Procurement Code Exemption; Sole Source; Federal Government
Enacts procurement exemption for GSA-approved sole source vendor; increases small purchases limit; defines "Hawaii input" for preferences; clarifies definition of "Hawaii products" and "products" for preferences; allows self-certification for Hawaii products list; imposes time limits on rendering decisions from administrative and judicial review; requires dismissal of protests for inadvertent errors of less than a specified amount of the bid amount of competing bidder; clarifies procedures for administrative review. Effective 7/1/2050. (SD1)
HOUSE OF REPRESENTATIVES
TWENTY-FIFTH LEGISLATURE, 2009
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO HAWAII PUBLIC PROCUREMENT CODE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
PART I - PROCUREMENT EXEMPTIONS
SECTION 1. Chapter 103D, Hawaii Revised Statutes, is amended by adding a new section to part III to be appropriately designated and to read as follows:
"§103D‑ Exemption for General Services Administration-approved sole source vendor. (a) A bidder or offeror who is a United States General Services Administration-approved sole source vendor shall be exempt from complying with section 103D‑302, 103D-303, or 103D-304, as applicable, in any procurement funded by state and federal matching funds.
(b) Subsection (a) shall apply only if the United States General Services Administration-approved sole source vendor was responsible for obtaining the federal funding."
SECTION 2. Section 103D-305, Hawaii Revised Statutes, is amended to read as follows:
"§103D-305 Small purchases;
prohibition against parceling. (a) Procurements of less than [
$100,000 for goods[ ,] or services, or $250,000 for 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) Each construction contract under subsection (a) shall require security by a performance bond delivered to the purchasing agency that is:
(1) In a form prescribed by the rules of the policy board;
(2) Executed by a surety company authorized to do business in this State; and
(3) In an amount equal to one hundred per cent of the price specified in the contract;
or otherwise secured by a performance bond in a manner satisfactory to the purchasing agency.
(b)] (c) Procurements of
$25,000 to less than [ $50,000] $100,000 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
PART II - PROCUREMENT PREFERENCES
SECTION 3. Chapter 103D, Hawaii Revised Statutes, is amended by adding a new section to part X to be appropriately designated and to read as follows:
"§103D- Failure to adequately verify, deliver, or supply Hawaii products. If the administrator or procurement officer who has awarded a contract under section 103D-1002, finds that in the performance of that contract there has been a failure to comply with section 103D-1002, the contract shall be voidable and the findings shall be referred for debarment or suspension proceedings under section 103D-702."
SECTION 4. Section 103D-1001, Hawaii Revised Statutes, is amended as follows:
1. By adding two new definitions to be appropriately inserted and to read:
""Hawaii component" means those articles, materials, supplies, and labor incorporated directly into the products acquired for public use under the contract.
"Hawaii input" means the part of the cost of a product having a Hawaii component that is attributable to production, manufacturing, or other expenses arising within the State. "Hawaii input" includes but is not limited to:
(1) The cost to mine, excavate, produce, manufacture, raise, or grow the materials in Hawaii;
(2) The added value of that portion of the cost of imported materials that is incurred after landing in Hawaii, including but not limited to other articles, materials and supplies added to the imported materials;
(3) The cost of labor, variable overhead, utilities, and services incurred in the production and manufacturing of materials or products in the State; and
(4) Fixed overhead cost and amortization or depreciation cost, if any, for buildings, tools and equipment situated and located in the State and utilized in the production or manufacturing of a product."
2. By amending the definitions of "Hawaii products" and "products" to read:
""Hawaii products" means
products that are mined, excavated, produced, manufactured, raised, or grown in
the State and where the [
input constitutes no less than twenty-five]
cost of the Hawaii input towards the product exceeds fifty per cent of
the [ manufactured] total cost[ ;] of the product;
(1) Where the value of the input
constitutes twenty-five per cent or more, but less than fifty per cent, of the
manufactured cost, the product shall be classified as class I; (2)] (1) Where the value of the input [ constitutes]
exceeds fifty per cent [ or more, but less than seventy-five per cent,]
of the [ manufactured] total cost, the product shall be classified
as class [ II;] I; and
(3) Where the value of the input
constitutes seventy-five per cent or more of the manufactured cost, the product
shall be classified as class III.]
(2) Where any agricultural, aquacultural, horticultural, silvicultural, floricultural, or livestock product is raised, grown, or harvested in the State, the product shall be classified as class II.
"Products" include materials,
manufactures, supplies, merchandise, goods, wares, products, and foodstuffs[
acquired for public use under the contract."
