Current through Register Vol. 49, No. 2, February 2024
Pursuant to the authority vested in the Director of the Office of State
Procurement by Ark. Code Ann. §
19-11-217
and in compliance with the Administrative Procedure Act, Ark. Code Ann. §
25-15-201 et
seq., the Director of the Office of State Procurement, with the approval of the
Director of the Department of Finance and Administration, as evidenced by his
signature below, does hereby promulgate, amend, and rescind the following rules
for the enforcement and administration of the Arkansas Procurement Code.
R6: 19-11-203.
Hidden Damages.
(a) Under subsection (14)(EE), "hidden or
unknown damages" refers to damages to machinery needing repair that were not
visible or readily apparent to, or were otherwise not within the knowledge of
agency personnel at the time the piece of machinery was being serviced by a
vendor. By way of example and not limitation, if an agency takes a piece of
machinery to a vendor to repair one or more problems, and in the course of such
work the vendor notices one or more additional problems that need repair, the
agency may, but is not required to, authorize that vendor to undertake such
additional repairs without having to solicit competitive bids.
(b) "Machinery" means mechanical devices or
combinations of mechanical powers and devices purchased or constructed and used
to perform some function and to produce a certain effect or result.
(c) This exemption does not apply to damages
that are visible, readily apparent, or are or could be within the knowledge of
agency personnel with the exercise of reasonable inspection or
investigation.
R1:
19-11-204.
Requests for Qualification Procurement
Method.
(a) The request for
qualifications procurement method is used, with prior written approval from the
Director of the Office of State Procurement, when the qualifications or
specialized expertise of the vendor is the most important factor in selection.
The RFQ is sent to those vendors whose work resume indicates that they are best
suited to perform the scope of work or services required.
(b) Notification of RFQs, for which OSP is
responsible, in amounts greater than fifty thousand dollars ($50,000) will be
made on the OSP website. The agency makes its initial selection based upon the
respondent's qualifications. Only after the most qualified respondent is
identified does cost become a factor in determining the award. Discussion may
be conducted with qualified vendors who, based upon qualifications submitted,
are determined to reasonably be susceptible of being selected for the purpose
of clarification to assure full understanding of, and responsiveness to the
solicitation requirements, and to obtain best and final
offers.
R2: 19-11-204.
Ethical Standards.
In accordance with Ark. Code Ann. §
19-11-708(a),
(b), and (c), the following statement must be
conspicuously set forth in all contracts and solicitations costing more than
ten thousand dollars ($10,000): "It shall be a breach of ethical standards for
a person to be retained, or to retain a person, to solicit or secure a state
contract upon an agreement or understanding for a commission, percentage,
brokerage, or contingent fee, except for retention of bona fide employees or
bona fide established commercial selling agencies maintained by the contractor
for the purpose of securing business."
R2: 19-11-229.
Competitive Sealed
Bidding.
Conditions For Use.
(a) Lease.
All contracts for the lease of a commodity which exceed a cost of fifty
thousand dollars ($50,000) during the initial period of the contract shall be
awarded on the basis of competitive sealed bids. All contracts for the lease of
a commodity that do not exceed fifty thousand dollars ($50,000) during the
initial period of the contract but contain an option to purchase a commodity
costing more than fifty thousand dollars ($50,000) shall be awarded on the
basis of competitive sealed bids. No lease duration including renewals can
extend beyond a seven-year period. The term "lease" shall include
rent.
R7: 19-11-229.
Competitive Sealed Bidding.
(3)
Tie Bids.
(A) Definitions: As used in this
section
(i) "Arkansas company" means a
domestic corporation, limited liability company, partnership, or not-for-profit
organization as defined by Arkansas law; and
(ii) "Out-of-state company" means all foreign
entities as defined by Arkansas law.
(B) In the event the lowest prices offered
result in a tie bid, the person responsible for awarding a contract must ensure
that all offers meet specifications.
(C) In the event of a tie bid between two or
more offers that meet the specifications as required and where one of the
offerors is an Arkansas company, then the award shall be made to that Arkansas
company.
(D) In the event of a tie
bid between two or more offers that meet the specifications as required
(i) and where at least two of the offerors
are Arkansas companies, then an award will be determined by lot (flip of a
coin) between those Arkansas companies;
(ii) or if all of the offerors are
out-of-state companies, then an award will be determined by lot (flip of a
coin) among all the bidders.
(E) The coin flip will be done in the
presence of at least one witness by the person responsible for awarding the
contract. All witnesses must be employees of the State of Arkansas. A
documentation of the coin flip must be included on the tabulation or bid
history sheet and be signed by the person responsible for awarding the contract
and all witnesses.
