AN ACT RELATING TO PUBLIC PROPERTY AND WORKS -- MINORITY BUSINESS ENTERPRISES
Provides an exception to competitive bidding for local, minority and woman-owned businesses. Provides a waiver of compliance to contractors for the inclusion of minority-owned businesses in all procurements and construction projects.
SECTION 1. Section 37-2-18 of the General Laws in Chapter 37-2 entitled "State Purchases"is hereby amended to read as follows:
37-2-18. Competitive sealed bidding.
(a)Contractsexceeding the amount provided by§ 37-2-22 shall be awardedbycompetitive sealedbidding unless it is determined in writing that this method is not practicable or that the best value for the state may be obtained by using an electronic reverse auction as set forth in § 37-2- 18.1, and except as provided in § 37-2-18.3. Factors to be considered in determining whether competitive sealed bidding is practicable shall include whether:
(1) Specifications canbe prepared that permit awardon the basis of either the lowest bid price or the lowest evaluated bid price; and
(2) The available sources, the time and place of performance, and other relevant circumstances as are appropriate for the use of competitive sealed bidding.
(b) The invitation for bids shall state whether the awardshall be made on the basis of the lowest bid price or the lowest evaluated or responsive bid price. If the latter basis is used, the objective measurable criteria to be utilized shall be setforth in the invitation for bids, if available. All documents submitted in response to the bid proposal are public pursuant to chapter 38-2 upon opening of the bids. The invitation for bids shall state thateachbidder must submit a copy of their bid proposal to be available for public inspection upon the opening of the bids. The burden to identify and withhold from the public copy that is released at the bid opening any trade secrets, commercial or financial information, or other information the bidder deems not subject to public disclosure pursuant to chapter 38-2, the Access to Public Records Act, shall rest with the bidder submitting the bid proposal.
(c) Unless the invitations for bid are accessible under the provisions as provided in § 37-2- 17.1, public notice of the invitation for bids shall be given a sufficient time prior to the date set forth therein for the opening of bids. Public notice may include publication in a newspaper of generalcirculation in the state as determined by the purchasing agent not less than seven(7) days nor more thantwenty-eight (28) days beforethe date setfor the opening of the bids. The purchasing agent may make a written determination that the twenty-eight (28) day limitation needs to be waived. The written determination shall state the reason why the twenty-eight (28) day limitation is being waived and shall state the number of days, giving a minimum and maximum, before the date set for the opening of bids when public notice is to be given.
(d) Bids shall be opened and read aloud publicly at the time and place designated in the invitation for bids. Eachbid, together with the name of the bidder, shall be recordedandanabstract made available for public inspection.
(e) The chief purchasing officer shall adopt and file regulations governing the bidding of highway and bridge construction projects in the state not later than December 31, 2011.
(f) Immediately subsequent to the opening of the bids, the copies of bid documents submitted pursuant to subsection 37-2-18(b) shall be made available for inspection by the public. Any objection to any bid on the grounds that it is nonresponsive to the invitation for bids must be filed with the purchasing agent within five (5) business days of the opening of the bids. The purchasing agentshall issue a written determination as towhether the subject bid is nonresponsive addressing each assertion in the objection and shall provide a copy of the determination to the objector and all those who submitted bids atleast seven(7) business days prior to the awardof the contract. If a bid is nonresponsive to the requirements in the invitation to bid, the bid is invalid and the purchasing agent shall reject the bid. The purchasing agent shall have no discretion to waive any requirements in the invitation to bid which are identified as mandatory. Nothing in this section shall be construed to interfere with or invalidate the results of the due diligence conducted by the division of purchasing to determine whether bids are responsive and responsible.
(g) Subsequent to the awarding of the bid, all documents pertinent to the awarding of the bid thatwere not made public pursuant to subsection 37-2-18(e) shall be made available and open to public inspection, pursuant to chapter 38-2, the Access to Public Records Act, and retained in the bid file. The copy of the bid proposal provided pursuant to subsection 37-2-18(b) shall be retained until the bid is awarded.
