Bill Text: HI HB1872 | 2010 | Regular Session | Introduced
Bill Title: Government Procurement; Responsible Contractors
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2010-01-20 - (H) Referred to EBM, LAB, FIN, referral sheet 1 [HB1872 Detail]
Download: Hawaii-2010-HB1872-Introduced.html
|
HOUSE OF REPRESENTATIVES |
H.B. NO. |
1872 |
|
TWENTY-FIFTH LEGISLATURE, 2010 |
|
|
|
STATE OF HAWAII |
|
|
|
|
|
|
|
|
||
|
|
||
A BILL FOR AN ACT
relating to procurement.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Chapter 103, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§103‑ Public works construction; preferences. (a) A governmental body, as defined in section 103D-104, that, under this chapter or chapter 103D, enters into a public works contract having an estimated value of not less than $250,000, shall decrease the bid amount of a bidder by five per cent for each preference under paragraphs (1) to (4) for which the bidder meets the criteria specified:
(1) A documented history indicating zero incidences of non-compliance by the contractor, subcontractor, or the executive management of the contractor or subcontractor, with applicable federal, state, and local labor, wage, health, safety, and environmental protection laws;
(2) A documented history indicating zero incidences of non-compliance by the contractor, subcontractor, or the executive management of the contractor or subcontractor, with government agencies, unions, and other agencies or bodies that perform regular inspections of construction sites and relevant records;
(3) A record of zero outstanding judgments or liens against the contractor, subcontractor, or the executive management of the contractor or subcontractor; and
(4) An audited statement indicating that no project revenues derived from government tax revenues will be exported out-of-state through foreign ownership or employees of the contractor or subcontractor.
(b) Should more than one preference allowed by statute apply, the evaluated price shall be based on the application of all applicable preferences. The sum of the preferences shall be subtracted from the original contract price.
(c) The lowest total bid, taking into consideration all applicable preferences in this section and the preference awarded for participation in an apprenticeship program under Act 17, Special Session Laws of Hawaii 2009, shall be awarded the contract unless the invitation for bids provides for additional award criteria. The contract amount awarded shall be the amount of the original contract price offered, exclusive of any applied preference.
(d) At the time of submission of a competitive sealed bid or a competitive sealed proposal by a bidder, the bidder shall furnish written proof of eligibility for each claimed preference and, if awarded the contract, shall continue to certify monthly in writing that the bidder or offeror remains eligible for each claimed preference for the entire duration of the bidder's work on the project. This subsection shall be deemed to be incorporated into a public works contract.
(e) A bidder who is awarded a contract shall be subject to the following sanctions if, after commencement of work, the bidder at any time during the construction is no longer eligible for any claimed preference:
(1) Temporary or permanent cessation of work on the project, without recourse to breach of contract claims by the bidder; provided that the governmental body that entered into the contract shall be entitled to restitution for nonperformance or liquidated damages, as appropriate; or
(2) Proceedings to debar or suspend under section 103D‑702.
(f) For purposes of this section, "bidder" means an entity that submits a competitive sealed bid under section 103D-302 or submits a competitive sealed proposal under section 103D-303."
SECTION 2. The Hawaii Revised Statutes is amended by adding a new part to chapter 103D to be appropriately designated and to read as follows:
"PART . RESPONSIBLE CONSTRUCTION CONTRACTOR LAW
§103D-A Applicability. (a) This part shall apply to public works contracts under chapter 103 and to procurements for construction under this chapter, if the general contract amount is $250,000 or more, and to any subcontract of $50,000 or more in connection with any general contract. The requirements of this part shall be incorporated by reference into every invitation for bids to which this part is applicable.
(b) This part shall not apply to employees covered by a collective bargaining agreement under chapter 89 if the applicability of this part is expressly waived in the collective bargaining agreement in clear and unambiguous terms.
§103D-B Prerequisites for award of contract. (a) A contractor who submits a bid for a contract for construction shall show proof of compliance with subsection (c) to the comptroller or county counterpart for contracts under chapter 103, or to the procurement officer for contracts under this chapter, as applicable, as a prerequisite to being awarded a construction contract; provided that the requirements of this subsection shall be deemed incorporated by reference in any contract between the contractor and subcontractor.
