31 and 12, title 54, Idaho Code. The agency must document receipt of the informal 32 bids in the project file. 33 (7) Any personal property including goods, parts, supplies and equipment 34 which is to be supplied or provided by a state agency for use in any public 35 works,project, or preventive maintenance programs, whether the public works,36 project, or preventive maintenance program is constructed, undertaken or per- 37 formed by agency in-house personnel, or by delegation pursuant to section 38 67-5710A, Idaho Code, or otherwise provided or supplied by the agency to a 39 contractor, the personal property, goods, parts, supplies or equipment sup- 40 plied or provided by the agency must be purchased or procured by the agency 41 through the division of purchasing in accordance with the Idaho Code. 42 (8) The administrator of the division of public works may reject any and 43 all bids prior to award if such rejection is in the best interest of the state 44 of Idaho. If no responsive and responsible bids are received after competitive 45 sealed bidding is performed pursuant to this section, the administrator of the 46 division of public works may negotiate, award and enter into a contract as he 47 determines to be in the best interest of the state of Idaho. 48 (9) A determination of nonresponsiveness or nonresponsibility under this 49 section or an award of a contract under this section shall be the final agency 50 action, shall not be considered a contested case under, and the judicial 51 review provisions of, chapter 52, title 67, Idaho Code, shall not apply. In 52 any subsequent judicial review of a determination of nonresponsiveness or of 53 nonresponsibility or of the award of a contract under this section, the court 54 shall reverse the agency's action only if the challenging party proves by 55 clear and convincing evidence, both that its substantial rights have been 11 1 prejudiced by the agency action and that the agency's action was arbitrary, 2 capricious or an abuse of discretion. 3 SECTION 13. That Section 67-5711D, Idaho Code, be, and the same is hereby 4 amended to read as follows: 5 67-5711D. ENERGY SAVINGS PERFORMANCE CONTRACTS. (1) Definitions. As used 6 in this section: 7 (a) "Cost-savings measure" means any facility improvement, repair or 8 alteration, or any equipment, fixture or furnishing to be added or used in 9 any facility that is designed to reduce energy consumption and energy 10 operating costs or increase the energy efficiency of facilities for their 11 appointed functions that are cost effective. "Cost-savings measure" 12 includes, but is not limited to, one (1) or more of the following: 13 (i) Procurement of low-cost energy supplies of all types, includ- 14 ing electricity, natural gas and water; 15 (ii) Insulating the building structure or systems in the building; 16 (iii) Storm windows or doors, caulking or weather stripping, 17 multiglazed windows or door systems, heat-absorbing or heat- 18 reflective glazed and coated window and door systems, additional 19 glazing, reductions in glass area or other window and door system 20 modifications that reduce energy consumption; 21 (iv) Automated or computerized energy control systems; 22 (v) Heating, ventilation or air conditioning system modifications 23 or replacements; 24 (vi) Replacing or modifying lighting fixtures to increase the 25 energy efficiency of the lighting system; 26 (vii) Energy recovery systems; 27 (viii) Cogeneration systems that produce steam or forms of energy 28 such as heat, as well as electricity, for use primarily within a 29 building or complex of buildings; 30 (ix) Installing new or modifying existing day lighting systems; 31 (x) Installing or modifying renewable energy and alternate energy 32 technologies; 33 (xi) Building operation programs that reduce energy costs includ- 34 ing, but not limited to, computerized programs, training and other 35 similar activities; 36 (xii) Steam trap improvement programs that reduce energy costs; 37 (xiii) Devices that reduce water consumption; and 38 (xiv) Any additional building infrastructure improvements that pro- 39 duce energy cost savings, significantly reduce energy consumption or 40 increase the energy efficiency of the facilities for their appointed 41 functions and are in compliance with all applicable state building 42 codes. 43 (b) "Director" means the director of the department of administration or 44 the director's designee. 45 (c) "Energy cost savings" means any expenses that are eliminated or 46 avoided on a long-term basis as a result of equipment installed or modi- 47 fied, or services performed by a qualified energy service company or a 48 qualified provider, but does not include merely shifting personnel costs 49 or similar short-term cost savings. 50 (d) "Financial grade energy audit" means a comprehensive building energy 51 systems audit performed by a professional engineer licensed in the state 52 of Idaho for the purpose of identifying and documenting feasible energy 53 and resource conservation measures and cost-savings factors. 12 1 (e) "Performance contract" means a contract between the director or the 2 public entity and a qualified provider or a qualified energy service com- 3 pany for evaluation, recommendation and implementation of one (1) or more 4 cost-savings measures. A performance contract may be structured as either: 5 (i) A guaranteed energy savings performance contract, which shall 6 include, at a minimum, the design and installation of equipment and, 7 if applicable, operation and maintenance of any of the measures 8 implemented. Guaranteed annual savings must meet or exceed the total 9 annual contract payments made by the director or the user agency or 10 the public entity for such contract, including financing charges to 11 be incurred over the life of the contract; or 12 (ii) A shared savings contract, which shall include provisions mutu- 13 ally agreed upon by the director and the qualified provider or quali- 14 fied energy service company as to the rate of payments based upon 15 energy cost savings and a stipulated maximum energy consumption level 16 over the life of the contract. 17 (f) "Person" means an individual, corporation, partnership, firm, associ- 18 ation, limited liability company, limited liability partnership or other 19 such entity as recognized by the state of Idaho. 20 (g) "Public entity" means the cities, counties and school districts or 21 any political subdivision within the state of Idaho. 22 (h) "Qualified energy service company" means a person with a record of 23 established projects or with demonstrated technical, operational, finan- 24 cial and managerial capabilities to implement performance contracts and 25 who currently holds an Idaho public works contractor license. 26 (i) "Qualified provider" means a person who is experienced in the design, 27 implementation and installation of energy efficiency and facility improve- 28 ment measures, who has the ability to secure necessary financial measures 29 to support energy savings guarantees and the technical capabilities to 30 ensure such measures generate energy cost savings, and who currently holds 31 an Idaho public works contractor license. 32 (2) Performance contracts. The director of the department of administra- 33 tion, subject to the approval of the permanent building fund advisory council, 34 or any Idaho public entity may enter into a performance contract with a quali- 35 fied provider or qualified energy service company to reduce energy consumption 36 or energy operating costs. Cost-savings measures implemented under such con- 37 tracts shall comply with all applicable state and local building codes. 38 (3) Requests for qualifications. The director of the department of admin- 39 istration or the public entity shall request qualifications from qualified 40 providers and qualified energy service companies inviting them to submit 41 information describing their capabilities in the areas of: 42 (a) Design, engineering, installation, maintenance and repairs associated 43 with performance contracts; 44 (b) Experience in conversions to a different energy or fuel source, so 45 long as it is associated with a comprehensive energy efficiency retrofit; 46 (c) Postinstallation project monitoring, data collection and reporting of 47 savings; 48 (d) Overall project experience and qualifications; 49 (e) Management capability; 50 (f) Ability to assess the availability of long-term financing; 51 (g) Experience with projects of similar size and scope; and 52 (h) Other factors determined by the director or the public entity to be 53 relevant and appropriate relating to the ability of the qualified provider 54 or qualified energy service company to perform the project. 55 (4) Notice. Adequate public notice of the request for qualifications 13 1 shall be given at least fourteen (14) days prior to the date set forth therein 2 for the opening of the responses to the request for qualifications. Such 3 notice may be provided electronically or by publication in a newspaper of gen- 4 eral circulation in the area where the work is located. 5 (5) Public inspection. After the time of award, aAll records of the 6 department or an agency or the public entity relating to the award of a per- 7 formance contract shall be open to public inspection in accordance with the 8 provisions of sections 9-337 through 9-347,and 67-5725,Idaho Code. 9 (6) Award of performance contract. 10 (a) The director or public entity shall select up to three (3) qualified 11 providers or qualified energy service companies who have responded to the 12 request for qualifications. Factors to be considered in selecting the suc- 13 cessful qualified provider or qualified energy service company shall 14 include, but not be limited to: 15 (i) Fee structure; 16 (ii) Contract terms; 17 (iii) Comprehensiveness of the proposal and cost-savings measures; 18 (iv) Experience of the qualified provider or qualified energy ser- 19 vice company; 20 (v) Quality of the technical approach of the qualified provider or 21 qualified energy service company; and 22 (vi) Overall benefits to the state or the public entity. 23 (b) Notwithstanding the provisions of section 67-5711C, Idaho Code, the 24 director or the public entity may, following the request for qualifica- 25 tions and the expiration of the specified notice period, award the perfor- 26 mance contract to the qualified provider or qualified energy service com- 27 pany which best meets the needs of the project and whose proposal may or 28 may not represent the lowest cost among the proposals submitted pursuant 29 to this section. An award of a contract under this section shall be the 30 final agency action, shall not be considered a contested case under, and 31 the judicial review provisions of, chapter 52, title 67, Idaho Code, shall 32 not apply. In any subsequent judicial review of the final agency action on 33 a contract award under this section, the court shall reverse the agency's 34 action only if the challenging party proves by clear and convincing evi- 35 dence, both that its substantial rights have been prejudiced by the agency 36 action and that the agency's action was arbitrary, capricious or an abuse 37 of discretion. 