Ala. Admin. Code r. 355-4-3-.01

Current through Register Vol. 43, No. 1, October 31, 2024

Section 355-4-3-.01 - Definitions Of Terms Used In Chapter 3

(1) Definitions.

(a) Capability, as used in Code of Ala. 1975, § 41-4-130(7) (Definitions, Responsible Bidder or Offeror) of the State Procurement Code, means, for the purpose of these Rules, capability at the time of award of the contract.

(b) Discussions, as used in the source selection process, means an exchange of information or other manner of negotiation during which the offeror and the State may alter or otherwise change the conditions, terms, and price of the proposed contract. Discussions may be conducted in connection with competitive sealed proposals, sole source, and emergency procurement; discussions are not permissible in competitive sealed bidding (except to the extent permissible in the first phase of multi-step sealed bidding).

(c) Invitation to Bid means all documents, whether attached or incorporated by reference, utilized for soliciting bids. A request for bid or RFB is an Invitation to Bid.

(d) Prequalification for Inclusion on Bidders Lists means determining in accordance with Rule 355-4-3-.10 that a prospective bidder or offeror satisfies the criteria established for being included on the bidders list.

(e) Solicitation means an Invitation for Bids, a Request for Proposals, a request for quotations, or any other document issued by the State for the purpose of soliciting bids or proposals to perform a State contract.

(2) General Provisions

(a) Extension of Time on Indefinite Quantity Contracts. The time of performance of an indefinite quantity contract may be extended upon agreement of the parties, provided the extension is for 90 days or less and the Chief Procurement Officer or the head of a Purchasing Agency determines in writing that it is not practical to award another contract at the time of such extension.

(b) No Acceptable Bids or Proposals Received. If no bid or proposal is received, or if all bids or proposals are rejected in accordance with Rule 355-4-3-.08(3), in response to a solicitation (including multi-step bidding), one of the following shall occur:

1. the Procurement Officer may seek quotes that are responsive to the solicitation;

2. the Procurement Officer may cancel the solicitation; or

3. if the Chief Procurement Officer determines in writing that the need for the supply or service continues and seeking quotes responsive to the solicitation would likely be futile, the procurement may then be conducted under Rule 355-4-3-.05 (Sole Source Procurement) or 355-4-3-.06 (Emergency Procurements), as appropriate.

(c) Only One Bid or Proposal Received.

1. One Bid Received. If only one responsive bid is received in response to an Invitation for Bids (including multi-step bidding), an award may be made to the single bidder if the Procurement Officer finds that the price submitted is fair and reasonable, and that either other prospective bidders had reasonable opportunity to respond, or there is not adequate time for re-solicitation. Otherwise, the bid may be rejected pursuant to the provisions of Rule 355-4-3-.08 and:

(i) new bids may be solicited;

(ii) the solicitation may be cancelled; or

(iii) if the Chief Procurement Officer determines in writing that the need for the supply or service continues, but that the price of the one bid is not fair and reasonable and there is no time for re- solicitation or re-solicitation would likely be futile, the procurement may then be conducted under Rule 355-4-3-.05 (Sole Source Procurement) or Rule 355-4-3-.06 (Emergency Procurements), as appropriate.

2. One Proposal Received. If only one proposal is received in response to a Request for Proposals, the Procurement Officer may, as such officer deems appropriate, either make an award in accordance with the procedures set forth in Code of Ala. 1975, § 41-4-133 (Competitive Sealed Proposals) of the State Procurement Code and Rule 355-4-3-.03 (Competitive Sealed Proposals) or, if time permits, resolicit for the purpose of obtaining multiple competitive sealed proposals.

(d) Multiple or Alternate Bids or Proposals.

Alternative bids are multiple bids with substantive variations from the same bidder in response to an Invitation to Bid. Alternative proposals are multiple proposals with substantive variations from the same Offeror in response to a Request for Proposals. Alternative bids or proposals will be considered, unless specifically forbidden by the Solicitation. If a bidder or Offeror submits alternate bids or proposals that are forbidden in the Solicitation, the Procurement Officer will only accept the bidder's base bid or Offeror's base proposal, if that base bid or proposal is clearly identified, and will not accept any other alternate bids or proposals. If a base bid or base offer is not identified, all bids or offers will be rejected.