SECTION 5. Section 103D-1002, Hawaii Revised Statutes, is amended to read as follows:
"§103D-1002 Hawaii products. (a)
A purchasing agency shall review all specifications in a bid or proposal for
purchase from [
the] Hawaii products [ list] where these products
are available[ ; provided that the products: (1) Meet the minimum specifications and the
selling price f.o.b. jobsite; (2) Unloaded including applicable general
excise tax and use tax does not exceed the lowest delivered price in Hawaii
f.o.b. jobsite; and (3) Unloaded, including applicable general
excise tax and use tax, does not exceed the lowest delivered price of a similar
non-Hawaii product by more than: (A) Three per cent where class I
Hawaii products are involved; (B) Five per cent where class II
Hawaii products are involved; or (C) Ten per cent where class III
Hawaii products are involved].
(b) All invitations for bids and requests for
proposals shall [
(1) Include a description of the
products that are listed in the Hawaii products list established pursuant to
this section, [
and their established classes,] which may be used to
complete the scope of work specified in the invitation for bids or request for
proposals[ , where the products are]; or
(2) Allow self-certification as part of the offer that the Hawaii products qualify for preference;
provided that the offer can be evaluated along with any other published criteria in the solicitation, including but not limited to considerations such as specific nutritional content or equivalent, timing of delivery, quality or freshness, and past performance, if applicable.
All Hawaii products in any bid or request
for proposal shall be made available [
and meet] for inspection or
additional information may be requested to verify that the Hawaii product meets
the minimum specifications.
(c) All persons submitting bids or proposals to claim a Hawaii products preference shall designate in their bids which individual product and its price is to be supplied as a Hawaii product.
(d) Where a bid or proposal contains both
Hawaii and non-Hawaii products, then for the purpose of selecting the lowest
bid or purchase price only, the price or bid [
or] offered for a
Hawaii product item shall be decreased by subtracting [ therefrom: three per
cent, five per cent, or] ten per cent for [ the] class I[ , class
II, or class III] Hawaii product items bid or offered[ , respectively.]
or fifteen per cent for class II Hawaii product items bid or offered.
The lowest total bid or proposal, taking the preference into consideration,
shall be awarded the contract unless the bid or offer provides for additional
award criteria. The contract amount of any contract awarded, however, shall be
the amount of the bid or price offered, exclusive of the preferences.
(e) Upon receipt and approval of application
for Hawaii products preference, the administrator shall include within the
Hawaii products list, the names of producers and manufacturers in the State who
are authorized to supply locally manufactured soil enhancement products to
state agencies under subsection [
(h).] (k). The administrator of
the state procurement office shall maintain and distribute copies of the list
to the purchasing agencies of the various governmental agencies.
(f) Any person not on the Hawaii products list, desiring a preference pursuant to this section shall certify the Hawaii product when submitting a response to a solicitation, provided that the person certifies under penalty of sanctions that the offered Hawaii products meet the requirements for the preference.
The procurement officer may request additional information deemed necessary in order to qualify a product and shall have sole discretion in determining qualification for the preference.
Any offeror whose product is deemed not qualified for the preference may appeal by filing a written request for reexamination of facts to the procurement officer. Upon determining that the offeror is qualified for the preference, the procurement officer shall notify the administrator to place the offeror on the Hawaii products list.
(g) Solicitations shall contain a provision notifying offerors who request application of the preference that in the event of any change that materially alters the offeror's ability to supply Hawaii products, the offeror shall immediately notify the chief procurement officer in writing and the parties shall enter into discussions for the purposes of revising the contract or terminating the contract for convenience.
(h) Nothing in this section shall limit, restrict, or preclude a Hawaii product from any preferences, set-asides, or criteria that may be applied under section 103D-906, and this section shall operate instead to mutually enhance the purpose of this section and section 103D-906.
(f)] (i) This section shall not
apply whenever its application will disqualify any governmental agency from
receiving federal funds or aid.
(g)] (j) Any purchase made or
any contract awarded or executed in violation of this section shall be void and
no payment shall be made by any purchasing agency on account of the purchase or
(h)] (k) For the purposes of
this section, "soil enhancement product" means any nonchemical soil
preparation, conditioner, or compost mixture designed to supplement aeration or
add organic, green waste, or decaying matter to the soil; provided that the
term does not include any plant fertilizer intended to stimulate or induce
plant growth through chemical means. All state agencies shall include in their
solicitations, when required, the soil enhancement products identified on the
Hawaii products list pursuant to subsection (e)."
SECTION 6. This part does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.
PART III - PROCUREMENT PROTECTS AND DISPUTES
SECTION 7. Section 103-32.1, Hawaii Revised Statutes, is amended to read as follows:
"§103-32.1 Contract provision for retainage; subcontractors. (a) Any retainage provided for in this section or requested to be withheld by the contractor shall be held by the procurement officer.