38 (c) Upon award of the performance contract, the successful qualified pro- 39 vider or qualified energy service company shall prepare a financial grade 40 energy audit which, upon acceptance by the director or the public entity, 41 shall become a part of the final performance contract. 42 (7) Installment payment and lease-purchase agreements. Pursuant to this 43 section, the director or the public entity may enter into a performance con- 44 tract, payments for which shall be made by the user agency or public entity. 45 Such performance contracts may be financed as installment payment contracts or 46 lease-purchase agreements for the purchase and installation of cost-savings 47 measures. Financing implemented through another person other than the quali- 48 fied provider or qualified energy service company is authorized. 49 (8) Terms of performance contract. 50 (a) Each performance contract shall provide that all payments between 51 parties, except obligations upon termination of the contract before its 52 expiration, shall be made over time and that the objective of such perfor- 53 mance contract is the implementation of cost-savings measures and energy 54 cost savings. 55 (b) A performance contract, and payments provided thereunder, may extend 14 1 beyond the fiscal year in which the performance contract becomes effec- 2 tive, subject to appropriation by the legislature or by the public entity, 3 for costs incurred in future fiscal years. The performance contract may 4 extend for a term not to exceed twenty-five (25) years. The permissible 5 length of the contract may also reflect the useful life of the cost- 6 savings measures. 7 (c) Performance contracts may provide for payments over a period of time 8 not to exceed deadlines specified in the performance contract from the 9 date of the final installation of the cost-savings measures. 10 (d) Performance contracts entered pursuant to this section may be amended 11 or modified, upon agreement by the director or the public entity and the 12 qualified provider or qualified energy service company, on an annual 13 basis. 14 (9) Monitoring and reports. During the term of each performance contract, 15 the qualified provider or qualified energy service company shall monitor the 16 reductions in energy consumption and cost savings attributable to the cost- 17 savings measures installed pursuant to the performance contract and shall 18 annually prepare and provide a report to the director or the public entity 19 documenting the performance of the cost-savings measures. 20 SECTION 14. That Section 67-5712, Idaho Code, be, and the same is hereby 21 amended to read as follows: 22 67-5712. PROJECTION OF BUILDING REQUIREMENTS REPORT. The permanent build- 23 ing fund advisory council and the director of the department of administration 24worksshall on or before September 1 next preceding each regular session of 25 the legislature prepare and submit to the governor a projection ofbuilding26 all public works requirements of all departments, agencies and institutions. 27and agencies of Idaho.Such projection shall include all requests for new 28 buildings, maintenance and repair of existing state owned buildings. 29 SECTION 15. That Section 67-5713, Idaho Code, be, and the same is hereby 30 amended to read as follows: 31 67-5713. CONSTRUCTION AND ALTERATION OF STATE CORRECTIONAL FACILITIES. 32 The administrator of the division of public works is authorized and empowered, 33 subject to the approval of the permanent building fund advisory council, to 34 use appropriated funds or other fund sources to construct or alter, either in 35 whole or in part, state owned correctional facilitiesbyusing inmate labor 36 for the purpose of providing meaningful work and rehabilitation programs for 37 inmates,confined therein,or to have such construction or alteration accom- 38 plished by the competitive bid process as authorized by section 67-5711, Idaho 39 Code, whichever the permanent building fund advisory council deems most appro-40priate.Further providing that nNo construction or alteration by inmate labor 41 shall be authorized,unless final plans and specifications for such construc- 42 tion or alteration have beenaccomplishedprepared by a licensed architect or 43 engineerappointed at the direction of the council,and such final plans and 44 specifications have been approved by the council.Further providing thatAny 45 such construction or alteration shall be performed under the directcharge and46 supervision of the administrator of the division of public works. 47 SECTION 16. That Section 67-5716, Idaho Code, be, and the same is hereby 48 amended to read as follows: 49 67-5716. DEFINITIONS OF TERMS. (1) Acquisition. The process of procuring 15 1 or purchasing property by the state of Idaho. 2 (2) Procurement. Obtaining property for state use by lease, rent, or any 3 manner other than by purchase or gift. 4 (3) Property. Goods, services, parts, supplies and equipment, both tangi- 5 ble and intangible, including, but nonexclusively, designs, plans, programs, 6 systems, techniques and any rights and interests in such property. 7 (4) Goods. Items of personal property, not qualifying as equipment, parts 8 or supplies. 9 (5) Services. Personal services, in excess of personnel regularly 10 employed for whatever duration and/or covered by personnel system standards, 11 for which bidding is not prohibited or made impractical by statute, rules or 12 generally accepted ethical practices. 13 (6) Parts. Items of personal property acquired for repair or replacement 14 of unserviceable existing items. 15 (7) Supplies. Items of personal property having an expendable quality or 16 during their normal use are consumed and which require or suggest acquisition 17 in bulk. 18 (8) Equipment. Items of personal property which have a normal useful life 19 expectancy of two (2) or more years. 20 (9) Component. An item of property normally assembled with other items 21 into a unified productive whole at the site of use, which items belong to 22 functional classes that may be interchangeable units of similar function but 23 differing operational or productive capabilities. 24 (10) Vendor. A person or entity capable of supplying property to the 25 state. 26 (11) Bidder. A vendor who has submitted a bid on a specific item or items 27 of property to be acquired by the state. 28 (12) Lowest responsible bidder. The responsible bidder whose bid reflects 29 the lowest acquisition price to be paid by the state; except that when speci- 30 fications are valued or comparative performance examinations are conducted, 31 the results of such examinations and the relative score of valued specifica- 32 tions will be weighed, as set out in the specifications, in determining the 33 lowest acquisition price. A bid must be responsive to be eligible to be the 34 lowest responsible bid. 35 (13) Contractor. A bidder who has been awarded an acquisition contract. 36 (14) Agency. All officers, departments, divisions, bureaus, boards, com- 37 missions and institutions of the state, including the public utilities commis- 38 sion, but excluding other legislative and judicial branches of government, and 39 excluding the governor, the lieutenant governor, the secretary of state, the 40 state controller, the state treasurer, the attorney general, and the superin- 41 tendent of public instruction. 42 (15) Bid. A written offer toperform a contract to purchase or supply43property orprovide services in response to an invitation for bid or request 44 for proposal. 45 (16) Recyclable. Materials that still have useful physical, chemical or 46 biological properties after serving their original purposes and can, there- 47 fore, be reasonably reused or recycled for the same or other purposes. 48 (17) Recycled-content product. A product containing postconsumer waste 49 and/or secondary waste as defined in this section. 50 (18) Postconsumer waste. A finished material which would normally be dis- 51 posed of as a solid waste, having completed its life cycle as a consumer item. 52 (19) Secondary waste. Fragments of products or finished products of a man- 53 ufacturing process, which has converted a virgin resource into a commodity of 54 real economic value and may include a postconsumer waste. 16 1 SECTION 17. That Section 67-5717, Idaho Code, be, and the same is hereby 2 amended to read as follows: 3 67-5717. POWERS AND DUTIES OF THE ADMINISTRATOR OF THE DIVISION OF PUR- 4 CHASING. The administrator of the division of purchasing: 5 (1) Shall acquire, according to the provisions ofthis chaptersections 6 67-5714 through 67-5744, Idaho Code, all property for state agencies; 7 (2) Shall acquire all property, unless excepted, by competitive bid, and 8 shall specifically require competitive bids for property to be rented, leased 9 or purchased through a deferred payment plan; 10 (3) Shall determine, based upon the requirements contained in the speci- 11 fication and matter relating to responsibility, the lowest responsible bidder 12 in all competitively bid acquisition contracts; 13 (4) Shall enter into all contracts and agreements, and any modifications 14 thereto, for the acquisition of any and all property on behalf of and in the 15 name of the state; 16 (5) Shall, when economically feasible and practical, consolidate requisi- 17 tions and acquire property in amounts as large as can be efficiently managed 18 and controlled; 19 (6) May, in the evaluation of paper product bids, give those items that 20 meet the recycled content standards as specified by the administrator a five 21 percent (5%) purchasing preference. As such, those qualifying paper products 22 may be considered to cost five percent (5%) less when choosing the lowest 23 responsible bidder; 24 (7) May appoint a deputy, who shall have power to act for him and in his 25 place while absent, which deputy shall be bonded to the state of Idaho as pre- 26 scribed by chapter 8, title 59, Idaho Code; 27 (8) May require from any contractor the submission of a performance bond 28 or other performance guarantee for such sum as will, in the opinion of the 29 administrator, guarantee the faithful performance of such contract, and the 30 amount and requirement therefor shall be set out in the specifications; 31 (9) May enter into open contracts for the acquisition of property com- 32 monly used by the various agencies, based upon actual or estimated require- 33 ments; 34 Unless an acquiring agency can show a substantial difference between the 35 required capabilities and the capabilities provided by such property available 36 on open contract, all agencies must utilize such property available on such 37 contracts and failure to comply with this provision will subject the officers 38 responsible for the acquisition to thepenalties set forth in this chapter39 penalty prescribed in section 67-5734(3), Idaho Code; 40 (10) May enter into contracts, including leases and rentals, for periods 41 of time exceeding one (1) year provided that such contracts contain no penalty 42 to or restriction upon the state in the event cancellation is necessitated by 43 a lack of financing for any such contract or contracts; 44 (11)Is authorized and empowered to formulateMay promulgate rules in the 45 conduct of the office of the division of purchasing, subject to the approval 46 of the director of the department of administration, and such rules may 47 address specifications development, performance testing and the submission and 48 evaluation of bids; 49 (12) In accordance with established rules and written policies of the 50 division, may enter into negotiations for acquisitions; 51 (13) May inspect property delivered by a contractor to determine whether 52 it meets minimum bid specifications; 53 (14) May classify, after review with the various agencies, the require- 54 ments of the state for all property which may be acquired and adopt standards 17 1 of quality for property, and establish standard specifications for acquisi- 2 tion. Each standard specification shall, until revised or rescinded, apply 3 alike in terms and effect to each future acquisition of the classified prop- 4 erty. 5 SECTION 18. That Section 67-5718, Idaho Code, be, and the same is hereby 6 amended to read as follows: 7 67-5718. REQUISITIONS FOR PROPERTY -- NOTICE -- FORM -- GUARANTEE -- PRO- 8 CEDURE FOR BIDDING. (1) The administrator of the division of purchasing shall 9 not make or cause to be made any acquisition until a requisition for the prop- 10 erty to be acquired has been submitted to his office by the requisitioning 11 agency, certifying to the satisfaction of the administrator that there are 12 proper funds or sufficient balance in appropriations out of which the amount 13 of the requisition may lawfully be paid, except as provided to the contrary 14 under provisions ofthis chaptersection 67-5720, Idaho Code, allowing emer- 15 gency purchases. 