Current through Register Vol. 49, No. 9, September, 2024
CHAPTER ONE
INTRODUCTION
To carry out some aspects of its mission, the Arkansas
Department of Health and Human Services (DHHS) uses a statewide network of
contracted service providers, ii
The purpose of this Contract Manual (hereinafter referred to as
"this Manual") is to provide a common frame of reference for the development of
Professional and Consultant Services (PCS) contracts and intra-agency
agreements . It is based on federal and state directives, as well as "best
practices" which have been standardized for use by DHHS program
divisions/offices (hereinafter referred to as "divisions").
The essential elements of each agreement are based on
mutually binding obligations between the two i parties: the service provider
eiie and the applicable DHHS division/office, using funds appropriated to carry
out the
nrnnram re[LESS THAN]:nrtn[LESS THAN]:ihilitip[LESS
THAN]: nfthat Hiviginnip
The Office of Chief Counsel (OCC) provides legal advisory
concerning procurement methods, service performance provisions, and any unique
terms and conditions or other proposed deviations from standard practices
described in this Manual.
The Office of Finance and Administration (OFA) provides
administrative direction to facilitate the successful completion of agreements
so that they iiiiliiil iiil meet requirements for coordination through the
Office of State Procurement (OSP), Department of Finance and Administration
(DFA) and review by the Arkansas state legislature, if necessary. OFA also
provides financial advisory and technical assistance through a network of
divisional Chief Fiscal Officers to assure compliance with the Financial
Management Guidee iee and the Accounting and Budgetary Procedures Law.
The Central Support Unit (CSU) of the Contract Support Section
(CSS) of OFA provides this Manual as an element of technical assistance. Please
direct all suggestions for corrections, additions and/or updates to:
Contract Support Section/Slot W345
P.O. Box 1437
Little Rock, AR 72203
Telephone: (501) 682-6293
CHAPTER
FOUR
PROCUREMENT
I.
POLICY
Policy governing procurement is addressed in A.C.A. §
19-11-204, §
19-11-229 through 234, §
19-11-301 through 319, and §
19-11-801 through 806.
This policy applies to all PCS contracts, whether the contract
is executed as a standard PCS contract (on Form OSP-1) or as a
stand-alone PO.
"Small Procurements", defined as those procurements not
exceeding $5,000.00, may be procured without a competitive procurement process.
Ceompetition should, however, be used to the maximum extent possible.
Procurements exceeding $5,000.00 must be competitively procured
unless OSP approves a Sole Source selection (except for exempt commodities and
services as defined in A.C.A. §
19-11-203 (14]).
Refer to the DHHS Procurement Manual for Professional and
Consultant Services on
DHHS-Gold for additional detail on the procurement of PCS
services.
NOTE:
* It is DHHS policy to use open and competitive public
procurement methods to promote cost effectiveness and fairness of opportunity
among all prospective providers of service.
* Open, competitive procurement practices should also be
applied to the greatest extent practicable in contract offers to other state
agencies if there is more than one state agency which might have the capability
to perform the required service(s).
II.
PI
A.
Service source selection activities
in each division must be carried out by qualified procurement officials. All
Issuing Officers shall be certified by CSS as Certified Procurement Officials
(CPO's) before exercising their procurement activities.
B. Once the divisionie staff-identifies the
need for contracted professional or consultant services, they should set an
allocation (funding amount) and begin procurement procedures using one of the
following eightftioe methods as identified in Arkansas Code:
1. Small Procurement;
2. Competitive Bid or Competitive Sealed Bid
(CB);
3. CSPiill -, also known as
RFP;l
4. Request for
Qualifications (RFQ);
5. Sole
Source;
6. ABAiliiiei
criteria;
7. Intergovernmental
(IG); or
8. Emergency
C. For standard PCS contracts, all
elements requiring legal review should be forwarded to OCC in accordance with
the
"Professional/Consultant Services Contract Deadlines" to allow
OCC sufficient time for review and response. These elements include:
1.
Procurement proposals prior
to public release (i.e., CB, CSP, RFQ);
2.
Financial terms, if they
depart from DHHS-standard options: fixed rate; final negotiated rate; actual
cost, or scheduled ireimbursement; and
3.
Terms and Conditions, if they
depart from the standard, OCC-approved Terms and
Conditions.
D.
Initial standard PCS contracts shall not extend past the end of the biennium.
However, up to six (6) years' worth of eie e-e extension options can be
exercised if such extension options are explicitly stipulated in the original
competitive procurement
AND in the original contract, i.e. initial
contracts can be extended
m e-e eei for a total time period no
longer than seven (7) years. The extension option should only be exercised if
service performance under the existing contract has been satisfactory.
The state standard is for the initial contract and each
successive extension period to not exceed one (1) year (i.e., the initial
contract should normally not exceed one year and the contract should be amended
to extend for no more than one year at a time).
If circumstances warrant deviation from the state standard,
divisions should consult with CSS.
E. A NEW procurement requires a NEW contract
(i.e., an existing contract cannot be amended to incorporate the terms of a NEW
procurement.)
The procurement/development/approval process can be very
time-intensive, especially during the high-volume "surge" period preceding the
beginning of the state fiscal year. The essential elements may be required for
presentation to OCC as much as five months prior to proposed contract
implementation, to allow for remediation, procurement process completion,
contract development, and review through DFA and the Arkansas State
Legislature, if required. Program planning must anticipate a long lead-time
from the initial decision-making and commitment of resources to the point of
actual initiation of services under the contract.
F.
Procurement Methods
NOTE: The A.C.A. reference is provided for each
procurement method for more detail on the specific requirements. The
information indicated below only highlights the key areas but does NOT
represent a comprehensive repeat of ALL the requirements found in the A.C.A.
and relevant Regulations.
The following procurement options are allowable for PCS
contracts (A.C.A. §
19-11-203 |[GREATER THAN]14]
lists those commodities and services that are exempt from the
procurement requirements):
1.
