Current through Register Vol. 49, No. 9, September, 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.
R2: 19-11-203.
Capital
Improvements.
Under subsection (14)(Y), capital improvements valued at less than
twenty thousand dollars ($20,000) subject to Department of Finance and
Administration Building Authority Division minimum standards and criteria are
exempt from the requirements of the Procurement Law.
R3: 19-11-204.
Procedures for approval
of information technology products or services obtained by requests for
qualification.
(Rescinded)
R13:
19-11-229.
Procedures for approval of information technology
products or services obtained by competitive sealed bids.
(Rescinded)
R11:
19-11-230.
Procedures for approval of information technology
products or services obtained by competitive sealed proposals.
(Rescinded)
R3:
19-11-232.
Procedures for approval of information technology
products or services obtained by sole source.
(Rescinded)
R1:
19-11-233.
Emergency procurements.
(a) BIDS. The state agency must, at a
minimum, receive three (3) competitive bids unless the emergency is critical.
The quotation abstract must show the names of at least three (3) firms
contacted in attempting to obtain competition.
(b) APPROVAL. All emergency procurements
shall be approved in advance by the State Procurement Director, the head of a
procurement agency, or a designee of either officer. Where time or circumstance
does not permit prior approval, approval must be obtained at the earliest
practical date. Requests for approval shall be made in writing and shall
include:
(1) a copy of the purchase
order;
(2) a copy of the quotation
abstract; and
(3) a written
explanation of the emergency.
(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 with a total projected contract amount, including any
amendments or possible extensions, of less than fifty thousand dollars
($50,000) may be procured using the method as described in R1:
19-11-233(A)
through (C). For those PCS contracts with a
total projected contract amount, including any amendments or possible
extensions, of fifty thousand dollars ($50,000) or more, 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.
(e) Technical and General Services. Emergency
procurements of technical and general services with a total projected contract
amount, including any amendments or possible extensions, of less than one
hundred thousand dollars ($100,000) may be procured using the method as
described in R1:
19-11-233(A)
through (C). For those technical and general
services contracts with a total projected contract amount, including any
amendments or possible extensions, of one hundred thousand dollars ($100,000)
or more, 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 technical and general services
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 technical and general services
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: 19-11-249.
Reporting of Cooperative Contract Purchases.
Cooperative contract purchases must be presented to the Legislative
Council or Joint Budget Committee by the Department of Finance and
Administration Office of State Procurement quarterly. Agencies shall submit
purchases using the appropriate method as determined by the Office of State
Procurement.
R1: 19-11-251.
Intergovernmental agreements.
(a)
Intergovernmental agreements should include at a minimum:
(1) Scope of work to be
accomplished;
(2) Amount of
compensation (if any);
(3)
Delineation of responsibilities and duties of each entity;
(4) Term of agreement; and
(5) Authorized signatures from each
entity.
(b)
(1) Intergovernmental agreements for
technical and general services with a total projected contract amount,
including any amendments and possible extensions, of one hundred thousand
dollars ($100,000) or more will be submitted to the Office of State Procurement
prior to contract execution for review by the Legislative Council or Joint
Budget Committee.
(2)
Intergovernmental agreements involving professional and consultant services
with a total projected contract amount, including any amendments and possible
extensions, of fifty thousand dollars ($50,000) or more will be submitted to
the Office of State Procurement prior to contract execution for review by the
Legislative Council or Joint Budget Committee.
(3) Intergovernmental agreements involving
commodities will not be submitted to the Office of State Procurement prior to
contract execution.
R1:
19-11-265.
Review Requirements of Technical and General
Services Contracts that are Amended.
(a) Amendments to contracts that were
originally reviewed by Legislative Council or Joint Budget Committee. An
amendment will require review by Legislative Council or Joint Budget Committee
prior to approval by the Department of Finance and Administration and before
the execution date of the amendment if the original contract was reviewed by
Legislative Council or Joint Budget Committee and the amendment increases the
dollar amount and/or involves major changes in the objectives and scope of the
contract.