R14:
19-11-229.
Ethical Standards.
In accordance with Ark. Code Ann. §
19-11-708(a),
(b), and (c), the following statement must be
conspicuously set forth in all contracts and solicitations costing more than
ten thousand dollars ($10,000): "It shall be a breach of ethical standards for
a person to be retained, or to retain a person, to solicit or secure a state
contract upon an agreement or understanding for a commission, percentage,
brokerage, or contingent fee, except for retention of bona fide employees or
bona fide established commercial selling agencies maintained by the contractor
for the purpose of securing business."
R5:
19-11-230.
Competitive Sealed Proposals.
(c) Tie Bids.
(1) Definitions: As used in this section
(i) "Arkansas company" means a domestic
corporation, limited liability company, partnership, or not-for-profit
organization as defined by Arkansas law; and
(ii) "Out-of-state company" means all foreign
entities as defined by Arkansas law.
(2) In the event the lowest prices offered
result in a tie bid, the person responsible for awarding a contract must ensure
that all offers meet specifications.
(3) In the event of a tie bid between two or
more offers that meet the specifications as required and where one of the
offerors is an Arkansas company, then the award shall be made to that Arkansas
company.
(4) In the event of a tie
bid between two or more offers that meet the specifications as required
(i) and where at least two of the offerors
are Arkansas companies, then an award will be determined by lot (flip of a
coin) between those Arkansas companies;
(ii) or if all of the offerors are
out-of-state companies, then an award will be determined by lot (flip of a
coin) among all the bidders.
(5) The coin flip will be done in the
presence of at least one witness by the person responsible for awarding the
contract. All witnesses must be employees of the State of Arkansas. A
documentation of the coin flip must be included on the tabulation or bid
history sheet and be signed by the person responsible for awarding the contract
and all witnesses.
R10:
19-11-230.
Ethical Standards.
In accordance with Ark. Code Ann. §
19-11-708(a),
(b), and (c), the following statement must be
conspicuously set forth in all contracts and solicitations costing more than
ten thousand dollars ($10,000): "It shall be a breach of ethical standards for
a person to be retained, or to retain a person, to solicit or secure a state
contract upon an agreement or understanding for a commission, percentage,
brokerage, or contingent fee, except for retention of bona fide employees or
bona fide established commercial selling agencies maintained by the contractor
for the purpose of securing business."
R1:
19-11-231.
Small Procurements - Conditions For Use.
(1) Lease. All state agencies may lease
commodities with the exclusion of vehicles (See Ark. Code Ann. §
22-8-102
) where the cost does not exceed ten thousand dollars ($10,000) during the
initial period of the contract without seeking competitive bids, provided the
lease does not contain an option to purchase. Such leases may not be renewed
beyond accumulated expenditures of ten thousand dollars
($10,000).
R2: 19-11-232.
Ethical Standards.
In accordance with Ark. Code Ann. §
19-11-708(a),
(b), and (c), the following statement must be
conspicuously set forth in all contracts and solicitations costing more than
ten thousand dollars ($10,000): "It shall be a breach of ethical standards for
a person to be retained, or to retain a person, to solicit or secure a state
contract upon an agreement or understanding for a commission, percentage,
brokerage, or contingent fee, except for retention of bona fide employees or
bona fide established commercial selling agencies maintained by the contractor
for the purpose of securing business."
R1: 19-11-233.
Emergency
Procurements.
(c) Tie Bids.
(1) Definitions: As used in this section
(i) "Arkansas company" means a domestic
corporation, limited liability company, partnership, or not-for-profit
organization as defined by Arkansas law; and
(ii) "Out-of-state company" means all foreign
entities as defined by Arkansas law.
(2) In the event the lowest prices offered
result in a tie bid, the person responsible for awarding a contract must ensure
that all offers meet specifications.
(3) In the event of a tie bid between two or
more offers that meet the specifications as required and where one of the
offerors is an Arkansas company, then the award shall be made to that Arkansas
company.
(4) In the event of a tie
bid between two or more offers that meet the specifications as required
(i) and where at least two of the offerors
are Arkansas companies, then an award will be determined by lot (flip of a
coin) between those Arkansas companies;
(ii) or if all of the offerors are
out-of-state companies, then an award will be determined by lot (flip of a
coin) among all the bidders.
(5) The coin flip will be done in the
presence of at least one witness by the person responsible for awarding the
contract. All witnesses must be employees of the State of Arkansas. A
documentation of the coin flip must be included on the tabulation or bid
history sheet and be signed by the person responsible for awarding the contract
and all witnesses.
