2021 -- S 0549

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LC001764

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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: Senators Cano, McCaffrey, Goodwin, Euer, Kallman, Acosta, Seveney,
and Mack

     Date Introduced: March 04, 2021

     Referred To: Senate Labor

     It is enacted by the General Assembly as follows:

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

sealed bidding 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 can be prepared that permit award on 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 award shall 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 set forth 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 that each bidder 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

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

nor more than twenty-eight (28) days before the date set for 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. Each bid, together with the name of the bidder, shall be recorded and an abstract

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 agent shall issue a written determination as to whether 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 at least seven (7) business days prior to the award of 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 that were 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 January 1, 2012 for all contracts greater than seven hundred fifty thousand

dollars ($750,000); on January 1, 2013 for all contracts greater than five 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-owned business enterprise submits a bid 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 and responsible bidder is a preferred vendor, 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, “preferred vendor” means a person, 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 General Laws 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

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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 deemed to be certified by

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

submit evidence of federal certification of good standing.

     (c) Waiver.

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

owned business enterprises to each prospective 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 department of administration shall make

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

     (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 remedial action plan to remedy such failure.

     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

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.

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