Small Procurementa.
Refer
to A.C.A. §19-11 -204 and §19-11 -231.
b.
Small Procurements are
defined as those that do not exceed $5,000.00 total (compensation plus
reimbursable).
c. Procurement
requirements shall not be artificially divided so as to constitute a
Small Procurement.
d.
Competitive procurement is not required for Small Procurements but
is STRONGLY encouraged.
e. A
contract that does not exceed $5,000.00 should normally be executed as a
stand-alone PO.
2.
CBa.
Refer to
A.C.A. §19-11 -234 and §19-11 -229.
b. At a minimum, contracts exceeding
$5,000.00 total but not exceeding $25,000.00 total must be procured by the CB
method unless OSP approves an alternate procurement method, lliContracts within
this range may, however, be procured by the more formal Competitive
Sealed Bid method at the division's discretion.
c. The CB method of procurement requires
obtaining bids by:
(1.) Direct
mail;
(2.) Telephone;
(3.) Telegraph;
(4.) Written form;T
and/or
(5.) Electronic media
Note: Written requests and written responses are
far preferable.
d.
Sufficient solicitation should be conducted to elicit three bids. 4f-lf,
however, three bids are not received, the division must document that at least
three firms were contacted OR explain why three were not contacted. Only firms
that could logically provide the service to be procured should be
contacted.
e. The CB request should
specify in detail the project objectives, results expected, and desired
qualifications.
f. The contract
shall be awarded to the qualified bidder responding with the lowest
bid.
g. At a minimum, contracts
exceeding $25,000.00 total must be procured by the more formal
Competitive Sealed Bid. Contracts
exceeding $25,000.00 total may, however, be procured by an alternate method
with OSP approval.eiie elel
h.
Competitive Sealed Bid
procurement requires public solicitation and
public opening of responses.
i. The Competitive Sealed Bid
statutes and regulations are much more detailed than those for
non-sealed CBeiie i and far more numerous than space here permits.
Referral to the A.C.A. is critical.
3.
eiie elel CSP), also known as eel
(RFP)a. Refer to A.C.A. §
19-11-230.
b. The
CSP eee iiee method of
procurement is often more appropriate for PCS contracts because it allows for
factors in addition to cost to be considered in the evaluation of responses.
Use of the
CSP method, however, requires prior iliii approval of
OSP coordinated through CSS.
(1.) To request
OSP approval to conduct a CSP procurement, the division Director should submit
an electronic (e-mail) request on division letterhead to CSU Manager for
coordination to OSP.
(2.) The
request should include the following information:
(a.) The nature of the proposed
service(s);
(b.) The term of the
proposed initial contract and the number of extension options, if
applicable;
(c.) The reason(s) why
a CB procurement is not practical or advantageous; and
(d.) The factors in addition to cost that
should be considered in the evaluation of responses.
c. The CSP method is
appropriate when the evaluation involves the relative abilities of respondents
to perform, including the degree of technical or professional experience, and
price is not the only consideration.
d. Notice inviting bids shall be given no
fewer than five nor more than thirty calendar days preceding the date for the
opening of responses.
e. Notice
shall be posted at least one time in at least one newspaper having general
circulation in the state or posted by electronic media. The DHHS standard
procedure is to post the notice on the DHHS website for ten working days. In
addition, staff may publish a notice in a newspaper having statewide
circulation and/or post on their division website a link to the DHHS website in
order to promote full awareness of the competitive procurement opportunity to
all potential service providers.
f.
The division/office should evaluate proposals by an evaluation committee
consisting of three or more members in accordance with the requirements set
forth in the CSP.
g.
The division/office should review and evaluate all accepted proposals and award
the contract to the respondent that provides the most effective solution for
the price quoted.
h. The
division/office should be prepared to address, in the legislative review
process, their criteria for selection of contractor(s), particularly if the
contract(s) was/were awarded to respondent(s) who did not provide the lowest
cost proposal.
i. Act 1814 of 2003
requires that ALL
CSP's contain language that encourages minority
participation. The following approved language shall be included in ALL
CSP's:
MINORITY BUSINESS POLICY:
Minority participation is encouraged in this and all other
procurements by state agencies. "Minority" is defined by Arkansas Code
Annotated §
1-2-503 as "black or African
American, Hispanic American, American Indian or Native American, Asian, and
Pacific Islander." The Division of Minority Business Enterprise of the
Department of Economic Development conducts a certification process for
minority businesses. Bidders unable to include minority-owned businesses as
subcontractors "may explain the circumstances preventing minority
inclusion."
j. The CSP
statutes and regulations are much more detailed than space here permits.
Referral to the A.C.A. is critical.
4.
RFQ
a. Refer to A.C.A. §
19-11-802.
b. This procurement option is, in the absence
of sole source justification, the procurement method recommended when
contracting for architectural, engineering, land surveying and legal
services.
c. This option may also
be used, to a limited extent, with prior approval from DFA/OSP, for other
services when it is determined to be the most suitable method of contracting.
Divisionseie should consult with CSS ei lii before considering this
option.
d. The RFQ
method is typically limited to those situations where le eeeethere is a
set rate for the service being procured.
e. Utilization of the RFQ method
must be prior approved by DFA/OSP, except for architecture, engineer, land
surveying, and legal services, as indicated above.
f. Act 1814 of 2003 requires that ALL
RFQ's contain language that encourages minority participation. The
following approved language shall be included in ALL
RFQ's:
MINORITY BUSINESS POLICY:
Minority participation is encouraged in this and all other
procurements by state agencies. "Minority" is defined by Arkansas Code
Annotated §
1-2-503 as "black or African
American, Hispanic American, American Indian or Native American, Asian, and
Pacific Islander." The Division of Minority Business Enterprise of the
Department of Economic Development conducts a certification process for
minority businesses. Bidders unable to include minority-owned businesses as
subcontractors "may explain the circumstances preventing minority
inclusion."
g. Architect and
engineer contracts for construction projects are NOT indicated as
RFQ on the Form OSP-1 as these contracts are subject
to ABA criteria and should, therefore, reflect "ABA Criteria" as the
procurement option.
