HAR 3-122 – PROCUREMENT POLICY BOARD -Subchapters 1-10

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(1)Historical Note: This chapter 122, effective, subtitle 11 of title 3, ...continue

HAWAII ADMINISTRATIVE RULES
TITLE 3
DEPARTMENT OF ACCOUNTING AND GENERAL SERVICES
SUBTITLE 11
PROCUREMENT POLICY BOARD
CHAPTER 122
SOURCE SELECTION AND CONTRACT FORMATION

 

 

Page Contents

SUBCHAPTER 1
DEFINITIONS

 

§3-122-1 Definitions.

Definitions for terms used in this chapter are in section 103D-104, HRS. The following definitions are also applicable to terms used in this chapter:
”Alternative procurement method” means a procurement method used due to a waiver from the competitive sealed bids or proposals process when one or no responsive, responsible offer is received.
“Award” means the written notification of the State’s acceptance of a bid or proposal, or the presentation of a contract to the selected offeror.
”Best value” means the most advantageous offer determined by evaluating and comparing all relevant criteria in addition to price so that the offer meeting the overall combination that best serves the State is selected. These criteria may include, in addition to others, the total cost of ownership, performance history of the vendor, quality of goods, services, or construction, delivery, and proposed technical performance.
“Bid sample” means a sample to be furnished by a bidder to show the characteristics of the item offered in the bid.
”Brand name or equal specification” means a specification which uses one or more manufacturer’s names or catalogue numbers to describe the standard of quality, performance, and other characteristics needed to meet requirements, and which provides for the submission of equivalent products.
“Brand name specification” means a specification limited to one or more items by manufacturers’ names or catalog numbers, commonly referred to as a restrictive specification.
”Capability” means capability at the time of award of contract.
”Chief financial officer” means, depending upon the purchasing agency, either the comptroller, a county’s director of finance, or the respective chief financial officers of the University of Hawaii, the department of education, the judiciary, or the legislative branches of the State or county.
“Contract administrator” means the person designated to manage the various facets of contracts to ensure the contractor’s total performance is in accordance with the contractual commitments and obligations to the purchasing agency are fulfilled.
”Contract price” means the amount designated on the face of the contract for the performance of the work including allowances for extras, if any.
”Descriptive literature” means information available in the ordinary course of business which shows the characteristics, construction, or operation of an item which enables the State to consider whether the item meets its needs.
”Design specifications” means the dimensional and other physical requirements of the item being purchased, how a product is to be fabricated or constructed.
“Discussion” means an exchange of information to promote understanding of a state agency’s requirements and offeror’s proposal and to facilitate arriving at a contract that will be the best value to the State. Discussions are not permissible in competitive sealed bidding, except to the extent permissible in the first phase of multi-step sealed bidding to determine the acceptability of technical offers.
”Opening” means the date set for opening of bids, receipt of unpriced technical offers in multi-step sealed bidding, or receipt of proposals in competitive sealed proposals.
”Performance specifications” means the functional or performance requirements of the item, what a product does and how well it performs.
”Practicable” and ”Advantageous” shall be given ordinary dictionary meanings. “Practicable” means what may be accomplished or put into practical application. “Advantageous” means a judgmental assessment of what is in the State’s best interest. The use of competitive sealed bidding may be practicable, that is, reasonably possible, but not necessarily advantageous, that is, in the State’s best interest.
”Qualified products list” means an approved list of goods, services, or construction items described by model or catalogue numbers, which, prior to competitive solicitation, the State has determined will meet the applicable specification requirement.
”Quotation” means a statement of price, terms of sale, and description of goods, services, or construction offered by a prospective seller to a prospective purchaser, usually for purchases pursuant to section 103D-305, HRS.
”Request for information” means a request soliciting information to obtain recommendations from suppliers for a procurement that cannot be described in sufficient detail to prepare a solicitation.
“Standard commercial product” means a product or material, in the normal course of business, is customarily maintained in stock or readily available by a manufacturer, distributor, or dealer for the marketing of the product.

[Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §103D-202) (Imp: HRS §§103D-104, 103D-202)

SUBCHAPTER 2
GENERAL PROVISIONS

 

§3-122-2 Extension of time for acceptance of offer received in response to a solicitation.

After opening offers, the procurement officer may request offerors to extend the time during which the State may accept their offers, as stated in the terms and conditions of the solicitation, provided that, with regard to competitive sealed bids, no other change is permitted. The reasons for requesting the extension shall be documented.

[Eff 12/15/95; comp 11/17/97; comp MAR 21 2008] (Auth: HRS §103D-202) (Imp: HRS §103D-202)

§3-122-3 Extension of time on contracts.

(a) If a contract has exhausted its provision for extension(s) of time of performance, or if the contract does not include a provision for extension(s) of time of performance, the contract may be extended upon approval of the chief procurement officer, provided:

  • (1) The period of each extension is for one hundred eighty calendar days or less;
  • (2) The procurement officer makes a written determination that it is not practical to award another contract at the time of the expiration of the contract for reasons to include but not be limited to the following:
    • (A) A new contract cannot be executed by the time the contract expires; or
    • (B) The need for the good or service is short term;
  • (3) All parties agree to the extension of time of performance; and
  • (4) The price(s) or conditions of the contract remain the same as the original contract, or as amended per the contract; or if not the same or as amended, they are fair and reasonable.

(b) If paragraph (2) of subsection (a) is met, but paragraph (3) or (4) of subsection (a) or both are not met and the procurement officer determines in writing that the need for the good or service continues, provided subchapters 8, 9, and 10 do not apply, the chief procurement officer, may upon request in writing, approve an alternative procurement method, including but not limited to direct negotiations with a party other than the contractor, subject to the maximum one hundred eighty calendar day contract period.
(c) This section shall not apply to adjustments in performance time under chapter 3-125

[Eff 12/15/95; am and comp 11/17/97; comp MAR 21 2008] (Auth: HRS §103D-202) (Imp: HRS §103D-202)

§3-122-4 Multiple or alternate offers.

(a) Unless specifically provided for in the solicitation, multiple or alternate offers shall not be accepted and all such offers shall be rejected.
(b) If multiple or alternate offers are allowed, the solicitation shall specify their treatment.

[Eff 12/15/95; comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §103D-202) (Imp: HRS §103D-202)

§3-122-5 REPEALED. [R MAR 21 2008]

§3-122-6 Conditioning offers upon other contracts not acceptable.

Any offer which is conditioned upon receiving a contract other than as provided for in the solicitation shall be deemed nonresponsive and not acceptable.

[Eff 12/15/95; comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §103D-202) (Imp: HRS §103D-202)

§3-122-7 Determination of contractual terms and conditions.

The chief procurement officer or the head of a purchasing agency is authorized to determine the contractual provisions, terms, and conditions of solicitations and contracts, provided the provisions, terms, and conditions are not contrary to statutory or chapter 91 administrative rule requirements governing the procurement.

[Eff 12/15/95; comp 11/17/97; comp MAR 21 2008] (Auth: HRS §103D-202) (Imp:HRS §103D-202)

HRS §3-122-8 Purchase of items separately from construction contract.

The chief procurement officer or the head of a purchasing agency is authorized to determine whether a good item or group of good items shall be included as part of, or procured separately from, any contract for, construction.

[Eff 12/15/95; comp 11/17/97; comp MAR 21 2008 ] (Auth: HRS §103D-202) (Imp: HRS §103D-202)

§3-122-9 Use of facsimile machines, electronic mail, or electronic procurement systems.

(a) Copies of documents transmitted by vendors via facsimile machine, electronic mail, or an electronic procurement system may include the notice of intent to offer; the offer with required documentation for evaluation purposes; and modifications or withdrawal of offers, pursuant to subsections (b) and (c).
(b) Notices of intent to submit an offer and modifications or withdrawal of an offer may be submitted by facsimile machine, electronic mail, or an electronic procurement system pursuant to sections 3 122-111 and 3-122-16.07, respectively.
(c) An offer transmitted via facsimile machine, electronic mail, or through an electronic procurement system shall be acceptable only when specifically allowed in the invitation for bids or request for proposals, provided:

  • (1) The facsimile or the electronically submitted offer is received at the designated office by the time and date set for receipt of offers; and
  • (2) The facsimile or the electronically submitted offer contains:
    • (A) The identification number of the invitation for bids or request for proposals;
    • (B) The item;
    • (C) The quantity;
    • (D) The price for the offer;
    • (E) All pages of the offer requiring an original signature;
    • (F) The bid bond, if required; and
    • (G) A signed statement that the offeror agrees to all the terms, conditions, and provisions of the invitation for bids or request for proposals.

(d) Unless otherwise specified in the solicitation, if the facsimile or electronically submitted offer is the lowest responsive bid, or is the proposal determined in writing to provide the best value to the State, the offeror must submit the complete original offer, with the original bid bond, if required, so that it is received within five working days from the notification of intent to award. If the offeror fails to comply with this requirement, the procurement officer has the option to reject the facsimile or electronically submitted offer.

[Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§103D-202, 103D-302, 103D-303, 103D-310) (Imp: HRS §§103D-302, 103D-303, 103D-310)

§3-122-9.01 Disclosure of information.

(a) A purchasing agency is not required to disclose information identifying the number or the names of organizations or persons that obtained a solicitation, attended a pre-offeror’s conference, or submitted a notice of intent to offer; or an offer until:

  • (1) The purchase order is issued or the purchasing card order is placed, in the case of a small purchase request for quotations pursuant to subchapter 8;
  • (2) After the time and date set for receipt of priced bids, in the case of invitation for bids pursuant to subchapters 5 and 6.5; and
  • (3) The posting of the award in the case of a request for proposals pursuant to subchapter 6.

(b) A purchasing agency shall not disclose the name of members of an evaluation committee established by section 3-122-45.01 prior to the posting of the award pursuant to section 3-122-57(a) for multi-step bids and competitive sealed proposals.
(c) In the case of procurement of professional services, a purchasing agency is not required to disclose the information specified in section 3-122-63 (b) until after the contract is awarded.

[Eff and comp 11/17 /97; am and comp MAR 21 2008] (Auth: HRS §103D-202) (Imp: HRS §103D-202)

§3-122-9.02 Request for information.

When it is considered impractical to initially prepare a definitive purchase description or when discussions with vendors are not productive, the procurement officer may, prior to issuing a competitive sealed bid or proposal, issue a request for information which shall include but not be limited to:

  • (1) The objective of the procurement;
  • (2) That the response is to provide the purchasing agency with recommendations that will serve to accomplish the work required by the procurement;
  • (3) That the purchasing agency reserves the right to incorporate in a solicitation, if issued, any recommendations presented in the response to the request for information; and
  • (4) That neither the purchasing agency nor the supplier responding has any obligation under the request for information.

