805 R.I. Code R. 805-RICR-00-00-1.5

Current through December 3, 2024

Section 805-RICR-00-00-1.5 - Source Selection and Contract Formation

1.5.1Source Selection

A. Methods of Source Selection. Except as otherwise authorized by law or by Rule of the Commission, all contracts of the Commission shall be awarded by:

1. Competitive sealed bidding, pursuant to §1.5.1(B) of this Part; or

2. Competitive negotiation, pursuant to §§1.5.1(C) and (D) of this Part; or

3. Noncompetitive negotiation, pursuant to §1.5.1(E) of this Part; or

4. Small purchase procedures, pursuant to §1.5.1(F) of this Part.

B. Competitive Sealed Bidding

1. Contracts exceeding the amount provided by §1.5.1(F) of this Part shall be awarded by competitive sealed bidding unless it is determined in writing that this method is not practicable. Factors to be considered in determining whether competitive sealed bidding is practicable shall include whether;

a. Specifications can be prepared that permit an award on the basis of either the lowest bid price or the lowest evaluated bid price; and

b. The available sources, the time and place of performance, and other relevant circumstances as are appropriate for the use of competitive sealed bidding,

2. The invitation for bids shall state whether an award shall be made on the basis of the lowest bid price or the lowest evaluated 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.

3. Adequate 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. Such notice may include publication in a newspaper of general circulation in the State as determined by the Commission not less than seven (7) days nor more than twenty-one (21) days before the date set for the opening of the bids. The Chief Purchasing Officer may make a written determination that the twenty-one (21) day limitation needs to be waived. The written determination shall state the reason why the twenty-one (21) 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.

4. Bids shall be opened 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. Subsequent to the awarding of the bid, all documents pertinent to the awarding of the bid shall be made available and open to public inspection and retained in the bid file.

5. 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 or lowest evaluated bid price.

6. Correction or withdrawal of bids will be allowed only in the following circumstances:

a. A bidder will not be permitted to correct a bid mistake after bid opening that would cause such bidder to have the low bid unless the mistake is clearly evident from examining the bid document, for example, errors in addition.

b. After bid opening, an otherwise low bidder may be permitted to correct a material mistake of fact in its bid, including price, when the intended bid is obvious from the bid document or is otherwise supported by proof that has evidentiary value. A low bidder will not be permitted to correct a bid for mistakes or errors in judgment.

c. In lieu of bid correction, a low bidder alleging a material mistake of fact will be permitted to withdraw its bid after bid opening when there is reasonable proof that a mistake was made and the intended bid cannot be ascertained with reasonable certainty.

d. After bid opening, an otherwise low bidder shall not be permitted to make exceptions to the bid conditions or specifications which affect price or substantive obligations; however, such bidder shall be permitted the opportunity to furnish other information called for by the invitation for bids and not supplied due to oversight, so long as it does not affect responsiveness.

C. Competitive Negotiation

1. When the Chief Purchasing Officer determines in writing that the use of competitive sealed bidding is not practicable, and except as provided in §§1.5.1(E) and (F) of this Part, a contract may be awarded by competitive negotiation.

2. Adequate public notice of the request for proposals shall be given in the same manner as provided in §1.5.1(B)(3) of this Part.

3. The request for proposals shall indicate the relative importance of price and other evaluation factors.

4. Award shall be made to the responsible offeror whose proposal is determined in writing to be the most advantageous to the Commission taking into consideration price and the evaluation factors set forth in the request for proposals.

5. Written or oral discussions shall be conducted with all responsible offerors who submit proposals determined in writing by the Chief Purchasing Officer to be reasonably susceptible of being selected for award. Discussions shall not disclose any information derived from proposals submitted by competing offerors. Discussions need not be conducted:

a. With respect to prices, where such prices are fixed by law or regulation, except that consideration shall be given to competitive terms and conditions; or

b. Where time of delivery or performance will not permit discussion; or

c. Where it can be clearly demonstrated and documented from the existence of adequate competition or accurate prior cost experience with the particular supply, service, or construction item, that acceptance of an initial offer without discussion would result in fair and reasonable prices, and the request for proposals notifies all offerors of the possibility that award may be made on the basis of the initial offers.

