La. Admin. Code tit. 28 § CXLV-1113

Current through Register Vol. 50, No. 11, November 20, 2024

Section CXLV-1113 - Purchasing and Contracts

A. Applicable Law and Policy

1. The Recovery School District is established in R.S. 17:1990 as an intermediate education unit within the Department of Education and functions as a unit within a state agency, except as otherwise provided in R.S. 17:1990. State agencies are subject to various laws, regulations, and guidelines with respect to procuring goods and services needed by the agency. The Recovery School District, unlike other state agencies and unlike other units in the Department of Education, while still required to follow many procurement laws, has specific authority with respect to procurement that exempts it from receiving approval from other state agencies, where applicable, and exempts it from complying with state law applicable to other state agencies with respect to certain types of procurement.

2. The Recovery School District's authority relating to procurement:

a. requires the RSD to engage in the procurement of materials and supplies, telecommunications goods or services, data processing hardware, data processing software, software maintenance and support services, hardware services, major repairs, and public works in compliance with the processes established in law, regulation, and/or executive order, as applicable, but does not require the RSD to receive approval of such procurement from the Division of Administration or any other state agency that may exercise approval over such procurement. The RSD, although it must comply with Title 38 of the Louisiana Revised Statutes with respect to public works contracts, is not required to utilize any state selection board, including but not limited to, the Louisiana Architects Selection Board, the Louisiana Engineers Selection Board, or the Louisiana Landscape Architects Selection Board, when contracting for any public work; and

b. provides the RSD with the same authority and autonomy afforded to city, parish, or other local public school systems under state law regarding the procurement of services, including but not limited to professional, personal, consulting, operating, and social services, the procurement of immovable property, and the leasing of movable property. The authority and autonomy authorizes the RSD to procure such services without complying with the applicable provisions of Title 38 and Title 39 of the Louisiana Revised Statutes, which govern such procurement for all other state agencies.

3. RSD procurement shall be governed by all applicable law and BESE policy. Policy in reference to procurement is herein adopted by BESE in the exercise of its authority to approve the administration of the RSD.

B. Scope

1. The policy set forth herein shall act as the foundation upon which the State Superintendent shall develop procurement procedures and guidelines for the RSD in compliance with the parameters set forth herein. It shall not be construed as a detailed guide to carrying out procurement in the RSD.

2. All procedures and guidelines governing procurement in the RSD shall be in compliance with the policy set forth herein and shall be approved by the State Superintendent.

C. Application

1. This policy applies only to contracts entered into after the approval of the policy in this Section by BESE.

2. This policy shall apply to every expenditure of public funds, irrespective of their source, unless otherwise approved by BESE. This policy shall not apply to grants or contracts funded with federal funds, if procurement under such is governed by applicable federal law and regulation. Nothing in this policy shall prevent the RSD from complying with the terms and conditions of any grant, gift, or bequest.

3. This Section shall not apply to the procurement of services for the operation of a school under the jurisdiction of the RSD.

D. Authority and Delegation

1. In its approval of the administration of the RSD, BESE shall approve the parameters for procurement by the RSD, as set forth herein, and shall approve all RSD contracts, as defined herein.

2. Except as provided herein, the state superintendent is vested with procurement authority for the RSD and shall be responsible for the oversight and approval, as applicable, of all purchasing and contracting in the RSD.

3. The state superintendent may delegate procurement oversight and approval authority to the RSD superintendent, who may delegate such authority to the RSD procurement director or his or her superior, all as authorized herein.

4. When time is of the essence for a contract or contract amendment that requires board approval, such that the Recovery School District cannot wait for the next board meeting, though not an emergency as defined herein, the chairman of the Board Finance Committee and the board president may approve a contract or contract amendment upon the receipt of a written memorandum from the deputy superintendent of management and finance or his designee setting forth the request for approval, the reason for the request, the name of the contractor, the amount of the contract, the contract period, and a description of the services to be provided. The approval shall be reported to the board at its next meeting.

E. State Superintendent Responsibilities

1. The state superintendent shall ensure that the RSD has sufficient internal controls and capacity to manage procurement for the RSD.