[Eff and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §103D-202) (Imp: HRS §§103D-302, 103D-303)

SUBCHAPTER 3
SPECIFICATIONS

 

§3-122-10 Purpose.

A specification is the basis for procuring a good, service, or construction item adequate and suitable for the State’s needs in a cost effective manner. Purchasing agencies shall seek to procure standard commercial products, if practicable, and obtain the most advantageous prices. All specifications shall seek to promote overall competition, shall not be unduly restrictive, and provide a fair and equal opportunity for every supplier that is able to meet the State’s needs. In developing specifications, unique requirements should be avoided.

[Eff 12/15/95; comp 11/17/97; comp MAR 21 2008] (Auth: HRS §§103D-202, 103D-401) (Imp: HRS §§103D-401, 103D-405)

§3-122-11 Authority to prepare specifications.

(a) The chief procurement officer, with the assistance of the using agency, shall prepare and approve specifications, and may delegate, in writing, to purchasing or using agencies the authority to prepare and use its own specifications, provided the delegation may be revoked by the chief procurement officer.

  • (1) The written delegation shall include a determination made by the chief procurement officer that there will be no substantial conflict of interest involved and it is otherwise in the best interest of the State.
  • (2) Using agencies delegated the authority to prepare specifications may use any of the specifications defined herein.

(b) If a specification for general or common use item or a qualified products list exists for an item to be procured under subchapter 8, for small purchases, it shall be used. If no specification exists, purchasing agencies are hereby granted the authority to prepare specifications for use in such purchases.
(c) In an emergency under subchapter 10, any necessary specifications may be utilized by the purchasing agency without regard to the provisions of this subchapter.

[Eff 12/15/95; comp 11/17/97; comp MAR 21 2008] (Auth: HRS §§103D-202, 103D-401) (Imp: HRS §§103D-401, 103D-402)

§3-122-12 Duties of the administrator.

(a) The administrator of the state procurement office shall serve as the central procurement officer to coordinate, guide, and distribute specifications used by purchasing agencies, including specifications on recycled products and the guidelines for purchasing energy-efficient vehicles. This effort will allow for the use of standard specifications by purchasing agencies on purchases for common or general use items or standard commercial products or energy-efficient vehicles.
(b) The administrator of the state procurement office shall review and establish purchase specifications to guide state and county purchasing agencies in the procurement of recycled products.

  • (1) The specifications shall:
    • (A) Be consistent with applicable current federal specification standards on recycled products incorporated in Presidential Executive Orders No. 12873, dated October 20, 1993, and any subsequent amendments to that order;
    • (B) Include minimum standards of recovered material and post-consumer content; and
    • (C) Ensure, to the maximum extent economically feasible, the purchase of materials which may be recycled or reused when discarded and avoid the purchase of products deemed environmentally harmful.
  • (2) The administrator shall periodically review its specifications to determine whether discrimination against procured goods with recycled content exists and shall revise these specifications to eliminate any discrimination.
  • (3) Purchase specifications shall include, but not be limited to, office paper, printed material, paper products, paper, glass-by-products, plastic products, mulch and soil amendments, tires, batteries, oil, paving materials and base, subbase, and pervious backfill materials. Paving materials to be considered shall include, but are not limited to, asphalt, tires, crushed concrete for base, subbase, and paving materials. The standards and specifications shall provide for the use of recycled materials and shall not reduce the quality standards for any product or construction.

(c) Pursuant to section 103D-412, HRS, the procurement policy for all agencies purchasing or leasing motor vehicles shall be to obtain energy-efficient vehicles in accordance with the guidelines established by the department of business, economic development and tourism.

[Eff 12/15/95; comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§103D-202, 103D-401) (Imp: HRS §§103D-401, 103D-412)

§3-122-13 Development of specifications.

(a) A specification should provide for the following:

  • (1) Identify minimum requirements;
  • (2) Allow for competition;
  • (3) List reproducible test methods to be used in testing for compliance with specifications; and
  • (4) Provide for an equitable award at the best value.

(b) Types of specifications include the following, and may be used in combination when developing the specification:

  • (1) Design specification sets the requirements for the product, detailing the characteristics that the item must possess, how the item is to be manufactured;
  • (2) Performance specifications describes the capabilities that the product must meet, use of test or criteria are developed to measure the item’s ability to perform as required;
  • (3) Brand name specification commonly referred to as restrictive specifications, may be used upon approval of the chief procurement officer after the purchasing agency makes a written determination that only the identified brand name item will satisfy the State’s needs, and it is not practicable to use a less restrictive specification, provided that procurements pursuant to section 103D-305, HRS, do not require approval;
  • (4) Brand name or equal specification cites one or more brand names, model numbers, or other designations that identify the specific products as having the characteristics of the item desired; and
  • (5) Qualified or pre-approved products list is a list of goods, services, or construction items, which, prior to the opening of the competitive solicitation, are examined, tested, and determined to meet the applicable specification requirements.

(c) To the extent practicable, the State may procure standard commercial products using accepted commercial specifications. Specifications shall emphasize functional or performance criteria. Design or other detailed physical descriptions may be used when necessary to meet the needs of the State. Specifications shall not discriminate against the use of recycled materials; and when purchasing or leasing motor vehicles; specifications shall be developed in compliance with section 103D-412, HRS, as follows:

  • (1) Agencies are directed to the acquisition of motor vehicle guidelines established by the department of business, economic development and tourism. When acquiring new vehicles, agencies shall determine its motor vehicle fleet as defined by these guidelines; and
  • (2) Motor vehicle fleets determined to be outside of the “covered fleet” definition, shall obtain energy-efficient vehicles in order to increase energy efficiency and use of renewable energy resources pursuant to section 103D-412(b), HRS, and further defined in the guidelines established by the department of business, economic development and tourism.

(d) The using agency shall submit advice and assistance in the development of specifications or plans pursuant to a request from the purchasing officer.
(e) A contractor paid for services to develop or prepare specifications or work statements shall be precluded from submitting an offer or receiving a contract for that particular solicitation.
(f) Specifications prepared by architects, engineers, consultants and others for public contracts, shall seek to promote overall economy for the purposes intended and encourage competition in satisfying the State’s needs and shall not be unduly restrictive.

[Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§103D-202, 103D-401, 103D-402) (Imp: HRS §§103D-401, 103D-404, 103D-405, 103D-406, 103D-412)

§3-122-14 Exempted items.

Purchasing agencies are granted the authority to prepare specifications for goods, services, and construction procured under sections 103D-102 and 103D-304, HRS.

[Eff 12/15/95; comp 11/17/97; comp MAR 21 2008] (Auth: HRS §§103D-202, 103D-403) (Imp: HRS §§103D-102, 103D-304, 103D-403)

§3-122-15 (Reserved).

SUBCHAPTER 4
METHODS OF SOURCE SELECTION AND GENERAL GUIDANCE

 

§3-122-16 Methods of source selection.

Unless authorized by law, all contracts shall be awarded by competitive sealed bidding pursuant to subchapters 5 and 6.5, except as provided in:

  • (1) Subchapter 4.5 – Source selection for federal grants;
  • (2) Subchapter 6 – Competitive sealed proposals;
  • (3) Subchapter 7 – Professional services procurement;
  • (4) Subchapter 8 – Small purchases;
  • (5) Subchapter 9 – Sole source procurements; and
  • (6) Subchapter 10 – Emergency procurements.

[Eff 12/15/95; comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §103D-202) (Imp: HRS §103D-301)

§3-122-16.01 Procurement dollar thresholds.

Procurements exceeding the threshold of section 103D-305, HRS, shall be made pursuant to subchapters 5, 6, 6.5, 7, 9, and 10.

[Eff and comp MAR 21 2008] (Auth: HRS §103D-202) (Imp: HRS §103D-305)

§3-122-16.02 Preparation time for offer.

(a) The minimum time period between the first date of the public notice of the solicitation and the date set for receipt of offers, except as provided by subsection (b) for construction, including design-build projects, shall be as follows:

  • (1) For a single-step invitation for bids pursuant to subchapter 5, ten calendar days;
  • (2) For competitive sealed proposals pursuant to subchapter 6, thirty calendar days, unless the procurement officer makes a written determination that a shorter time will provide for adequate competition; and
  • (3) For multi-step invitation for bids pursuant to subchapter 6.5, fifteen calendar days for the phase one unpriced technical proposal, unless the procurement officer makes a written determination that a shorter time will provide for adequate competition; and ten calendar days for the phase two priced bid.

(b) For construction, including design-build projects, a minimum of fifteen calendar days shall be provided between the date of the pre-bid conference pursuant to section 3-122-16.05(b) and the date set for receipt of offers.

[Eff and comp MAR 21 2008] (Auth: HRS §§103D-202, 103D-302, 103D-303) (Imp: HRS §§103D-302, 103D-303)

§3-122-16.03 Public notice.

(a) Public notice of the solicitation pursuant to subchapter 4.5, 5, 6, 6.5, or 7 shall be made for the purpose of securing competition.
(b) The public notice of the solicitation pursuant to subchapters 4.5, 5, 6, and 6.5 shall include the following information:

  • (1) A brief description of the good, service, or construction desired; or for solicitations seeking providers for federal grant contracts, the title of the grant application or funding source and a brief description of the services being sought;
  • (2) Where and when the solicitation will be available and a phone number or e-mail address where interested parties may request a copy;
  • (3) How long the solicitation will be available, i.e., the deadline for the responses to the solicitation;
  • (4) Other appropriate information, e.g., a notice of intention to offer pursuant to section 3-122-111 or the time, date, and location of the pre-bid or pre-proposal conference;
  • (5) For request for interest pursuant to section 3-122-16.31, a statement that the purpose of the request is to select a provider or providers for federal grants; and
  • (6) For a multi-step invitation for bids pursuant to subchapter 6.5, a general statement that the bid is multi-step and the due date(s) of the unpriced technical offer and priced offer.

A copy of the solicitation shall be made available for public inspection and pick up at the office of the procurement officer issuing the solicitation.