(d)
Professional and Consultant Services. Emergency procurements of professional
and consultant services that total fifty thousand dollars ($50,000) or less may
be procured using the method as described in R1:
19-11-233(A)
through (C). For those PCS contracts that
exceed fifty thousand dollars ($50,000), the agency chief fiscal officer or
equivalent or director, division director or deputy director of an agency,
college or university may institute a request for emergency action review of a
professional or consultant service contract by providing in writing a request
to the Director of State Procurement. The request must detail that to procure
using other methods would endanger human life or health, state property or the
functional capability of the agency. The State Procurement Director may then
approve submission of the contract to the Legislative Council. Under its
emergency action procedures, the Co-chairpersons of the Legislative Council
and/or the Co-chairpersons of the Legislative Council Review Committee may
review PCS contracts on behalf of the Legislative Council, provided a written
report of the review process is presented to the Legislative Council at its
next regular meeting.
R2:
19-11-233.
Ethical Standards.
In accordance with Ark. Code Ann. §
19-11-708(a),
(b), and (c), the following statement must be
conspicuously set forth in all contracts and solicitations costing more than
ten thousand dollars ($10,000): "It shall be a breach of ethical standards for
a person to be retained, or to retain a person, to solicit or secure a state
contract upon an agreement or understanding for a commission, percentage,
brokerage, or contingent fee, except for retention of bona fide employees or
bona fide established commercial selling agencies maintained by the contractor
for the purpose of securing business."
R1:
19-11-234.
Competitive Bidding- Conditions for Use.
(1) Supplies. All state agencies may purchase
certain supplies subject to Amendment 54 under the following condition: If the
cost of the commodity is fifty thousand dollars ($50,000) or less, the state
agency must obtain, wherever possible, at least three (3) written competitive
bids.
(2) Printing and Stationery.
The State Procurement Director or his designee shall purchase all printing and
stationery subject to Amendment 54 under the following condition: If the cost
of the commodity is fifty thousand dollars ($50,000) or less, the State
Procurement Director or his designee must obtain, wherever possible at least
three (3) written competitive bids.
R2: 19-11-234.
Competitive
Bidding.
(2) All contracts for the
lease of a commodity that exceed a cost of ten thousand dollars ($10,000) but
are less than fifty thousand dollars ($50,000) during the initial period of the
contract shall be awarded on the basis of competitive bidding. A purchase
option and/or lease renewal is allowed as long as the accumulated expenditure
does not exceed fifty thousand dollars ($50,000).
R6: 19-11-234.
Competitive
bidding.
Tie Bids.
(a) Definitions: As
used in this section
(1) "Arkansas company"
means a domestic corporation, limited liability company, partnership, or
not-for-profit organization as defined by Arkansas law; and
(2) "Out-of-state company" means all foreign
entities as defined by Arkansas law.
(b) In the event the lowest prices offered
result in a tie bid, the person responsible for awarding a contract must ensure
that all offers meet specifications.
(c) In the event of a tie bid between two or
more offers that meet the specifications as required and where one of the
offerors is an Arkansas company, then the award shall be made to that Arkansas
company.
(d)
(1) In the event of a tie bid between two or
more offers that meet the specifications as required
(A) and where at least two of the offerors
are Arkansas companies, then an award will be determined by lot (flip of a
coin) between those Arkansas companies;
(B) or if all of the offerors are
out-of-state companies, then an award will be determined by lot (flip of a
coin) among all the bidders.
(2) The coin flip will be done in the
presence of at least one witness by the person responsible for awarding the
contract. All witnesses must be employees of the State of Arkansas. A
documentation of the coin flip must be included on the tabulation or bid
history sheet and be signed by the person responsible for awarding the contract
and all witnesses.
R7:
19-11-234.
Ethical Standards.
In accordance with Ark. Code Ann. §
19-11-708(a),
(b), and (c), the following statement must be
conspicuously set forth in all contracts and solicitations costing more than
ten thousand dollars ($10,000): "It shall be a breach of ethical standards for
a person to be retained, or to retain a person, to solicit or secure a state
contract upon an agreement or understanding for a commission, percentage,
brokerage, or contingent fee, except for retention of bona fide employees of
bona fide established commercial selling agencies maintained by the contractor
for the purpose of securing business."
R1:
19-11-242.