2. The state superintendent shall require that procedures and/or guidelines, which govern all procurement within the RSD, be developed. Such procedures and/or guidelines shall reflect the provisions of this policy. The state superintendent shall approve all procedures and/or guidelines governing RSD procurement.

a. Procurement procedures and/or guidelines shall contain, at a minimum, the following:

i. authority, roles, and responsibilities of all employees authorized to approve the procurement of goods and services;

ii. types of authorized and unauthorized contracts;

iii. source selection and contract formation;

iv. contract approval process;

v. contract administration;

vi. types of procurement and procedures for engaging in each;

vii. types of competitive processes to be used for each type of procurement;

viii. ethics in public procurement and contracting;

ix. emergency declaration procedures;

x. dispute resolution; and

xi. debarment.

3. The state superintendent shall implement a written approval process for the approval of all contracts that he/she is authorized to approve and all contracts to be submitted to BESE for its approval. The state superintendent shall ensure that the RSD superintendent has a written approval process for all contracts he/she may approve pursuant to authority delegated by the state superintendent. These written approval processes shall be delineated in the procedures and/or guidelines which govern all procurement within the RSD.

F. Definitions

1. See Section 2703. D of this bulletin for definitions of relevant purchasing and financial terms. [Source: this is new, to collect all definitions in the bulletin in a single location at end of bulletin.]

G. Types of Procurement

1. The types of procurement that may be undertaken by the RSD and which are subject to the parameters set forth in this policy include, but are not limited to:

a. purchase of items available under state contracts;

b. materials and supplies;

c. telecommunications goods and services;

d. data processing hardware;

e. data processing software;

f. data processing software maintenance;

g. data processing support and hardware services;

h. major repairs;

i. public works contracts;

j. purchase of immovable property;

k. lease of immovable property;

l. professional services;

i. professional services identified in law; and

ii. other professional services;

m. personal services;

n. consulting services;

o. operating services;

p. social services; and

q. other service contracts.

2. All procurement not specifically listed herein shall be subject to the approval of the state superintendent.

H. Contractual Arrangements

1. Contract Form and Evidence of Obligation

a. All agreements to provide services to the RSD shall be evidenced by a written contract.

b. All contracts entered into by the RSD shall contain, at a minimum, all provisions contained in form contracts used by the Department of Education.

c. Absent a written contract for the performance of services, the RSD shall have no legal obligation to pay for services rendered and shall not make payments to satisfy any claim that is not based on a fully executed written contract.

2. Prohibited Contracts

a. The RSD shall not enter into the following types of contracts:

i. contracts providing for the payment of cost plus a percentage of costs; or

ii. contingency fee contracts.

3. Term of Contract and Multi-Year Contracts

a. The RSD shall not enter into any contract for a term that exceeds that which is prescribed in law for the respective types of procurement identified herein, regardless of the applicability of the law pursuant to R.S. 17:1990.

b. BESE shall approve all multi-year contracts entered into by the RSD, consistent with the thresholds provided herein. The RSD shall provide a justification for the need for a multi-year contract with the submission of each multi-year contract for BESE approval.

4. Contract Amendments and Cumulating Multiple Contracts

a. The thresholds established for the use of a competitive process as set forth in this Section shall apply to contracts for which an amendment thereto causes the contract to exceed the applicable threshold and multiple contracts with the service provider or any company which has engaged the service provider, which, when cumulated, exceed the applicable threshold. This Subparagraph shall apply to contracts entered into within a fiscal year.

b. The thresholds established for BESE approval of contracts as set forth in this Section shall apply to contracts for which an amendment thereto causes the contract to exceed the applicable threshold and multiple contracts with the service provider or any company which has engaged the service provider, which, when cumulated, exceed the applicable threshold. This Subparagraph shall apply to contracts entered into within a fiscal year.

c. The state superintendent or his designee has the authority to approve amendments that result in no-cost extensions to current contracts. [This is new.]

5. Commencement of Services under Contract

a. All services performed pursuant to a contract shall not commence prior to the approval of the contract, as set forth herein.

6. Administration of Contracts

a. All contracts shall be administered and monitored by the RSD, including but not limited to, substantiating invoices, monitoring progress of work, and evaluating performance.

7. Documentation of Contracts

a. Documentation related to all contracts shall be maintained pursuant to the RSD and/or Department of Education's Records Retention Schedule, as applicable.

8. Contract Reporting

a. The state superintendent shall provide a report to BESE of all contracts entered into by the RSD, other than major repair or public works contracts, consistent with contract reporting performed by the Department of Education.

b. The state superintendent shall provide a report to BESE of all major repair or public works contracts as determined by BESE.