(b) A dispute between a contractor and subcontractor of any tier shall not constitute a dispute to which the State or any county is a party, and there is no right of action against the State or any county. The State and a county may not be interpleaded in any judicial or administrative proceeding involving such a dispute.
(c) Any public contract may include a provision for the retainage of a portion of the amount due under the contract to the contractor to ensure the proper performance of the contract; provided that:
(1) The sum withheld by the procurement officer from the contractor shall not exceed five per cent of the total amount due the contractor and that, after fifty per cent of the contract is completed and progress is satisfactory, no additional sum shall be withheld; provided further that if progress is not satisfactory, the procurement officer may continue to withhold, as retainage, sums not exceeding five per cent of the amount due the contractor; and
(2) The retainage shall not include sums deducted as liquidated damages from moneys due or that may become due the contractor under the contract.
(d) Where a subcontractor has provided evidence to the contractor of:
(1) A valid performance and a payment bond for the project that is acceptable to the contractor and executed by a surety company authorized to do business in this State;
(2) Any other bond acceptable to the contractor; or
(3) Any other form of collateral acceptable to the contractor,
the retention amount withheld by the contractor from its subcontractor shall be not more than the same percentage of retainage as that of the contractor. This subsection shall also apply to the subcontractors who subcontract work to other subcontractors.
(e) This section shall not be construed to impair the right of a contractor or a subcontractor at any tier to negotiate, and to include in their subcontract, provisions that:
(1) Permit the contractor or subcontractor to retain, without cause, a specified percentage of no more than ten per cent of each progress payment otherwise due to a subcontractor for satisfactory performance under the subcontract, without incurring any obligation to pay a late payment interest penalty, in accordance with terms and conditions agreed to by the parties to the subcontract, giving such recognition as the parties deem appropriate to the ability of a subcontractor to furnish a performance bond and a payment bond, subject however, to the limitations of subsection (d); and
(2) Permit the contractor or subcontractor to make a
determination that part or all of the subcontractor's payment request may be
withheld by the procurement officer in accordance with the subcontract
agreement, without incurring any obligation to pay interest or a late payment
penalty if [
: (A) A notice conforming to the
standards of subsection (f) has been previously furnished to the subcontractor;
and (B) A copy of any notice issued by
the contractor or subcontractor pursuant to subparagraph (A) has been furnished
to the procurement officer. (f) A] a written notice
of any withholding [ shall be] is issued to a subcontractor, with
a copy to the procurement officer, specifying the following:
(1)] (A) The amount to be withheld;
(2)] (B) The specific causes for the
withholding under the
terms of the subcontract; and
(C) The remedial actions to be taken by the subcontractor to receive
payment of the amounts withheld.
(g)] (f) A contractor may not
request payment from the procurement officer of any amount withheld or retained
in accordance with subsection (e) until such time as the contractor has
determined and certified to the procurement officer that the subcontractor is
entitled to the payment of such amount.
(h)] (g) The provisions of this
section shall not be construed to require payment to subcontractors of
retainage released to a contractor pursuant to an agreement entered into with
the procurement officer meeting the requirements of section 103-32.2."
SECTION 8. Section 103D-302, Hawaii Revised Statutes, is amended by amending subsection (g) to read as follows:
"(g) Correction or withdrawal of inadvertently erroneous bids before or after award, or cancellation of invitations for bids, awards, or contracts based on such bid mistakes, shall be permitted in accordance with rules adopted by the policy board. After bid opening, no changes in bid prices or other provisions of bids prejudicial to the interest of the public or to fair competition shall be permitted. Except as otherwise provided by rule, all decisions to permit the correction or withdrawal of bids, or to cancel awards or contracts based on bid mistakes, shall be supported by a written determination made by the chief procurement officer or head of a purchasing agency.
If a protest under section 103D-701 is based upon the bid amount of a competitive sealed bid submitted by a competing bidder, the procurement officer shall dismiss the protest if the amount of the bid of the competing bidder is due to inadvertent error amounting to not more than one per cent of the bid amount of the competing bidder."
SECTION 9. Section 103D-701, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:
"(b) The chief procurement officer or a designee, prior to the commencement of an administrative proceeding under section 103D‑709 or an action in court pursuant to section 103D-710, may settle and resolve a protest concerning the solicitation or award of a contract. This authority shall be exercised in accordance with rules adopted by the policy board.
If a protest involves the challenge of a bid amount that is the result of inadvertent error, the protest shall be subject to section 103D-302."