5.
Sole Source
a. Refer to
A.C.A. §
19-11-232.
b.
The sole source method shall be
used only as a last resort, and only when the other
procurement methods are clearly not applicable. Exceptions can be
requested only if based on statutory requirements or profound programmatic
imperatives. The division/office should expect detailed questioning in the
legislative review process for all sole source proposals.
c.
Sole Source PCS contracts
canmay be executed under the following circumstances:
(1.)
Sole Source, Exempt by Law
This refers to a contract with a specific provider that results
from a mandate by the court system or from state or federal law.
(2.)
Sole Source, Intent to
Award
This refers to those contracts that are awarded where there is
only one apparent source AND only after legal public notice of intent has been
published in a newspaper of statewide circulation and no other potential
contractors have come forth expressing interest in the contract.
The public notice shall be given no less than five nor more
than 30 calendar days preceding the date of contract initiation. The public
notice should run for a minimum of one day.
OCC approval is required for Sole Source, Intent to
Award.
(3.)
Sole Source, Justification Approved by OSP
Except for those contracts that are "Sole Source, Exempt
by Law" or "Sole Source, Intent to Award" and those
contracts that are for performing artists and lecturers, new sole source
contracts ee eele e iel ei require a written narrative justification, which
must be approved in advance by DFA/OSP. The written justification will also be
provided to legislators for consideration and discussion during review by
sub-committees and approval by the Legislative Council. (EXCEPTION:
DFA/OSP prior approval is not required foreft | contracts with state
agencies.)
The procedures for the division/office to request sole source
approval ee are as follows:
(a.)
Division iie Director shall prepare a-a memorandume from division Director on
division letterhead to Director of OSP to in accordance with the sample
Request for Sole Source Procurement memorandum in the Appendix,
addressing the following six questions:
(1.)
Why is this service needed?
(2.)
What method(s) were used to determine that a lack of responsible/responsive
competition exists for this service?
(3.) How was it determined that this provider
possesses exclusive capabilities?
(4.) Why is this service unique?
(5.) Are there patent or proprietary rights
that make the required service unavailable from other sources?
(6.) What would the agency do if the
provider/service were no longer available and what, if any, program
considerations make the use of a Sole Source critical to the successful
completion of the agency's task?
NOTE:
* If the division intends for the original contract to exceed
one (1) year, the division must make that evident in their request.
* If the division intends to amend the contract to extend for a
multi-year period, the division must also include in the request an indication
of the number of extension options the contract will have.
* The maximum length of time that a Sole Source
contract can continue without re-approval by OSP is seven (7)
years.
(b.) All
six questions must be addressed in the memorandum, even if the
proper response is "not applicable."
(c.) The memorandum shall be prepared as a
Word®
format document suitable for electronic transmission.
(d.) Division/office shall submit
the memorandum as an attachment via e-mail to iiie CSU Manager for
coordination/approval.
(e.) ii CSU
Manager shall ill coordinate approval with DFA/OSP.
(f.) CSU Manager shall ill forward DFA's
approval or disapproval to the requesting division/office via e-mail.
|
(g.) In its submittal of the
applicable contract authorization to F-OUCSS, the division/office shall include
a copy of the e iil requesting memorandum as well as a ie copy of DFA's
approval message.
6.
iliiBA)
a. Refer to Architectural Section 6-100
of State Building ServicesBS Standards and Criteria - Professional
Selection Procedures for State Agencies.
b. The guidelines and procedures established
by the ABA shall be used in selecting architects, land surveyors, and engineers
for state construction projects.
7.
Ieeel IG)
a. Refer to A.C.A. §
19-11-203(14).
b. IGeeel- contracts
are those involving agreements between | two or more Arkansas governmental
entities. A contract with an Arkansas governmental agency is considered an IG
contract even though the contractor may have been selected by a CSP
or a CB. State agencies outside Arkansas are NOT considered
IG for the purposes of PCS contract procurement.
c. All IG contracts with a total dollar value
| (compensation plus reimbursement) that exceeds $25,000.00 are required to be
reviewed by the Performance Evaluation and Expenditure Review (PEER)
subcommittee prior to the execution date of the contract.
d. IG contracts do
not require EO 98-04 disclosure | forms.
e. IG contracts are exempt from the Arkansas
Procurement Law. Program | agencies should, however, be able to justify, if the
question arises, the selection of a particular agency if there is more than one
state agency that might have the capability to perform the required
service(s).
8.
Emergency
a. Refer to
A.C.A. §
19-11-233.
b.
Emergency procurements may
only be requested by the agency Chief Fiscal Officer or equivalent or Director,
Division Director or Deputy Director. This option is to be used VERY
SPARINGLY.
c. The Emergency
procurement process allows a contract to be implemented prior to review
by the full Legislative Council. (Unless critical, Emergency
procurements should be made using some form of competitive bid process.)
CHAPTER FIVE
PROVIDER EXCLUSION
RULE
I.
Policy
It is the policy of DHHS to conduct business only with
responsible participants/contractors. Participants will be excluded from
participation in DHHS programs, if necessary, to protect public funds, the
integrity of publicly funded programs, and public confidence in those programs
(refer to DHHS Administrative Policy 1088 and A.C.A. §
19-11-245).
II.
DHHS Exclusion
List
A. The DHHS Exclusion List
is a listing of recipients or contractors determined by DHHS to be
excluded from contracting with DHHS.
B. Upon determination that an entity is to be
excluded, the DHHS Director shall issue a written decision to exclude and state
the reasons for the action taken. A copy of that decision shall be mailed or
otherwise furnished to the excluded entity or designee within five days of
issuance. That decision shall be final and conclusive.