I. Procurement Executed Pursuant to Applicable Law

1. Purchase of Items Available Under State Contracts

a. The RSD shall purchase all products or services available under state contracts entered into by the Division of Administration, unless a product or service being purchased can be obtained at a lower cost or the state superintendent determines that it is in the best interest of the RSD to independently procure the product or service.

b. The state superintendent shall require that a record be created of all procurement of products or services available under state contract, but which the RSD does not procure through a state contract. The record shall include the justification for the purchase of such products or services other than that which is available through a state contract.

c. The exceptions set forth in Subparagraph 1.a. above shall not apply if purchasing from a state contract is mandatory, as prescribed by the Division of Administration. In such case, the RSD shall comply with all applicable exceptions provided in law or regulation.

2. Materials and Supplies

a. The RSD shall comply with all applicable law when procuring materials and supplies.

b. The state superintendent shall have the authority to delegate his authority to procure materials and supplies to the RSD superintendent, who shall have that authority to delegate the same to the RSD procurement director.

c. The RSD superintendent may delegate his authority to procure materials and supplies to school level personnel, subject to procedures and purchasing thresholds approved by the state superintendent.

3. Telecommunications Goods and Services, Data Processing Hardware, Data Processing Support, and Hardware Services

a. The RSD shall comply with all applicable law when procuring telecommunications goods and services, data processing hardware, data processing support, and hardware services.

b. The state superintendent shall have the authority to delegate his authority to procure telecommunications goods and services, data processing hardware, data processing support, and hardware services to the RSD superintendent, who shall have that authority to delegate the same to the RSD procurement director.

c. All service contracts resulting from procurement of telecommunications goods and services, data processing hardware, data processing support, and hardware services shall be subject to BESE approval as defined in Subparagraph K.2.b of this Section.

4. Data Processing Software

a. The RSD shall comply with all applicable law when procuring data processing software.

b. The RSD procurement procedures and guidelines shall ensure the participation of a committee of no less than three individuals, with expertise appropriate to the software being selected, in the selection of data processing software.

c. The state superintendent shall have the authority to delegate his authority to procure data processing software to the RSD superintendent, who shall have that authority to delegate the same to the RSD procurement director.

5. Small Purchases

a. The RSD may engage in small purchases pursuant to R.S. 39:1596 and any Executive Order issued pursuant thereto.

b. The state superintendent shall have the authority to delegate his authority to engage in small purchases to the RSD superintendent, who shall have that authority to delegate the same to the RSD procurement director.

6. Used Equipment

a. The RSD may purchase used equipment, pursuant to Title 39 of the Louisiana Revised Statutes, when the purchase of used equipment is cost effective to the RSD.

b. The state superintendent shall have the authority to delegate his authority to purchase used equipment to the RSD superintendent, who shall have that authority to delegate the same to the RSD procurement director.

7. Major Repairs

a. The RSD shall comply with all applicable law when procuring major repairs.

b. BESE shall approve all major repair contracts exceeding $250,000 and all amendments to such contracts.

c. The state superintendent shall have the authority to approve all major repair contracts exceeding $250,000 if such contracts are entered into pursuant to an emergency condition as defined in applicable law and policy.

d. The state superintendent shall have the authority to approve all major repair contracts not exceeding $250,000.

e. The state superintendent shall have the authority to delegate his authority to approve major repair contracts not exceeding $50,000 to the RSD superintendent.

8. Public Works Contracts

a. The RSD shall comply with all applicable law when entering into public works contracts.

b. BESE shall approve all public works contracts exceeding $250,000 and all amendments to such contracts.

c. The state superintendent shall have the authority to approve all public works contracts not exceeding $250,000.

J. Procurement Executed Pursuant to BESE Policy

1. Professional Services Contracts Involving Professionals Identified in Louisiana Law

a. All professional services identified in Title 39 of the Louisiana Revised Statutes, which include lawyers, doctors, dentists, psychologists, certified advanced practice nurses, veterinarians, architects, engineers, land surveyors, landscape architects, accountants, actuaries, and claims adjusters shall be procured in compliance with applicable law.

b. The state superintendent shall develop and implement a process for the procurement of the professional services of architects, landscape architects, and engineers, which ensures that such professionals have the ability to participate in RSD projects and that professionals qualifying to participate have demonstrated competence and qualifications for the type of services required.

c. The process for the procurement of the professional services of architects, landscape architects, and engineers shall be approved by BESE.

d. BESE shall approve all professional service contracts exceeding $50,000 and all amendments to such contracts.

e. The state superintendent shall have the authority to approve all contracts not exceeding $50,000 and shall have the authority to delegate such approval authority to the RSD superintendent.