(e) Procuring State-Produced Supplies or Services.

Using Agency requirements may be fulfilled by procuring supplies produced or services performed incident to the State's own programs, such as industries of correctional institutions. The Chief Procurement Officer or the head of a Purchasing Agency shall determine whether such supplies or services meet the State's requirements and whether the price represents a fair market value for such supplies or services. If it is determined that such requirements cannot be met by State-produced supplies or services, or the price is not fair and reasonable, the procurement may be made from the private sector in accordance with the State Procurement Code. When such procurements are made from other State agencies, the private sector shall not be solicited to compete against State agencies.

(f) Bid and Performance Bonds for Supply Contracts or Service Contracts. Bid and performance bonds or other security may be required for supply contracts or service contracts as the Chief Procurement Officer, the head of a Purchasing Agency, or such officer's designee deems advisable to protect the interest of the State. Any such requirements must be set forth in the solicitation. Bid or performance bonds should not be used as a substitute for a determination of bidder or offeror responsibility.

(g) Conditioning Bids or Proposals Upon Other Awards Not Acceptable. Any bid or proposal which is conditioned upon receiving award of both the particular contract being solicited and another State contract shall be deemed nonresponsive and not accepted.

(3) Relations Between Agencies

(a) Purchase Requests by Agencies. Chief Procurement Officer's Authority to Reject. When the Chief Procurement Officer, after consultation with the requesting agency, decides that processing the purchase request is clearly not in the best interest of the State or that further review is needed, such officer shall return such purchase request to the requesting agency. A statement of the reasons for its return shall accompany the returned request. Examples of reasons a purchase request may be returned include, but are not limited to:

1. the request can be satisfied from existing State stocks or State contracts;

2. the request exceeds agency needs;

3. the supplies or services requested could be procured more economically at a different time without detriment to the State;

4. the quality requested is inconsistent with State standards and usage; or

5. requirements/specifications lack detail to successfully conduct a solicitation.

(4) Unsolicited Offers

(a) An unsolicited offer is any offer other than one submitted in response to a solicitation. The Chief Procurement Officer is responsible for considering, evaluating, and accepting or rejecting an unsolicited offer and must do so in accordance with the State Procurement Code.

(5) Novation or Change of Name

(a) No Assignment. No State contract is transferable, or otherwise assignable, without the written consent of the Chief Procurement Officer or the head of a Purchasing Agency provided, however, that a contractor may assign monies receivable under a contract after due notice to the State.

(b) Recognition of a Successor in Interest; Novation.

When in the best interest of the State, a successor in interest may be recognized in a novation agreement in which the transferor and the transferee shall agree that:

1. the transferee assumes all of the transferor's obligations;

2. the transferor waives all rights under the contract as against the State; and

3. unless the transferor guarantees performance of the contract by the transferee, the transferee shall, if required, furnish a satisfactory performance bond.

(c) Change of Name. When a contractor requests to change the name in which it holds a contract with the State, the Procurement Officer responsible for the contract shall, upon receipt of a document indicating such change of name (for example, an amendment to the articles of incorporation of the corporation), enter into an agreement with the requesting contractor to effect such a change of name. The agreement changing the name shall specifically indicate that no other terms and conditions of the contract are thereby changed.

(d) Notice to Comptroller. Before taking action on a contractor's request for assignment, recognition of a successor in interest, or change of name, the Chief Procurement Officer or head of a Purchasing Agency shall coordinate with the Comptroller's Office to ensure compliance with the State's Fiscal Policies and Procedures.

(6) Purchase of Items Separately from Construction Contract. The Chief Procurement Officer is authorized to determine whether a supply item or group of supply items shall be included as a part of, or procured separately from, any contract for construction.

Ala. Admin. Code r. 355-4-3-.01

Adopted by Alabama Administrative Monthly Volume XL, Issue No. 09, June 30, 2022, eff. 8/14/2022; operative 10/1/2022.

Author: Department of Finance, Legal Division

Authority:Code of Ala. 1975, § 41-4-130.