C. Exclusion shall be for a period of not
less than one year.
D. Exclusion of
a participant in one program of DHHS shall apply to all programs administered
by DHHS.
E. The notification of
DHHS Director's decision shall be forwarded to OFA, which shall
1. Notify DHHS executive staff, payment
staff, and contracting staff
2.
Update current list of excluded participants on DHHS Gold
III.
List of Parties
Excluded from Federal Procurement and Non-procurement Programs
A. The General Service Administration (GSA)
maintains the List of Parties Excluded from Federal Procurement and
Non-procurement Programs.
B.
This is a listing of firms and individuals that have been suspended, debarred,
or otherwise excluded by the federal government from participating in federal
programs.
C. This listing is
available on the Internet, the address for which can be obtained from CSSFOU.
|
D. Search of the list is executed
by name of the firm or individual in question.
IV.
All State
Agencies
Suspended/Debarred Vendors ListA. The
All State Agencies Suspended/Debarred Vendors List is
a listing of entities suspended or debarred by the State of Arkansas.
B. DFA/OSP maintains this listing.
V.
Procedure When
Developing PCS Contracts
A.
Division/office should consult the DHHS Exclusion List and the GSA list during
the procurement process AND prior to the developing and awarding
of any contracts.-of eieiill ee liie liee eii elee
B. Upon receipt of notification that an
entity has been added to the DHHS Exclusion List, CSS shall initiate action to
terminate all existing contracts ith that | entity.
CHAPTER SEVEN
PERFORMANCE BASED
CONTRACTING
I.
Policy
Refer to DHS Policy 1066 "Performance Based Contracting
Policy" and A.C.A. §
19-11-1010.
These policies are applicable to every PCS contract and PCS
contract amendment to which DHHS is a party except as listed below:
A. PCS contracts which are procured by the
Sole Source by Law method;
B. PCS contracts which are executed as
Emergency contracts;
C. PCS contracts for Architectural and
Engineering services that are awarded using ABA criteria; or
D. PCS contracts for
$10,000.00
total (compensation plusaod reimbursable) or less
NOTE: DHS STRONGLY ENCOURAGES the use of performance indicators
for ALL PCS contracts regardless of the dollar value or procurement method
unless the DHS division/office Director determines performance evaluation would
not be cost effective).
II.
Procedures
A. The division/office shall prepare proposed
performance-based standards for each PCS contract el except for exclusions
listed previously.
B. The
division/office preparing performance based standards shall submit the proposed
standards to CSS for review and approval. ee e iei
C. CSS shallwtU review the proposed
performance based standards to determine if they violate any law or regulation
applicable to DHHHS and that the contract terms will be enforceable. CSS
shallwtll indicate their approval electronicallyiiiliil.
D.
Form DHS-1366-A illustrates
the required format for performance based standards. The performance based
standardsii included in the contract are required to | specify the following:
1. Goals (also known as program deliverables
or benchmark objectives)
2.
Performance Indicators
3.
Acceptable performance levels
4.
Remedies for unacceptable performance
E. There is no need for legal review by CSS
if the contracting division certifies the following:
1. The contract is identical to an existing
contract that has received OCC approval except as to contractor
and
2. The existing approved performance terms
are satisfactory and have accomplished the outcomes desired.
Performance Based Contracting Certification, Form
DHS-1366, can be used for this certification.
F.
Inclusion of Performance
Indicators in PCS Contracts1. Standard
PCS Contracts
a. Performance Indicators l
shall be made legal | attachments to the Form OSP-1 in standard
PCS contracts.
b.
CSS
approval and dDivision certification shall be included with the |
contract but not made a legal attachment.
2. Stand-alone PO's for Professional and
Consultant Services
a. For each and every
non-exempt PCS contract that is executed as a stand-alone PO, and for which
performance based standards are required, division/office shall obtain the
contractor's signature on the Contractor Certification Concerning
Performance, Forms DHS-9353 or DHS-9354, to which shall be
attached a copy of the performance indicators.
b. The
Form DHS-9353 or
DHS-9354 eiii
ei-ee-sbalJ-bsshall be retained in the
III.
Performance Evaluation
A. During the term of the contract, the
division/office shall complete sufficient | performance evaluation(s) to
determine if the contractor's performance is satisfactory or
unsatisfactory.
B. Justification
for the division'si ultimate determination should be retained in the divisioni
files for a minimum of five years from the expiration date of the
contract.
IV.
Contract AmendmentsA. When amendments
are executed on a PCS contract with performance | indicators, except in certain
circumstances listed below, the key elements of the amendment should be
furnished to CSS for review. CSS will review the | information to insure there
is no material change in the terms that could render any portion of the
contract unenforceable.
B. The
above review by CSS for amendments is
not required if the
contracting division/office certifies that:
1.
The amendment changes only quantity, price, or duration,
and
2. The existing
approved performance terms have previously been approved by CSS, are
satisfactory, and have accomplished the outcomes desired.
Form DHS-1366 can be used for this
certification.
Note, in addition:
1. CSS approval is not required
for previously CSSOGC-approved performance indicators being utilized in a new
contract. Division/office certification IS required, however.
2. Neither CSS approval nor division/office
certification is required for | amendments that terminate a
contract.
3. CSS approval and
division/office certification may be submitted by | electronic mail.
C.
Any changes to performance indicators require approval
by CSS. |
D. If an amendment changes
some but not all of the performance indicators in a standard PCS contract, CSS
approval should be obtained for those that are changing and the division/office
should certify for those that are not changing.
CHAPTER NINE
RATE INCREASE
APPROVAL
I.
Policy
A.C.A.§ 20-75-110 and §
20-77-110 govern rate increases to
DHHS contractors in certain circumstances.
II.