16 (2) Notice shall be posted of all acquisitions of property, unless other- 17 wise excepted by rules of the division. The notice may be posted 18 electronically. The administrator shall also cause all invitations to bid and 19 requests for proposals to be posted manually in a conspicuous place in the 20 office. The notice shall describe the property to be acquired in sufficient 21 detail to apprise a bidder of the exact nature or functionality of the prop- 22 erty required; and shall set forth the bid opening date, time and location. 23 (3) To enhance small business bidding opportunities, the administrator 24 shall seek a minimum of three (3) bids from vendors having a significant Idaho 25 economic presence as defined in section 67-2349, Idaho Code. 26 (4) All sealed bids received shall be opened publicly at the time and 27 place specified,and in the public view,and a record of each bid shall then 28 and there be made. Contracts shall be awarded to and orders placed with the 29 lowest responsible bidder on the basis of initial proposals received or, if 30 applicable, following receipt and evaluation of best and final offers or nego- 31 tiations. The administrator shall have the right to reject any and all bids 32 pursuant to rules established for the division. 33 (5) Where both the bids and quality of property offered are the same, 34 preference shall be given to property of local and domestic production and 35 manufacture or from bidders having a significant Idaho economic presence as 36 defined in the Idaho Code. In connection with the award of any contract for 37 the placement of any order for state printing, binding, engraving or statio- 38 nery work, the provisions of sections 60-101 and 60-103, Idaho Code, shall 39 apply to the extent that the same may be inconsistent with any requirements 40 contained in this section. 41 (6) As used in this section, the word "sealed" does not preclude accep- 42 tance of electronically sealed and submitted bids in addition to bids manually 43 sealed and submitted. 44 SECTION 19. That Section 67-5718A, Idaho Code, be, and the same is hereby 45 amended to read as follows: 46 67-5718A. ACQUISITION OF PROPERTY BY CONTRACT -- AWARD TO MORE THAN ONE 47 BIDDER -- STANDARDS FOR MULTIPLE AWARDS -- APPROVAL BY ADMINISTRATOR. (1) Not- 48 withstanding any provision ofthis chaptersections 67-5714 through 67-5744, 49 Idaho Code, to the contrary, the administrator of the division of purchasing 50 may make an award of a contract to two (2) or more bidders to furnish the same 51 or similar property where more than one (1) contractor is necessary: 18 1 (a) To furnish the types of property and quantities required by state 2 agencies; 3 (b) To provide expeditious and cost-efficient acquisition of property for 4 state agencies; or 5 (c) To enable state agencies to acquire property which is compatible with 6 property previously acquired. 7 (2) No award of a contract to multiple bidders shall be made under this 8 section unless the administrator of the division of purchasing makes a written 9 determination showing that multiple awards satisfy one (1) or more of the cri- 10 teria set forth in this section. 11 (3) Where a contract for property has been awarded to two (2) or more 12 bidders in accordance with this section, a state agency shall make purchases 13 from the contractor whose terms and conditions regarding price, availability, 14 support services and delivery are most advantageous to the agency. 15 (4) A multiple award of a contract for property under this section shall 16 not be made when a single bidder can reasonably serve the acquisition needs of 17 state agencies. A multiple award of a contract shall only be made to the num- 18 ber of bidders necessary to serve the acquisition needs of state agencies. 19 SECTION 20. That Section 67-5720, Idaho Code, be, and the same is hereby 20 amended to read as follows: 21 67-5720. ACQUISITION IN OPEN MARKET -- EMERGENCY PURCHASES. (1) The 22 administrator may allow: 23 (a) The purchase of property in the open market,provided such items are24not available from the maintenance of stocks authorized by section2567-5727, Idaho Codewithout competitive bidding, where the administrator 26 finds that a particular savings to the state may be had through the use of 27 educational discounts, acquisition of federal surplus or excess property, 28 reverse public auctions, where there is only one (1) vendor for the prop- 29 erty to be acquired or under other circumstances approved by thedirector30of the department of administrationadministrator. 31 (b) The purchase of property by open purchase when immediate delivery of 32 property is required by the public exigencies and the administrator of the 33 division of purchasing has declared that an emergency exists, but at all 34 times such purchases shall be made under the direction of the administra- 35 tor. 36 (2) When there is only one (1) vendor for the property to be acquired, 37 unless the property is required for a life-threatening situation or a situa- 38 tion that is immediately detrimental to the public welfare or property, notice 39 of a sole source procurement shall be published. The notice may be electronic. 40 Payment vouchers for emergency acquisitions must contain upon their faces the 41 justification for such purchases. 42 SECTION 21. That Section 67-5721, Idaho Code, be, and the same is hereby 43 repealed. 44 SECTION 22. That Section 67-5723, Idaho Code, be, and the same is hereby 45 amended to read as follows: 46 67-5723. DISCOUNTS.-- NEGOTIATIONS FOR REQUIRED RULES, REGULATIONS AND47PROCEDURES.Whenever any employee of an agency is charged with the responsi- 48 bility of acquiring property for and in behalf of the state, he shall, when- 49 ever and wherever possible, negotiate discounts normally given in the ordinary 50 course of business, including, but not limited to, discounts for prompt pay- 19 1 ment and discounts for bulk acquisitions. 2It shall be the duty of the administrator to prescribe by rules and regu-3lations the manner by which to obtain such discounts, and to do whatever is4necessary to implement such rules and regulations.5 SECTION 23. That Section 67-5724A, Idaho Code, be, and the same is hereby 6 amended to read as follows: 7 67-5724A. ACQUISITION OF PROPERTY -- GENERAL SERVICES ADMINISTRATION FED- 8 ERAL SUPPLY SCHEDULE CONTRACTS. Notwithstanding any provision inthis chapter9 sections 67-5714 through 67-5744, Idaho Code, to the contrary, the administra- 10 tor of the division of purchasing may, instead of soliciting bids, contract 11 for services or property at a price equal to or less than the contractor's 12 current federal supply contract price for sales to the general services admin- 13 istration of the United States without the use of competitive bids so long as 14 the contractor has indicated a willingness in writing to extend such contrac- 15 tor pricing, terms and conditions to the administrator and the administrator 16 considers the price to be advantageous to the state. 17 SECTION 24. That Section 67-5725, Idaho Code, be, and the same is hereby 18 amended to read as follows: 19 67-5725.PRESERVATION OFPUBLIC RECORDS -- WRITTEN CONTRACTS -- VOID CON- 20 TRACTS.The administrator shall preserve all records of bids and acquisitions21in his office, and information with respect thereto, in such form as he shall22prescribe for a period of three (3) years after the date of final action, or23for a period of time as may be proscribed by the record retention guideline24schedule approved by the director of the department of administration. The25recordsAfter the award of a contract, all bids or proposals and documents 26 associated with the contract shall be subject to disclosure according to chap- 27 ter 3, title 9, Idaho Code. Notwithstanding the foregoing, when an invitation 28 to bid or a request for proposals is canceled prior to award of a purchase 29 order or contract, the administrator shall immediately return all bids or pro- 30 posals to the submitting vendor and those bids or proposals shall not be sub- 31 ject to disclosure under chapter 3, title 9, Idaho Code. 32 Every contract made by the administrator in behalf of the state shall be 33 reduced to writing and signed by the contracting parties with their names at 34 the end thereof and filed in the office of the administrator, together with 35 all bids, specifications, and all other documents and records associated with 36 the acquisition or intended acquisition. 37 All contracts or agreements made in violation of the provisions ofthis38chaptersections 67-5714 through 67-5744, Idaho Code, shall be void and any 39 sum of money advanced by the state of Idaho in consideration of any such con- 40 tract or agreement shall be repaid forthwith. In the event of refusal or delay 41 when repayment is demanded by the proper officer of the state of Idaho, under 42 whose authority such contract or agreement shall have been made or entered 43 into, every person so refusing or delaying, together with his surety or sure- 44 ties, shall be forthwith prosecuted at law for the recovery of such sum of 45 money so advanced. 46 SECTION 25. 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 20 1 order is given to any other party, without the approval in writing of the 2 administrator. Transfer of a contract without approval shall cause the annul- 3 ment of the contract so transferred, at the option of the state. All rights of 4 action, however, for any breach of such contract by the contracting parties 5 are reserved to the state. No member of the legislature or any officer or 6 employee of any branch of the state government shall directly, himself, or by 7 any other person in trust for him or for his use or benefit or on his account, 8 undertake, execute, hold or enjoy, in whole or in part, any contract or agree- 9 ment made or entered into by or on behalf of the state of Idaho, if made by, 10 through, or on behalf of the department in which he is an officer or employee; 11 or if made by, through or on behalf of any other department unless the same is 12 made after competitive bids. 13 (2) Except as provided by section 67-5718, Idaho Code, no officer or 14 employee shall influence or attempt to influence the award of a contract to a 15 particular vendor, or to deprive or attempt to deprive any vendor of an acqui- 16 sition contract. 