§103D-102  Application of this chapter.  (a)  This chapter shall apply to all procurement contracts made by governmental bodies whether the consideration for the contract is cash, revenues, realizations, receipts, or earnings, any of which the State receives or is owed; in-kind benefits; or forbearance; provided that nothing in this chapter or rules adopted hereunder shall prevent any governmental body from complying with the terms and conditions of any other grant, gift, bequest, or cooperative agreement.

     (b)  Notwithstanding subsection (a), this chapter shall not apply to contracts by governmental bodies:

     (1)  Solicited or entered into before July 1, 1994, unless the parties agree to its application to a contract solicited or entered into prior to July 1, 1994;

     (2)  To disburse funds, irrespective of their source:

          (A)  For grants as defined in section 42F-101, made by the State in accordance with standards provided by law as required by article VII, section 4, of the state constitution; or by the counties pursuant to their respective charters or ordinances;

          (B)  To make payments to or on behalf of public officers and employees for salaries, fringe benefits, professional fees, or reimbursements;

          (C)  To satisfy obligations that the State is required to pay by law, including paying fees, permanent settlements, subsidies, or other claims, making refunds, and returning funds held by the State as trustee, custodian, or bailee;

          (D)  For entitlement programs, including public assistance, unemployment, and workers' compensation programs, established by state or federal law;

          (E)  For dues and fees of organizations of which the State or its officers and employees are members, including the National Association of Governors, the National Association of State and County Governments, and the Multi-State Tax Commission;

          (F)  For deposit, investment, or safekeeping, including expenses related to their deposit, investment, or safekeeping;

          (G)  To governmental bodies of the State;

          (H)  As loans, under loan programs administered by a governmental body; and

          (I)  For contracts awarded in accordance with chapter 103F;

     (3)  To procure goods, services, or construction from a governmental body other than the University of Hawaii bookstores, from the federal government, or from another state or its political subdivision;

     (4)  To procure the following goods or services which are available from multiple sources but for which procurement by competitive means is either not practicable or not advantageous to the State:

          (A)  Services of expert witnesses for potential and actual litigation of legal matters involving the State, its agencies, and its officers and employees, including administrative quasi-judicial proceedings;

          (B)  Works of art for museum or public display;

          (C)  Research and reference materials including books, maps, periodicals, and pamphlets, which are published in print, video, audio, magnetic, or electronic form;

          (D)  Meats and foodstuffs for the Kalaupapa settlement;

          (E)  Opponents for athletic contests;

          (F)  Utility services whose rates or prices are fixed by regulatory processes or agencies;

          (G) Performances, including entertainment, speeches, and cultural and artistic presentations;

          (H)  Goods and services for commercial resale by the State;

          (I)  Services of printers, rating agencies, support facilities, fiscal and paying agents, and registrars for the issuance and sale of the State's or counties' bonds;

          (J)  Services of attorneys employed or retained to advise, represent, or provide any other legal service to the State or any of its agencies, on matters arising under laws of another state or foreign country, or in an action brought in another state, federal, or foreign jurisdiction, when substantially all legal services are expected to be performed outside this State;

          (K)  Financing agreements under chapter 37D; and

          (L)  Any other goods or services which the policy board determines by rules or the chief procurement officer determines in writing is available from multiple sources but for which procurement by competitive means is either not practicable or not advantageous to the State; and

     (5)  Which are specific procurements expressly exempt from any or all of the requirements of this chapter by:

          (A)  References in state or federal law to provisions of this chapter or a section of this chapter, or references to a particular requirement of this chapter; and

          (B)  Trade agreements, including the Uruguay Round General Agreement on Tariffs and Trade (GATT) which require certain non-construction and non-software development procurements by the comptroller to be conducted in accordance with its terms.

     (c)  Notwithstanding subsection (a), this chapter shall not apply to contracts made by:

     (1)  Any regional system board of the Hawaii health systems corporation; or

     (2)  The Kahoolawe island reserve commission, except as provided by section 6K-4.5.

     (d)  Governmental bodies making procurements which are exempt from this chapter are nevertheless encouraged to adopt and use provisions of this chapter and its implementing rules as appropriate; provided that the use of one or more provisions shall not constitute a waiver of the exemption conferred and subject the procurement or the governmental body to any other provision of this chapter. [L Sp 1993, c 8, pt of §2; am L 1994, c 186, §6; am L 1995, c 16, §1 and c 178, §3; am L 1996, c 13, §3; am L 1997, c 186, §§2, 5 and c 352, §23; am L 1999, c 149, §12; am L 2001, c 200, §4; am L 2002, c 182, §4; am L 2003, c 9, §3; am L 2007, c 290, §16; am L 2009, c 175, §§1, 14(1); am L 2010, c 82, §§2, 8, c 107, §1, and c 159, §§2, 4; am L 2012, c 173, §5; am L 2013, c 244, §2; am L 2014, c 96, §13]

 

Note

 

  The amendment made by L 1997, c 190, §6 is not included in this section.

 

Cross References

 

  University of Hawaii construction projects, etc., see §§304A-2690 to 2693.

 

Attorney General Opinions

 

  The Code did not apply to board of trustees of deferred compensation plan's existing administrator or investment-product-provider contracts because they were entered into prior to July 1, 1994 applicability date in subsection (a) (Comp. 1993).  Att. Gen. Op. 94-4.

  The State's acceptance of gifts is not subject to the procurement code; the procurement code applies to only contracts for the purchase of goods, services, or construction.  Att. Gen. Op. 16-2.

 

Case Notes

 

  Subsection (b) precludes administrative review of a chief procurement officer's exemption determination; hearings officer correctly concluded that officer did not have jurisdiction to review chief procurement officer's determination that the interim library automation services contract at issue was exempt from the requirements of the procurement code.  93 H. 155, 997 P.2d 567.

  Subsection (b)(4)(L) could not serve as a basis on which to justify the procurement policy board's promulgation of   §3-122-66 (repealed), Hawaii administrative rules, which was outside the scope of the board's authority; among other things, the factual situation of less than three qualified persons under §3-122-66 could not be rationalized as an unenumerated exception within the scope of subsection (b)(4).  132 H. 333, 322 P.3d 228 (2014).

 

 

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