Requirements
A. In many situations, it is prohibited to
increase the contractor's reimbursement rate without first obtaining the
approval of the Governor of Arkansas and the Chief Fiscal Officer,
DFA.
B. New contracts procured
through a competitive process (i.e., CB, CSP, or RFQ) are not subject to this
requirement.
C. Some fixed rates
that function as ceiling rates can allow for increases in payments that do not
constitute a rate increase above the ceiling rate.
D. Administrative contracts or other PCSeil
eie contracts entered into by the Medicaid program with individuals or
corporations not as providers of medical service do not come within the scope
of this regulation. These contracts already have a review process established
which includes DFA and the legislature.
E. When a Medicaid rate increase is approved
for a service that is in a PCS contract, DHHS can pay the increased rate
without having to request a rate increase through the Governor IF and only if
the contract contains the following language:
(Listing of services') are Medicaid
reimbursable services and the reimbursement rate will be equal to the Medicaid
rate in effect at any given time."
F. In those cases where the Governor's
approval is required, the implementation of rate increase will not be approved
prior to the date of his signature on the eieee Iee l - Reimbursement
Rate Increase Approval Form, Form DHS-1951).
III.
Procedures
A. To request an increase in the
reimbursement rate(s) foref service(s), the division/office sbouldshall
complete Form DHS-1951 and submit it to CSS along with
justification and supporting documentation. The Form DHS-1951
requires an original signature by the division/office Director. One form
should be completed for | each contractor.
B. CSS shall process the requestee leee ie
eei and forward hrough DHHSOFA Chief Fiscal Officer to DHHS Director.
C. Upon his approval, DHHS Director shall
routes the request and the letter to the Governor's Office for approval. If he
does not approve, DHHS Director shall returns the request to CSS.
D. Upon his approval, the Governor will
returns the signed request to CSS. CSS shall notifyi the requesting division
and ACO of the Governor's approval or disapproval.
NOTE:
For rate increase requests that relate solely to Medicaid and
that are strictly under the auspices of DMS, the request originates within DMS
for coordination through OFA and the DHHS Director's Office to DFA, Office of
Budget and on to the Governor. These requests do NOT flow through CSS.
All other rate increase requests SHOULD flow through CSS as
outlined above.
CHAPTER TEN
PROFESSIONAL/CONSULTANT
SERVICES CONTRACTS
I.
Policy
See A.C.A. § 19-11-200 etseq., § 19-11-700 et seq.,
and § 19-11-1000 etseq.
II.
PCS Contracting
Requirements A.
PCS
Contracting
Formats
1.
Standard PCS Contracts
a. All PCS contracts
that exceed $25,000.00 in compensation (per
contractor, per fiscal year, per cost center) shall be executed on the
Form OSP-1. (All PCS contracts executed on the Form OSP-1
are referred to in this Manual as "standard PCS
contracts.")
b. Standard
PCS contracts that exceed $25,000.00 in compensation
must be submitted to DFA for review and approval.
c. Standard PCS contracts that do NOT exceed
$25,000.00 in compensation require DFA review and
approval ONLY IF THEY ARE SOLE SOURCE OR EMERGENCY CONTRACTS.
d. Standard PCS contracts that exceed
$25,000.00 total (compensation plus reimbursable) must
also be reviewed by the Legislative Council (or Joint Budget Committee when
legislature is in session).
(1.) Those
contracts with state agencies must be presented to the Performance
Evaluation and Expenditure Review (PEER) Subcommittee prior to approval
by DFA and prior to the execution date of such contract.
(2.) Those contracts with non-state agencies
must be presented to the Review Subcommittee prior to approval of
DFA and prior to the execution date of such contract.
(3.) The Legislative Council or the Joint
Budget Committee may elect to review or exempt any contract or group of
contracts.
2.
Stand-alone PCS PO's
a. All PCS contracts
that DO NOT exceed $25,000.00 in compensation should be executed on the PO
format and are referred to in this Manual as "stand-alone PO's". Agencies shall
not, however, split known quantities into smaller ($25,000.00 and below)
amounts to avoid a standard contract.
A division may execute a PCS contract
that does not exceed $25,t000.00 in compensation as a standard PCS contract on
the Form | OSP-1, if circumstances warrant.
b. Stand-alone PO's require neither DFA
review and approval nor legislative reviewr u-nless they exceed $25,000.00
total (compensation plus reimbursable). -However, multiple PO's to the
same contractor in the same fiscal year from the same cost center MUST be
reported to OSP to assist OSP in determining whether an agency is
issuing multiple PO's in an attempt to circumvent the requirement of
establishing a standard PCS contract. (See A.C.A. §19-11 -1012)
B.
Timeframes
1. All standard PCS
contract proposals should be negotiated, developed, and submitted to CSS in
sufficient time to allow for a thorough compliance review by CSS, approval by
the division, and signature by the contractor. This | review, approval, and
signature is required prior to the routing of the proposal to DFA, if
applicable,elile and prior to the effective date of the | contract
action.
2. For specific deadlines
for the submission of authorizations to F-OUCSS and | signed contracts to DFA,
refer to the Professional/Consultant Services Contract Deadlines
that is available from CSS--l. | Cooperation in meeting the published
deadlines will avoid possible delays in service and Suspension of the
Rules.
3. Contracts requiring
legislative review that are submitted to DFA after the due date must be
accompanied by a
Suspension of the Rules letter from the DHHS
Director (see sample letter in Appendix). This letter should contain the
following:
a. Contractor's name
b. Request for suspension of the rules
c. Explanation for failure to
submit the contract under regular procedures
d. Description of the service(s) being
purchased
e. Consequences if the
request is not granted
C. General requirements for all PCS contracts
include, but are not limited to, the following:
1.
DHHS standard is that initial
contracts shall not extend past the end of the fiscal year. Requests for
initial contracts to extend past the end of the fiscal year will be considered
by CSS on a case by case basis. In any case, the initial term of a PCS contract
shall not extend past the end of the biennium.