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(h) The contract shall be awarded with reasonable promptness by written notice to the responsive and responsible bidder whose bid is either the lowest bid price, lowest evaluated, or responsive bid price.
(i) Correction or withdrawal of bids may be allowed only to the extent permitted by regulations issued by the chief purchasing officer.
(j) As of January 1, 2011, this section shall apply to contracts greater than one million dollars ($1,000,000); on January1, 2012 for all contracts greater thansevenhundredfifty thousand dollars ($750,000); on January1, 2013 for all contracts greater thanfive hundred thousand dollars ($500,000); and on January 1, 2014 for all contracts awarded pursuant to this section.
SECTION 2. Chapter 37-2 of the General Laws entitled "State Purchases" is hereby amended by adding thereto the following section:
37-2-18.3. Local, minority and women-owned business enterprises.
(a) Where a reliable and responsible bidder certified as a minority-owned business enterprise or women-ownedbusiness enterprise submits abid of one million four hundred thousand dollars ($1,400,000) or less, the bid of the minority or women-owned business enterprise shall be deemed the lowest bid unless it exceeds the bid of the lowest bidder by more than ten percent (10%).
(b) Where a reliable andresponsible bidder is a preferredvendor, as defined in subsection (c) of this section, submits a bid, the bid of the preferred vendor shall be deemed the lowest bid unless it exceeds the bid of the lowest bidder by more than five percent (5%).
(c)For the purposes of this section, "preferredvendor" means aperson, firm, or corporation which is granted preference priority according to the following:
(1) Produces or manufactures the product within the state;
(2) Has an assembly plant or distribution facility for the product within the state; or
(3) Is organized for business under the applicable laws of the state as a corporation, partnership, or professional association and has maintained at least one retail outlet or services center for the product or service within the state.
SECTION 3. Section 37-14.1-6 of the GeneralLaws in Chapter 37-14.1 entitled "Minority Business Enterprise" is hereby amended to read as follows:
37-14.1-6. Minority business enterprise participation.
(a) Minority business enterprises shall be included in all procurements and construction projects under this chapter and shall be awarded a minimum of ten percent (10%) of the dollar value of the entire procurement or project. The director of the department of administration is further authorized to establish by rules and regulation the certification process and formulas for
LC001764 - Page 3of 5 giving minority business enterprises a preference in contract and subcontract awards.
(b) Any minority business enterprise currently certified by the U.S. Small Business Administration as an 8(a) firm governed by 13 C.F.R. part 124 shall be deemedto be certified by the department of administration as a minority business enterprise and shall only be required to submit evidence of federalcertification of good standing.
(1) The department of administration shall provide a list of certified minority and women- owned business enterprises to eachprospective contractor and no waiver for this chapter shall be granted until after each prospective contractor receives assistance from the department of administration with compliance of this chapter.
(2) Upon issuance of a waiver of compliance, the departmentof administration shall make publicly available records of allwaivers of compliance. Such records shallinclude:
(i) Information identifying the contract, including the value of the contract;
(ii) Information identifying the contracting agency;
(iii) The name of the contractor receiving the waiver;
(iv) The date of the waiver; and
(v) The specific contract provisions to which the waiver applies.
(d) Each contracting agency that substantially fails to make a good faith effort to achieve the maximum feasible participation of minority and women-owned business enterprises in such agency's contracting shall be required to submit to the director of the department of administration a remedialaction plan to remedy such failure.
SECTION 4. This act shalltake effect upon passage.
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BY THE LEGISLATIVE COUNCIL
A N A C T
RELATING TO PUBLIC PROPERTY AND WORKS – STATE PURCHASES
This actwould provide anexception to the requirements of competitive sealed bidding for local, minority and woman-owned business enterprises. This act would also provide a waiver of compliance to contractors requiring minority-owned businesses to be included in all procurements and construction projects.
This act would take effect upon passage. ======== LC001764 ========
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