D. Negotiations after Unsuccessful Competitive Sealed Bidding

1. Contracts may be competitively negotiated when it is determined in writing by the Commission that the bid prices received by competitive sealed bidding under §1.5.1(B) of this Part either are unreasonable as to all or part of the requirements, or were not independently reached in open competition, and for which:

a. Each competitive bidder has been notified of the intention to negotiate and is given reasonable opportunity to negotiate; and

b. The negotiated price is lower than the lowest rejected bid by any competitive bidder; and

c. The negotiated price is the lowest negotiated price offered by a competitive offeror.

2. In the event that all bids submitted pursuant to competitive sealed bidding under §1.5.1(B) of this Part result in bid prices in excess of the funds available for purchase, and Chief Purchasing Officer determines in writing;

a. That there are no additional funds available from any source so as to permit an award to the lowest responsive and responsible bidder, and

b. The best interest of the Commission will not permit the delay attendant to a resolicitation under revised specifications, or for revised quantities, under competitive sealed bidding as provided in §1.5.1(B) of this Part, then a negotiated award may be made as set forth in §§1.5.1(D)(3) or (4) of this Part.

3. Where there is more than one bidder, competitive negotiations pursuant to §1.5.1(C) of this Part, shall be conducted with the three (two if there are only two) bidders determined in writing to be the lowest responsive and responsible bidders to the competitive sealed bid invitation. Such competitive negotiations shall be conducted under the following restrictions:

a. If discussions pertaining to the revision of the specifications or quantities are held with any potential offeror, all other potential offerors shall be afforded an opportunity to take part in such discussions; and

b. A request for proposals, based upon revised specifications or quantities, shall be issued as promptly as possible, shall provide for an expeditious response to the revised requirements, and shall be awarded upon the basis of the lowest bid price or lowest evaluated bid price submitted by any responsive and responsible offeror.

4. When after competitive sealed bidding, it is determined in writing that there is only one responsive and responsible bidder, a noncompetitive negotiated award may be made with such bidder in accordance with §1.5.1(E) of this Part.

E. Sole Source Procurement and Emergency Procurements.

1. A contract may be awarded for a supply, service or construction item with competition when the Chief Purchasing Officer determines, in writing, that there is only one source for the required supply, service, or construction item.

2. Notwithstanding any other provision of these Rules, the Chief Purchasing Officer may make emergency procurements when there exists a threat to public health, welfare or safety under emergency conditions, provided that such emergency procurements shall be made with such competition as is practicable under the circumstances. A written determination of the basis for the emergency and for the selection of the particular contractor shall be included in the contract file.

F. Small Purchases. Procurements not to exceed two thousand five hundred dollars ($2,500) may be made at or below the established catalogue or market price of commercial items sold in substantial quantities to the general public. In the case of purchases which do not exceed an aggregate amount of two thousand five hundred dollars ($2,500), the Chief Purchasing Officer shall procure items in any manner he or she believes reasonable. The Commissioners may ratify from time to time any previous purchases made by the Chief Purchasing Officer under §1.5.1(F) of this Part. In the case of any purchases to which §1.5.1(F) of this Part applies, the Chief Purchasing Officer shall, to the extent practicable, make inquiries from at least three sources to determine what is a reasonable price. These inquiries may be made by telephone. No such inquiries are required when the price of the item or service is not expected to exceed five hundred dollars ($500).

G. Waiver of Informalities in Bids and Offers. The Chief Purchasing Officer may waive informalities in any bid or offer.

1.5.2Cancellation of Invitation for Bids and Requests for Proposals

The Chief Purchasing Officer may cancel an invitation for bids, a request for proposal, or negotiations in connection with the procurement of any supply, service or construction, or may reject all bids or proposals, if the Chief Purchasing Officer determines that such action is in the best interests of the Commission. No such cancellation or rejection shall prevent the Chief Purchasing Officer from resoliciting bids for the same supplies, services or construction on the same or different terms.

1.5.3Responsibility of Bidders and Offerors.

A. Determination of Responsibility.

1. A written determination of responsibility of a bidder or offeror shall be made by the Chief Purchasing Officer in connection with the award of any contract.

2. The Chief Purchasing Officer may make reasonable inquiries to determine responsibility. The failure of any bidder or offeror to promptly supply information in connection with such inquiries may be grounds for determining that such person is not responsible.

3. Except as otherwise provided by law, information furnished by any bidder or offeror pursuant to §1.5.3(A) of this Part may not be disclosed by the Commission to any other person with the prior written consent of such person.