2. Other Professional Services, Personal Services, and Consulting Services

a. All professional services not specifically identified in Title 39 of the Louisiana Revised Statutes, as set forth in Paragraph 1 above, and all other service contracts, except for personal service contracts, which shall not require a competitive process regardless of the amount of the personal service contract, shall be procured through the use of a competitive process for all contracts that will exceed $50,000, subject to the exceptions provided herein.

b. BESE shall approve all service contracts exceeding $50,000 and all amendments to such contracts.

c. The state superintendent shall have the authority to approve all contracts not exceeding $50,000 and shall have the authority to delegate such approval authority to the RSD superintendent.

3. Social Service Contracts

a. All social service contracts shall be procured through the use of a competitive process for all contracts that will exceed $150,000, subject to the exceptions provided herein.

b. BESE shall approve all social service contracts exceeding $50,000 and all amendments to such contracts.

c. The state superintendent shall have the authority to approve all contracts not exceeding $50,000 and shall have the authority to delegate such approval authority to the RSD superintendent.

4. Purchase or Lease of Immovable Property

a. The state superintendent shall develop and implement a process for the purchase or lease of immovable property.

b. BESE shall approve the purchase or lease of immovable property by the RSD.

K. Exceptions to Required Competitive Process

1. Procurement that is governed by state law and regulation is set forth in Subsection I of this Section. All requirements that must be met when engaging in such procurement are governed by applicable law and regulation. In addition, all exceptions to such requirements are governed by applicable law and regulation. The RSD must comply with all law and regulation, unless law or regulation authorizes an exception. The exceptions set forth below in Paragraph K.2 for procurement which is governed by policy shall not apply to procurement governed by state law and regulation.

2. Procurement that is governed by BESE policy is set forth in Subsection J of this Section. The provisions of Subsection J require the use a competitive process for certain types of procurement that are governed by policy. A competitive process shall not be required in the following circumstances.

a. Declaration of an Emergency by State Superintendent

i. In all procurement wherein a competitive process is required by this policy, the RSD may engage in emergency procurement following the declaration of an emergency by the state superintendent or his designee. The state superintendent is authorized to delegate his authority to declare emergencies and/or approve emergency contracts to the RSD superintendent, the RSD chief operating officer, or the RSD chief procurement officer. The state superintendent or his designee may declare an emergency if an emergency condition, meeting the following criteria, exists.

(a). An emergency condition is a situation which creates a threat to public health, welfare, safety, or public property such as may arise by reason of floods, epidemics, riots, equipment failures, or such other reason as proclaimed by the state superintendent. The existence of such condition creates an immediate and serious need for supplies, services, or major repairs that cannot be met through normal procurement methods and the lack of which would seriously threaten:

(i). the functioning of Louisiana government;

(ii). the preservation or protection of property; or

(iii). the health or safety of any person.

ii. The state superintendent shall require that a record be created of all emergency declarations by making a written determination stating the basis for an emergency procurement and for the selection of a particular contractor. In addition to the written determination describing the basis for the emergency procurement, the record shall also contain:

(a). each contractor's name;

(b). the amount and type of each contract; and

(c). a listing of services procured under each contract.

iii. Emergency procurement shall be limited to only those services necessary to meet the emergency.

iv. The source selection method used shall be selected with the goal of assuring that the required services are procured in time to meet the emergency. Given this constraint, such competition as is practicable should be obtained.

b. Sole Source Procurement

i. The RSD may engage in sole source procurement if the product or service it is seeking is available from a single supplier. The vendor must be the sole provider of any services requested.

ii. A requirement for a particular service does not justify a sole source procurement if there is more than one potential bidder or offeror for the service.

iii. The state superintendent shall require that a record be created of all sole source procurement by making a written determination stating the basis for the sole source procurement and for the selection of a particular contractor. In addition to the written determination describing the basis for the sole source procurement, the record shall contain:

(a). the contractor's name;