(b) A subcontractor who subcontracts with a contractor under subsection (a), for a subcontract for construction shall show proof of compliance with subsection (c) to the comptroller or county counterpart for contracts under chapter 103 or to the procurement officer for contracts under this chapter, as a prerequisite to being awarded a subcontract; provided that the contractor shall be primarily responsible for presentation of the show of proof under this subsection; and provided further that the requirements of this subsection shall be deemed incorporated by reference in any contract between the contractor and subcontractor.
(c) As a prerequisite to the award of any contract under this chapter or chapter 103, a contractor or subcontractor, as applicable, shall:
(1) Classify all workers of the contractor or subcontractor as employees;
(2) Adhere to proper job classifications for all laborers and mechanics employed as workers by the contractor or subcontractor;
(3) Comply with the requirements of section 103-55.5 by certifying compliance with the prevailing wage and overtime requirements of section 104-2 and all other applicable federal and state laws relating to workers' compensation, unemployment compensation, payment of wages, and safety;
(4) Provide prepaid health care benefits to all employees in compliance with chapter 393;
(5) Provide reasonable paid sick leave to all employees;
(6) Provide records indicating the history of compliance of the contractor or subcontractor and the contractor or subcontractor's executive management with all applicable federal, state, and local labor, wage, health, safety, and environmental protection laws;
(7) Provide records indicating the contractor or subcontractor's record of compliance with government agencies, unions, and other agencies or bodies that perform regular inspections of construction sites and relevant records;
(8) Provide employees with a fair and neutral process for resolving work-related issues that does not force the employee to waive statutory remedies and rights;
(9) Secure and maintain appropriate licensure for the contractor and all subcontractors;
(10) Provide documentation of any past or outstanding judgments or liens against the contractor or subcontractor and the contractor or subcontractor's executive management, along with documentation of steps taken to satisfy those judgments or liens;
(11) Provide documentation of financial stability necessary for a determination under section 103D-310(b) that the contractor or subcontractor has the financial ability, resources, skills, capability, and business integrity necessary to perform the contracted work;
(12) Provide documentation of the contractor or subcontractor's ability to provide security as required under sections 103D-323 and 103D-324;
(13) Provide an audited statement of the percentage of total project revenues derived from government tax revenues that will be exported out-of-state through foreign ownership or employees of the contractor or subcontractor; and
(14) Provide references from all government agencies for which the contractor or subcontractor has previously performed work.
§103D-C Compliance duration; compliance officer. Each contractor and subcontractor shall:
(1) Comply with section 103D-B for the entire duration of the contract of construction;
(2) Certify compliance with section 103D-B, under oath, by an officer of the contractor or subcontractor, respectively, to the comptroller, county counterpart, or procurement officer, as applicable, on a monthly basis;
(3) Maintain compliance with all applicable local, state, and federal laws relating to labor, wages, health, safety, and environmental protection; and
(4) Take reasonable steps toward satisfying any outstanding judgments or liens against the contractor, subcontractor, and the contractor or subcontractor's executive management.
§103D-D Failure to comply; sanctions. A contractor or subcontractor under this part who fails to comply with section 103D-B, shall be subject to sanctions, which shall include any or all of the following, at the discretion of the comptroller, county counterpart, or procurement officer, as applicable:
(1) Temporary suspension of work on the project until the contractor or subcontractor complies with section 103D-B;
(2) Withholding of payment on the contract or subcontract, as applicable, until the contractor or subcontractor complies with section 103D-B;
(3) Permanent disqualification of the contractor or subcontractor from any further work on the project;
(4) Recovery by the State or county, as applicable, of any moneys expended on the contract or subcontract, as applicable; and
(5) Proceedings for debarment or suspension of the contractor or subcontractor under section 103D-702."
SECTION 3. Section 103D-104, Hawaii Revised Statutes, is amended as follows:
1. By adding a new definition to be appropriately inserted and to read:
""Executive management" means any person who is an owner, general partner, limited partner, or officer of a contractor or subcontractor."
2. By amending the definition of "contractor" to read:
""Contractor" means any person [having]
who is or seeks to be party to a contract with a governmental body."