17 (3) No officer or employee shall conspire with a vendor or its agent, and 18 no vendor or its agent shall conspire with an officer or employee, to influ- 19 ence or attempt to influence the award of a contract, or to deprive or attempt 20 to deprive a vendor of an acquisition award. 21 (4) No officer or employee shall fail to utilize an open contract without 22 justifiable cause for such action. No officer or employee shall accept prop- 23 erty which he knows does not meet specifications or substantially meet the 24 original performance test results. 25 (5) Deprivation, influence or attempts thereat shall not include written 26 reports, based upon substantial evidence, sent to the administrator of the 27 division of purchasing concerning matters relating to the responsibility of 28 vendors. 29 (6) No vendor or related party, or subsidiary, or affiliate of a vendor 30 maysubmit a bid to obtain a contractbe eligible for an award of a contract 31 to provide property to the state, if the vendor or related party, or affiliate 32 or subsidiarywas paid forprovided services utilized inpreparing the bid33specifications or if the servicesor that have influenced the procurement 34 process. The administrator shall determine if services have been utilized in 35 or have influenced the procurement process and such determination shall be the 36 final agency action, shall not be considered a contested case under, and the 37 judicial review provisions of, chapter 52, title 67, Idaho Code, shall not 38 apply. In any subsequent judicial review of the final agency action on a 39 determination under this section, the court shall reverse the agency's action 40 only if the challenging party proves by clear and convincing evidence, both 41 that its substantial rights have been prejudiced by the agency action and that 42 the agency's action was arbitrary, capricious or an abuse of discretion. 43 SECTION 26. That Section 67-5727, Idaho Code, be, and the same is hereby 44 repealed. 45 SECTION 27. That Section 67-5727A, Idaho Code, be, and the same is hereby 46 amended to read as follows: 47 67-5727A. PARTICIPATION IN GROUP DISCOUNT PURCHASING. (1) In addition to 48 other means of procuring stocks of commonly used items, the division adminis- 49 trator may authorize an agency to become a participating member of a group 50 discount purchasing organization, if the administrator finds that: 51 (a) The items to be acquired are at least equal in quality to similar 52 items or the same items that the agency uses; 21 1 (b) The items to be acquired are less costly to the state than if 2 acquired by other means authorized inthis chaptersections 67-5714 3 through 67-5744, Idaho Code; 4 (c) The state's participation in the organization is formalized by a 5 written contract that extends for no longer than one (1) year at a time; 6 and 7 (d) The state's entrance fee, or participation fee, in the organization 8 is based on criteria applied to all other members of the organization, 9 provides no ownership rights. 10 (2) Any contract entered into under the provisions of this section shall 11 be maintained on file with the division, as well as with the agency entering 12 into the contract. 13 (3) Items acquired shall be used solely by state departments and agencies 14 and may not be transferred from state ownership until useful life is extin- 15 guished and may not be provided to individuals except those in the custody of 16 the state or to those receiving direct personal services from the state. 17 SECTION 28. That Section 67-5729, Idaho Code, be, and the same is hereby 18 amended to read as follows: 19 67-5729. APPLICATION OF ADMINISTRATIVE PROCEDURE ACT. All rules of the 20 division of purchasing shall be adopted in accordance with the provisions of 21 chapter 52, title 67, Idaho Code. Only appeals conducted as contested cases 22 pursuant to section 67-5733(1)(c)(iii), Idaho Code, shall be subject to the 23 judicial review provisions of chapter 52, title 67, Idaho Code. This section 24 shall not impair any contract right or contract remedy which may exist between 25 the state and a properly licensed contractor or vendor. 26 The determinations officer provided inthis chaptersection 27 67-5733(1)(c)(iii), Idaho Code, may subpoena witnesses and evidence and 28 administer oaths. 29In the event that a determinations officer is appointed pursuant to the30provisions of section 67-5733, Idaho Code, any vendor who has submitted a bid31in the process under review shall, notwithstanding any other disability, have32standing to intervene in the proceeding as a party and such intervenor may33participate in the purchase appeal or appeal from any final order entered in a34contested case conducted under section 67-5733(1)(c)(iii), Idaho Code.35 SECTION 29. That Section 67-5730, Idaho Code, be, and the same is hereby 36 amended to read as follows: 37 67-5730. QUALIFICATION OF VENDORS -- DISQUALIFICATION OF VENDORS -- 38 NOTICE -- APPEALS -- STANDARD OF REVIEW. (1) No vendor shall be allowed to 39 submit a bid unless such vendor is qualified. All vendors are qualified unless 40 disqualified. 41 (2) Vendors may be disqualified by the administrator for any of the fol- 42 lowing reasons: 43 (a) Failure to perform according to the terms of any agreement; 44 (b) Attempts by whatever means to cause acquisition specifications to be 45 drawn so as to favor a specific vendor; 46 (c) Use of the provisions ofthis chaptersections 67-5714 through 47 67-5744, Idaho Code, to obstruct or unreasonably delay acquisitions by the 48 state. Obstruction is hereby defined as a lack of success in more than 49 fifty percent (50%) of thespecificationchallenges made in each of three 50 (3) different acquisitions during any twenty-four (24) month period; 51 (d) Perjury in a vendor disqualification hearing; 22 1 (e) To knowingly violate the provisions ofthis chaptersections 67-5714 2 through 67-5744, Idaho Code; or 3 (f) Debarment, suspension or ineligibility from federal contracting of 4 the vendor, any of its principals or any of its affiliates. 5 (3) A vendor shall be notified by registered mail within ten (10) days of 6 disqualification and may, within thirty (30) days of the receipt of such 7 notice, request of the director of the department of administration a hearing 8 before a determinations officer. Any hearings shall be held in accordance with 9 chapter 52, title 67, Idaho Code. 10 (4) A determinations officer appointed pursuant to this section shall 11 conduct a contested case hearing and upon conclusion of the hearing shall pre- 12 pare findings of fact, conclusions of law and a recommended order for the 13 director of the department of administration. In lieu of disqualification, the 14 determinations officer may recommend to the director of the department of 15 administration specific conditions to the vendor's continued participation in 16 acquisitions by the state. Upon receipt of the findings of fact, conclusions 17 of law and recommended order, the director shall enter a final order sustain- 18 ing, conditioning or reversing the decision of the administrator on the dis- 19 qualification. Such final order shall not be considered a contested case 20 under, and the judicial review provisions of, chapter 52, title 67, Idaho 21 Code, shall not apply. No action in law or equity shall lie against the agency 22 or its employees if the vendor does not first timely request a hearing pursu- 23 ant to subsection (3) of this section. In any subsequent judicial review of 24 the final agency action on a contract award under this section, the court 25 shall reverse the agency's action only if the challenging party proves by 26 clear and convincing evidence, both that its substantial rights have been 27 prejudiced by the agency action and that the agency's action was arbitrary, 28 capricious or an abuse of discretion. 29 (5) Disqualification or conditions may be imposed for a period of not 30 less than six (6) months or not more than five (5) years. 31 (6) During the term of disqualification, a vendor disqualified under this 32 section shall not be eligible for award of any contract under sections 67-5714 33 through 67-5744, Idaho Code, and any bid submitted by it shall be rejected and 34 returned. 35 SECTION 30. That Section 67-5732, Idaho Code, be, and the same is hereby 36 repealed. 37 SECTION 31. That Section 67-5733, Idaho Code, be, and the same is hereby 38 amended to read as follows: 39 67-5733. DIVISION OF PURCHASING -- APPEALS -- STANDARD OF REVIEW. 40 (1) (a) There shall be, beginning with the day ofreceipt ofthe required 41 notice, a period ofnot more thanten (10) working days in which any 42 vendor, qualified and able to sell or supply the items to be acquired,may 43notify in writing the administrator of the division of purchasing of his44intention tochallenge the specifications. The challenge shall be in writ- 45 ing to the administrator of the division of purchasing and shall specifi- 46 cally state the exact nature ofhisthe challenge. The specific challenge 47 shall describe the location of the challenged portionor clausein the 48 specifications,document,unless the challenge concerns an omission, and 49 shall explain why any provision should be struck, added or altered, and 50 contain suggested corrections. 51 Upon receipt of the challenge, the administrator of the division of 52 purchasing shall:either23 1 (i) Ddeny the challenge, and such denial shall beconsideredthe 2 final agencydecision,action; orhe shall3 (ii) Ppresent the matter to the director of the department of admin- 4 istration for appointment of a determinations officer to review the 5 record and submit a recommended order to the administrator regarding 6 the specifications challenge. 7 If the director of the department of administration appoints a deter- 8 minations officer,then all vendors, who are invited to bid on the prop-9erty sought to be acquired, shall be notified of the appeal and the10appointment of determinations officerthe administrator of the division of 11 purchasing shall provide notice of such appointment and any vendor may, 12 within five (5) days of such notice, indicate in writingtheirhis agree- 13 ment or disagreement with the challenge.within five (5) days.The notice 14 to the vendors may be electronic.Any vendor may note his agreement or15disagreement with the challenge. The determinations officer may, on his16own motion, refer the challenge portion and any related portions of the17challenge to the author of the specification to be rewritten with the18advice and comments of the vendors capable of supplying the property;19rewrite the specification himself and/or reject all or any part of any20challenge. If specifications are to be rewritten, the matter shall be con-21tinued until the determinations officer makes a final determination of the22acceptability of the revised specifications.23The administrator shall reset the bid opening no later than fifteen24(15) days after final determination of challenges or the amendment of the25specifications. If the administrator denies the challenge, then the bid26opening date shall not be resetUpon receipt of the determinations 27 officer's recommendation, the administrator may accept or reject the rec- 28 ommendation in whole or in part and such acceptance or rejection shall be 29 the final agency action. 