(b). the amount and type of contract; and

(c). a listing of services procured under the contract.

iv. All sole source contracts submitted to BESE for approval as required in this Section shall be accompanied by a description of the basis for exercising the sole source exception. Each amendment to such contracts submitted for BESE approval shall also contain an assurance that the services to be provided through the contract amendment continue to meet the sole source exception provided herein.

v. For all contracts with a sole source provider which have been entered into pursuant to the exception set forth in this Subparagraph, the contractor shall be allowed to subcontract with a provider of services to be compensated through its contract with the RSD, even if the subcontractor does not meet the criteria for being a sole source provider, as long as the subcontractor's work is a part of the overall contract objective and the contract is predominantly a contract for the services of the sole source provider.

c. Service Contracts with Education Program Specialists

i. The RSD may enter into a personal service, consulting service, or other professional service contract, as set forth in Paragraph J.2 of this Section, without using a competitive process upon a specific determination of the following:

(a). the service proposed to be provided by the education program specialist is directly related to efforts to improve student academic achievement;

(b). the service proposed to be provided by the education program specialist is directly related to the development of an academic organizational structure; or

(c). the service proposed to be provided by the education program specialist is directly related to efforts to provide services to students with disabilities.

ii. The state superintendent shall require that a record be created for each education program specialist contract entered into without the use of a competitive process by making a written determination stating the basis for the procurement and for the selection of a particular contractor. In addition to the written determination describing the basis for the procurement and for the selection of a particular education program specialist, the record shall contain:

(a). the contractor's name;

(b). the amount and type of each contract;

(c). a listing of the services to be provided; and

(d). an explanation of the how the contractor meets a category in Clause K.2.c.i of this Section.

iii. All education program specialist contracts submitted to BESE for approval as required in this Section shall be accompanied by a description of the basis for exercising the education program specialist exception. The basis shall include evidence that the contractor qualifies as an education program specialist and an explanation of how the contractor meets a category in Clause K.2.c.i of this Section. Each amendment to such contracts submitted for BESE approval shall also contain an assurance that the services to be provided through the contract amendment continue to meet the education service provider exception provided herein.

iv. For all contracts with an education program specialist which have been entered into pursuant to the exception set forth this Subparagraph, the contractor shall be allowed to subcontract with a provider of services to be compensated through its contract with the RSD, even if the subcontractor does not meet the criteria for being a education program specialist, as long as the subcontractor's work is a part of the overall contract objective and the contract is predominantly a contract for the services of an education program specialist.

L. Cooperative Purchasing

1. The RSD shall have the authority to join with other school districts, the state of Louisiana, or other units of government in cooperative purchasing plans when such purchasing is in the best interest of the RSD. Competitive sealed bids or sealed proposals received by any other governmental agency or school district shall be the equivalent of bids or proposals received by the RSD and may be the basis for purchase of goods and services by the RSD.

M. Federal General Services Administration (GSA) Contracts

1. The RSD may procure materials, supplies, and equipment from Federal General Services Administration supply schedules in compliance with the Federal Acquisition Streamlining Act and regulations adopted pursuant to that law. Such purchases of materials, supplies, or equipment shall not be purchased at a price higher than the price for the same item listed on any available state purchasing contract. No use shall be made of the federal GSA supply schedules with the participation of a Louisiana licensed dealer or distributor.

N. Waiver of Requirements

1. BESE may waive, or deviate from, any provision of this Section upon the request of the state superintendent.

2. The state superintendent, in requesting such a deviation or waiver, shall identify the provision to be waived or the provision from which the state superintendent seeks to deviate, and shall provide a justification for the request.

3. Any request for a deviation from, or for a waiver of, any provision of this Section shall be approved by BESE prior to the execution of any contract or contract amendment pursuant to such waiver or deviation and prior to commencement of work by any contractor pursuant to any such contract or contract amendment.

4. The agenda of the Finance/Audit Review Committee shall have a standing item wherein the state superintendent may make a request defined in this Paragraph.

La. Admin. Code tit. 28, § CXLV-1113

Promulgated by the Board of Elementary and Secondary Education, LR 37:312 (January 2011).

AUTHORITY NOTE: Promulgated in accordance with R.S. 17:6(A)(10), R.S. 17:10.5(A)(1), R.S. 17:10.7(A)(1), R.S. 17:1990(A)(2), and R.S. 39:1596.