(b) Amendments to
contracts that originally did not require review by Legislative Council or
Joint Budget Committee. Any amendment which increases the total projected
contract amount, including any amendments or possible extensions, of a
technical and general services contract to one hundred thousand dollars
($100,000) or more 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 R5:
19-11-265.
Contracts that have expired cannot be amended.
R2: 19-11-265.
Technical and General
Services Contract Form.
Each contract presented for review should be submitted using the
appropriate contract form as specified by the Office of State Procurement.
Contract forms are available on the OSP website.
R4: 19-11-265.
Reporting of Contracts
for Commodities including Services with a projected total cost greater than
$250,000.
(Rescended)
R5:
19-11-265.
Contract Dates.
For each technical and general services contract form submitted, the
agency is required to enter the beginning and ending date of the contract. The
beginning date of all contracts shall be defined as the date upon which
performance of the services to be rendered under the contract are to begin and
not the date upon which the agreement was signed. This date should be arrived
at with emphasis placed on the following:
(a) Any contract or amendment to a contract
that requires review by the Legislative Council or Joint Budget Committee must
be submitted to the Department of Finance and Administration Office of State
Procurement in accordance with the time guidelines as prescribed on the Office
of State Procurement website. The beginning date of the contract must not
precede the date of the Arkansas Legislative Council meeting in which such
contract is to be reviewed. The Legislative Council or the Joint Budget
Committee shall provide the State Procurement Director with their review as to
the propriety of the contract within thirty (30) days of said submission to the
Legislative Council or Joint Budget Committee;
(b) All technical and general services
contracts with a total projected contract amount, including any amendments or
possible extensions, of one hundred thousand dollars ($100,000) or more unless
specifically exempted, must be filed with the Department of Finance and
Administration Office of State Procurement for review by the Legislative
Council or Joint Budget Committee.
R6: 19-11-265.
Reporting of Technical
and General Services Contracts.
Technical and general services contracts with a total projected
contract amount, including any amendments and possible extensions, of twenty
five thousand dollars ($25,000) and less than one hundred thousand dollars
($100,000) shall be reported to the Legislative Council or the Joint Budget
Committee monthly. Agencies shall report contracts using the appropriate method
as determined by the Office of State Procurement.
R7: 19-11-265.
Technical and General
Services Contracts on File in the Office of State Procurement.
All agencies will be required to maintain copies in accordance with
current document retention laws (Ark. Code Ann. §
19-11-214), of all purchase orders issued for the procurement of technical and general
services.
R1: 19-11-267.
Use of Performance-Based Standards in Contracts.
(a) All technical and general services
contract, including any amendments or possible extensions, shall include
performance standards. The purpose of these standards is to allow the agency to
effectively measure the level of performance provided by the contractor at
various stages of the contract.
(b)
Performance standards may be standardized for use with similar contracts or may
be specifically developed for unique requirements.
(c) Performance standards should measure, at
prescribed points throughout the term of the contract, the quality, quantity,
and timeliness of work being performed.
(d) Performance standards may be refined by
the agency and the provider as a part of the contract negotiations.
(e) A provider's inability to meet
established performance standards may be sufficient cause for declaring default
and may also result in cancellation of the contract.
(f) Contracts that may be exempt from the use
of performance standards include:
(1) Sole
source by law contracts in which the state is compelled as a result of court,
state or federal mandate to award for services from a specific
provider.
(2) Emergency contracts
in which the need for expediency does not permit for the development of
performance standards.
R1:
19-11-268.
Reporting of Vendor Performance.
Contracts with a total projected contract amount, including any
amendments and possible extensions, of twenty five thousand dollars ($25,000)
or more shall require the submission of a vendor performance report at least
one (1) time every three (3) months for the entire term of the contract and at
the end of the contract. Reports shall be due to the Office of State
Procurement. This shall not restrict agencies from submitting an unsatisfactory
vendor performance report at any time during the contract period. Agencies
shall submit vendor performance reports using the appropriate method as
prescribed by the Office of State Procurement.
R1: 19-11-269.
Procedures for approval
of information technology products or services.