30 The final decision of thedeterminations officer oradministrator on 31 the challenge to specifications shall not be considered a contested case 32within the meaning of the administrative procedure actunder, and shall 33 not be subject to judicial review under the provisions of, chapter 52, 34 title 67, Idaho Code; provided that a vendordisagreeing with specifica-35tionswho challenged the specifications in accordance with subsection 36 (1)(a) of this section may include suchdisagreementchallenge as a reason 37 for asking for appointment of a determinations officer pursuant to subsec- 38 tion67-5733(1)(c), Idaho Codeof this section. 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. The appeal shall be in writing and shall set 43 forth in specific terms the reasons why the nonresponsiveness decision is 44 thought to be erroneous. A nonresponsive bid, within the meaning of this45chapter,is a bid which does not comply with the bid invitation,andspec- 46 ificationsand shall not apply to a vendor whose bid is considered but who47is determined not to be the lowest responsible bidder as defined in this48chapteror applicable legal requirements. The director shall: 49 (i) Deny the application and such denial shall be the final agency 50 action; or 51 (ii) Appoint a determinations officer to review the record and sub- 52 mit a recommended order to the director to affirm or reverse the 53administrator'sdecision of bid nonresponsiveness. 54 The determinations officer in making this recommendation may rely on 55 the documents of record, statements of employees of the state of Idaho 24 1 participating in any phase of the selection process, and statements of any 2 vendor submitting a bid. The determinations officer shall not be required 3 to solicit statements from any person. The director shall, upon receipt 4 of a written recommendation from the determinations officer,sustain, mod-5ifyenter a final order sustaining, modifying orreversereversing the 6 administrator's nonresponsive bid decision. An appeal conducted under the 7 provisions of this subsection shall not be considered a contested case 8 under, and shall not be subject to judicial review under, the provisions 9 of chapter 52, title 67, Idaho Code. 10 (c) A responsive vendorwhose bid is consideredmay, within five (5) 11 working days following receipt of notice that he is not the lowest respon- 12 sible bidder,applyappeal the selection decision to the director of the 13 department of administration.for appointment of a determinations officer.14 Theapplicationappeal shall be in writing and shall set forth in specific 15 terms the reasons why theadministrator'sselection decision is thought to 16 be erroneous. Upon receipt of the application, the director shall within 17threefive (35) working days: 18 (i) Deny the application, and such denial shall beconsideredthe 19 final agencydecisionaction; or 20 (ii) Appoint a determinations officer to review the record to deter- 21 mine whether theadministrator'sselection of the lowest responsible 22 bidder is correct; or 23 (iii) Appoint a determinations officer with authority to conduct a 24 contested case hearing in accordance with the provisions of chapter 25 52, title 67, Idaho Code. 26 A determinations officer appointed pursuant to subsection 2767-5733(1)(c)(ii), Idaho Code,of this section shall inform the director 28 by written recommendation whether, in his opinion, theadministrator's29 selection of the lowest responsible bidder is correct. The determinations 30 officer in making this recommendation may rely on the documents of record, 31 statements of employees of the state of Idaho participating in any phase 32 of the selection process, and statements of any vendor submitting a bid. A 33 contested case hearing shall not be allowed and the determinations officer 34 shall not be required to solicit statements from any person. Upon receipt 35 of the recommendation from the determinations officer, the director shall 36sustain, modifyenter a final order sustaining, modifying orreverse37 reversing the decisionof the administratoron the selection of the lowest 38 responsible bidder or the director may appoint a determinations officer 39 pursuant to subsection67-5733(1)(c)(iii), Idaho Codeof this section. 40 A determinations officer appointed pursuant to subsection67-573341 (1)(c)(iii), Idaho Code,of this section shall conduct a contested case 42 hearing and upon conclusion of the hearing shall prepare findings of fact, 43 conclusions of law and a recommended order for the director of the depart- 44 ment of administration. Upon receipt of the findings of fact, conclusions 45 of law and recommended order, the director shall enter a final order sus- 46 taining, modifying or reversing the decision of the administrator on the 47 selection of the lowest responsible bidder. 48 (d) In the case of a sole source procurement, there shall be a period of 49not more thanfive (5) working days from the last date ofpublicrequired 50 notice in which any vendor, able to sell or supply the item(s) to be51acquired,may notify the administrator of the division of purchasing, in52writing,of hisintention tochallenge to the sole source procurement.and53briefly explain the nature of tThe challenge shall be in writing and shall 54 set forth in specific terms the reason why the sole source determination 55 is thought to be erroneous. 25 1 Upon receipt of the challenge, the director shall either: 2 (i) Deny the application; or 3 (ii) Appoint a determinations officer to review the record and submit 4 a recommended order to the director to affirm or reverse the 5administrator'ssole source determination. 6 The determinations officer in making this recommendation may rely on 7 the documents of record, statements of employees of the state of Idaho 8 participating in any phase of the selection process, and statements of 9 vendors. The determinations officer shall not be required to solicit 10 statements from any person. The director,shall,upon receipt of a written 11 recommendation from the determinations officer,sustain, modifyshall 12 enter a final order sustaining, modifying orreversereversing the 13administrator'ssole source determination. An appeal conducted under the 14 provisions of this subsection shall not be considered a contested case 15 under, and shall not be subject to judicial review under, the provisions 16 of chapter 52, title 67, Idaho Code. 17 (e) The administrator of the division of purchasing may, on his own ini- 18 tiative, file a complaint with the director fora hearing beforethe 19 appointment of a determinations officer. The director shall appoint a 20 determinations officerwho shallto review the record and make a written 21 recommendationsto the director.and tThe director shall render whatever 22 decision is necessary to resolve the complaint. 23 (2)The director of the department of administration is hereby authorized24and directed to appoint a determinations officer whenever one is required by25this chapter. The officer shall meet and render whatever determination is26called for.Whena complaintan appeal is filed pursuant to subsection67-573327 (1)(b), Idaho Codeof this section, no bid may be awarded until the final 28 decision is rendered by the director of the department of administration; pro- 29 vided that in all other cases where a determinations officer is appointed by 30 the director, the directorshall have the power tomay allow the acquisition 31 contract to be awarded to the successful bidder prior toor after the decision32of the determinations officerhis final decision if he determines such award 33 to be in the best interest of the state.Any determinations officer appointed34pursuant to this section shall exist only for the duration of unresolved com-35plaints on an acquisition and shall be dismissed upon resolution of all such36complaints. TheA determinations officer shall be guided in his determination 37 by the best economic interests of the state for both the near future and more 38 extended periods of time. In addition to the powers conferred,on the determi-39nations officer,the director of the department of administration may: impose 40 the penalty prescribed by section 67-5734(3), Idaho Code; enjoin any activity 41 which violatesthis chaptersections 67-5714 through 67-5744, Idaho Code; 42 direct that bids be accepted or rejected, or sustained; direct that specifica- 43 tions be rejected, sustained or modified; and direct further legal action. 44 (3) Challenges or appeals conducted pursuant to subsection67-573345 (1)(a), (1)(b), (1)(c)(i),or(1)(c)(ii), (1)(d) or (1)(e) of this section 46Idaho Code,shall not be consideredto bea contested case as that term is 47 defined in the administrative procedure act, and the judicial review provi- 48 sions of chapter 52, title 67, Idaho Code, shall not apply. No action shall 49 lie against the agency or its employees if the vendor does not make a timely 50 challenge, appeal or request for appointment of a determinations officer under 51 this section. In any subsequent judicial review of the final agency action on 52 a challenge or appeal conducted pursuant to subsection (1)(a), (1)(b), (1)(c), 53 (1)(d) or (1)(e) of this section, the court shall reverse the agency's action 54 only if the challenging or appealing party proves by clear and convincing evi- 55 dence, both that its substantial rights have been prejudiced by the agency 26 1 action and that the agency's action was arbitrary, capricious or an abuse of 2 discretion. An appeal conducted pursuant to subsection67-5733(1)(c)(iii),3Idaho Codeof this section, shall be conducted as a contested case according 4 to the provisions of chapter 52, title 67, Idaho Code. 5 SECTION 32. That Section 67-5734, Idaho Code, be, and the same is hereby 6 amended to read as follows: 7 67-5734. PENALTIES. (1) Any person convicted of a violation of subsection 8 (1),or (2), or (6)of section 67-5726, Idaho Code, shall be guilty of a mis- 9 demeanor. 10 (2) Any person convicted of a violation of subsection (3) of section 11 67-5726, Idaho Code, shall be guilty of a felony. 12 (3) Any officer or employee found to have violated the provisions of sub- 13 section (4) of section 67-5726, Idaho Code, may, by order of the determina-14tions officer,be suspended without pay for not more than ninety (90) working 15 days, have a reprimand entered in his personnel file, or both. 16 SECTION 33. That Section 67-5735, Idaho Code, be, and the same is hereby 17 amended to read as follows: 18 67-5735. PROCESSING -- REIMBURSEMENT OF CONTRACTOR. Within ten (10) days 19 after the property acquired is delivered ascalled for by the bid specifica-20tionsrequired, the acquiring agency shall complete all processing required of 21 that agency to permit the contractor to be reimbursed according to the terms 22 of the bid. Within ten (10) days of receipt of the documents necessary to per- 23 mit reimbursement of the contractor according to the terms of the contract, 24 the state controller shall cause a warrant to be issued in favor of the con- 25 tractor and delivered. Contracts let or entered into by or through the divi- 26 sion of purchasing are exempt from the provisions of section 67-2302, Idaho 27 Code; provided, however, that late contract payments may be assessed interest 28 by the vendor at the rate set forth in section 63-3045, Idaho Code, unless 29 another rate is established by contract. 