Report Title:

Procurement; False Information

 

Description:

Provides sanctions for false information or misrepresentation submitted by a person or affiliate to obtain a procurement contract. (SD1)

 


THE SENATE

S.B. NO.

2867

TWENTY-FOURTH LEGISLATURE, 2008

S.D. 1

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-302, Hawaii Revised Statutes, is amended by amending subsection (h) to read as follows:

"(h) The contract shall be awarded with reasonable promptness by written notice to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the invitation for bids. Any false information or misrepresentation knowingly placed in the bid by a bidder or affiliate of a bidder shall be a basis for not awarding the bid to that bidder or the bidder's affiliate. Additionally, the chief procurement officer shall place the bidder or affiliate of the bidder, as applicable, on a one year mandatory suspension from bidding for any contract under this chapter, if, after affording the bidder a reasonable opportunity to be heard, the chief procurement officer finds that the bidder or affiliate of the bidder knowingly placed false information or any misrepresentation in a bid. In the event all bids exceed available funds as certified by the appropriate fiscal officer, the head of the purchasing agency responsible for the procurement in question is authorized in situations where time or economic considerations preclude resolicitation of work of a reduced scope to negotiate an adjustment of the bid price, including changes in the bid requirements, with the low responsible and responsive bidder, in order to bring the bid within the amount of available funds."

SECTION 2. Section 103D-303, Hawaii Revised Statutes, is amended by amending subsection (g) to read as follows:

"(g) Award shall be made to the responsible offeror whose proposal is determined in writing to be the most advantageous taking into consideration price and the evaluation factors set forth in the request for proposals. No other factors or criteria shall be used in the evaluation. The contract file shall contain the basis on which the award is made. Any false information or misrepresentation knowingly placed in the proposal by the offeror or affiliate of an offeror shall be a basis for not selecting the offeror or the offeror's affiliate of that proposal. Additionally, the chief procurement officer shall place the offeror or affiliate of the offeror, as applicable, on a one year mandatory suspension from submitting any proposal for any contract under this chapter, if, after affording the offeror a reasonable opportunity to be heard, the chief procurement officer finds that the offeror or affiliate of the offeror knowingly placed false information or any misrepresentation in a proposal."

SECTION 3. Section 103D-304, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(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 professional services which 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;

(3) New needs for professional services arise; or

(4) Rules adopted by the policy board so specify.

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. Any false information or misrepresentation knowingly placed in a statement by a person or affiliate of a person shall be a basis for not ranking the person or the person's affiliate submitting the false information and not negotiating a contract with that person or affiliate. In addition, the chief procurement officer shall place a person or the person's affiliate, as applicable, submitting false information on a one year mandatory suspension from submitting any proposal for any contract under this chapter, if, after affording the person or the person's affiliate a reasonable opportunity to be heard, the chief procurement officer finds that false information or any misrepresentation was knowingly submitted."

SECTION 4. Section 103D-305, Hawaii Revised Statutes, is amended to read as follows:

"103D-305 Small purchases; prohibition against parceling. (a) Procurements of less than $50,000 for goods, services, or construction shall be made in accordance with procedures set forth in rules adopted by the policy board that are designed to ensure administrative simplicity and as much competition as is practicable; provided that multiple expenditures shall not be created at the inception of a transaction or project so as to evade the requirements of this chapter; and provided further that procurement requirements shall not be artificially divided or parceled so as to constitute a small purchase under this section.

(b) Procurements of $25,000 to less than $50,000 shall be made in accordance with small purchase procedures; provided that small purchase procurements through an electronic system shall be required after the policy board has adopted rules for electronic procurement and provided training to the affected agency.

(c) Any false information or misrepresentation knowingly placed in a bid by a bidder, or affiliate of the bidder, shall be a basis for not awarding a contract to the bidder or affiliate of the bidder. In addition, the chief procurement officer shall place the bidder or the bidder's affiliate, as applicable, on a one year mandatory suspension from submitting any bid or proposal for any contract under this chapter, if, after affording the bidder or the bidder's affiliate a reasonable opportunity to be heard, the chief procurement officer finds that the bidder or the bidder's affiliate knowingly placed false information or any misrepresentation in a bid."

SECTION 5. Section 103D-306, Hawaii Revised Statutes, is amended to read as follows:

"103D-306 Sole source procurement. (a) A contract may be awarded for goods, services, or construction without competition when the head of a purchasing agency determines in writing that there is only one source for the required good, service, or construction, the determination is reviewed and approved by the chief procurement officer, the written determination is posted in the manner described in rules adopted by the policy board, and no objection is outstanding. The written determination, any objection, and a written summary of the disposition of any objection shall be included in the contract file.

(b) The written determination shall contain such information as the rules of the policy board require. Persons may file written objections to the issuance of a contract pursuant to this section. Rules of the policy board shall provide for the disposition of objections, including a written summary of the disposition.

(c) The rules of the policy board shall include a non-exhaustive list of procurements which constitute sole source procurements and criteria for determining when a particular procurement may be determined to be a sole source. The rules shall also prescribe when cost or pricing data must be considered and how they are to be used in establishing the price, terms, and conditions, if any, for a contract awarded pursuant to this section.

(d) Any material misrepresentation knowingly made by a potential contractor or affiliate of a contractor under this section to entice the awarding of a contract shall be a basis for not selecting that potential contractor or affiliate of the contractor. In addition, the chief procurement officer shall place that potential contractor or the contractor's affiliate, as applicable, on a one year mandatory suspension from submitting any bid or proposal for any contract under this chapter, if, after affording the person a reasonable opportunity to be heard, the chief procurement officer finds that the person knowingly made a material misrepresentation."

SECTION 6. Section 103D-307, Hawaii Revised Statutes, is amended to read as follows:

"[[]103D-307[]] Emergency procurements. (a) The head of a purchasing agency may obtain a good, service, or construction essential to meet an emergency by means other than specified in this chapter when the following conditions exist:

(1) A situation of an unusual or compelling urgency creates a threat to life, public health, welfare, or safety by reason of major natural disaster, epidemic, riot, fire, or such other reason as may be determined by the head of that purchasing agency;

(2) The emergency condition generates an immediate and serious need for goods, services, or construction that cannot be met through normal procurement methods and the government would be seriously injured if the purchasing agency is not permitted to employ the means it proposes to use to obtain the goods, services, or construction; and

(3) Without the needed good, service, or construction, the continued functioning of government, the preservation or protection of irreplaceable property, or the health and safety of any person will be seriously threatened.

(b) The emergency procurement shall be made with such competition as is practicable under the circumstances and, where practicable, approval from the chief procurement officer shall be obtained prior to the procurement. A written determination of the basis for the emergency and for the selection of the particular contractor shall be included in the contract file.

(c) Any material misrepresentation knowingly made by a potential contractor or affiliate of that contractor under this section to entice the awarding of a contract shall be a basis for not selecting that potential contractor or affiliate of the contractor. In addition, the chief procurement officer shall place that potential contractor or contractor's affiliate, as applicable, on a one year mandatory suspension from submitting any bid or proposal for any contract under this chapter, if, after affording the person a reasonable opportunity to be heard, the chief procurement officer finds that the person knowingly made a material misrepresentation."

SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 8. This Act shall take effect upon its approval.