Agencies must submit to the Department of Finance and Administration
Office of Intergovernmental Services State Technology Planning (STP) any bid
solicitation, sole source, exempt by law purchase, intergovernmental agreement,
or cooperative contract purchase for Information Technology products or
services where the total projected contract amount, including any amendments or
possible extensions, is one hundred thousand dollars ($100,000) or more. In
addition, any bid solicitation, sole source, exempt by law purchase,
intergovernmental agreement, or cooperative contract purchase that includes
Information Technology products or services as part of the purchase, where that
part is anticipated to have a total projected contract amount, including any
amendments or possible extensions, of one hundred thousand dollars
($100,000.00) or more must be submitted to STP for approval.
STP will provide approval through the state's financial management
system. STP shall have ten (10) business days from receipt of the documents to
complete the necessary reviews. If the STP review is not completed within the
time frame allowed, the agency and STP must mutually agree to an extension of
the review process.
R1:
19-11-272.
Experience Requirement.
Prior to the release of a bid solicitation, if the agency justifies in
writing that the combined experience of the key personnel would be insufficient
to adequately satisfy the requirements of the bid solicitation, the agency must
include in the bid solicitation a statement indicating that only the experience
of the bidder or offeror shall be considered.
R1: 19-11-801.
DFA Building Authority
Division Criteria.
The guidelines and procedures established by the Department of Finance
and Administration Building Authority Division shall be used by all agencies,
except those exempt from Building Authority Division review, in selecting
architects, land surveyors and engineers for state construction projects. Refer
to Architectural Section 6-100 of Building Authority Division Standards and
Criteria Professional Services Selection Procedures for State
Agencies.
R2: 19-11-801.
Procedures for Approval of Architects, Interior Designers, and Engineers
and Land Surveyor Contracts.
With the exception of those agencies exempt from Building Authority
Division review all contracts for architectural, interior design, and
engineering and land surveyor services must be first reviewed by the Department
of Finance and Administration Building Authority Division for its
recommendation and approval as to the propriety and legality of the contract.
Agencies shall submit contracts requiring Building Authority Division review in
accordance with the time guidelines as prescribed on the Office of State
Procurement website. After receiving the recommendation and approval of the
Building Authority Division, the Office of State Procurement shall review and
prepare such contracts for their ultimate submission to the Legislative Council
or the Joint Budget Committee.
In the event the Building Authority Division refuses to give a
favorable recommendation to the propriety of the contract, the agency involved
may request the Legislative Council to review the decision of the Building
Authority Division. The Legislative Council may then request the Department of
Finance and Administration Building Authority Division to review their previous
decision, abide by the decision of the Building Authority Division, or request
the agency to make changes in the contract.
In no event shall the Department of Finance and Administration Building
Authority Division have the final authority to deny a contract solely on the
basis of its propriety.
R1:
19-11-1006.
Performance Evaluation and Expenditure Review of
Professional and Consultant Service Contracts.
Professional and consultant service contracts between state agencies
for which the total projected contract amount, including any amendments or
possible extensions, is fifty thousand dollars ($50,000) or more, 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.
(a) Amendments to Contracts That Were
Originally Reviewed by Legislative Council or Joint Budget Committee. An
amendment will require review by Legislative Council or Joint Budget Committee
prior to approval by the Department of Finance and Administration and before
the execution date of the amendment if the original contract was reviewed by
Legislative Council or Joint Budget Committee and the amendment increases the
dollar amount and/or involves major changes in the objectives and scope of the
contract.
(b) Amendments to
Contracts That Originally Did Not Require Review by Legislative Council or
Joint Budget Committee. Any amendment that increases the total projected
contract amount, including any amendments or possible extensions, of a
professional or consultant service contract to fifty thousand dollars ($50,000)
or more 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 R 2: 11-19-1012. Contracts that have expired cannot
be amended.
R3:
19-11-1006.
Reporting of Professional and Consultant Service
Contracts.
Professional and consultant service contracts with a total projected
contract amount, including any amendments or possible extensions, of ten
thousand dollars ($10,000) but less than fifty thousand dollars ($50,000) shall
be reported to the Legislative Council or the Joint Budget Committee monthly.