30 SECTION 34. That Section 67-5736, Idaho Code, be, and the same is hereby 31 amended to read as follows: 32 67-5736. ACCEPTANCE. No propertyto be acquired by an agencyshall be 33 accepted by the acquiring agencywhichif such property does not meet the min- 34 imum bid specifications. 35 SECTION 35. That Section 67-5737, Idaho Code, be, and the same is hereby 36 amended to read as follows: 37 67-5737. PROVISIONS OFTHIS CHAPTERSECTIONS 67-5714 THROUGH 67-5744, 38 IDAHO CODE, CONTROLLING -- SEVERABILITY.Except as provided in section3967-5718, Idaho Code, iInsofar as the provisions ofthis chaptersections 40 67-5714 through 67-5744, Idaho Code, or the application of such provision to 41 any person or circumstance is declared invalid for any reason, such declara- 42 tion shall not affect the validity of the remaining portions ofthis chapter43 sections 67-5714 through 67-5744, Idaho Code. 44 SECTION 36. That Section 67-5740, Idaho Code, be, and the same is hereby 45 amended to read as follows: 27 1 67-5740. ADDITIONAL AUTHORITY AND DUTIES OF THE ADMINISTRATOR OF THE 2 DIVISION OF PURCHASING. (a1) The administrator of the division of purchasing 3 is authorized and empowered (1a) to acquire from the United States of America 4 under and in conformance with the provisions ofsection 203(j) of the Federal5Property and Administrative Services Act of 1949, as amended, hereinafter6referred to as the "Act,"40 U.S.C. sec. 549, donations of personal property 7 through state agencies such property, including equipment, materials, books, 8 or other supplies under the control of any department or agency of the United 9 States of America as may be usable and necessary for purposes of education, 10 public health or civil defense, including research for any such purpose, and 11 for such other purposes as may now or hereafter be authorized by federal law; 12 (2b) to warehouse such property; and (3c) to distribute such property within 13 the state to tax-supported medical institutions, hospitals, clinics, health 14 centers, school systems, schools, colleges, and universities within the state, 15 to other nonprofit medical institutions, hospitals, clinics, health centers, 16 schools, colleges and universities which have been held exempt from taxation 17 under section 501(c)(3) (26 U.S.C. sec. 501(c)(3)) of the United States Inter- 18 nal Revenue Code of 1954, to civil defense organizations of the state, or 19 political subdivisions and instrumentalities thereof, which are established 20 pursuant to state law, and to such other types of institutions or activities 21 as may now be or hereafter become eligible under federal law to acquire such 22 property. 23 (b2) The administrator is hereby authorized to receive applications from 24 eligible institutions for the acquisition of federal surplus real property, 25 investigate the same, obtain expression of views respecting such applications 26 from the appropriate health or educational authorities of the state, make rec- 27 ommendations regarding the need of such applicant for the property, the merits 28 of its proposed program of utilization, the suitability of the property for 29 such purposes, and otherwise assist in the processing of such applications for 30 acquisition of real and related personal property of the United States under 31section 203(k) of the act40 U.S.C. sec. 549. 32 (c3) For the purpose of executing its authority underthis chaptersec- 33 tions 67-5740 through 67-5744, Idaho Code, the administrator is authorized and 34 empowered to adopt, amend, or rescind such rules and prescribe such require- 35 ments as may be deemed necessary and take such other action as is deemed nec- 36 essary and suitable, in the administration ofthis chaptersections 67-5740 37 through 67-5744, Idaho Code, to assure maximum utilization by and benefit to 38 health, educational and civil defense and other eligible institutions and 39 organizations within the state from property distributed underthis chapter40 sections 67-5740 through 67-5744, Idaho Code. 41 (d4) The administrator, subject to approval of the director of adminis- 42 tration, is authorized and empowered to appoint advisory boards or committees, 43 who shall be compensated as provided by section 59-509(b), Idaho Code, and to 44 employ such personnel and to fix their compensation and prescribe their 45 duties, as are deemed necessary and suitable for the administration ofthis46chaptersections 67-5740 through 67-5744, Idaho Code. Expenditures incurred 47 hereunder shall be paid as are other claims against the state. 48 (e5) The administrator is authorized and empowered to make such certifi- 49 cations, take such action, make such expenditures and enter into such con- 50 tracts, agreements and undertakings for and in the name of the state,(includ- 51 ing cooperative agreements with any federal agencies providing for utilization 52 by and exchange between them of the property, facilities, personnel and ser- 53 vices of each by the other), require such reports and make such investigations 54 as may be required by law or regulation of the United States of America in 55 connection with the disposal of real property and the receipt, warehousing, 28 1 and distribution of personal property received by him from the United States 2 of America; provided, that all expenditures, contracts, agreements and under- 3 takings for and in the name of the state shall have the approval of the state 4 board of examiners. 5 (f6) The administrator is authorized and empowered to act as aclearing6houseclearinghouse of information for the public and private nonprofit insti- 7 tutions, organizations and agencies referred to insubparagraphsubsection 8 (a1) of this section, and other institutions eligible to acquire federal sur- 9 plus real property, to locate both real and personal property available for 10 acquisition from the United States of America, to ascertain the terms and con- 11 ditions under which such property may be obtained, to receive requests from 12 theabove mentionedabovementioned institutions, organizations and agencies 13 and to transmit to them all available information in reference to such prop- 14 erty, and to aid and assist such institutions, organizations and agencies in 15 every way possible in the consummation of acquisitions or transactions hereun- 16 der. 17 (g7) The administrator, in the administration ofthis chaptersections 18 67-5740 through 67-5744, Idaho Code, shall cooperateto the fullest extent19consistent with the provisions of the act,with the departments or agencies of 20 the United States of America and shall file a state plan of operation, operate 21 in accordance therewith, and take such action as may be necessary to meet the 22 minimum standard prescribedin accordance with the act,and make such reports 23 in such form and containing such information as the United States of America 24 or any of its departments or agencies may from time to time require, and it 25 shall comply with the laws of the United States of America and the rules and 26 regulations of any of the departments or agencies of the United States of 27 America governing the allocation, transfer, use or accounting for, property 28 donable or donated to the state. 29 (h8) The administrator, with approval of the board of examiners, is 30 authorized to contract with agencies of other states responsible for the 31 handling of surplus property for: 32 (1a) The acquisition, warehousing, and distribution of surplus property 33 on behalf of the state of Idaho and the delivery of surplus property 34 within the state of Idaho; and 35 (2b) The acquisition, warehousing, and distribution of surplus property 36 on behalf of other states and the delivery of surplus property in other 37 states; provided, that any contract negotiated under the authority of this 38subparagraphparagraph (2b) shall obligate the other states to pay the 39 cost of the surplus property and the administrative costs incurred in the 40 acquisition, warehousing, and distribution of the surplus property; and 41 (3c) The furnishing of any services to the state of Idaho concerning the 42 acquisition, warehousing, and distribution of surplus property, and the 43 sorting, dividing into lots, crating, preparing for shipment, and any 44 other handling of surplus property for the state of Idaho. 45 SECTION 37. That Section 67-5741, Idaho Code, be, and the same is hereby 46 amended to read as follows: 47 67-5741. DELEGATION OF DUTIES -- BONDING OF AGENCY PERSONNEL. The direc- 48 tor of the department of administration may delegate to any employees of the 49 division of purchasing such authority as he deems reasonable and proper for 50 the effective administration ofthis actsections 67-5740 through 67-5744, 51 Idaho Code. The director may utilize the services of officers and employees of 52 any of the state departments and any other governmental agencies of the state 53 receiving surplus property under the provisions ofthis actsections 67-5740 29 1 through 67-5744, Idaho Code, and all such departments and agencies are hereby 2 authorized to assist and cooperate with the director in the administration of 3this actsections 67-5740 through 67-5744, Idaho Code. Any person in the 4 employ of the division of purchasing agency may in the discretion of the gov- 5 ernor be required to execute and deliver to the governor a bond payable to the 6 state in such amount as may be fixed by the governor, conditioned upon the 7 proper care, disbursement, and accounting of all funds and the proper care, 8 distribution, and accounting of all property received from the United States 9 under the authority ofthis actsections 67-5740 through 67-5744, Idaho Code; 10 provided, however, the governor may accept an adequate indemnity bond covering 11 all or part of the persons so accountable and responsible. 12 SECTION 38. That Section 67-5742, Idaho Code, be, and the same is hereby 13 amended to read as follows: 14 67-5742. DELEGATION OF AUTHORITY TO ACQUIRE SURPLUS PROPERTY. Any provi- 15 sion of law to the contrary notwithstanding, the governing board, or in case 16 there be none, the executive head, of any state department, instrumentality, 17 or agency or of any county, city, school district or other political subdivi- 18 sion may by order or resolution confer upon any officer or employee thereof 19 continuing authority from time to time to secure the transfer to it of surplus 20 property underthis actsections 67-5740 through 67-5744, Idaho Code, and to 21 obligate the state or political subdivision to the extent necessary to comply 22 with the terms and conditions of such transfers. The authority conferred upon 23 any such officer or employee by any such order or resolution shall remain in 24 effect unless and until the order or resolution is duly revoked and written 25 notice of such revocation shall have been received by the administrator of the 26 division of purchasing. 