2021 -- H 5746

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LC002069

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2021

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A N   A C T

RELATING TO PUBLIC PROPERTY AND WORKS -- STATE PURCHASES

     

     Introduced By: Representative Joshua J. Giraldo

     Date Introduced: February 24, 2021

     Referred To: House State Government & Elections

     It is enacted by the General Assembly as follows:

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     SECTION 1. Section 37-2-18 of the General Laws in Chapter 37-2 entitled "State

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Purchases" is hereby amended to read as follows:

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     37-2-18. Competitive sealed bidding.

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     (a) Contracts exceeding the amount provided by § 37-2-22 shall be awarded by competitive

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sealed bidding unless it is determined in writing that this method is not practicable or that the best

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value for the state may be obtained by using an electronic reverse auction as set forth in § 37-2-

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18.1, and except as provided in § 37-2-18.3. Factors to be considered in determining whether

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competitive sealed bidding is practicable shall include whether:

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     (1) Specifications can be prepared that permit award on the basis of either the lowest bid

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price or the lowest evaluated bid price; and

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     (2) The available sources, the time and place of performance, and other relevant

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circumstances as are appropriate for the use of competitive sealed bidding.

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     (b) The invitation for bids shall state whether the award shall be made on the basis of the

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lowest bid price or the lowest evaluated or responsive bid price. If the latter basis is used, the

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objective measurable criteria to be utilized shall be set forth in the invitation for bids, if available.

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All documents submitted in response to the bid proposal are public pursuant to chapter 38-2 upon

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opening of the bids. The invitation for bids shall state that each bidder must submit a copy of their

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bid proposal to be available for public inspection upon the opening of the bids. The burden to

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identify and withhold from the public copy that is released at the bid opening any trade secrets,

 

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commercial or financial information, or other information the bidder deems not subject to public

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disclosure pursuant to chapter 38-2, the Access to Public Records Act, shall rest with the bidder

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submitting the bid proposal.

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     (c) Unless the invitations for bid are accessible under the provisions as provided in § 37-2-

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17.1, public notice of the invitation for bids shall be given a sufficient time prior to the date set

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forth therein for the opening of bids. Public notice may include publication in a newspaper of

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general circulation in the state as determined by the purchasing agent not less than seven (7) days

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nor more than twenty-eight (28) days before the date set for the opening of the bids. The purchasing

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agent may make a written determination that the twenty-eight (28) day limitation needs to be

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waived. The written determination shall state the reason why the twenty-eight (28) day limitation

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is being waived and shall state the number of days, giving a minimum and maximum, before the

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date set for the opening of bids when public notice is to be given.

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     (d) Bids shall be opened and read aloud publicly at the time and place designated in the

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invitation for bids. Each bid, together with the name of the bidder, shall be recorded and an abstract

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made available for public inspection.

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     (e) The chief purchasing officer shall adopt and file regulations governing the bidding of

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highway and bridge construction projects in the state not later than December 31, 2011.

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     (f) Immediately subsequent to the opening of the bids, the copies of bid documents

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submitted pursuant to subsection 37-2-18(b) shall be made available for inspection by the public.

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Any objection to any bid on the grounds that it is nonresponsive to the invitation for bids must be

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filed with the purchasing agent within five (5) business days of the opening of the bids. The

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purchasing agent shall issue a written determination as to whether the subject bid is nonresponsive

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addressing each assertion in the objection and shall provide a copy of the determination to the

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objector and all those who submitted bids at least seven (7) business days prior to the award of the

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contract. If a bid is nonresponsive to the requirements in the invitation to bid, the bid is invalid and

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the purchasing agent shall reject the bid. The purchasing agent shall have no discretion to waive

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any requirements in the invitation to bid which are identified as mandatory. Nothing in this section

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shall be construed to interfere with or invalidate the results of the due diligence conducted by the

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division of purchasing to determine whether bids are responsive and responsible.

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     (g) Subsequent to the awarding of the bid, all documents pertinent to the awarding of the

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bid that were not made public pursuant to subsection 37-2-18(e) shall be made available and open

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to public inspection, pursuant to chapter 38-2, the Access to Public Records Act, and retained in

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the bid file. The copy of the bid proposal provided pursuant to subsection 37-2-18(b) shall be

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retained until the bid is awarded.