(c) Public notice for professional services pursuant to section 103D-304, HRS, and subchapter 7 shall invite persons to submit statements of qualifications that may include but not be limited to:

  • (1) The name of the firm or person, the principal place of business, and location of all of its offices;
  • (2) The age of the firm and its average number of employees over the past years;
  • (3) The education, training, and qualifications of key members of the firm;
  • (4) The names and phone numbers of up to five clients who may be contacted, including at least two for whom services were rendered during the preceding year; and
  • (5) Any promotional or descriptive literature which the firm desires to submit.

Firms or persons may amend statements of qualifications at any time by filing a new statement and shall immediately inform the head of the purchasing agency of any change in their submission that would disqualify the firm or person from being considered for a contract award.

(d) The public notice under subsections (b) and (c) shall be publicized as follows:

  • (1) At a minimum, statewide and countywide public notices shall be publicized on a purchasing agency or provider internet site;
  • (2) Optionally, and in addition to paragraph (1), the following may be used:
    • (A) Newspaper publication:
      • (i) For statewide publication, a daily or weekly publication of statewide
        circulation; or separate daily or weekly publications whose combined
        circulation is statewide;
      • (ii) For countywide publication, a daily or weekly publication in the pertinent county;
    • (B) Notice by mail, electronic mail, or facsimile transmission to persons on any applicable bidders mailing list, if any; and
    • (C) Any other method the procurement officer deems effective for publicizing the solicitation.

[Eff and comp MAR 21 2008] (Auth: HRS §§103D-202, 103D-302, 103D-303, 103D-304) (Imp: HRS §§103-302, 103D-303, 103D-304)

§3-122-16.04 List of potential offerors.

(a) A list may be compiled to provide the procurement officer with the names of businesses that may be interested in competing for various types of contracts.
(b) Unless otherwise provided, inclusion of the name of a business is discretionary and does not indicate whether the business is responsible in respect to a particular procurement or otherwise capable of successfully performing a contract; nor does it guarantee notification of each solicitation.
(c) Businesses that fail to respond to solicitations or notices of availability may be removed from the list.
(d) Names and addresses on the list shall be available for public inspection.

[Eff and comp MAR 21 2008] (Auth: HRS §§103D-202, 103D-302, 103D-303, 103D-304) (Imp: HRS §§103D-302, 103D-303, 103D-304)

§3-122-16.05 Pre-bid or pre-proposal conference.

(a) The purpose of a pre-bid or pre-proposal conference is to explain the procurement requirements and allow potential offerors to ask questions.

  • (1) An agency may hold a pre-bid or pre-proposal conference and require or not require attendance by all prospective bidders as a condition for submitting an offer for solicitations that have special or unusual requirements, e.g., requiring physical inspection.
  • (2) For construction, including design-build projects, pursuant to section 103D-303.5, HRS, an agency shall hold a pre-bid or pre-proposal conference and invite all interested parties to attend.

(b) If conference attendance is mandatory for submission of an offer, the requirement:

  • (1) Shall be stated in the public notice issued pursuant to section 3-122-16.03; and
  • (2) Prominently in the solicitation or if the decision to hold a mandatory pre-bid or pre-proposal conference is made after the issuance of the solicitation, the mandatory requirement shall be announced in an addendum.

(c) A pre-bid or pre-proposal conference shall be announced to all prospective offerors in the public notice issued pursuant to section 3-122-16.03 and in the solicitation, or if the decision to hold a pre-bid or pre-proposal conference is made after the issuance of the solicitation, the conference shall be announced in an addendum.
(d) The conference should be held long enough after the solicitation has been issued to allow offerors to become familiar with the solicitation, but sufficiently before the deadline for receipt of offers to allow consideration of the conference results in preparing their offers.
(e) Unless a change is made by written addendum as provided in section 3-122-16.06, nothing stated at the pre-bid or pre-proposal conference shall change the solicitation.
(f) A summary of the conference, in addition to any changes to the solicitation, shall be issued by addendum and shall be supplied sufficiently before the deadline for receipt of offers to allow consideration of the summary results and changes to all those prospective offerors known to have received a solicitation.

[Eff and comp MAR 21 2008] (Auth: HRS §§103D-202, 103D-303.5) (Imp: HRS §§103D-302, 103D-303.5)

§3-122-16.06 Amendment and clarification to solicitation.

(a) An addendum shall be issued for amendments and clarifications to a solicitation prior to submission of offers, except as provided in subsection (f).

  • (1) Amendments include any material changes to the solicitation as in quantity, purchase descriptions, delivery schedules, scope of work, and opening dates. The addendum shall reference the portions of the solicitation it amends and detail the amendments;
  • (2) Clarifications include pre-bid or pre-proposal communications other than amendments.

(b) Addenda shall be used to:

  • (1) Correct minor defects or ambiguities;
  • (2) Furnish to other offerors information given to one offeror if the information will assist the other offerors in submitting offers or if the lack of the information would prejudice the other offerors; and
  • (3) Provide any other information or clarification to the solicitation that will result in fair competition.

(c) Addenda may require that offerors acknowledge receipt of the addendum issued.
(d) Addenda shall be issued to all prospective offerors known to have received a solicitation, or if issued after the deadline for submission of notice of intention to offer, to those persons who have submitted such notice.
(e) Addenda for:

  • (1) Amendments shall be distributed within a reasonable time to allow prospective offerors to consider them in preparing their offers; however, if the time and date set for receipt of bids will not permit adequate time for preparation, the time shall be increased to the extent possible in the addendum or, if necessary, by facsimile or telephone and confirmed in the addendum;
  • (2) Clarifications may be issued any time up to the scheduled deadline for receipt of offers.

(f) After submission of proposals, amendments may be made by addenda for solicitations pursuant to subchapters 6 and 6.5, subject to sections 3-122-53(d) and (e) and 3-122-54(b).

[Eff and comp MAR 21 2008] (Auth: HRS §103D-202) (Imp: HRS §§103D-302, 103D-303)

§3-122-16.07 Pre-opening modification or withdrawal of offer.

(a) Bids or proposals submitted pursuant to subchapters 5, 6, and 6.5 may be modified or withdrawn prior to the established due date by the following documents:

  • (1) Modification of bids or proposals:
    • (A) A written notice accompanying the actual modification received in the office designated in the solicitation, stating that a modification to the bid or proposal is submitted; or
    • (B) A facsimile or electronic notice accompanying the actual modification submitted either by facsimile machine, electronic mail, or an electronic procurement system pursuant to section 3-122-9 to the office designated in the solicitation; provided if other than through an electronic system, offeror submits the actual written notice and modification within two working days of receipt of the facsimile or the electronic transmittal.
  • (2) Withdrawal of bids or proposals:
    • (A) A written notice received in the office designated in the solicitation; or
    • (B) A notice by facsimile machine or other electronic method pursuant to section 3-122-9, to the office designated in the solicitation.

For the purposes of this section and section 3-122-16.08, the established due date for proposals pursuant to subchapter 6 or 6.5 is either the time and date announced for receipt of proposals or receipt of modifications to proposals, if any; or if discussions have begun, it is the time and date by which best and final offers must be submitted, provided that only priority listed offerors may submit best and final offers.

(b) The documents shall be made a part of the appropriate procurement file.

[Eff and comp MAR 21 2008] (Auth: HRS §103D-202) (Imp: HRS §§103D-302, 103D-303)

§3-122-16.08 Late offer, late withdrawal, and late modification.

(a) Any notice of withdrawal, notice of modification of a bid or proposal with the actual modification, or any bid or proposal is late when received at the place designated for receipt and opening of an offer after the established due date, additionally defined in section 3-122- 16.06(a), except when received before contract award and would have been timely but for the action or inaction of personnel within the procurement activity.
(b) A late bid or proposal or late modification will not be considered for award and shall be returned to the offeror unopened as soon as practicable, accompanied by a letter from the procurement activity stating the reason for its return.
(c) A late withdrawal request except as provided for in section 3-122-31, shall be responded to with a statement of the reason for non-acceptance of the withdrawal.
(d) Records of each late offer, late modification, or late withdrawal and any related correspondence shall be made a part of the appropriate procurement file, except for the late offer or late modification itself which shall be disposed of accordance with subsection (b).

[Eff and comp MAR 21 2008] (Auth: HRS §103D-202) (Imp: HRS §§ 103D-302, 103D-303)

§3-122-16.09 Cancellation of solicitation and rejection of offer.

Cancellation of solicitations and rejection of bids or proposals shall be pursuant to subchapter 11 and section 103D-308, HRS.

[Eff and comp MAR 21 2008] (Auth: HRS §103D-202) (Imp: HRS §§103D-302, 103D-303, 103D- 308)

SUBCHAPTER 4.5
SOURCE SELECTION FOR FEDERAL GRANTS

 

§3-122-16.30 Purpose.

(a) The purpose of this subchapter is to provide rules for the selection of providers for federal grants.
(b) The selection of providers for federal grants shall be in accordance with the appropriate source selection methods in section 3-122-16.

[Eff and comp MAR 21 2008] (Auth: HRS §103D-202) (Imp: HRS §103D-301)

§3-122-16.31 Exception; request for interest.

(a) “Request for interest” as used in this subchapter means all documents utilized for soliciting interest in providing goods, services, or construction under a federal grant.
(b) Where time or economic situations preclude the use of other source selection methods in section 3-122-16, purchasing agencies may, with the approval of the head of purchasing agency, issue a request for interest to select a provider or providers for a federal grant.
(c) A public notice shall be publicized pursuant to section 3-122 16.03(d) and shall include but not be limited to the information in section 3-122-16.03(b).
(d) The request for interest may include but not be limited to the following:

  • (1) Identification and purpose of the federal funding;
  • (2) The target population or clients to be served;
  • (3) A description of the good, service, or construction;
  • (4) The evaluation criteria and their relative weights for selecting a provider or providers;
  • (5) The format, if any, and procedure for submitting responses to the request;
  • (6) The deadline for submittal of written responses to the request which shall be a minimum of five working days from the date of public notice;
  • (7) A statement that the purchasing agency reserves the right to incorporate or not incorporate in the State’s application for federal grants any recommendations presented in response to the request; and
  • (8) A statement that neither the purchasing agency nor the interested provider has any obligation under the request.

(e) shall be The selection of a provider or providers based on the criteria established in the request for interest.
(f) A notice of the selected provider or providers shall be posted to a state governmental website or all respondents shall be notified in writing.
(g) Nothing in this section shall be construed to disqualify a purchasing agency from receiving federal funds.

[Eff and comp MAR 21 2008 ] (Auth: HRS §103D-202) (Imp: HRS §103D-202)

SUBCHAPTER 5
COMPETITIVE SEALED BIDDING

 

§3-122-17 Purpose.