2. PCS contracts may be amended to extend for
a total period of no more than seven (7) years.
3. PCS cContracts with
individuals and sole
proprietorships are prohibited unless approved by OCC
and are, in any case, strongly discouraged. (A sole proprietor is one who owns
all of the assets of the business and is solely liable for all the debts of the
business.)
4. In many situations,
it is prohibited to increase the contractor's reimbursement rate without first
obtaining the approval of the Governor of Arkansas and the Chief Fiscal
Officer, DFA. Note: New contracts procured through a competitive process are
not subject to this requirement. Also, some fixed rates that function as
ceiling rates for services can allow for increases in payments that do not
constitute a rate increase above the ceiling rate. (See Chapter Nine
of this Manual.)
5.
For all contracts that were competitively procured and that exceed
$25,000.00, the contractor must submit (or have on file with CSS) a copy of its
Equal Employment Opportunity (EEO) policy. Contractors that do not have an
established EEO policy must submit a written statement attesting that
they
do not have an EEO policy. This EEO policy, or
statement, shall be made a part of the contract file and shall be submitted to
DFA, if necessary.
6. Certain PCS contracts require additional
approval beyond the normal procedure.
a.
Construction-related contracts require review by and approval from CSU and
ABA.
b. PCS contracts for
information systems technology and services (including the Ppurchase of
computer equipment) i ee requires review by and approval memo from the DHHS
Office of Systems and Technology (OST) prior to the development of the contract
(see iiil il DHS Policy 1022 for details.- Re-approval is required
for all amendments to applicable contracts.
c. Contracts for legal services require
review by and approval from OCC.
7. Standard PCS contracts are not binding,
and no payments will be made, until they are approved afld-i-by both
contracting parties (the contractoii and the lil division iDdirector), as well
as by a representative of DFA when applicable. Standalone PO's are considered
effective and, therefore, binding upon the contractor's acceptance of the
terms.
8. Funding amounts based on
Final Negotiated or Fixed unit rates should be computable to an even number of
units whenever practical. If the contract amount cannot be computed
into an even number of units, the number of full units possible should be
indicated, with a notation made that payment cannot exceed the contract
total. Funding amounts based on budgets should be exact, not
rounded. Contract totals that include more than one funding source should
reflect the exact total of the funding sources, not a rounded amount.
9. The prior written approval of
OCC is required for the contractor to assign the contract in whole or in part
or any payment arising out of it.
10. To be considered valid and binding, a
stamped or automated signature by a contracting party must be:
a. Unique;
b. Capable of being verified; and
c. Under the sole control of the signatory.
11. Contractors shall
insure non-discrimination and equal opportunity by | subcontractors in
compliance with all applicable federal laws, regulations, executive orders and
civil rights rules and regulations.
12. Standard PCS contracts with out-of-state
vendors ("foreign corporations") who | are transacting business in Arkansas
shall include verification of the vendor's Certificate of Authority from the
Arkansas Secretary of State.
D.
Ethics in Public Contracting
1. Ethics in public contracting is addressed
in A.C.A. §
19-11-701 through 717.
2. DHHS shall conform to high professional
standards and stringent procurement practices to sustain public trust in their
functions. Public employees must discharge their duties impartially so as to
assure fair competitive access to governmental procurement by responsible
contractors. Moreover, they should conduct themselves in such a manner as to
foster public confidence in the integrity of the state procurement
process.
E.
Reimbursement Guidelines
The contractor and division/office should agree upon the method
of reimbursement before a contract is developed. The following methods are
acceptable (see Financial Guidelines for Purchased Services for
greater detail): liie
1. Fixed Rates
a. Fixed rates are based on a rate schedule
approved by DHHS and standardized for a particular service or group of
services. Rate schedules are developed by the divisioni funding the program.
The division/office should adhere to the DHHS criteria for a cost
study.
b. The contractor rates
should fall within the range of allowable rates shown on the approved rate
schedule. Amendments to revise rates ithin this range are completed on a
prospective basis from | the effective date of the contract amendment. Fixed
rates based on federal approved rates such as Medicaid may be effective on the
date of approval by the federal agency.
c. All payments are final and no settlement
will be made upon expiration of the contract.
2. Final Negotiated Rates
There are a variety of approved methods to determine an
estimate of reasonable and necessary expenditures per unit of service being
purchased. These include, but are not limited to, the following:
a. A total operational budget allocated to
service component;
b. The published
rates of the contractor for non-contract clients;
c. The established community rate for a
similar service;
d. The previous
year's audit; and e. The contractor's cost study.
3. Actual Cost
a. Actual cost reimbursement is based on a
complete itemized listing of allowable program expenses.
b. The total itemized listing should equal
the total DHHS funding in the contract.
4. Scheduled Reimbursement
a. Scheduled reimbursement -
actual cost basis
(1.) Scheduled reimbursement on an actual
cost basis is based on a schedule of costs or a line-item budget that is on
file with the divisioni. Schedule shall include a statement | identifying the
basis for reimbursement.
(2.) The
schedule should include the total dollar amount allocated | to each program
with compensation and reimbursable indicated.
(3.) The schedule should clearly indicate
that payments are based | on actual expenditures incurred and no advance
payments are allowed.
(4.) The
schedule should indicate the anticipated date and amount | of each
payment.
(5.) Invoicing
requirements, expenditure reporting and payment adjustments shall be addressed
in the sSchedule as applicable. |
b. Scheduled reimbursement-
fee
basis
(1.) The schedule shall
include a statement identifying the basis for | reimbursement.
(2.) The schedule should sets payment limits
for the funding | sources listed.
(3.) Contractors should submit invoices with
documentation of services provided applicable to each of the funding sources.
Payment on each invoice is limited to the corresponding amount on the payment
schedule.