 

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     (h) The contract shall be awarded with reasonable promptness by written notice to the

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responsive and responsible bidder whose bid is either the lowest bid price, lowest evaluated, or

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responsive bid price.

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     (i) Correction or withdrawal of bids may be allowed only to the extent permitted by

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regulations issued by the chief purchasing officer.

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     (j) As of January 1, 2011, this section shall apply to contracts greater than one million

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dollars ($1,000,000); on January 1, 2012 for all contracts greater than seven hundred fifty thousand

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dollars ($750,000); on January 1, 2013 for all contracts greater than five hundred thousand dollars

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($500,000); and on January 1, 2014 for all contracts awarded pursuant to this section.

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     SECTION 2. Chapter 37-2 of the General Laws entitled "State Purchases" is hereby

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amended by adding thereto the following section:

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     37-2-18.3. Local, minority and women-owned business enterprises.

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     (a) Where a reliable and responsible bidder certified as a minority-owned business

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enterprise or women-owned business enterprise submits a bid of one million four hundred thousand

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dollars ($1,400,000) or less, the bid of the minority or women-owned business enterprise shall be

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deemed the lowest bid unless it exceeds the bid of the lowest bidder by more than ten percent

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(10%).

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     (b) Where a reliable and responsible bidder is a preferred vendor, as defined in subsection

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(c) of this section, submits a bid, the bid of the preferred vendor shall be deemed the lowest bid

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unless it exceeds the bid of the lowest bidder by more than five percent (5%).

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     (c) For the purposes of this section, “preferred vendor” means a person, firm, or corporation

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which is granted preference priority according to the following:

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     (1) Produces or manufactures the product within the state;

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     (2) Has an assembly plant or distribution facility for the product within the state; or

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     (3) Is organized for business under the applicable laws of the state as a corporation,

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partnership, or professional association and has maintained at least one retail outlet or services

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center for the product or service within the state.

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     SECTION 3. Section 37-14.1-6 of the General Laws in Chapter 37-14.1 entitled "Minority

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Business Enterprise" is hereby amended to read as follows:

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     37-14.1-6. Minority business enterprise participation.

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     (a) Minority business enterprises shall be included in all procurements and construction

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projects under this chapter and shall be awarded a minimum of ten percent (10%) of the dollar

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value of the entire procurement or project. The director of the department of administration is

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further authorized to establish by rules and regulation the certification process and formulas for

 

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giving minority business enterprises a preference in contract and subcontract awards.

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     (b) Any minority business enterprise currently certified by the U.S. Small Business

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Administration as an 8(a) firm governed by 13 C.F.R. part 124 shall be deemed to be certified by

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the department of administration as a minority business enterprise and shall only be required to

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submit evidence of federal certification of good standing.

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     (c) Waiver.

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     (1) The department of administration shall provide a list of certified minority and women-

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owned business enterprises to each prospective contractor and no waiver for this chapter shall be

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granted until after each prospective contractor receives assistance from the department of

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administration with compliance of this chapter.

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     (2) Upon issuance of a waiver of compliance, the department of administration shall make

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publicly available records of all waivers of compliance. Such records shall include:

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     (i) Information identifying the contract, including the value of the contract;

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     (ii) Information identifying the contracting agency;

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     (iii) The name of the contractor receiving the waiver;

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     (iv) The date of the waiver; and

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     (v) The specific contract provisions to which the waiver applies.

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     (d) Each contracting agency that substantially fails to make a good faith effort to achieve

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the maximum feasible participation of minority and women-owned business enterprises in such

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agency’s contracting shall be required to submit to the director of the department of administration

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a remedial action plan to remedy such failure.

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     SECTION 4. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO PUBLIC PROPERTY AND WORKS -- STATE PURCHASES

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     This act would provide an exception to the requirements of competitive sealed bidding for

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local, minority and woman-owned business enterprises. This act would also provide a waiver of

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compliance to contractors requiring minority-owned businesses to be included in all procurements

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and construction projects.

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     This act would take effect upon passage.

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