The purpose of this subchapter is to provide rules for the use of the competitive sealed bidding method of source selection.

[Eff 12/15/95; comp 11/17/97; comp MAR 21 2008] (Auth: HRS §103D-202) (Imp: HRS §103D-302)

§3-122-18 REPEALED [R Mar 21 2008]
§3-122-19 REPEALED [R Mar 21 2008]
§3-122-20 REPEALED [R Mar 21 2008]

§3-122-21 Preparing a competitive sealed bid.

The invitation for bids shall be used to initiate a competitive sealed bid procurement and shall include:

  • (1) Instructions and information to bidders concerning the bid submission requirements, including:
    • (A) The time and date set for receipt of bids;
    • (B) The address of the office to which bids are to be delivered or if bid submittal is required through an electronic procurement system;
    • (C) The maximum time for bid acceptance by the procurement officer issuing the bid; and
    • (D) Any other special information, such as any requirement of intention to bid, if required, or the time, date, and location of the pre-bid conference.

The bid opening shall be held at the time, date, and location of the receipt of bids;

  • (2) The purchase description or specifications, evaluation factors, delivery or performance schedule, and inspection and acceptance requirements as are not included in the purchase description;
  • (3) The contract terms and conditions, including but not limited to the following, as applicable:
    • (A) Requirements pursuant to section 103D- 310 (c), HRS;
    • (B) Warranty requirement;
    • (C) Bonding or other security requirements pursuant to subchapter 24;
    • (D) Contract extension provisions; and
    • (E) Statement that bid samples or descriptive literature should not be submitted unless expressly requested and that, regardless of any attempt by a bidder to condition the bid, unsolicited bid samples or descriptive literature which are submitted at the bidder’s risk will not be examined or tested, and will not be deemed to vary any of the provisions of the invitation for bids;
  • (4) A bid form which shall include space for, but not limited to, the following:
    • (A) Bid price;
    • (B) Brand name and model number and packaging for goods; and
    • (C) Information on applicable preferences;
  • (5) With the exception of bid offers submitted through an electronic procurement system, a requirement that the bidder shall sign the bid form in ink and submit the bid form with the original signature included in the offer. Unless otherwise specified in the solicitation, if facsimile or other electronically transmitted bid offer is allowed, then the bidder shall submit the signed original offer in accordance with section 3-122-9(d);
  • (6) Documents by reference, provided that the invitation for bids specifies where the documents can be obtained;
  • (7) A statement that bidders shall designate those portions of their offer that contain trade secrets or other proprietary data that are to remain confidential, subject to section 3-122-30(c); and (d); and that the material designated as confidential shall be readily separable from the bid in order to facilitate public inspection of the non-confidential portion of the bid;
  • (8) For construction projects, instructions to the bidder that the bidder shall include in its offer information on joint contractor or subcontractor pursuant to section 103D-302(b), HRS. Construction bids that do not comply with this requirement may be accepted pursuant to section 103D-302(b), HRS. The terms, requirements and conditions of an invitation for bids, including the specifications appended or incorporated by reference therein, may be amended only by a written addendum issued by the procurement officer, pursuant to section 3-122-16.06.

[Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §103D-202) (Imp: HRS §§103D-302, 103D-310)

§3-122-22 REPEALED. [R Mar 21 2008]
§3-122-23 REPEALED. [R Mar 21 2008]
§3-122-24 REPEALED. [R Mar 21 2008]
§3-122-25 REPEALED. [R Mar 21 2008]
§3-122-26 REPEALED. [R Mar 21 2008]
§3-122-27 REPEALED. [R Mar 21 2008]
§3-122-28 REPEALED. [R Mar 21 2008]
§3-122-29 REPEALED. [R Mar 21 2008]

§3-122-30 Receipt, opening, and recording of bids.

(a) Upon its receipt, each bid and modification shall be time-stamped but not opened and shall be stored in a secure place by the procurement officer until the time and date set for opening. Purchasing agencies may use other methods of receipt when approved by the procurement officer.
(b) Bids and modifications shall be opened publicly, in the presence of one or more witnesses, at the time, date, and place designated in the invitation for bids.

  • (1) The name of each bidder, the bid price(s), and other information as is deemed appropriate by the procurement officer or the procurement officer’s designated representative, shall be read aloud or otherwise made available. If practicable, the information shall also be recorded at the time of opening; that is, the bids shall be tabulated or a bid abstract made;
  • (2) The name(s) and address(es) of the required witnesses shall also be recorded at the opening.

(c) The opened bids shall be available for public inspection at the time of opening except to the extent that the bidder designates trade secrets or other proprietary data to be confidential subject to subsection (d).
(d) The procurement officer or the procurement officer’s designated representative, shall examine the bids to determine the validity of any requests for nondisclosure of trade secrets and other proprietary data identified in writing.

  • (1) If the parties do not agree as to the disclosure of data, the procurement officer or the procurement officer’s designated representative shall inform the bidders present at the opening that the material designated for nondisclosure pursuant to section 3-122-21 shall be subject to written determination by the respective attorney general or corporation counsel for confidentiality in accordance with chapter 92F, HRS;
    • (A) If the attorney general or corporation counsel determines in writing that the material so designated as confidential is subject to disclosure, the bidder submitting the material under review and other bidders who were present at the opening shall be so notified in writing and the material shall be open to public inspection unless the bidder protests under chapter 3-126;
    • (B) When a purchasing agency denies a person access to a state procurement record, the person may appeal the denial to the office of information practices in accordance with section 92F-42(12), HRS;
  • (2) The prices, makes and models, or catalogue numbers of items offered, deliveries, and terms of payment shall be publicly available at the time of opening regardless of any designation to the contrary.

(d)Bids shall be unconditionally accepted without alteration or correction, except as allowed in sections 3-122-16.08 and 3-122-31.

[Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§92F-42, 103D-202) (Imp: HRS §§92F-42, 103D-302)

§3-122-31 Mistakes in bids.

(a) An obvious mistake in a bid may be corrected or withdrawn, or waived by the offeror to the extent it is not contrary to the best interest of the purchasing agency or to the fair treatment of other bidders.
(b) A mistake in a bid discovered before the deadline for receipt of bids may be corrected or withdrawn as provided in section 3-122-16.07.
(c) A mistake in a bid discovered after the deadline for receipt of bids but prior to award may be:

  • (1) Corrected or waived under the following conditions:
    • (A) If the mistake is attributable to an arithmetical error, the procurement officer shall so correct the mistake. In case of error in extension of bid price, unit price shall govern;
    • (B) If the mistake is a minor informality which shall not affect price, quantity, quality, delivery, or contractual conditions, the procurement officer may waive the informalities or allow the bidder to request correction by submitting documentation that demonstrates a mistake was made. Examples of mistakes include:
      • (i) Typographical errors;
      • (ii) Transposition errors;
      • (iii) Failure of a bidder to sign the bid or provide an original signature, but only if the unsigned bid or photocopy is accompanied by other material indicating the bidder’s intent to be bound;
    • (C) The procurement officer may correct or waive the mistake if it is not allowable under subparagraphs (A) and (B), but is an obvious mistake that if allowed to be corrected or waived is in the best interest of the purchasing agency and is fair to other bidders;
  • (2) Withdrawn if the mistake is attributable to an obvious error that shall affect price, quantity, quality, delivery, or contractual conditions, provided:
    • A) The bidder requests withdrawal by submitting documentation that demonstrates a mistake was made; and
    • (B) The procurement officer prepares a written approval or denial in response to this request.

(d) A mistake in a bid discovered after award of contract may be corrected or withdrawn if the chief procurement officer or head of the purchasing agency makes a written determination that it would be unreasonable not to allow the mistake to be remedied or withdrawn.
(e) The determination required by this section shall be final and conclusive unless clearly erroneous, arbitrary, capricious, or contrary to law.

[Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§103D-202, 103D-318) (Imp: HRS §§103D-302, 103D-318)

§3-122-32 REPEALED. [R MAR 21 2008]

§3-122-33 Bid evaluation and award.

(a) The award shall be made to the lowest responsive, responsible bidder and shall be based on the criteria set forth in the invitation for bids.
(b) Only objectively measurable criteria which are set forth in the invitation for bids shall be applied and may include but not be limited to:

  • (1) Discounts;
  • (2) Transportation costs; and
  • (3) Total or life cycle costs.

(c) Evaluation factors need not be precise predictors of actual future costs, but to the extent possible the evaluation factors shall:

  • (1) Be reasonable estimates based upon information the government jurisdiction has available concerning future use; and
  • (2) Treat all bids equitably.

(d) The invitation for bids shall set forth any evaluation criterion to be used in determining product acceptability:

  • (1) The solicitation may require the submission of samples, descriptive literature, technical data, or other material to verify product acceptability;
  • (2) The solicitation may also provide for accomplishing any of the following prior to award:
    • (A) Inspection or testing of a product for characteristics as quality or workmanship;
    • (B) Examination of elements as appearance, finish, taste, or feel; or
    • (C) Other examinations to determine whether the product conforms to any other purchase description requirements;
  • (3) The acceptability evaluation is not conducted for the purpose of determining whether one bidder’s item is superior to another but only to determine that a bidder’s offer is acceptable as set forth in the invitation for bids;
  • (5) Any bidder’s offering which does not meet the acceptability requirements shall be rejected as nonresponsive.

(e) The award shall be issued to the lowest responsive, responsible bidder whose bid meets the requirements and criteria set forth in the invitation for bids and posted pursuant to section 103D-701, HRS, for five working days.
(f) In the event all bids exceed available funds, the provisions of section 103D-302(h), HRS, shall apply.

[Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §103D-202) (Imp: HRS §103D-302)

§3-122-34 Low tie bids.

(a) Low tie bids are bids from responsive, responsible bidders that are identical in price and which meet all the requirements and criteria set forth in the invitation for bids.
(b) At the discretion of the procurement officer, award shall be made in any permissible manner that will resolve tie bids, including but not limited to:

  • (1) Award the contract to a business providing goods produced or manufactured in this State or to a business that otherwise maintains a place of business in this State; and
  • (2) Award the contract to the bidder offering a low tie bid who received the previous award, and continue to award succeeding contacts to the same bidder so long as all low bids are identical.

(c) If no permissible method will be effective in resolving tie bids and a written determination is made so stating, award may be made by drawing lots.
(d) Records shall be made of all invitations for bids on which tie bids are received showing at least the following information and shall be made a part of the procurement file:

  • (1) The identification number of the invitation for bids;
  • (2) The good, service, or construction item; and
  • (3) A listing of all the bidders and the prices submitted.