27 SECTION 39. That Section 67-5743, Idaho Code, be, and the same is hereby 28 amended to read as follows: 29 67-5743. TRANSFER CHARGES. The administrator of the division of purchas- 30 ing is hereby authorized to make charges and to assess fees from the recipient 31 of any surplus property acquired and distributed underthis actsections 32 67-5740 through 67-5744, Idaho Code. Any charges made or fees assessed by the 33 administrator for the acquisition, warehousing, distribution, or transfer of 34 any property of the United States of America for educational, public health or 35 civil defense purposes, including research, shall be limited to those reason- 36 ably related to the costs of care and handling in respect to its acquisition, 37 receipt, warehousing, distribution or transfer by the surplus property agency 38 and, in the case of real property, such charges and fees shall be limited to 39 the reasonable administrative costs of the division incurred in effecting 40 transfer. 41 SECTION 40. That Section 67-5744, Idaho Code, be, and the same is hereby 42 amended to read as follows: 43 67-5744. SURPLUS PROPERTY FUND MAINTAINED -- CHARGES AND FEES, DEPOSI- 44 TION.The surplus property revolving fund, as created by chapter 161, laws of451957, is hereby maintained and continued to carry out the provisions of sec-46tions 67-5740--67-5744, Idaho Code.The charges or fees received by the divi- 47 sion of purchasing for acquisition, warehousing, distribution or transfer of 48 surplus property shall be deposited and credited to thesaidsurplus property 49 revolving fund, which fund shall be available for expenditure in administering 30 1 the provisions of sections 67-5740--through 67-5744, Idaho Code, including 2 payment of the actual expenses of current operations and the purchase of nec- 3 essary equipment, and the acquisition and maintenance of a working capital 4 reserve within the surplus property revolving fund. Any prior appropriation 5 made to the revolving fund is hereby declared to be exempt from the provisions 6 of theSstandardAappropriationsAact of 1945. 7 The amount of the working capital reserve in any fiscal year shall be 8 determined by the director of the department of administration and shall not 9 exceed an amount equivalent to the estimated cost of operation of the surplus 10 property function of the division for the next succeeding fiscal year; pro- 11 vided, however, that accounts receivable which are uncollectible and all lia- 12 bilities incurred in the performance of sections 67-5740--through 67-5744, 13 Idaho Code, including the unrepaid balance of the amount heretofore appropri- 14 ated to the surplus property revolving fund from the general fund of the state 15 of Idaho, shall be deducted from current assets in determining, as of the end 16 of any fiscal year, the amount of working capital reserve for the next suc- 17 ceeding fiscal year. 18 In any fiscal year the director of administration may transfer from the 19 surplus property revolving fund to the general fund of the state of Idaho any 20 sum not exceeding the unrepaid balance of the amount heretofore appropriated 21 to the surplus property revolving fund. Upon termination or repeal of sections 22 67-5740--through 67-5744, Idaho Code, any balance remaining in said revolv- 23 ing fund not exceeding the unrepaid balance of the amount heretofore appropri- 24 ated to the surplus property revolving fund is hereby transferred to and made 25 a part of the general fund of the state, and any balance remaining in the said 26 revolving fund in excess of the said unrepaid balance shall be disposed for 27 the benefit of qualified public health, educational, civil defense, and other 28 organizations or institutions within the state of Idaho in accordance with the 29 requirements of federal law. 30 SECTION 41. That Section 67-5745A, Idaho Code, be, and the same is hereby 31 amended to read as follows: 32 67-5745A. DEFINITIONS. As used inthis chaptersections 67-5745 through 33 67-5748, Idaho Code: 34 (1) "Information technology" means all present and future forms of com- 35 puter hardware, computer software and services used or required for automated 36 data processing, computer-related office automation or telecommunications. 37 (2) "State agencies" means all state agencies or departments, boards, 38 commissions, councils and institutions of higher education, but shall not 39 include the elected constitutional officers and their staffs, the legislature 40 and its staffs or the judiciary. 41 (3) "Telecommunications" means all present and future forms of hardware, 42 software or services used or required for transmitting voice, data, video or 43 images over a distance. 44 SECTION 42. That Section 67-5745C, Idaho Code, be, and the same is hereby 45 amended to read as follows: 46 67-5745C. GENERAL POWERS AND DUTIES OF THE COUNCIL. The council shall: 47 (1) Review and evaluate the information technology and telecommunications 48 systems presently in use by state agencies; 49 (2) Prepare statewide short-range and long-range information technology 50 and telecommunications systems plans to meet the needs of state agencies; 51 (3) Within the context of its strategic plans, establish statewide infor- 31 1 mation technology and telecommunications policies, standards, guidelines, con- 2 ventions and comprehensive risk assessment criteria that will assure uniform- 3 ity and compatibility of such systems within state agencies; 4 (4) Recommend and coordinate the use and application of state agencies' 5 information technology and telecommunications resources; 6 (5) Review and approve large-scale information technology and telecommu- 7 nications projects including, but not limited to, risk assessment 8 methodologies used by state agencies using council risk assessment criteria, 9 for state agencies; 10 (6) Review state agencies' compliance with statewide information technol- 11 ogy and telecommunications systems plans; 12 (7) Recommend cost-efficient procedures for state agencies' acquisition 13 and procurement of information technology and telecommunications systems; 14 (8) Upon request, provide technical expertise to state government and any 15 other governmental entity; 16 (9) Maintain a continuous and comprehensive inventory of information 17 technology and telecommunications systems within state agencies; 18 (10) In accordance with statutes governing the availability or confidenti- 19 ality of public records and information, establish guidelines for the acces- 20 sing of public information by the public; 21 (11) On an annual basis, publish a report of the activities of the council 22 for provision to the governor and the legislature; 23 (12) Recommend the enactment or promulgation of any statutes or rules nec- 24 essary to carry out the statewide information technology and telecommunica- 25 tions systems plans; 26 (13) Enter into contracts for professional services and assistance not 27 otherwise available in state government; 28 (14) Encourage and promote the development and growth of the information 29 technology industry in the state in accordance with sound business principles 30 and practices; 31 (15) Encourage and promote cooperative information technology efforts and 32 activities between the state, private enterprise and the public; 33 (16) Encourage and support education and training opportunities relating 34 to information technology and telecommunications; and 35 (17) Perform any additional functions consistent with the purpose ofthis36actsections 67-5745 through 67-5748, Idaho Code, which are necessary and 37 appropriate for the proper conduct of the council. 38 SECTION 43. That Section 67-5747, Idaho Code, be, and the same is hereby 39 amended to read as follows: 40 67-5747. POWERS AND DUTIES. (1) The department of administration is 41 hereby authorized and directed: 42 (a) (i) To control and approve the acquisition and installation of all 43 information technology and communications equipment and facilities 44 for all departments and institutions of state government, except as 45 provided in subparagraphs (ii), (iii) and (iv) of this subsection; 46 (ii) To coordinate the acquisition and installation of all informa- 47 tion technology and communications equipment and facilities forthe48institutions of higher education andthe elected officers in the 49 executive department; 50 (iii) To coordinate the acquisition and installation of all informa- 51 tion technology and communications equipment and facilities for the 52 legislative and judicial departments; 53 (iv) Provided however, that the acquisition and installation of all 32 1 public safety radio and microwave equipment shall be under the con- 2 trol of the military division. 3 In approving or coordinating the acquisition or installation of informa- 4 tion technology and communications equipment or facilities, the department 5 shall first consult with and consider the recommendations and advice of 6 the directors or executive heads of the various departments or institu- 7 tions. Any acquisition or installation of any information technology and 8 communications equipment or facilities that is contrary to the 9 department's recommendation, or is not in harmony with the state's overall 10 plan for information technology and communications and information shar- 11 ing, shall be reported in writing to the governor and the legislature. 12 (b) To receive and hold, upon order of the board of examiners, physical 13 custody and control of such existing information technology and communi- 14 cations equipment and facilities utilized by or in the possession of any 15 department or institution, as may be necessary to carry out the purposes 16 ofthis chaptersections 67-5745 through 67-5748, Idaho Code. 17 (c) To providea system ofinformation technology and communications sys- 18 tems for all departments and institutions of state government. The depart- 19 ment may prescribe adequate rules or guidelines for the use of anycommu-20nicationsrelated equipment and facilities now in use or hereafter made 21 available. Funds received pursuant to this subsection shall be appropri- 22 ated for payment of information technology, communication and telephone 23 charges incurred by the various agencies and institutions of state govern- 24 ment. 25 (d) To provide a means whereby political subdivisions of the state may 26 utilize thestateinformation technology and communications system, upon 27 such terms and under such conditions as the department may establish. 28 (e) To accept federal funds granted by congress or by executive order for 29 all or any of the purposes ofthis chaptersections 67-5745 through 30 67-5748, Idaho Code, as well as gifts and donations from individuals and 31 private organizations or foundations. 