Agency Commodity Management Procedures
-Disposition of Commodities Other Than Computers and Electronic
Equipment
(a) Resale. Marketing and
Redistribution ("M & R") shall make available to agencies, tax-supported
entities, or not-for-profit organizations as defined in Ark. Code Ann. §
22-1-101
commodities in serviceable condition and/or commodities of potential use by
agencies, tax-supported entities, or not-for-profit organizations for a
twenty-day period prior to making them available to the general public. During
the twenty-day hold period, commodities shall be sold to agencies,
tax-supported entities, or not-for-profit organizations by Marketing and
Redistribution. Commodities that historically have not sold to agencies,
tax-supported entities, or not-for-profit organizations or items that are
unserviceable may be offered for sale to the general public without the
requirement of the twenty-day hold period. The Director may waive the
twenty-day requirement when he determines that such waiver is in the state's
best interest.
R3:
19-11-242.
Not-For-Profit Organizations.
" Not-for-profit organization" means a private corporation under §
4-28-201 et seq., that is
an exempt organization as described in section 501(c)(3) of the Internal
Revenue Code,
26 U.S.C.
§
501(c)(3), and
that:
(1) Has a benevolent,
philanthropic, patriotic, or charitable purpose; and
(2) Performs a function that would be
performed at the public expense if it were not performed by the
organization.
R1:
19-11-244.
Protest Periods.
(b)
(1) The
second such period to protest is open only to those persons who actually
submitted bids or responses to a solicitation. Such persons may protest the
award of a contract in writing within fourteen (14) calendar days after they
know or should have known of the facts giving rise to their protest.
(2) The word "actual" in the phrase "actual
bidder, offeror, or contractor" modifies each noun in the phrase, so that the
second protest period is open only to actual bidders or actual offerors, as
opposed to those persons or vendors that did not submit a bid or make an offer,
and actual contractors, not merely subcontractors or potential subcontractors,
whether named or unnamed. Persons or vendors that may have an interest in a
particular solicitation or contract but that did not actually submit a bid are
not eligible to protest an award of a contract.
R1: 19-11-264.
Submission of Contracts
with Members of the General Assembly.
(a) All contracts or amendments to contracts
with a member of the General Assembly, his or her spouse, or with any business
in which such a person or his or her spouse is an officer, a director, or a
stockholder owning more than ten percent (10%) of the stock in the business
must be presented to the Legislative Council or the Joint Budget Committee, if
the General Assembly is in session.
(b) Such contracts or amendments to contracts
must be submitted to the Office of State Procurement in accordance with all
applicable policies and guidelines as prescribed on the Office of State
Procurement website.
R1:
19-11-1006.
Performance Evaluation and Expenditure Review of
Professional and Consultant Service Contracts.
Professional and consultant service contracts between state agencies
where the total contract amount exceeds fifty thousand dollars ($50,000) must
be presented to the Performance Evaluation and Expenditure Review Committee
(PEER) or Joint Budget Committee by the Department of Finance and
Administration prior to the execution date of such contract.
R2: 19-11-1006.
Review Requirements of
Professional and Consultant Service Contracts That Are Amended.
(b) Amendments to Contracts That Originally
Did Not Require Review by Legislative Council or Joint Budget Committee. Any
amendment that increases the total dollar amount of a professional or
consultant service contract to exceed the sum of fifty thousand dollars
($50,000) shall require review by the Legislative Council or Joint Budget
Committee, prior to the approval of the Department of Finance and
Administration and before the execution date of the amendment. The amendment,
along with a copy of the original contract and any attachments thereto, must be
submitted to the Office of State Procurement in accordance with the time
guidelines as prescribed in R1: 11-19-1012. Contracts that have expired cannot
be amended.
R1:
19-11-1010.
Use of Performance-Based Standards in
Professional and Consultant Service Contracts.
(a) All PCS contracts greater than fifty
thousand dollars ($50,000), other than those listed herein and those
specifically exempted by the Director of the Office of State Procurement, will
include performance standards. Agencies are encouraged, however, as a matter of
good procurement principle, to include performance standards in all
professional and consultant service contracts. The purpose of these standards
will be to allow the agency to effectively measure the level of performance
provided by the contractor at various stages of the
contract.
R2. 19-11-1012.
Contract Dates.
(b) All contracts
greater than fifty thousand dollars ($50,000), unless specifically excepted,
must be filed with the Department of Finance and Administration and/or the
Office of Construction of the Arkansas Building Authority.
R1: 19-11-1202.
Definitions.
(Rescinded)
R1:
19-11-1203.
Procurement Authorization.
(Rescinded)
R1:
19-11-1204.
Procurement Method.
(Rescinded)
R1:
25-36-104.
Data recording and tracking.
(Rescinded)