[Eff 12/15/95; comp 11/17/97; comp MAR 21 2008] (Auth: HRS §103D-202) (Imp: HRS §103D-302)

§3-122-35 Waiver to competitive sealed bid process.

(a) If for a given invitation for bids, including multi-step bidding, there is only one responsive, responsible bidder:

  • (1) An award may be made to the single bidder, provided:
    • (A) The procurement officer determines in writing that the price submitted is fair and reasonable, and that either:
      • (i) Other prospective bidders had reasonable opportunity to respond; or
      • (ii) There is not adequate time for resolicitation; or
    • (B) The bid exceeds available funds as certified by the appropriate fiscal officer and the price is negotiated pursuant to section 103D-302(h), HRS;
  • (2) The bid may be rejected pursuant to subchapter 11 and new bids or offers may be solicited if the conditions in paragraph (1) are not met;
  • (3) The proposed procurement may be canceled; or
  • (4) An alternative procurement method may be conducted to include but not be limited to direct negotiations with the sole bidder first, and then with any contractor or vendor should negotiations with the sole bidder fail, provided the procurement officer determines in writing that the need for the good, service, or construction continues, but that the price of the one bid is not fair and reasonable and either that:
    • (A) There is no time for resolicitation; or
    • (B) Resolicitation would likely be futile.

(b) If for a given invitation for bids, including multi-step bidding, there are no bids received or there are no responsive, responsible bidders, the procurement officer may determine that it is neither practicable, nor advantageous to the State to issue a new solicitation.

  • (1) When making this determination, consideration shall be given to:
    • (A) Time constraints;
    • (B) Competition in the marketplace; and
    • (C) Whether the additional potential cost of preparing, soliciting, and evaluating competitive sealed bids is expected to exceed the benefits normally associated with the solicitations;
  • (2) In the event of this determination, an alternative procurement method may be selected to include, but not be limited to, direct negotiations.

(c) Documentation of the alternative procurement method selected shall:

  • (1) State the reasons for selection and length of contract period;
  • (2) Receive prior approval of the chief procurement officer or a designee; and
  • (3) Be made a part of the contract file upon award by the procurement officer.

[Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §103D-202) (Imp: HRS §103D-302)

§§3-122-36 to 3-122-40 (Reserved) .

SUBCHAPTER 6
COMPETITIVE SEALED PROPOSALS

 

§3-122-41 Purpose.

The purpose of this subchapter is to provide rules for the use of the competitive sealed proposal method of source selection when it is determined that competitive sealed bidding is neither practicable nor advantageous for the State.

[Eff 12/15/95; comp 11/17/97; comp MAR 21 2008](Auth: HRS §103D-202) (Imp: HRS §103D-303)

§3-122-42 REPEALED. [R Mar 21 2008]

§3-122-43 When competitive sealed bidding is not practicable or advantageous.

(a) Unless the nature of the procurement permits award to a low bidder who agrees by its bid to perform without condition or reservation in accordance with the purchase description, delivery or performance schedule, and all other terms and conditions of the invitation for bids, competitive sealed bidding is not practicable or advantageous.
(b) A determination may be made to use competitive sealed proposals if it is determined that competitive sealed bidding is not practicable, even though advantageous. Factors to be considered in determining whether competitive sealed bidding is not practicable include:

  • (1) Whether the primary consideration in determining award may not be price;
  • (2) Whether the contract needs to be other than a fixed-price type;
  • (3) Whether the specifications for the goods, services, or construction, or delivery requirements cannot be sufficiently described in the invitation for bids;
  • (4) Whether oral or written discussions may need to be conducted with offerors concerning technical and price aspects of their proposals;
  • (5) Whether offerors may need to be afforded the opportunity to revise their proposals, including price; and
  • (6) Whether award may need to be based upon a comparative evaluation as stated in the request for proposals of differing price, quality, and contractual factors in order to determine the most advantageous offering to the State. Quality factors include technical and performance capability and the content of the technical proposal.

(c) A determination may be made to use competitive sealed proposals if it is determined that competitive sealed bidding is not advantageous, even though practicable. Factors to be considered in determining whether competitive sealed bidding is not advantageous include:

  • (1) If prior procurements indicate that competitive sealed proposals may result in more beneficial contracts for the State; and
  • (2) Whether the factors listed in subsection (b) (4) through (b) (6) are desirable in conducting a procurement rather than necessary; if they are, then the factors may be used to support a determination that competitive sealed bidding is not advantageous.

(d) The determinations required by this section shall be final and conclusive unless they are clearly erroneous, arbitrary, capricious, or contrary to law.

[Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§103D-202, 103D-318) (Imp: HRS §§103D-303, 103D-318)

§3-122-44 REPEALED. [R 11/17/97]

§3-122-45 Determinations.

(a) Pursuant to section 103D-303(a), HRS, the procurement policy board may approve a list of goods, services, or construction that may be procured by competitive sealed proposals without a determination by the head of the purchasing agency.
(b) The list, entitled “Procurements Approved for Competitive Sealed Proposals,” shall be reviewed biennially by the procurement policy board and issued by procurement directive. Although the good, service, or construction is listed, purchasing agencies may use the competitive sealed bidding process under section 103D-302, HRS.
(c) If the procurement is not listed pursuant to subsection (a), the head of a purchasing agency shall then determine in writing that competitive sealed proposals is a more appropriate method of contracting in that competitive sealed bidding is neither practicable nor advantageous. The determinations may be made for categories of goods, services, or construction rather than by individual procurement.
(d) When it is determined that it is more practicable or advantageous to the State to procure construction by competitive sealed proposals:

  • (1) A procurement officer may issue a request for proposals requesting the submission of proposals to provide construction in accordance with a design provided by the offeror; and
  • (2) The request for proposals shall require that each proposal submitted contain a single price that includes both design and build.

(e) The head of the purchasing agency who made the determination pursuant to subsection (c) or (d) may modify or revoke it at any time and the determination shall be reviewed for current applicability on the next procurement for the goods, services, or construction. The head of the purchasing agency may also request that the procurement of the goods, services, or construction by competitive sealed proposals be added to or deleted from the list in subsection (b).
(f) The determinations required by this section shall be final and conclusive unless they are clearly erroneous, arbitrary, capricious, or contrary to law.

[Eff 12/15/95; am and comp 11/17/97; am 07/06/99; am and comp MAR 21 2008] (Auth: HRS §§103D-202, 103D-303, 103D-318) (Imp: HRS §§103D-303, 103D-318)

§3-122-45.01 Evaluation committee.

Prior to the preparation of the request for proposals, a determination shall be made by the procurement officer that the procurement officer or an evaluation committee selected in writing by the procurement officer shall evaluate the proposals. A copy of the document identifying any committee members and any subsequent changes thereto shall be placed in the contract file.

  • (1) The evaluation committee shall consist of at least three governmental employees with sufficient qualifications in the area of the goods, services, or construction to be procured;
  • (2) Private consultants may also serve on the committee and shall:
    • (A) Have sufficient knowledge to serve on the committee;
    • (B) Serve without compensation, unless justified and determined in writing by the head of the purchasing agency that compensation is justified; and
    • (C) Sign an affidavit:
      • (i) Attesting to having no personal, business, or any other relationship that will influence their decision in the evaluation process;
      • (ii) Agreeing not to disclose any information on the evaluation process to other than an employee of a governmental body; and
      • (iii) Agreeing that their names will become public information upon award of the contract;
  • (3) The contract administrator shall serve as a member of the committee;
  • (4) The contract administrator or a designee shall serve as chairperson, and the procurement officer or a designee shall serve as advisor.

[ Eff and comp MAR 21 2008] (Auth: HRS §§103D-202, 103D-303) (Imp: HRS §103D-303)

§3-122-46 Preparing a request for proposals.

The request for proposals is used to initiate a competitive sealed proposal procurement and shall include:

  • (1) The specifications for the goods, services, or construction items to be procured, including a description of the performance or benefit required;
  • (2) All contractual terms and conditions applicable to the procurement;
  • (3) A statement as to when and in what manner prices are to be submitted;
  • (4) A statement concerning whether the proposal shall be accompanied by a proposal security pursuant to subchapter 24 or other evidence of financial responsibility;
  • (5) The term of the contract and conditions of renewal or extension, if any;
  • (6) Instructions and information to offerors, including pre-proposal conferences, the location where proposals are to be received, and the date, time, and place where proposals are to be received and reviewed;
  • (7) The relative importance of price and other evaluation criteria; and specific evaluation criteria to be used in evaluation of proposals which may include but is not limited to:
    • (A) Technical capability and approach for meeting performance requirements;
    • (B) Competitiveness and reasonableness of price;
    • (C) Managerial capabilities; and
    • (D) Best value factors;
  • (8) A statement that discussions may be conducted with “priority-listed offerors” pursuant to section 3-122-53, but that proposals may be accepted without discussions; and
  • (9) A statement that offerors shall designate in writing those portions of the unpriced proposal that contain trade secrets or other proprietary data that are to remain confidential, subject to section 3-122-58; that the material designated as confidential shall be readily separable from the proposal in order to facilitate inspection of the non-confidential portion of the proposal.

[Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §103D-202) (Imp: HRS §103D-303)

§3-122-47 REPEALED. [R 11/17/97]
§3-122-48 REPEALED. [R MAR 21 2008]
§3-122-49 REPEALED. [R MAR 21 2008]
§3-122-50 REPEALED. [R MAR 21 2008]

§3-122-51 Receipt and registration of proposals.

(a) Proposals and modifications shall be time-stamped upon receipt and held in a secure place by the procurement officer until the established due date. Purchasing agencies may use other methods of receipt when approved by the chief procurement officer.

  • (1) Proposals and modifications shall not be opened publicly, but shall be opened in the presence of two or more state officials;
  • (2) Proposals and modifications shall be shown only to members of the evaluation committee and state personnel or their designees having legitimate interest in them.

(b) After the date established for receipt of proposals, a register of proposals shall be prepared which shall include for all proposals:

  • (1) The name of each offeror;
  • (2) The number of modifications received, if any; and
  • (3) A description sufficient to identify the good, service, or construction item offered.

(c) The register of proposal shall be open to public inspection as provided in section 3-122-58.
(d) Proposals shall be open to public inspection as provided in section 3-122-58.

[Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§103D-202, 103D-303) (Imp: HRS §103D-303)

§3-122-52 Evaluation of proposals.

