Procurement; False Information; Sanctions
Subjects offerors or subcontractors who intentionally use false information or misrepresentations to obtain a procurement contract to sanctions including the rejection of the solicitation and a one year mandatory suspension from consideration for procurement awards. Nullifies solicitations containing false information or knowing misrepresentations. Requires a three-tier system of protests and appeal. (CD1)
TWENTY-FOURTH LEGISLATURE, 2008
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO THE HAWAII PUBLIC PROCUREMENT CODE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Section 103D-310, Hawaii Revised Statutes, is amended to read as follows:
"§103D-310 Responsibility of offerors. (a) Unless the policy board, by rules, specifies otherwise, before submitting an offer, a prospective offeror, not less than ten calendar days prior to the day designated for opening offers, shall give written notice of the intention to submit an offer to the procurement officer responsible for that particular procurement.
(b) Whether or not an intention to bid is
required, the procurement officer shall determine whether the prospective
offeror has the financial ability, resources, skills, capability, and business
integrity necessary to perform the work. For this purpose, the officer, in the
officer's discretion, may require any prospective offeror to submit answers,
under oath, to questions contained in a standard form of questionnaire to be
prepared by the policy board. Whenever it appears from answers to the
questionnaire or otherwise, that the prospective offeror is not fully qualified
and able to perform the intended work, a written determination of
nonresponsibility of an offeror shall be made by the head of the purchasing
agency, in accordance with rules adopted by the policy board. The unreasonable
failure of an offeror to promptly supply information in connection with an
inquiry with respect to responsibility may be grounds for a determination of
nonresponsibility with respect to [
such] the offeror. The
decision of the head of the purchasing agency shall be final unless the offeror
applies for administrative review pursuant to section 103D-709.
(c) All offerors, upon award of contract, shall comply with all laws governing entities doing business in the State, including chapters 237, 383, 386, 392, and 393. Offerors shall produce documents to the procuring officer to demonstrate compliance with this subsection. Any offeror making a false affirmation or certification under this subsection shall be suspended from further offerings or awards pursuant to section 103D-702. The procuring officer shall verify compliance with this subsection for all contracts awarded pursuant to sections 103D-302, 103D-303, 103D-304, and 103D-306; provided that the attorney general may waive the requirements of this subsection for contracts for legal services if the attorney general certifies in writing that comparable legal services are not available in this State.
(d) Any false information or misrepresentation knowingly placed in the solicitation of an offeror or a subcontractor by an agency shall be a basis for nullification of the solicitation by the administrator of the state procurement office.
(e) Any false information or misrepresentation knowingly placed in the bid of the bidder or subcontractor shall be the basis for:
(1) Not awarding the bid to that bidder or the bidder's subcontractor; provided that the bidder or subcontractor may protest the non-award first under section 103D-701, secondly thereafter to the chief procurement officer under section 103D-703, and thirdly thereafter to the department of commerce and consumer affairs as provided in section 103D-709;
(2) Application by the chief procurement officer of the provisions of section 103D-702; and
(3) Imposition by the chief procurement officer of a one year mandatory suspension of the bidder or subcontractor from consideration for awards under this chapter.
(d)] (f) Information furnished
by an offeror pursuant to [ this section] subsections (a), (b), and (e)
shall not be disclosed to any person except to law enforcement agencies as
provided by chapter 92F."
SECTION 2. Section 103D-703, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) This section applies to controversies between a governmental body and a contractor which arise under, or by virtue of, solicitation, bids, a contract between them, including, without limitation, controversies based upon breach of contract, mistake, misrepresentation, or other cause for contract modification or rescission."
SECTION 3. Section 103D-709, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) The several hearings officers
appointed by the director of the department of commerce and consumer affairs
pursuant to section 26-9(f) shall have jurisdiction to review and determine de
novo, any [
(1) Request from any bidder, offeror,
(2) Person aggrieved under section
, or governmental body] or section 103D-310; or
(3) Governmental body aggrieved by a determination of the chief procurement officer, head of a purchasing agency, or a designee of either officer under section 103D-310, 103D-701, or 103D-702."
SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 5. This Act shall take effect upon its approval.