Report Title:

Design Professional Services Contracts; Procurement

Description:

Amends the public procurement code with respect to the procurement of design professional services by adding a minimum of two public members to a selection committee and adding selection criteria, and amending provisions relating to the ranking of offerors and electronic posting of awards.

HOUSE OF REPRESENTATIVES

H.B. NO.

703

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to design professional services contracts.

 

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

SECTION 1. The purpose of this Act is to amend the public procurement code to change Hawaii's procurement of design professional services to meet national standards used by the federal government and forty-three other states.

The legislature finds that the quality of design services is the single most important factor in determining overall construction costs and life-cycle costs of a project. Because design professional services represent only a small percentage of the initial construction budget, it is in the best interest of the taxpayer to ensure that the most qualified professionals are selected for public projects.

Recognizing the need for qualifications-based selection, the United States Congress established as federal law in 1972 the requirement that engineers and architects be selected for projects on the basis of their professional qualifications subject to negotiation of fair and reasonable compensation. Three decades of federal project experience have left the 1972 law essentially intact.

The legislature finds that this change in Hawaii's procurement of design professional services will increase transparency and accountability at a time when public confidence in the awarding of government contracts is low. This Act will increase the authority of selection committees and prioritize selection criteria as public policy and information.

SECTION 2. Chapter 103D, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§103D- Procurement of design professional services. (a) Design professional services furnished by licensees under chapter 464 shall be procured pursuant to this section or section 103D-307. Contracts for design professional services shall be awarded on the basis of demonstrated competence and qualification for the type of services required, and at fair and reasonable prices.

(b) At a minimum, before the beginning of each fiscal year, the head of each purchasing agency shall publish a notice inviting persons engaged in providing design professional services that the agency anticipates needing in the next fiscal year, to submit current statements of qualifications and expressions of interest to the agency. Additional notices shall be given if:

(1) The response to the initial notice is inadequate;

(2) The response to the initial notice does not result in adequate representation of available sources; or

(3) New needs for design professional services arise.

The chief procurement officer may specify a uniform format for statements of qualifications. Persons may amend these statements by filing a new statement prior to the date designated for submission.

(c) The head of the agency shall designate a review committee consisting of a minimum of three employees from the agency or from another governmental body, with sufficient education, training, and licenses or credentials for each type of design professional service that may be required. The names and qualifications of the members of the review committee established under this subsection shall be public information. The committee shall review and evaluate all submissions and other pertinent information, including references and reports, and prepare a list of qualified persons to provide these services. Persons included on the list of qualified persons may amend their statements of qualifications as necessary or appropriate. Persons shall immediately inform the head of the purchasing agency of any change in information furnished that would disqualify the person from being considered for a contract award.

(d) Whenever during the course of the fiscal year the agency needs a particular design professional service, the head of the agency shall designate a selection committee to evaluate the statements of qualification and performance data of those persons on the list prepared pursuant to subsection (c), along with any other pertinent information, including references and reports. The selection committee shall be comprised of three employees of the agency and a minimum of two public members, all with sufficient education, training, and licenses or credentials in the area of the services required. The names and qualifications of the members of a selection committee established under this subsection shall be public information. If the purchasing agency and using agency are different, the committee shall include at least one qualified employee from the using agency. When the committee includes an employee from a using agency, the employee shall be appointed by the head of the using agency. If qualified employees are not available from these agencies, the officers may designate employees of other governmental bodies. The primary selection criteria employed in descending order of importance shall be:

(1) Experience and design professional qualifications of the staff to be assigned to the project type, as defined by the agency;

(2) Past performance on projects of similar scope for public agencies or private industry; and

(3) Capacity to accomplish the work in the required time.

The selection committee may add a secondary selection criteria of volume of work previously awarded to that person, to promote an equitable distribution of contracts and the availability of design professional services in the State. The selection committee shall evaluate the submissions of persons on the list prepared pursuant to subsection (c) and any other pertinent information that may be available to the agency, against the selection criteria. The committee may conduct confidential discussions with any person who is included on the list prepared pursuant to subsection (c) regarding the services that are required and the services they are able to provide. In conducting discussions, there shall be no disclosure of any information derived from proposals submitted by competing offerors. The selection committee shall then rank at least three persons based on the selection criteria and send the ranking to the head of the agency. The head of the agency shall either ratify the ranking of the selection committee or revise the committee's ranking, based on interpretation of the selection criteria, of persons deemed to be the most qualified to provide the service required. The contract file shall contain a copy of the summary of qualifications for the ranking of each of the persons provided to the head of the agency for contract negotiations.

(e) The head of the agency shall negotiate a contract with the first ranked person, including a rate of compensation that is fair and reasonable, established in writing, and based upon the estimated value, scope, complexity, and nature of the services to be rendered. If a satisfactory contract cannot be negotiated with the first ranked person, negotiations with that person shall be formally terminated and negotiations with the second ranked person on the list shall commence. Failing accord with the second ranked person, negotiations with the next ranked person on the list shall commence. If a contract at a fair and reasonable price cannot be negotiated, the selection committee shall be asked to submit a minimum of three additional persons for the head of the agency to resume negotiations in the same manner provided in this subsection. Negotiations shall be conducted confidentially.

(f) Contracts awarded under subsection (e) in excess of the limits in section 103D-305 shall be posted electronically within seven days of the contract award by the chief procurement officer or a designee and shall remain posted for at least one year. Information to be posted shall include:

(1) The names of the persons submitted under subsection (d);

(2) The name of the person or organization receiving the award;

(3) The dollar amount of the contract;

(4) The agency head or designee making the selection; and

(5) Any relationship of the principals to the official making the award.

(g) Contracts for design professional services of less than the limit specified in section 103D-305 may be negotiated by the head of an agency, with any persons who appear on the list of qualified persons established pursuant to subsection (c). Negotiations shall be conducted in the manner set forth in subsection (e), with ranking based on the selection criteria of subsection (d) as determined by the head of the agency."

SECTION 3. Section 103D-104, Hawaii Revised Statutes, is amended as follows:

1. By adding a new definition to be appropriately inserted and to read:

""Design professional services" means those services within the scope of practice of an architect, landscape architect, professional engineer, or land surveyor, as those terms are defined in section 464-1."

2. By amending the definition of "professional services" to read:

""Professional services" means those services within the scope of the practice of [architecture, landscape architecture, professional engineering, land surveying,] real property appraisal, law, medicine, accounting, dentistry, public finance bond underwriting, public finance bond investment banking, or any other practice defined as professional by the laws of this State or the professional and scientific occupation series contained in the United States Office of Personnel Management's Qualifications Standards Handbook."

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect on July 1, 2004.

INTRODUCED BY:

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