(4.) The schedule should
indicate the anticipated date of payment, | amount of each payment, and total
applicable funding
(5.) Payment
adjustments shall be addressed in the Schedule if applicable.
F.
Payment Limitations
The division/office may impose payment limitations on certain
funding sources m o be able to maintain payment capabilities
to all contractorsi and/or to levelize payments to contractors throughout the
contract period. Payment cuts to contractors necessitated by payment
limitations are restored in subsequent payments within the contract period.
Common payment limitations include Monthly Cumulative and Quarterly
Cumulative.
1. Monthly Cumulative
Payment to the contractoie is limited to 1/11 or 1/12 (to be
determined by the division/office) of the maximum annual contract liability for
each month of the contract on a cumulative basis- (e.g., at the end of the
first month of a 12 month contract, the payment limitation is 1/12 of the
contract liability; at the end of the second month the payment limitation for
the two month period is 2/12 of the maximum liability, etc.)
2. Quarterly Cumulative
Payment to the icontractor is limited to one quarter of the
maximum contract liability for each quarter of the contract on a cumulative
basis (e.g., at the end of the first quarter, the payment limitation is 25% of
the contract liability, at the end of the second quarter the payment limitation
for the six month period is 50% of the maximum liability, etc.)
III.
Development of Standard PCS Contracts (those executed on the Form OSP-1)
A. The DHHS standard is that CSS FOU-develops
-all standard PCS contracts upon receipt of iiil authorizations from the DHHS
divisionsierequesting such contracts.
NOTE:
CAP
is the electronic
system through which contracts are authorized, developed, reviewed, approved,
and signed.
* The division requesting contract development shall submit ALL
authorizations to CSS in electronic format.
* CSS shall develop and review contracts electronically.
* Division Director or designee shall review contracts and
indicate approval of such electronically.
* ACO shall print contracts for manual signature by the
contractors following electronic review and approval by division Director or
designee.
B. The following
procedures apply to development actions executed by CSS (for development
actions executed by the division, proceed to C. below).
1. Division shall include the following in
its authorization:eie eleeiieel ile
a.
Completed
lee Contract Authorization/Input Form, Form DHHS-9190
(1.) ar Most contracts must be entered into
Arkansas Administrative Statewide Information System (AASIS) as an outline
agreementa
PO.
(a.) If the
contract is to be entered into AASIS as a PO and 4f the division is doing
itsth#if own AASIS entry, the division shall create the outline agreement in
AASIS and enter the outline agreement number on the Form DHHS-9190
as the contract number.
(b.)
If the contract is to be entered into AASIS as a PO and CSSeei i is doing the
division's AASIS entry, the division shall leave blank the contract number
field on the Form DHHS-9190. ll e ll
(2.) Some Medicaid-related contracts are paid
through a third party and are NOT entered into AASIS as outline agreements, in
which case the division shall leave the contract number field blank. CSS shall
enter a unique, division-specific, ten-digit contract number on the
Form
DHHS-9190 upon receipt of the authorization. The contract number shall
be in the following format:
* 3-digit agency number (710 or 645)
* 2-digit division identifier (as identified in Form
DHHS-9190 instructions, e.g., DM, etc.)
* 2-digit fiscal year (FY) identifier (e.g., FY05 would be
"05", FY06 would be "06", etc.)
* 3-digit sequential numerical identifier starting with
001
(3.) Division shall
clearly identify the geographical service coverage area in the "Purpose of the
Action" portion of the form. Division shall identify the area in terms of
actual counties served or geographical portion of the state (ex., northwest
quadrant, etc.) as opposed to division-specific areas (ex., DCFS Area V, etc.)
If the contract covers services for the entire state, division shall identify
"statewide" as the service coverage area.
b. CSS approved performance indicators and
evidence of CSS approval or division certification;
c. A copy of the contractor's EEO policy (or
approved alternate statement), if the contract were competitively procured and
exceeds $25,000.00.
d. Any other
legal attachments, including required financial information;
e. Any additional information necessary
concerning billing, forms the iecontractor -is required to use, procurement
documentation, etc.
2.
Upon receipt of the authorization, assigned CSS individual(s) shall review the
authorization, consult with the contractor, complete the contract proposal, and
review the completed proposal for technical compliance and completeness.
C.
The complete
standard PCS contract shall include the following items:
1.
Form OSP-1;
a.
it is ABSOLUTELY CRITICAL that the
funding tally to the penny, that the
funding split is accurate, and that the
procurement methodology is correctly indicated !!!
Failure to have 100% accuracy in any of these three crucial areas will result
in the legislative review staff rejecting the contract!!
b. The contract name should be the complete,
legal name of the contractor as opposed to the "doing
business as" name. For incorporated entities, the legal name is found on the
contractor's incorporation papers and on the Arkansas Secretary of State
website (for Arkansas incorporated entities). The contract address should be
the address of the legal headquarters, as opposed to the "remit to" address.
2.
All attachments
referenced on Form OSP-1;
All attachments should be numbered in sequential and
consistent form. |
3.
Form PCS-Dile eiii-Df (for applicable contracts over $25,000.00);
a. All disclosures requiring pre-approval by
DFA should be resolved prior to completion of the contractiiiiii.
b. The
Form PCS-Dile eiii
shall not be made a legal attachment.
4.
Performance Indicators
(Required for applicable PCS contracts over $10,000.00l ee);
a. Performance indicators require approval of
CSS according to DHHS Policy 1066. This approval shouldeaft be in
the form of electronic mail submission, in which case a copy of the e-mail
submitting it should be attached to the approval.
b. For amendments or contracts using
previously approved performance indicators, the division/effoe shallwiW provide
certification of | performance indicators, in accordance with DHHS Policy
1066. If the division/office certifies for performance indicators
previously approved by CSS (prior to the development of this contract), a copy
of CSS's approval shall also be included e.
c.