SECTION 10. Section 103D-709, Hawaii Revised Statutes, is amended to read as follows:
"§103D-709 Administrative proceedings for review. (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 request from any bidder, offeror, contractor, or person aggrieved under section 103D-106, or 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.
(b) Hearings to review and determine any
request made pursuant to subsection (a) shall commence within twenty-one
calendar days of receipt of the request. The hearings officers shall have
power to issue subpoenas, administer oaths, hear testimony, find facts, make
conclusions of law, and issue a written decision not later than thirty days from
the receipt of the request under subsection (a) [
shall be final and conclusive unless a person or governmental body adversely
affected by the decision commences an appeal in the circuit court of the
circuit where the case or controversy arises under section 103D-710.
(c) Only parties to the protest made and
decided pursuant to sections 103D-701, 103D-709(a), 103D-310(b), and [
may initiate a proceeding under this section. The party initiating the
proceeding shall have the burden of proof, including the burden of producing
evidence as well as the burden of persuasion. The degree or quantum of proof
shall be a preponderance of the evidence. All parties to the proceeding shall
be afforded an opportunity to present oral or documentary evidence, conduct
cross-examination as may be required, and argument on all issues involved. The
rules of evidence shall apply.
(d) As used in this subsection, "estimated value of the contract" means the lowest responsible and responsive bid under section 103D-302, or the bid amount of the responsible offeror whose proposal is determined in writing to be the most advantageous under section 103D-303, as applicable. Any bidder, offeror, contractor, or person that is a party to a protest of a solicitation or award of a contract under sections 103D-302 and 103D-303 that is decided pursuant to section 103D-701 may initiate a proceeding under this section, provided that:
(1) The protest concerns a matter that is equal to no less than ten per cent of the total estimated value of the contract; and
(2) The party initiating the proceeding shall pay to the department of commerce and consumer affairs a cash or protest bond in an amount equal to one per cent of the total estimated value of the contract if the total estimated value of the contract is $1,000,000 or more; provided that in no event shall the required amount of the cash or protest bond be more than $50,000.
If the initiating party prevails in the administrative proceeding, the cash or protest bond shall be returned to that party. If the initiating party does not prevail in the administrative proceeding, fifty per cent of the cash or protest bond shall be deposited into the compliance resolution fund established under section 26-9(o), and fifty per cent of the cash or protest bond shall be deposited into the general fund.
(d)] (e) The hearings officers
shall ensure that a record of each proceeding which includes the following is
(1) All pleadings, motions, intermediate rulings;
(2) Evidence received or considered, including oral testimony, exhibits, and a statement of matters officially noticed;
(3) Offers of proof and rulings thereon;
(4) Proposed findings of fact;
(5) A recording of the proceeding which may be transcribed if judicial review of the written decision is sought under section 103D-710.
(e)] (f) No action shall be
taken on a solicitation or an award of a contract while a proceeding is
pending, if the procurement was previously stayed under section 103D-701(f).
(f)] (g) The hearings officer
shall decide whether the determinations of the chief procurement officer or the
chief procurement officer's designee were in accordance with the Constitution,
statutes, rules, and the terms and conditions of the solicitation or contract,
and shall order such relief as may be appropriate in accordance with this
(g)] (h) The policy board shall
adopt such other rules as may be necessary to ensure that the proceedings
conducted pursuant to this section afford all parties an opportunity to be heard."
SECTION 11. Section 103D-710, Hawaii Revised Statutes, is amended as follows:
1. By amending subsection (c) to read:
"(c) Within [
calendar days of the filing of an application for judicial review, the hearings
officer shall transmit the record of the administrative proceedings to the
circuit court of the circuit where the case or controversy arises."
2. By amending subsection (e) to read:
Upon] No later than
thirty days from the filing of the application for judicial review, based
upon review of the record the circuit court may affirm the decision of the
hearings officer issued pursuant to section 103D-709 or remand the case with
instructions for further proceedings; or it may reverse or modify the decision
and order if substantial rights may have been prejudiced because the
administrative findings, conclusions, decisions, or orders are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the chief procurement officer or head of the purchasing agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(6) Arbitrary, or capricious, or characterized by
abuse of discretion or clearly unwarranted exercise of discretion[
provided that if a request for hearing or an application for judicial review is not resolved by the thirtieth day from the filing of the request or application the administrative body or court shall lose jurisdiction, and the award of the procurement shall not be disturbed. All time limitations on actions, as provided for in section 103D‑712, shall remain in effect."
SECTION 12. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 13. This Act shall take effect on July 1, 2050; provided that sections 1 and 2 shall be repealed on July 1, 2012 and section 103D-305, Hawaii Revised Statutes, shall be reenacted in the form in which it read on the day before the effective date of this Act.