(a) Evaluation factors shall be set out in the request for proposals and the evaluation shall be based only on the evaluation factors. Evaluation factors not specified in the request for proposals may not be considered.
(b) A numerical rating system shall be used. The relative priority to be applied to each evaluation factor shall also be set out in the request for proposals.
(c) The points to be applied to each evaluation factor shall be set out in the request for proposals.

  • (1) The procurement officer, or each member of the evaluation committee, as applicable, shall explain his or her ranking determination in writing which shall be placed in the procurement file;
  • (2) The written ranking evaluations or explanations shall be available for public inspection after the award of the contract is posted.

(d) When applicable, cost shall be an evaluation factor.

  • (1) The proposal with the lowest cost factor must receive the highest available rating allocated to cost. Each proposal that has a higher cost factor than the lowest must have a lower rating for cost;
  • (2) The points allocated to higher-priced proposals must be equal to the lowest proposal price multiplied by the maximum points available for price, divided by the higher proposal price.

(e) An evaluation factor must be included which takes into consideration whether an offeror qualifies for any procurement preferences pursuant to chapter 3-124.
(f) Evaluations may not be based on discrimination due to the race, religion, color, national origin, sex, age, marital status, pregnancy, parenthood, handicap, or political affiliation of the offeror.

[Eff 12/15/95; am and comp 11/17 /97; am and comp MAR 21 2008] (Auth: HRS §103D-202) (Imp: HRS §103D-303)

§3-122-53 Discussions with offerors.

(a) Before conducting discussions, a “priority list” shall be generated by the procurement officer or evaluation committee.

  • (1) In order to generate a priority list, proposals shall be classified initially as acceptable, potentially acceptable, or unacceptable;
  • (2) All responsible offerors who submit acceptable or potentially acceptable proposals are eligible for the priority list;
  • (3) If numerous acceptable and potentially acceptable proposals have been submitted, the procurement officer or the evaluation committee may rank the proposals and limit the priority list to at least three responsible offerors who submitted the highest-ranked proposals;
  • (4) Those responsible offerors who are selected for the priority list are referred to as the “priority-listed offeror’s”.

(b) Discussions will be limited to only ”priority-listed offerors” and are held to:

  • (1) Promote understanding of a state agency’s requirements and “priority-listed offerors” proposals; and
  • (2) Facilitate arriving at a contract that will provide the best value to the State, taking into consideration the evaluation factors set forth in the request for proposals.

The procurement officer shall establish procedures and schedules for conducting discussions and keep a record of the date, place, purpose of meetings, and those attending.

(c) Proposals may be accepted on evaluation without discussion.
(d) Priority-listed offerors shall be accorded fair and equal treatment with respect to any opportunity for discussions and revisions of proposals.

  • (1) Any substantial oral clarification of a proposal shall be reduced to writing by the priority-listed offeror;
  • (2) If during discussions there is a need for any substantial clarification or change in the request for proposals, the request for proposals shall be amended by an addendum to incorporate the clarification or change.

(e) Addenda to the request for proposals shall be distributed only to priority-listed offerors.

  • (1) The priority-listed offerors shall be permitted to submit new proposals or to amend those submitted;
  • (2) If in the opinion of the procurement officer or the evaluation committee, a contemplated amendment will significantly change the nature of the procurement, the request for proposals shall be canceled and a new request for proposals issued.

(f) The contents of any proposal shall not be disclosed so as to be available to competing offerors during the discussion process.

[Eff 12/15/95; comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §103D-202) (Imp: HRS §103D-303)

§3-122-54 Best and final offers.

(a) The procurement officer shall establish a date and time for the priority-listed offerors to submit their best and final offers.
(b) Best and final offers shall be submitted only once, unless the chief procurement officer or the head of a purchasing agency or a designee of either officer above the level of procurement officer determines in writing that it is in the State’s best interest to conduct additional discussions or change the State’s requirements by an addendum distributed only to priority-listed offerors and require another submission of best and final offers. Otherwise, no discussion of or changes in the best and final offers shall be allowed prior to award.
(c) Priority-listed offerors shall also be informed that if they do not submit a notice of withdrawal or another best and final offer, their immediate previous offer will be construed as their best and final offer.
(d) After best and final offers are received, final evaluations will be conducted for an award pursuant to section 3-122-57.

[Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §103D-202) (Imp: HRS §103D-303)

§3-122-55 REPEALED. [R Mar 21 2008]
§3-122-56 REPEALED. [R Mar 21 2008]

§3-122-57 Award of contract.

(a) The award shall be issued in writing to the responsible offeror whose proposal is determined in writing to provide the best value to the State taking into consideration price and the evaluation criteria in the request for proposals and posted pursuant to section 103D-701, HRS, for five working days. Other criteria may not be used in the evaluation. The contract file shall include the basis for selecting the successful offeror.
(b) Cost or pricing data requirements shall be as specified in section 103D-312, HRS, and subchapter 15.
(c) The determinations required by this section shall be final and conclusive unless clearly erroneous, arbitrary, capricious, or contrary to law.

[Eff 12/15/95; am and comp 11/17/97; am and comp Mar 21 2008] (Auth: HRS §§103D-202, 103D-318) (Imp: HRS §§103D-303, 103D-318)

§3-122-58 Public inspection.

(a) The existing contract file, except those portions the offeror designates in writing as trade secrets or other proprietary data to be confidential subject to subsection (b), shall be available for public inspection upon posting of award pursuant to section 103D-701, HRS. The contract file shall include but not be limited to the following:

  • (1) The register of proposals prepared pursuant to section 3-122-51;
  • (2) A listing of all vendors to whom copies of the request for proposals were distributed;
  • (3) Name of successful offeror and dollar amount of offer;
  • (4) The basis on which the award was made;
  • (5) A copy of the request for proposals;
  • (6) A copy of the successful offeror’s proposal;
  • (7) A copy of all unsuccessful offerors’ proposals; and
  • (8) A copy of the executed contract resulting from the request for proposals.

(b) If a person requests to inspect the portions of an offeror’s proposal designated as confidential pursuant to section 3-122-46(9), the inspection shall be subject to written determination by the respective attorney general or corporation counsel for confidentiality in accordance with chapter 92F, HRS.
(c) If the attorney general or corporation counsel determines in writing that the material designated as confidential is subject to disclosure, the material shall be open to public inspection unless the offeror appeals pursuant to section 92F-42(1), HRS.
(d) When a purchasing agency denies a person access to a state procurement record, the person may appeal the denial to the office of information practices in accordance with section 92F-15.5, HRS.

[Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §103D-202) (Imp: HRS §§92F-42, 103D-303)

§3-122-59 Waiver to competitive sealed proposal process.

(a) If for a given request for proposals, there is only one responsible offeror submitting an acceptable proposal:

  • (1) An award may be made to the single offeror, provided the procurement officer determines in writing that the price submitted is fair and reasonable and that either:
    • (A) Other prospective offerors had reasonable opportunity to respond; or
    • (B) There is not adequate time for resolicitation;
  • (2) The offer may be rejected pursuant to subchapter 11 and new requests for proposals may be solicited if the conditions in paragraph (1) are not met;
  • (3) The proposed procurement may be cancelled;
  • (4) An alternative procurement method may be conducted to include, but not be limited to, direct negotiations with the sole offeror first, and then with any contractor or vendor should negotiations with the sole offeror fail, provided the procurement officer determines in writing that the need for the good, service, or construction continues, but that the price of the one offer is not fair and reasonable and that either:
    • (A) There is no time for resolicitation, or
    • (B) Resolicitation would likely be futile.

(b) If for a given request for proposals, there are no proposals received or there are no responsible offerors submitting acceptable proposals, the procurement officer may determine that it is neither practical nor advantageous to issue a new solicitation.

  • (1) When making this determination, consideration shall be given to:
    • (A) Time constraints;
    • (B) Competition in the Marketplace; and
    • (C) Whether the additional potential cost of preparing, soliciting, and evaluating competitive sealed proposals is expected to exceed the benefits normally associated with the solicitations;
  • (2) In the event of this determination, an alternative procurement method may be selected, to include but not be limited to, direct negotiations.

(c) Documentation of the alternative procurement method selected shall:

  • (1) State the reasons for selection and length of contract period;
  • (2) Receive prior approval of the chief procurement officer or a designee; and
  • (3) Be made a part of the contract file upon award by the procurement officer.

[Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §103D-202) (Imp: HRS §103D-303)

§3-122-60 Debriefing.

(a) The purpose of a debriefing is to inform the non-selected offerors of the basis for the source selection decision and contract award.
(b) A written request for a debriefing shall be made within three working days after the posting of the award of the contract.
(c) Debriefing shall be held by the procurement officer or designee, to the maximum extent practicable, within seven working days; provided the procurement officer or designee may determine whether or not to conduct individual or combined debriefings.
(d) A protest by the requestor submitted pursuant to section 103D-701, HRS, following a debriefing shall be filed within five working days, as specified in section 103D-303(h), HRS.

[Eff and comp MAR 21 2008] (Auth: HRS §§103D-202, 103D-303) (Imp: HRS §103D-303)

SUBCHAPTER 6.5
MULTI-STEP COMPETITIVE SEALED BIDDING

 

§3-122-61 (Reserved).

§3-122-61.05 Purpose.

The purpose of this subchapter is to provide rules for the use of the multi-step competitive sealed bidding method of source selection when it is determined that award to the lowest responsive, responsible bidder is desired, but it is not practical to initially prepare a definitive purchase description which will be suitable to permit an award based on price, and it is desirable, prior to soliciting priced bids, to:

  • (1) Invite and evaluate technical proposals to determine their acceptability to fulfill the purpose of the procurement; and
  • (2) Conduct discussions pursuant to section 3-122-53.

[Eff and comp MAR 21 2008] (Auth: HRS §103D-202) (lmp: HRS §103D-302)

§3-122-61.06 Preparing a multi-step invitation for bids.

(a) The multi-step sealed bidding process uses an invitation for bids consisting of two phases, and combines the receipt of technical proposals of the competitive sealed proposals process and the low priced bid award of the competitive sealed bidding process.

  • (1) Phase one is composed of one or more steps in which bidders submit unpriced technical proposals to be evaluated based on criteria set forth in the invitation for bids; and
  • (2) Phase two is to consider the priced bids from bidders whose unpriced technical proposals are determined to be acceptable in phase one, and award is made to the lowest responsive, responsible bidder.

