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 State's procurement process requires clear legislative direction to award contracts to responsible bidders or offerors in order to increase accountability, enhance performance, and utilize taxpayer dollars more efficiently. Currently, some state contracts may be awarded to the lowest bidder without regard to that bidder's poor past performance. Specifically, these bidders may be considered qualified despite their poor past performance on state contracts, which may result in repeated inefficiencies and substandard work.
Accordingly, the purpose of this Act is to:
(1) Require the past performance of contractors' positive, negative, or lack of previous experience to be considered in bid selection of a contractor; and
(2) Require departments to consider available assessments of previous performance on relevant and recent government and private contracts when making contract awards.
SECTION 2. Section 103D-104, Hawaii Revised Statutes, is amended as follows:
1. By adding a new definition to be appropriately inserted and to read:
""Past performance" means available recent and relevant performance of a contractor on state contracts that shall be considered in a responsibility determination within the relevance of the current solicitation, including the considerations of section 103D-702(b)."
2. By amending the definition of "responsible bidder or offeror" to read:
""Responsible bidder or
offeror" means a person who has the capability in all respects to perform
fully the contract requirements, and the integrity and reliability [
that will assure good faith performance[ .], pursuant to the
responsibility determination standards adopted by the policy board."
SECTION 3. 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 as objectively
,] as possible, such as discounts, transportation
costs, [ and] total or life cycle costs[ .], and the bidder's
past performance on state contracts of similar scope, including but not limited
to notices of deficiencies and failure to complete a procurement contract. 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
SECTION 4. 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[
.], which shall include the offeror's past
performance on state contracts of similar scope, including but not limited to
notices of deficiencies and failure to complete a procurement contract. No [ other factors or] criteria [ shall]
may be used in the evaluation[ .] that are not set forth in the
request for proposals. The contract
file shall contain the basis on which the award is made."
SECTION 5. 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 6. Section 103D-310, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:
"(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.
this] the purpose[ , the] of making a responsibility
determination, the procurement officer shall possess or obtain available information
sufficient to be satisfied that a prospective offeror meets the applicable
standards. The procurement officer shall
consider past performance of the offeror as it applies to a responsibility
determination for the current solicitation.
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 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."
SECTION 7. 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 and the same sum or so much thereof as may be necessary for fiscal year 2022-2023 to develop and implement the guidance and related implementation training for the following tools:
(1) A past performance guide;
(2) A past performance database functional requirements document;
(3) The creation of a past performance database;
(4) The preparation and publication of rules, including sending of surveys, discussions, and publication fees;
(5) Training; and
(6) Annual database maintenance.
The sums appropriated shall be expended by the state procurement office for the purposes of this Act.
SECTION 8. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
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, 2112.
Procurement; Past Performance; Contractors; State Procurement Office; Appropriation
Requires the past performance of contractors' positive, negative, or lack of previous experience to be considered in bid selection of a contractor. Requires departments to consider available assessments of previous performance on relevant and recent government and private contracts when making contract awards. Appropriates funds. Effective 7/1/2112. (HD1)
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.