Agencies shall submit contracts using the appropriate method as determined by
the Office of State Procurement.
R1:
19-11-1008.
Procedures for Approval of Architects, Interior
Designers, Engineers and Land Surveyor Contracts.
(a) With the exception of those agencies
exempt from Building Authority Division review, all contracts for
architectural, interior design, and engineering and land surveyor services must
be first reviewed by the Department of Finance and Administration Building
Authority Division for its recommendation and approval as to the propriety and
legality of the contract. Agencies shall submit contracts requiring Building
Authority Division review in accordance with the time guidelines as prescribed
on the Office of State Procurement website. After receiving the recommendation
and approval of the Building Authority Division, the Office of State
Procurement shall review and prepare such contracts for their ultimate
submission to the Legislative Council or the Joint Budget Committee.
(b) In the event the Building Authority
Division refuses to give a favorable recommendation to the propriety of the
contract, the agency involved may request the Legislative Council to review the
decision of the Building Authority Division. The Legislative Council may then
request the Department of Finance and Administration Building Authority
Division to review their previous decision, abide by the decision of the
Building Authority Division, or request the agency to make changes in the
contract.
(c) In no event shall the
Department of Finance and Administration Building Authority Division have the
final authority to deny a contract solely on the basis of its propriety.
R1: 19-11-1010.
Use
of Performance-Based Standards in Professional and Consultant Service
Contracts.
(a) All professional and
consultant service contracts shall include performance standards. The purpose
of these standards is to allow the agency to effectively measure the level of
performance provided by the contractor at various stages of the
contract.
(b) Performance standards
may be standardized for use with similar contracts or may be specifically
developed for unique requirements.
(c) Performance standards should measure, at
prescribed points throughout the term of the contract, the quality, quantity,
and timeliness of work being performed.
(d) Performance standards may be refined by
the agency and the provider as a part of the contract negotiations.
(e) A provider's inability to meet
established performance standards may be sufficient cause for declaring default
and may also result in cancellation of the contract.
(f) Contracts that may be exempt from the use
of performance standards include:
(1) Sole
source by law contracts in which the state is compelled as a result of court,
state or federal mandate to award for services from a specific
provider.
(2) Emergency contracts
in which the need for expediency does not permit for the development of
performance standards.
(3)
Architectural and Engineering contracts that are awarded using Building
Authority Division criteria or similar criteria developed by those colleges and
universities which are exempt from Building Authority Division
review.
R2:
19-11-1012.
Contract Dates.
For each professional and consultant service contract form submitted,
the agency is required to enter the beginning and ending date of the contract.
The beginning date of all contracts shall be defined as the date upon which
performance of the services to be rendered under the contract are to begin and
not the date upon which the agreement was signed. This date should be arrived
at with emphasis placed on the following:
(a) Any contract or amendment to a contract
that requires review by the Legislative Council or Joint Budget Committee must
be submitted to the Department of Finance and Administration Office of State
Procurement in accordance with the time guidelines as prescribed on the Office
of State Procurement website. The beginning date of the contract must not
precede the date of the Arkansas Legislative Council meeting in which such
contract is to be reviewed. The Legislative Council or the Joint Budget
Committee shall provide the State Procurement Director with their review as to
the propriety of the contract within thirty (30) days of said submission to the
Legislative Council or Joint Budget Committee;
(b) All professional and consultant service
contracts with a total projected contract amount, including any amendments or
possible extensions, of fifty thousand dollars ($50,000) or more, unless
specifically excepted, must be filed with the Department of Finance and
Administration for review by the Legislative Council or Joint Budget Committee.
R1: 19-11-1013.
Reporting of Vendor Performance.
Contracts with a total projected contract amount, including any
amendments and possible extensions, of twenty five thousand dollars ($25,000)
or more shall require the submission of a vendor performance report at least
one (1) time every three (3) months for the entire term of the contract and at
the end of the contract. Reports shall be due to the Office of State
Procurement. This shall not restrict agencies from submitting an unsatisfactory
vendor performance report at any time during the contract period. Agencies
shall submit vendor performance reports using the appropriate method as
prescribed by the Office of State Procurement.