SECTION 4. Section 103D-302, Hawaii Revised Statutes, is amended to read as follows:
"§103D-302 Competitive sealed bidding. (a) Contracts shall be awarded by competitive sealed bidding except as otherwise provided in section 103D-301. Awards of contracts by competitive sealed bidding may be made after single or multi‑step bidding. Competitive sealed bidding does not include negotiations with bidders after the receipt and opening of bids. Award is based on the criteria set forth in the invitation for bids.
(b) An invitation for bids shall be issued, and shall include a purchase description and all contractual terms and conditions applicable to the procurement. If the invitation for bids is for construction, it shall specify that all bids include the name of each person or firm to be engaged by the bidder as a joint contractor or subcontractor in the performance of the contract and the nature and scope of the work to be performed by each. Construction bids that do not comply with this requirement may be accepted if acceptance is in the best interest of the State and the value of the work to be performed by the joint contractor or subcontractor is equal to or less than one per cent of the total bid amount.
(c) Adequate public notice of the invitation for bids shall be given a reasonable time before the date set forth in the invitation for the opening of bids. The policy board shall adopt rules which specify:
(1) The form that the notice is to take;
(2) What constitutes a reasonable interim between publication and bid opening; and
(3) How notice may be published, including publication in a newspaper of general circulation, notice by mail to all persons on any applicable bidders mailing list, publication by any public or private telecommunication information network, or any other method of publication it deems to be effective.
(d) Bids shall be opened publicly in the
presence of one or more witnesses, at the time and place designated in the
invitation for bids. The amount of each bid and other relevant information
specified by rule, together with the name of each bidder shall be recorded.
The record and each bid shall be open to public inspection[.] and
shall be subject to written public comment submitted to the chief procurement
officer.
(e) When a written public comment presents a credible allegation of a fact that, if true, would render the bid nonresponsive or ineligible under sections 103D-A through 103D‑C, the chief procurement officer shall audit the books and records of the bidder that submitted the bid for the purpose of determining the truth or falsity of that allegation. If, after reasonable notice to the bidder and reasonable opportunity to be heard, the chief procurement officer, after consultation with the using agency and the attorney general or corporation counsel, as applicable, finds that the bid is nonresponsive or ineligible under sections 103D-A through 103D-C, the bidder shall be subject to penalties under section 103D-106 and section 103D‑D.
[(e)] (f) Bids shall be unconditionally
accepted without alteration or correction, except as authorized in this chapter
or by rules adopted by the policy board.
[(f)] (g) Bids shall be
evaluated based on the requirements set forth in the invitation for bids.
These requirements may include criteria to determine acceptability such as
inspection, testing, quality, workmanship, delivery, and suitability for a
particular purpose. Those criteria that will affect the bid price and be
considered in evaluation for award shall be objectively measurable[,]
such as discounts, transportation costs, and total or life cycle costs. The
invitation for bids shall set forth the evaluation criteria to be used[.]
and shall incorporate by reference the requirements of sections 103D-A
through 103D-C. No criteria that are not set forth in the invitation
for bids shall [may] be used in bid evaluation [that are not set
forth in the invitation for bids].
[(g)] (h) Correction or
withdrawal of inadvertently erroneous bids before or after award, or cancellation
of invitations for bids, awards, or contracts based on [such] bid
mistakes[,] shall be permitted in accordance with rules adopted by the
policy board. After bid opening, no changes in bid prices or other
provisions of bids prejudicial to the interest of the public or to fair
competition shall be permitted. Except as otherwise provided by rule, all
decisions to permit the correction or withdrawal of bids[,] or to cancel
awards or contracts based on bid mistakes[,] shall be supported by a
written determination made by the chief procurement officer or head of a
purchasing agency.
[(h)] (i) The contract shall be
awarded with reasonable promptness by written notice to the lowest responsible
and responsive bidder whose bid meets the requirements and criteria set forth
in the invitation for bids. In the event that all bids exceed available
funds as certified by the appropriate fiscal officer, the head of the
purchasing agency responsible for the procurement in question is authorized,
in situations where time or economic considerations preclude resolicitation of
work of a reduced scope, to negotiate an adjustment of the bid price,
including changes in the bid requirements, with the low responsible and
responsive bidder[,] in order to bring the bid within the amount of
available funds.