32 SECTION 44. That Section 67-5748, Idaho Code, be, and the same is hereby 33 amended to read as follows: 34 67-5748. TRANSFER OF FUNDS, EQUIPMENT, FACILITIES, AND EMPLOYEES. In 35 order to provide for the orderly implementation ofthis chaptersections 36 67-5745 through 67-5748, Idaho Code, and to provide an economical, efficient, 37 and effective system of information technology and telecommunications for the 38 state, the board of examiners may order such transfer of appropriated funds, 39 custody and control of equipment and facilities, and employees to the depart- 40 ment of administration as may be necessary to carry out the purposes ofthis41actsections 67-5745 through 67-5748, Idaho Code. 42 SECTION 45. That Section 67-5751, Idaho Code, be, and the same is hereby 43 amended to read as follows: 44 67-5751. RECORDS MANAGEMENT. The director of the department of adminis- 45 tration may develop subject to the provisions of chapter 52, title 67, Idaho 46 Code, rules and procedures pertaining to the management of all state records. 47 "Records" shall mean;: any document, book, paper, photograph, sound recording, 48 or other material, regardless of physical form or characteristics, made or 49 received pursuant to law or in connection with the transaction of official 50 state business. Library and archive material made, acquired, or preserved 51 solely for reference, exhibition, or historical purposes, extra copies of doc- 33 1 uments preserved only for convenience of reference, and stocks of publications 2 and of processed documents are not included within the definition of records 3 as used in this section. 4 Rules, or if rules are not adopted, guidelines and procedures shall be 5 established: 6 (a1) Pertaining to retention periods for all state records. 7 (b2) Establishing a standard filing system for all state agencies. 8 (c3) Prescribing conditions and procedures for destruction of state 9 records. 10 (d4) Ensuring efficient utilization of manpower, building space, and sup- 11 plies with regard to paper flow and forms usage. 12(e) Pertaining to proper and efficient utilization of microfilming ser-13vices.14 SECTION 46. That Section 67-5753, Idaho Code, be, and the same is hereby 15 amended to read as follows: 16 67-5753.MICROFILMINGSTORAGE SERVICES.The director of administration17shall develop a microfilming facility to provide microfilming services to18state agencies when, in his judgment, such a facility would be in the best19interests of the state. Microfilming equipment and related equipment under the20control of other state agencies at the time of this development shall become21the property of the department of administration at the direction of the22director of administration.23 The director of the department of administration shall provide storage for 24 inactive records at the request of state agencies. 25 SECTION 47. That Section 67-5773, Idaho Code, be, and the same is hereby 26 amended to read as follows: 27 67-5773. POWERS AND DUTIES -- RISK MANAGEMENT. (1) The director of the 28 department of administration shall: 29 (a) Determine the nature and extent of needs for insurance coverages of 30 all kinds, other than life and disability insurances, as to risks and 31 property of all offices, departments, divisions, boards, commissions, 32 institutions, agencies and operations of the government of the state of 33 Idaho, the premiums on which are payable in whole or in part from funds of 34 the state. 35 (b) Determine the character, terms, and amounts of insurance coverages 36 required by such needs. 37 (c) Within funds available therefor from each respective office, depart- 38 ment, division, board, commission, institution, agency or operation with 39 respect to coverage to be provided to it, negotiate for, procure, pur- 40 chase, and have placed or continued in effect all such insurance coverages 41 and services as may reasonably be obtainable, whether from insurers or 42 brokers duly authorized to transact business in this state. 43 (d) Administer all such coverages on behalf of the insured, including 44 making and settlement of loss claims arising thereunder. The director, 45 with the advice of the attorney general, may cause suit to be brought with 46 respect to any such coverage or loss. 47 (e) Within available funds and personnel, make periodic inspection or 48 appraisal of premises, property and risks as to conditions affecting 49 insurability, risk, and premium rate, and submit a written report of each 50 such inspection or appraisal together with recommendations, if any, to the 51 officer, department, or agency in direct charge of such premises, property 34 1 or risks. 2 (f) Perform such other duties and exercise such other powers as are pro- 3 vided by law. 4(g) Establish a risk management advisory committee. The director shall5consult with the advisory committee in the performance of those duties6enumerated above.7 (2) As to all such needs and coverages, the director shall give due con- 8 sideration to information furnished by and recommendations of any office, 9 department, division, board, commission, institution or agency. 10 SECTION 48. That Section 67-5776, Idaho Code, be, and the same is hereby 11 amended to read as follows: 12 67-5776. RETAINED RISKS ACCOUNTFUND -- PURPOSES -- AMOUNT -- LIMIT -- 13 APPROPRIATION -- INVESTMENT. (1) There is hereby createdan account in the14agency asset fundin the state treasuryto be designatedthe "retained risk 15accountfund." Theaccountfund shall be used solely for payment of premiums, 16 costs of maintaining the operation of the risk management office, or upon 17 losses not otherwise insured and suffered by the state as to property and 18 risks which at the time of the loss were eligible for such payment under 19 guidelines theretofore issued by the director of the department of administra- 20 tion. 21 (2) In addition to moneys, if any, appropriated to theaccountfund by 22 the legislature, the director shall deposit with the state treasurer for 23 credit to the retained riskaccountfund: 24 (a)tThe gross amount of all premiums and surcharges received under sec- 25 tion 67-5777, Idaho Code; 26 (b)aAll refunds received on account of insurance policies canceled 27 before expiration; 28 (c)aAll refunds or returns under experience rating arrangements with 29 insurers; 30 (d)sSavings from amounts otherwise appropriated for the purchase of 31 insurance or conduct of the risk management office operation; 32 (e)aAll net proceeds of the sale of salvage resulting from losses paid 33 out of the retained riskaccountfund. 34 (3) The director may from time to time develop guidelines as to proper- 35 ties and risks eligible for payment out of the retained riskaccountfund, and 36 as to making of claim and proof of loss. 37 (4) All moneys placed in theaccountfund are hereby perpetually appro- 38 priated for the purposes of this section. All expenditures from theaccount39 fund shall be paid out in warrants drawn by the state controller upon presen- 40 tation of proper vouchers from the director of the department of administra- 41 tion. 42 (5) Pending such use, surplus moneys in theaccountfund shall be 43 invested by the state treasurer in the same manner as provided under section 44 67-1210, Idaho Code, with respect to other surplus or idle moneys in the state 45 treasury. Interest earned on the investments shall be returned to theaccount46 fund. 47 SECTION 49. SEVERABILITY. The provisions of this act are hereby declared 48 to be severable and if any provision of this act or the application of such 49 provision to any person or circumstance is declared invalid for any reason, 50 such declaration shall not affect the validity of the remaining portions of 51 this act.
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STATEMENT OF PURPOSE
RS 17424C2
This legislation will make changes to the statutes governing the
department of administration.
General Changes
The department's statutory mandates are quite diverse and over
the years, additions and changes to the enabling statutes have
resulted in some internal inconsistencies in use of language and
code references. This legislation will correct those
inconsistencies. It will:
Clarify that the director has general rule making authority.
Provide for the consistent use of definition.
Provide for use of correct terminology and provide for
consistent use of terminology and language throughout the
chapter.
Remove references to obsolete dates.
Provide for correct code references.
Make technical corrections.
The legislation will also make changes affecting specific
divisions within the department as follows:
Clarify that contract awards by the division of public works
are to be made to the lowest responsive and responsible
bidder, will provide definitions for those terms and will
clarify that the determination of who is the lowest
responsive and responsible bidder can involve factors other
than low cost bid.
Allow for electronic bidding.
Allow for certain notices to be posted electronically.
Clarify the public works bid documents are public record
after award.
Specify that certain decisions by the administrator of the
division of public works are final agency actions, not a
contested case under and not subject to the judicial review
provisions of chapter 52, title 67, Idaho Code, and provide
a standard of judicial review.
Division of Purchasing
Allow for the administrator to accept a performance
guarantee other than a performance bond.
Allow the administrator to provide for exemptions to the
competitive bidding requirement by written policies.
Allow the administrator to provide for purchases without
competitive bidding in circumstances approved by the
administrator.
Remove a requirement for rules regarding discounts.
Clarify that purchasing bid documents are public record
after award.
Clarify that a vendor is ineligible for an award of a
contract if it provided services utilized in or that
influenced the procurement process and that the
administrator would make that determination, which shall be
a final agency action, not a contested case under and not
subject to judicial review under chapter 52, title 67, Idaho
Code, and provide a standard of judicial review.
Remove reference to the administrator maintaining stock on
hand.
Clarify that a disqualified vendor is not eligible for a
contract award and that a determination of ineligibility is
a final agency action, not a contested case under and not
subject to judicial review under chapter 52, title 67, Idaho
Code, and provide a standard of judicial review.
Consolidate into one provision reference to rules of the
division of purchasing.
Clarify that certain actions by the administrator of the
division of purchasing are final agency action, not a
contested case under and not subject to the judicial review
provisions of chapter 52, title 67, Idaho Code, and provide
a standard of judicial review.
Revise the appeals procedures to use consistent language.
Remove reference to microfilming services.
Information Technology
Provide that the department's powers and duties under Idaho
Code Section 67-5747 with regard to the acquisition or
control of equipment is for information technology equipment
in addition to communications equipment.
Clarify that the exemption to this control for the military
division is for public safety radio and microwave equipment.
Risk Management
Remove reference to risk management advisory committee.
FISCAL NOTE
No fiscal impact to the general fund.
Contact
Name: Joanna Guilfoy
Deputy Attorney General
Phone: (208)332-1832
STATEMENT OF PURPOSE/FISCAL NOTE H 403
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