HOUSE OF REPRESENTATIVES
THIRTY-FIRST LEGISLATURE, 2021
STATE OF HAWAII
A BILL FOR AN ACT
Relating to procurement.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that the procurement process is in need of clear legislative direction to award state contracts to responsible bidders or offerors through the state procurement process, to increase accountability with performance on state contracts, and to more efficiently utilize taxpayer dollars. Some state contracts may currently be awarded to the lowest bidder through the invitation for bid process without regard to poor past performance. Such bidders may be considered qualified despite poor performance on state, federal, or private contracts in the past, which may result in repeated inefficiencies and substandard work.
The purpose of this Act is to:
(1) Require that past performance be considered in future bid selection of contractors for sole source contracts and any competitive sealed bid or proposal contracts that exceeds the small purchase threshold; and
(2) Require procurement officers to consider specific factors, including past performance, when making a determination of offeror responsibility.
SECTION 2. Section 103D-302, Hawaii Revised Statutes, is amended by amending subsection (f) to read as follows:
"(f) Bids shall be evaluated based on the requirements set forth in the invitation for bids. These requirements may include criteria to determine acceptability such as inspection, testing, quality, workmanship, delivery, and suitability for a particular purpose. Those criteria that will affect the bid price and be considered in evaluation for award shall be objectively measurable, such as discounts, transportation costs, and total or life cycle costs. Past performance shall be evaluated in all bids expected to meet or exceed the small purchase threshold. The invitation for bids shall set forth the evaluation criteria to be used. No criteria may be used in bid evaluation that are not set forth in the invitation for bids."
SECTION 3. Section 103D-303, Hawaii Revised Statutes, is amended by amending subsection (e) to read as follows:
"(e) The request for proposals shall state the relative importance of price and other evaluation factors. Past performance shall be evaluated in all solicitations expected to meet or exceed the small purchase threshold."
SECTION 4. Section 103D-306, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(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, a review of past performance has been conducted, and no objection is outstanding. The written determination, any objection, past performance evaluations relied upon, and a written summary of the disposition of any objection shall be included in the contract file."
SECTION 5. Section 103D-310, Hawaii Revised Statutes, is amended to read as follows:
"§103D-310 Responsibility of offerors. (a) Purchases shall be made from, and contracts shall be awarded to, responsible prospective contractors only.
(b) 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)] (c) Whether or not an intention to bid is required,
the procurement officer shall determine whether the prospective offeror has the
financial ability, past performance, 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)] (d) 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, and for contracts and
procurements of $2,500 or more awarded pursuant to section 103D-305; 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)] (e) Information furnished by an offeror pursuant
to this section shall not be disclosed to any person except to law enforcement
agencies as provided by chapter 92F."
SECTION 6. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2021-2022 for the purposes of implementing this Act for executive branch departments and agencies.
The sum appropriated shall be expended by the state procurement office for the purposes of this Act.
SECTION 7. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 8. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
SECTION 9. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 10. This Act shall take effect on July 1, 2021.
Procurement; Past Performance; Appropriation
Requires past performance be considered in future bid selection of contractors for sole source contracts and any competitive sealed bid or proposal contracts that exceed the small purchase threshold. Requires procurement officers to consider specific factors, including past performance, when making a determination of offeror responsibility.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.