[(i)] (j) When it is not
practicable to initially prepare a purchase description to support an award
based on price, an invitation for bids[, which] that requests the
submission of unpriced offers to be followed by an invitation for bids limited
to those bidders whose offers have been qualified under the criteria set forth
in the first solicitation[,] may be used. If a multi-step sealed
bidding process is used, the notice and the invitation for bids shall describe
each step to be used in soliciting, evaluating, and selecting unpriced
offers."
SECTION 5. Section 103D-303, Hawaii Revised Statutes, is amended to read as follows:
"§103D-303 Competitive sealed
proposals. (a) Competitive sealed proposals may be utilized to
procure goods, services, or construction designated in rules adopted by the
procurement policy board as goods, services, or construction [which] that
are [either] not practicable or not advantageous to the State to procure
by competitive sealed bidding. Competitive sealed proposals may also be
utilized when the head of a purchasing agency determines in writing that the
use of competitive sealed bidding is either not practicable or not advantageous
to the State.
(b) Proposals shall be solicited through a request for proposals.
(c) Notice of the request for proposals shall be given in the same manner as provided in section 103D-302(c).
(d) Proposals shall be opened so as to avoid
disclosure of contents to competing offerors during the process of negotiation.
A register of proposals shall be prepared in accordance with rules adopted by
the policy board, and shall be open for public inspection after contract
award[.] and subject to written public comment submitted to the chief
procurement officer.
(e) When a written public comment presents a credible allegation of a fact that, if true, would render the proposal nonresponsive or ineligible under sections 103D-A through 103D‑C, the chief procurement officer shall audit the books and records of the offeror that submitted the proposal for the purpose of determining the truth or falsity of that allegation. If, after reasonable notice to the offeror and reasonable opportunity to be heard, the chief procurement officer, after consultation with the using agency and the attorney general or corporation counsel, as applicable, finds that the proposal is nonresponsive or ineligible under sections 103D-A through 103D‑C, the offeror shall be subject to penalties under section 103D-106 and section 103D-D.
[(e)] (f) The request for
proposals shall state the relative importance of price and other evaluation
factors[.] and shall incorporate by reference the requirements of
sections 103D-A through 103D-C.
[(f)] (g) Discussions may be
conducted with responsible offerors who submit proposals determined to be
reasonably susceptible of being selected for award for the purpose of
clarification to assure full understanding of[,] and responsiveness to[,]
the solicitation requirements. Offerors shall be accorded fair and equal
treatment with respect to any opportunity for discussion and revision of
proposals, and revisions may be permitted after submissions and prior to award
for the purpose of obtaining best and final offers. In conducting discussions,
there shall be no disclosure of any information derived from proposals
submitted by competing offerors.
[(g)] (h) Award shall be made to
the responsible offeror whose proposal is determined in writing to be the most
advantageous taking into consideration price and the evaluation factors set
forth in the request for proposals. No other factors or criteria shall be used
in the evaluation. The contract file shall contain the basis on which the
award is made.
[(h)] (i) In cases of awards
made under this section, nonselected offerors may submit a written request for
debriefing to the chief procurement officer or designee within three working
days after the posting of the award of the contract. Thereafter, the head of
the purchasing agency shall provide the requester a prompt debriefing in
accordance with rules adopted by the policy board. Any protest by the
requester pursuant to section 103D-701 following debriefing shall be filed in
writing with the chief procurement officer or designee within five working days
after the date that the debriefing is completed."
SECTION 6. The comptroller shall submit a report to the legislature no later than sixty days before the commencement of the 2011 regular session on the implementation of this Act. The report shall include a listing of all contracts awarded under this Act by the State from the effective date of the Act and progress reports for those contracts, data on total state revenues spent on contracts awarded subject to this Act, data on employment and wages under contracts subject to this Act, data on preferences awarded under section 1 of this Act, the number of challenges to bids or offers made under sections 4 and 5 of this Act and the disposition of each challenge, information on the implementation of this Act, and recommendations for further legislation to better effectuate the purpose of this Act.
SECTION 7. In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.
SECTION 8. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 9. This Act shall take effect on July 1, 2010.
|
INTRODUCED BY: |
_____________________________ |
|
|
|
Report Title:
Government Procurement; Responsible Contractors
Description:
Establishes procurement preferences for public works contracts. Establishes a responsible construction contractor law which specifies prerequisites for government construction contractors and subcontractors. Allows public comments on the public procurement process. Requires the comptroller to report to the legislature on the implementation of the Act.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