(b) The two-phase invitation for bids shall conform to the requirements of section 3-122-21, including the following:

  • (1) That unpriced technical proposals are requested;
  • (2) Whether priced bids are to be submitted at the same time as unpriced technical proposals, and if they are, that the priced bids shall be submitted in a separately sealed envelope;
  • (3) That the priced bids will be considered only in phase two and only from those bidders whose unpriced technical proposals are found acceptable in phase one;
  • (4) That the State, to the extent the procurement officer finds necessary, may conduct discussions pursuant to section 3-122-53; and
  • (5) That the good, service, or construction being procured shall be furnished generally in accordance with the bidder’s unpriced technical proposal as found to be finally acceptable and shall meet the requirements of the invitation for bids.

[ Eff and comp MAR 21 2008] (Auth: HRS §§103D-202, 103D-302) (Imp: HRS §103D-302)

§3-122-61.07 Phase one.

Phase one shall be conducted in accordance with subchapter 6, with the exception of the rules relating to the priced offer and the following:

  • (1) The procurement officer may initiate phase two of the procedure if there is only one acceptable unpriced technical proposal. If no proposals are submitted, the procurement officer may make a determination pursuant to section 3-122-59(b);
  • (2) The procurement officer shall notify the bidder in writing when oral or written discussions are not conducted, and upon written request from the bidder, the bidder shall be given the opportunity to review the evaluation of its offer and meet with the evaluator(s) to discuss the evaluation at least five working days prior to the deadline for receipt and opening of the priced offers.

[Eff and comp MAR 21 2008] (Auth: HRS§§103D-202, 103D-302) (Imp: HRS §103D-302)

§3-122-61.08 Phase two.

(a) Upon completion of phase one, the procurement officer shall:

  • (1) If priced bids were required to be submitted in phase one, open the priced bids from bidders whose unpriced technical proposals were found to be acceptable;
  • (2) If technical discussions have been held, or if material modifications to the procurement item, project, or procedure have been made after the original submission of priced bids, return the sealed priced bids to bidders and provide them reasonable opportunity to submit a modified priced bid; or
  • (3) If priced bids have not been submitted, invite each acceptable bidder to submit a priced bid.

(b) Phase two shall be conducted as any other competitive sealed bid procurement except as specifically set forth in this section and no public notice need be given to phase two, submission of priced bids, because the notice was previously given.

[Eff and comp MAR 21 2008] (Auth: HRS §§103D-202, 103D-302) (Imp: HRS §103D-302)

SUBCHAPTER 7
PROCUREMENT OF PROFESSIONAL SERVICES

 

§3-122-62 REPEALED. [R 11/17/97]

§3-122-63 General provisions.

(a) Professional services shall be in accordance with section 103D-304, HRS.
(b) After the contract is awarded, the following information shall be open to public inspection, including but not limited to the contract, the list of qualified persons, the screening committee’s criteria for selection established under section 103D-304(d), HRS, and the statements of qualifications and related information submitted by the qualified persons, except those portions for which a written request for confidentiality has been made subject to section 3-122-58.
(c) Amendment to a professional services contract shall require prior approval of the head of the purchasing agency when the increase is at least $25,000 and ten per cent or more of the initial contract price.

[Eff 12/15/95; comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §103D-202) (Imp: HRS §103D-304)

§3-122-64 REPEALED. [R Mar 21 2008]
§3-122-65 REPEALED. [R Mar 21 2008]

§3-122-66 Waiver to requirement for procurement of professional services.

(a) If the names of less than three qualified persons are submitted pursuant to section 103D-304(g), HRS, the head of the purchasing agency may determine that:

  • (1) Negotiations under section 103D-304(h), HRS, may be conducted provided that:
    • (A) The prices submitted are fair and reasonable; and
    • (B) Other prospective offerors had reasonable opportunity to respond; or there is not adequate time to resolicit through public notice statements of qualifications and expressions of interest;
  • (2) The offers may be rejected pursuant to subchapter 11 and new statements of qualifications and expressions of interest may be solicited if the conditions in paragraph (1) (A) and (B) are not met;
  • (3) The proposed procurement may be cancelled; or
  • (4) An alternative procurement method may be conducted to include but not be limited to direct negotiations with other potential offerors if the head of the purchasing agency determines in writing that the need for the service continues, but that either the price of the offers received are not fair and reasonable or that the qualifications of the offerors are not adequate to meet the procurement needs, and there is no time for resolicitation, or resolicitation would likely be futile.

(b) If no names are submitted pursuant to section 103D-304(g), HRS, the head of the purchasing agency may determine that for a given request it is neither practicable nor advantageous for the State to procure a service by again soliciting statements of qualifications and expressions of interest.

  • (1) When making this determination, consideration shall be given to the competition in the Marketplace and whether the additional potential cost of preparing, soliciting and evaluating responses is expected to exceed the benefits normally associated with the solicitations; and
  • (2) In the event of this determination, a more cost effective procurement method may be selected, to include but not be limited to direct negotiations.

(c) Documentation of the alternative procurement method selected shall:

  • (1) State the reasons for selection and length of contract period;
  • (2) Receive written approval of the chief procurement officer or a designee; and
  • (3) Be made a part of the contract file upon award by the procurement officer.

[Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §103D-202) (Imp: HRS §103D-304)

§3-122-67 Small purchases of professional services.

Small purchases of professional services, except small purchase of design professional services furnished by licensees under chapter 464, HRS, may be conducted pursuant to section 103D-304(j), HRS, or subchapter 8.

[Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§103D-202, 103D-305) (Imp: HRS §§103D-304, 103D-305)

§3-122-68 REPEALED. [R Mar 21 2008]

§3-122-69 Review and selection committees.

(a) Persons who serve on the review or selection committee who are not employees of a governmental body shall:

  • (1) Have sufficient knowledge to serve on the review or selection committee;
  • (2) Serve without compensation, unless justified and determined in writing by the head of the purchasing agency that compensation is justified; and
  • (3) Sign an affidavit:
    • (A) Attesting to having no personal, business, or any other relationship that will influence their decision in the review or selection process;
    • (B) Agreeing not to disclose any information on the review or selection process; and
    • (C) Agreeing that their names will become public information upon award of the contract.

(b) Deputy directors or equivalent appointed positions shall not serve on review or selection committees.

[Eff and comp MAR 21 2008] (Auth: HRS §103D-202) (Imp: HRS §103D-304)

§3-122-70 Debriefing.

(a) The purpose of a debriefing is to inform providers of professional services of the basis for non-selection.

  • (1) A written request for a debriefing shall be made within three working days after the posting of the award of the contract;
  • (2) Debriefing shall be held by the procurement officer or designee, to the maximum extent practicable, within seven working days; provided the procurement officer or designee may determine whether or not to conduct individual or combined debriefings.

(b) A protest by the requestor submitted pursuant to section 103D-701, HRS, following a debriefing shall be filed within five working days, as specified in section 103D-304(k), HRS.

[Eff and comp MAR 21 2008 ] (Auth: HRS §103D-202) (Imp: HRS §103D-304)

§§3-122-71 to 3-122 72 (Reserved) .

SUBCHAPTER 8
SMALL PURCHASES

 

§3-122-73 Definitions.

As used in this subchapter:
“Adequate and reasonable competition” means the amount of vendors solicited based upon the number of vendors available and the value or price of the goods, service, or construction. Because of variations in circumstances, it is not possible to define what is adequate and reasonable competition for every small procurement. However, in general, the more vendors there are that can meet the needs of the agency, or the higher the price of the goods, services, or construction, then a greater number of vendors should be solicited.

[Eff 12/15/95; comp 11/17/97; comp MAR 21 2008 ] (Auth: HRS §§103D-202, 103D-305) (Imp: HRS §§103D-104, 103D-305)

§3-122-74 General provisions.

(a) Small purchases shall be subject to section 103D-305, HRS, and do not require public notice or public bid openings.
(b) Small purchase contracts for professional services may be procured pursuant to this subchapter or section 103D-304(j), HRS; provided that small purchase of design professional services furnished by licensees under chapter 464, HRS, shall be procured in accordance with section 103D-304, HRS.
(c) Unless otherwise exempt, purchasing agencies delegated small purchase authority shall comply with state procurement office price or vendor lists, price schedules, or other chief procurement officer lists and schedules, where applicable.

(d) Purchases shall not be parceled by dividing the purchase of same, like, or related items of goods, services, or construction into several purchases of smaller quantities, so as to evade the statutory competitive bidding requirements. For additional details, refer to chapter 3-131.
(e) Preferences pursuant to part X, chapter 103D, HRS, shall not apply to small purchases.

[Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§103D-202, 103D-305) (Imp: HRS §103D-305)

§3-122-75 Goods, services, and construction.

(a) Based on specifications and with adequate and reasonable competition:

  • (1) No less than three quotes shall be solicited for expenditures of $5,000 to less than $15,000;
  • (2) No less than three written quotes shall be obtained for expenditures of $15,000 to less than $25,000; and
  • (3) For the period up to and including June 30, 2007, no less than three written quotes shall be obtained for expenditures of $25,000 to less than $50,000.

(b) Only vendors that supply the goods, services, or construction required, shall be solicited and considered to meet the minimum quotation requirements.
(c) Considering the criteria, including but not limited to quality, warranty, and delivery; award shall be made to the lowest responsive, responsible offeror.
(d) When award to the lowest responsive, responsible offeror is not practicable, award shall be made to the offeror whose quotation provides the best value to the State. Written determination for the selection shall be placed in the procurement file.
(e) When the minimum quotations are not obtained, for reasons such as insufficient sources, written justification shall be placed in the procurement file.
(f) Expenditures with an estimated total cost that are less than $5,000 shall be by procedures established by each chief procurement officer.
(g) Chief procurement officers may be more restrictive in their jurisdiction’s small purchase procedures, e.g., requiring written quotes at lower dollar limits.

[Eff 12/15/95; am and comp 11/17/97; am and comp MAR 212008 ] (Auth: HRS §§103D-202, 103D-305) (Imp: HRS §103D-305)

§3-122-76 REPEALED. [R Mar 21 2008]

§3-122-77 Procurement file and disclosure of information.

All quotations received shall be recorded and placed in a procurement file. Pursuant to section 3-122-9.01, a purchasing agency is not required to disclose quotation information received from vendors until the purchase order is issued or the purchasing card order is placed.

[Eff 12 15/95; am and comp 11/17 /97; am and comp MAR 21 2008] (Auth: HRS §§103D-202, 103D-305) (Imp: HRS §103D-305)

§3-122-78 Electronic procurement.