B. Annual Statement of Qualifications. Persons interested in contracting with the Commission shall be encouraged by the Chief Purchasing Officer to submit to the Commission annually a statement of qualifications. Solicitation mailing lists of potential contractors shall included but need not be limited to those contractors who have submitted an annual statement of qualifications.

C. Cost or Pricing Data

1. A contractor shall submit to the Chief Purchasing Officer cost or pricing data and shall certify that, to the best of his, her or its knowledge and belief, any cost or pricing data required to be submitted was accurate, complete, and current as of a mutually determined specified date prior to the date of:

a. The pricing of any negotiated contract where the total contract price is expected to exceed fifty thousand ($50,000); or

b. The pricing of any change order or contract modification which is expected to exceed twenty-five thousand dollars ($25,000).

2. The Chief Purchasing Officer may require contractor certified cost or pricing data in connection with any bid, proposal or contract without regard to the price ceilings set forth above if the Chief Purchasing Officer determines that such cost or price data is necessary to ensure a fair and reasonable contract price to the Commission.

3. When certified cost or pricing data must be submitted in connection with any contract, change or modification thereto, the price to the Commission, including profit or fee, shall be adjusted to exclude any significant sums by which the Chief Purchasing Officer finds that such price was increased because the contractor furnished cost or pricing data which, as of the date agreed upon between the parties, was inaccurate, incomplete or not current.

4. The Chief Purchasing Officer may elect not to require certified cost of pricing data when the price negotiated is based on adequate price competition, established catalog or market prices of commercial items sold in substantial quantities to the general public, prices set by law or regulation, or in exceptional cases where the Chief Purchasing Officer determines that the requirements of this section may be waived, and the reasons for such waiver are stated in writing.

1.5.4Contracts

A. Types of Contracts.

1. The Commission may enter into any type of contract which will promote the best interests of the Commission subject to the following rules:

a. Cost plus percentage of cost type contracts shall not be awarded to any person.

b. No cost-reimbursement type of contract shall be awarded to any person unless the Chief Purchasing Officer determines that this type of contract is likely to be less costly to the Commission than any other type of contract, or that it is impracticable to obtain supplies or services of the kind or quality required except under such a contract.

c. Each contractor under a cost reimbursement type contract shall obtain the consent of the Chief Purchasing Officer, as provided for in the contract, before entering into:

(1) A cost-reimbursement type subcontract; or

(2) Any other type of subcontract involving more than ten thousand dollars ($10,000) or ten percent (10%) of the estimated cost of the prime contract.

d. All cost reimbursement type subcontracts shall contain a provision that only costs recognized as allowable, in accordance with cost principles provided for in § 1.8(A) of this Part, will be reimbursable.

B. Approval of Accounting System. Except with respect to firm fixed price type contracts, no contract type shall be used by the Commission unless the Chief Purchasing Officer has determined that the proposed contractor's accounting system will permit timely development of all necessary cost data in the form required by the specific contract type contemplated and that the contractor's accounting system is adequate to allocate costs in accordance with cost principles set forth in § 1.8(A) of this Part.

C. Partial, Progressive and Multiple Awards.

1. A contract may provide for payments as work progresses under the contract, on the basis of costs incurred, on the basis of percentage of completion accomplished, or on the basis of a particular stage of completion.

2. A contract may provide for payments upon submission of proper invoices or vouchers for supplies delivered and accepted, or services rendered and accepted, where such supplies and services are only part of total contract requirements.

3. The Commission may reserve the right to split a contract between two or more responsive and responsible bidders or offerors and to make an award for all or only part of the items, services or construction specified in the solicitation, if so stated in the invitation to bid or the request for proposal.

1.5.5Reporting of Anti-Competitive Practices

A. If for any reason the Chief Purchasing Officer suspects collusion among bidders or offerors, the Chief Purchasing Officer shall transmit a written notice of the facts giving rise to such suspicion to the Attorney General of the State (the "Attorney General").

B. All documents involved in any procurement in which collusion is expected shall be retained until the Attorney General notifies the Chief Purchasing Officer that they may be released. All such documents shall be made available to the Attorney General or his or her designee upon request, notwithstanding any other provision of this rule.

805 R.I. Code R. 805-RICR-00-00-1.5