Report Title:

Public Property; Concessions

Description:

Applies bidding requirements of procurement code to concession contracts procured by bid; repeals provisions in chapter 102 on bidding requirements, leaving intact requirements for concessions exempt from bidding; repeals certain provisions relating to bids, advertising for bids, concessions, and bid deposits.

THE SENATE

S.B. NO.

3010

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO CONCESSION CONTRACTS PROCURED BY BID.

 

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

SECTION 1. The procurement of concession contracts is governed by chapter 102, Hawaii Revised Statutes, which includes a number of types of concessions that are exempt from bidding requirements. Compared to the Hawaii public procurement code, the bidding process for concession contracts under chapter 102 does not provide for security deposit flexibility, a grievance process, oversight by a procurement board, and other features available in the procurement code.

The legislature finds that agencies seeking to procure concessions though a bidding process would be better served by making available for their use the bidding requirements of the Hawaii public procurement code, chapter 103D. The legislature further finds that keeping concessions exempt from bidding and bid requirements under chapter 102 is acceptable.

The purpose of this Act is to apply the bidding requirements of chapter 103D, Hawaii public procurement code, to concession contracts procured by bid. In addition, this Act repeals provisions in chapter 102 relating to bidding requirements, leaving intact requirements for concessions exempt from bidding.

SECTION 2. Section 102-2, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"(c) The bidding requirements of subsection (a) shall be as provided in chapter 103D and shall not apply to any nonrenewable dispositions granting rights for a period not in excess of fourteen days."

SECTION 3. Section 102-3, Hawaii Revised Statutes, is repealed.

["§102-3 Qualification of bidders. Before any prospective bidder is entitled to submit any bid for the occupancy of any such space, the prospective bidder shall, not less than six calendar days prior to the day designated for opening bids, give written notice to the officer charged with letting the contract of the prospective bidder's intention to bid, and the officer shall satisfy oneself of the prospective bidder's financial ability, experience and competence to carry out the terms and conditions of any contract that may be awarded. For this purpose, the officer may, in the officer's discretion, require prospective bidders to submit answers, under oath, to questions contained in a form of questionnaire setting forth a complete statement of the experience, competence and financial standing of the prospective bidders. Whenever it appears to the officer, from answers to the questionnaire or otherwise, that any prospective bidder is not fully qualified and able to carry out the terms and conditions of the contract that may be awarded, the officer shall, after affording the prospective bidder an opportunity to be heard and if still of the opinion that the bidder is not fully qualified to carry out the terms and conditions of the contract that may be awarded, refuse to receive or consider any bid offered by the prospective bidder. The officer charged with letting the contract shall not divulge or permit to be divulged the names and the number of persons who have submitted their notice of intention to bid until after the opening of bids. All information contained in the answers to questionnaires shall remain confidential, and any government officer or employee who knowingly divulges or permits to be divulged any such information to any person not fully entitled thereto shall be fined not more than $250. Questionnaires so submitted shall be returned to the bidders after having served their purpose."]

SECTION 4. Section 102-4, Hawaii Revised Statutes, is repealed.

["§102-4 Advertisement for bids. Public notice of a call for bids shall be made not less than three different days statewide, with respect to any state agency, or county-wide within the particular county with respect to any county or county agency."]

SECTION 5. Section 102-5, Hawaii Revised Statutes, is repealed.

["§102-5 Bids; opening; rejection. The time of opening of such tenders shall be not less than five days after the last publication. All bids shall be sealed and delivered to the officer advertising therefor and shall be opened by the officer at the hour and place to be stated in the call for tenders in the presence of all bidders who attend, and may be inspected by any bidder. All bids which do not comply with the requirements of the call for tenders shall be rejected. The officer calling for bids may reject any or all bids and waive any defects when in the officer's opinion such rejection or waiver will be for the best interest of the public."]

SECTION 6. Section 102-6, Hawaii Revised Statutes, is repealed.

["§102-6 Deposits of legal tender, etc., to accompany bid. (a) All bids shall be accompanied by a deposit of legal tender or by a certificate of deposit, share certificate, cashier's check, treasurer's check, teller's check, or official check drawn by, or a certified check accepted by, a bank, savings institution, or credit union insured by the Federal Deposit Insurance Corporation or the National Credit Union Administration, in a sum not less than five per cent of the amount bid, payable at sight or unconditionally assigned to the officer advertising for tenders; provided that when the amount bid exceeds $50,000, the deposit shall be in a sum not less than $2,500 plus two per cent of the amount in excess of $50,000.

If the bid deposit is in the form of a surety bond, it shall be issued in accordance with subsection (b).

(b) A bid may be accompanied by a surety bond executed to the officer calling for bids by the bidder as principal and by any bonding company listed in the United States Treasury List; provided that the bond furnished by any surety listed shall not exceed the bonding capacity rating of that surety on the Treasury List; in a sum of equal amount, conditioned upon the bidder entering into the contract and furnishing satisfactory security within ten days after the award or within any further time as the officer may allow, if the bidder is awarded the contract."]

SECTION 7. Section 102-7, Hawaii Revised Statutes, is repealed.

["§102-7 Forfeiture of deposits, return thereof. If the bidder to whom the contract is awarded fails or neglects to enter into the contract and furnish satisfactory security, as required by sections 102-11 and 102-12, within ten days after the award or within such further time as the officer awarding the contract may allow, the officer shall pay the amount of the deposit into the treasury as a realization of the State, county or other governmental agency, as the case may be. If the contract is entered into and the security furnished within the required time, the deposit, certificate, or check shall be returned to the successful bidder. The deposits made by the unsuccessful bidders shall be returned to them after the contract is entered into or, if the contract is not awarded or entered into, after the officer's determination to publish another call for tenders."]

SECTION 8. Section 102-8, Hawaii Revised Statutes, is repealed.

["§102-8 Bond may be substituted for deposits. In lieu of the deposits prescribed by section 102-6, a bid may be accompanied by a surety bond executed to the officer calling for bids by the bidder as principal and by any corporation organized for the purpose of becoming surety on bonds, authorized under the laws of the United States or of the State to act as surety and doing business in the State under the laws of the United States or of the State, if a foreign corporation, and under the laws of the State, if a Hawaii corporation, as surety, in a penal sum of equal amount, conditioned upon the bidder entering into the contract and furnishing satisfactory security within ten days after the award or within any further time as the officer may allow, if the bidder is awarded the contract."]

SECTION 9. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 10. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 11. This Act shall take effect on July 1, 2004.

INTRODUCED BY:

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