(a) Effective July 1, 2007, small purchase procurements of $25,000 to less than $50,000 shall be made through an electronic procurement system.
(b) This section shall not apply to procurements subject to sections 103D-306 and 103D-307, HRS.
(c) The electronic procurement system shall include at a minimum, the functionality of notifying registered vendors of the procurement opportunity and the electronic receipt of offers.
(d) If no responsive, responsible quotes, or reasonable prices are received through an electronic procurement solicitation, the head of the purchasing agency or designee may determine that it is neither practicable, nor advantageous to the State to issue a new solicitation.

  • (1) When making this determination, consideration shall be given to whether the specifications can be revised, time constraints, and competition in the Marketplace;
  • (2) In the event of this determination, an alternative procurement method may be selected to include, but not limited to, direct negotiations; and
  • (3) Documentation of the alternative procurement determination shall be made part of the procurement file.

(e) Procurements of goods, services, or construction of $25,000 to less than $50,000, which cannot be purchased through an electronic procurement system may be conducted pursuant to sections 103D-302, 103D-303, and 103D-304, HRS.
(f) The chief procurement officer may determine what goods, services, or construction, less than $25,000 will be made through an electronic procurement system.

[Eff and comp MAR 21 2008] (Auth: HRS §§103D-202, 103D-305) (Imp: HRS §103D-305)

§§3-122-79 to 3-122-80 (Reserved) .

SUBCHAPTER 9 SOLE SOURCE PROCUREMENT

 

§3-122-81 General provisions.

(a) Sole source procurement shall be in accordance with section 103D-306, HRS, with the exception of sole source procurement subject to section 103D-305, HRS.
(b) A sole source purchase may be made when only one source is available for a purchase, unless the expenditure is expressly exempt from public bidding by law or rule.
(c) Justification for a sole source purchase must establish that the good, service, or construction has a unique feature, characteristic, or capability essential to the agency to accomplish its work and is available from only one supplier or source. Examples are:

  • (1) Proprietary item;
  • (2) Compatibility to existing equipment; or
  • (3) Public utility repair or construction that can only be provided by the utility company.

(d) The contract period for a sole source procurement shall not exceed one year, unless approval is granted for a multi-term contract pursuant to section 3-122-149.
(e) Approval for sole source procurement may be granted by the chief procurement officer when there is a requirement for a good or service in limited quantity for test or evaluation purpose.
(f) The following are not justifications for sole source procurements:

  • (1) An item is referred to by an exact brand, but there are other brands that qualify as “equals”;
  • (2) An item is unique, but is available from more than one supplier, is called a ”restrictive” purchase subject to bidding;
  • (3) The fact that a person or organization is or has been furnishing services to a purchasing agency does not, by itself, render the person or organization the only source for the type of service required;
  • (4) The potential loss of funds at the end of a fiscal year.

(g) The procurement officer should conduct negotiations with the sole source vendor to determine the factors as cost, quality, terms, and delivery.
(h) Cost or pricing data requirements shall be as specified in section 103D-312, HRS, and subchapter 15.
(i) A purchase order stall be issued or a certification that funds are available for the amount of the purchase shall be obtained for a sole source purchase, pursuant to section 103D-309, HRS, and subchapter 12.
(j) Pursuant to section 103D-306(c), HRS, the procurement policy board shall maintain a list, entitled “Procurements Approved for Sole Source” that may be procured without obtaining a sole source approval, pursuant to section 3-122-82. The chief procurement officer may request reports from the heads of purchasing agencies on sole source procurements.

The list of sole source procurements shall be reviewed by the procurement policy board biennially and issued by procurement directive. Purchasing agencies shall cite on the purchase order or on the contract the sole source authority as “Approved for Sole Source Procurement pursuant to Section 3-122-81, (cite sole source number from attached list), Hawaii Administrative Rules”.

[Eff 12/15/95; am and comp 11/17/97; am 7/6/99; am and comp MAR 21 2008 ] (Auth: HRS §§103D-202, 103D-306, 103D-312) (Imp: HRS §§103D-306, 103D-309, 103D-312)

§3-122-82 Sole source approvals and amendments.

(a) Forms required to implement the provisions for sole source approval will be distributed by the chief procurement officer.
(b) To obtain sole source approval from the chief procurement officer, the following procedures shall be followed:

  • (1) Complete and submit a “Request For Sole Source” to the chief procurement officer. Heads of purchasing agencies shall certify to the best of their knowledge that the information provided is true and correct; and
  • (2) Complete and submit a ”Notice of Sole Source” which shall serve as a written determination to issue a sole source contract.

(c) The chief procurement officer shall post a copy of the ”Notice of Sole Source” in a designated area accessible to the public, at least seven days prior to any approval action.

  • (1) Any inquiries shall be directed to the designated contact person of the purchasing agency.
  • (2) Any objections to the request for sole source shall be submitted in writing and received by the chief procurement officer within seven days from the date the notice was posted. The chief procurement officer shall place the sole source request on hold, review the objection, and provide a written determination to the person submitting the objection. All documents relating to the objection, including written summary of the disposition of the objection, shall be kept with the sole source file.

(d) Amendment to a contract that would change the original scope of the contract, or increase the original contract price by ten per cent or more, may only be made with the approval of the chief procurement officer. The annual renewal of a sole source contract for services shall not be submitted as an amendment, but as a new request. To amend a sole source contract, the purchasing agency shall complete and submit a “Notice of Amendment to Sole Source Contract” to the chief procurement officer. The posting and approval procedures provided in subsection (c) shall be followed.
(e) The determinations required by this section shall be final and conclusive unless they are clearly erroneous, arbitrary, capricious, or contrary to law.

[Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008 ] (Auth: HRS §§103D-202, 103D-306, 103D-318) (Imp: HRS §§103D-306, 103D-318)

§3-122-83 REPEALED. [R Mar 21 2008]
§3-122-84 REPEALED. [R Mar 21 2008]

§§3-122-85 to 3-122-87 (Reserved).

SUBCHAPTER 10
EMERGENCY PROCUREMENT

 

§3-122-88 General provisions.

(a) Emergency procurement shall be in accordance with section 103D- 307, HRS. Section 103D-305, HRS, small purchases are not subject to emergency procurement procedures.
(b) Emergency procurement as defined in section 103D-307, HRS, may be utilized to purchase only the immediate needs for the emergency and not subsequent non-emergency requirements.
(c) The potential loss of funds at the end of a fiscal year is not an emergency.

[Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §103D-202) (Imp: HRS §103D-307)

§3-122-89 REPEALED. [R MAR 21 2008]

§3-122-90 Procedures.

(a) Prior to the procurement or if time does not permit, as soon as practicable thereafter, the head of the purchasing agency responsible for the emergency procurement shall prepare a written determination requesting the approval from the chief procurement officer, indicating the following:

  • (1) Nature of the emergency;
  • (2) Name of contractor;
  • (3) Amount of expenditure;
  • (4) Listing of the good, service, or construction; and
  • (5) Reason for selection of the contractor.

(b) Competition as is practicable shall be obtained to assure that the required good, service, or construction item is procured in time to meet the emergency.
(c) As soon as is practicable, a confirming purchase order must be prepared. Include in detail any agreements, including price, made orally with the contractor.
(d) The determinations required by this section shall be final and conclusive unless they are clearly erroneous, arbitrary, capricious, or contrary to law.

[Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§103D-202, 103D-307, 103D-318) (Imp: HRS §§103D-307, 103D-318)

§3-122-91 REPEALED. [R Mar 21 2008]
§§3-122-92 to 3-122-94 (Reserved).

References   [ + ]

1. Historical Note: This chapter 122, effective, subtitle 11 of title 3, Hawaii Administrative Rules: 1. Replaces interim rules effective 7/25/02 (file no. 2470) which amended sections 3-122-1, 3-122-4, 3-122-6, 3-122 9.01, 3-122-9.02, 3-122-13, 3-122-19, 3-122-20, 3-122-21, 3-122-22, 3-122-23, 3-122-24, 3-122-31, 3-122-33, 3-122-35, 3-122-42, 3-122-45, 3-122-46, 3-122-48, 3-122-50, 3-122-51, 3-122-52, 3-122-53, 3-122-55, 3-122-57, 3-122-58, 3-122-59, 3-122-63, 3-122-64, 3-122-66, 3-122-67, 3-122-74, 3-122-75, 3-122-76, 3-122-77, 3-122-81, 3-122-82, 3-122-88; and repealed sections 3-122-5, 3-122-65, 3-122-68, 3-122-83, 3-122-84, 3-122-89, 3-122-91.
2. Replaces interim rule sections effective 7/03/03 (file no. 2543) which added new sections 3-122-60, 3-122-69, 3-122-70; and amended sections 3-122-9.01, 3-122-21, 3-122-22, 3-122-23, 3-122-24, 3-122-26, 3-122-46, 3-122-63, 3 122-67, 3-122-74, and 3-122-75; and repealed section 3-122-76.
3. Replaces interim rules effective 11/15/03(file no. 2562) which added new sections 3-122-16.01, 3-122-16.02, 3-122-16.03, 3-122-16.04, 3-122-16.05, 3-122-16.06, 3-122-16.07, 3-122-16.08, 3-122-16.09, 3-122-16.30, 3-122-16.31, 3-122-45.01, 3-122-60, 3-122-61.05, 3-122-61.06, 3-122-61.07, 3-122-61.08, 3-122-69, and 3-122-70; amended sections 3-122-16, 3-122-21, 3-122-30, 3-122-31, 3-122-33, 3-122-43, 3-122-46, 3-122-52, 3-122-54, 3-122-57, 3-122-90; and repealed sections 3-122-18, 3-122-19, 3-122-20, 3-122-22, 3-122-23, 3-122-24, 3-122-25, 3-122-26, 3-122-27, 3-122-28, 3-122-29, 3-122-32, 3-122-42, 3-122-48, 3-122-49, 3-122-50, 3-122-55, 3-122-56, and 3-122-64.
4. Replaces interim rule effective 4/18/05 (file no. 2635) which compiled Chapter 122.
5. Replaces interim rule effective 10/9/06(file no. 2724) which added a new section 3-122-78; amended sections 3-122-9, 3-122-12, 3-122-13, 3-122-16.02, 3-122-16.03, 3-122-16.07, 3-122-21, 3-122-75, and 3-122-77.
6. Replaces interim rule effective 9/04/07 (file no. 2774) which amended section 3-122-13.