Performance indicators
approval shall be made a legal attachment. CSS' approval and division
certification should be included in supporting documentsee iil ll
e e lel eiiiie eiile il ii.
5.
Terms and Conditions, Forms
DHHS-9193 and DHHS-9194;a. This
document contains the legal and financial terms of the contract.
Form
DHHS-9193 is for contracts with a non-state agency;
Form DHHS-9194
is for contracts with a state agency.
NOTE: The state agency version (Form
DHHS-9194) is applicable to contracts with other states' agencies (ex.,
OK, TX, MS, etc.).not just Arkansas' state agencies.
b. The
Form DHHS-9193 or
Form DHHS-9194 shalle
iil be the current version provided by CSS (as
will be evidenced by the release date at the bottom of each page of the
formii). Referral to and/or consultation with OCC is required if an alternate
version eii is to be utilized.
c.This document shall be made a legal
attachment.
6.
Budget/Rate Information;
a. For
contracts reimbursed on an
Actual Cost basis
(1.) An itemized listing of allowable program
expenses and justification are required elements. The total itemized listing
should equal the total DHHS funding in the contract.
(2.) Each line-item expense should be
identified as either compensation or reimbursable expense, and the total
compensation and total reimbursable expense should be indicated on the itemized
listing.
(a.) If subcontractor costs are
included in the contractor's budget AND if those subcontractors are reimbursed
on an Actual Cost basis, the subcontractor costs should be split between
compensation and reimbursable as well, based on the subcontractor's budget that
must be included in the contract. If subcontractor costs are paid on a fee
basis, they shall be considered compensation.
(b.) Indirect Costs should normally be split
between compensation and reimbursable by the same percentages by which the
Direct Costs are split between compensation and reimbursable.
(3.) If the contract identifies
purchased services to DHHS clients, (i.e. indicates or refers to service(s) by
service name and service code on the
Form DHHS-9190) the itemized
listing should include:
(a.) service name(s);
(b.) service code(s); and
(c.) service unit definition(s).
(4.) The itemized listing of
expenses shall be indicated on the Form OSP-1 or made a legal
attachment.
b. For
contracts reimbursed on a
Fixed or Final Negotiated Rate basis
(1.) The contracted fee/rate schedule
4S-shall be included
(2.) If the
contract identifies purchased services to DHHS clients, (i.e. indicates or
refers to service(s) by service name and service code on the
Form
DHHS-9190) the itemized listing should include:
(a.) service name(s);
(b.) service code(s);
(c.) service unit definition(s);
and
(d.) unit rate(s).
(3.) The schedule should indicate
the number of units per service to be purchased, if applicable.
If the number of units per service cannot be evenly computed,
the number of whole units possible should be indicated, along with a notation
that payment cannot exceed the maximum liability.
(4.) For budget-based Final Negotiated
rates, the rate schedule should include a notation that it is based on a
budget that is on file with the divisionie. |
(5.) For non-budget-based Final
Negotiated rates, the basis for the rate should be noted in the rate
schedule.
(6.) Subcontractor |
costs should normally be considered as compensation for Fixed
or Final Negotiated rate contracts.
(7.) The fee/rate schedule shall be indicated
on the
Form OSP-1 or | made a legal attachment.
Note: If the division/office has a specific request and
justification for | including program-specific budgets and/or a full-disclosure
budget as a part of the contract, they may be added as legal attachments. CSS
will review the program-specific budgets, but not | the full-disclosure
budgets.
c. For
contracts reimbursed on a
Scheduled Reimbursement basis
(1.) The schedule shall include a statement
indicating the basis for the scheduled reimbursement (actual cost or fee
basis).
(2.) For scheduled
reimbursement on an actual cost basis, the total amount allocated to each
program shall be indicated, with compensation and reimbursable
identified.
(3.) The schedule shall
indicate the total amount of applicable ifunding, the amount of each payment,
and the dates of | payments. The first payment should be no earlier than three
weeks after the effective date of the contract.
(4.) The schedule of payments should include
expenditure reporting requirements and payment adjustment conditions, if
applicable.
(5.) The schedule shall
be indicated on the Form OSP-1 or made a legal
attachment.
d. The
method of reimbursement shall be correctly identified on the Form
DHHS-9193 or Form DHHS-9194
D. Other elements may be required to complete
the standard PCS contract. They include, but are not limited to:
1.
Sole Source Justification;
Sole Source PCS contracts, except for those for performing
artists and lecturers, must be justified.
a. For "Sole Source by law,"
reference the mandating legislation or the court order on page 1 of
Form OSP-1.
b.
For "Sole Source by Intent to Award", include a copy of OCC's approval,
the advertisement, and the iie e dates the | advertisement ran.
c. For "Sole Source by Justification
Approved by OSP," includeattacb | a copy of OSP's approval of the
six-point justification.
d. The
advertisement or justification and approvals shall not be made a legal
attachment.
2.
Prior Approval for CSP or RFQ Selection;
a. Prior approval from DFA is required for
CSP and RFQ procurements (except for contracts for architect, engineer, land
surveying, or legal services, in the case of RFQ.)
b. This prior approval shall not be made a
legal attachment.
3.
EEO Policy
a.
Contracts that were
competitively procured and that exceed $25,000.00 must include a copy of the
contractor's EEO policy, or a statement from the contractor attesting that they
do not have an EEO policy.
b.
This information shall not be
made a legal attachment.
4.
Certification Regarding Lobbying,
Form DHHS-9350;a. Certification is
required for all contractors that receive in excess of $100,000.00 in federal
funds per Federal fund source per fiscal year. This pertains to
all federal funds received by the contractor, not just the federal
funds in this contract.
b.
Certification should be indicated on Form DHHS-9350eiiieii, unless
provided elsewhere in the contract, i.e., on the Form DHHS-9193 or Form
DHHS-9194.iieii
c. Certification requires an original
signature and date by the contractor.
d. Certification shall be made a legal
attachment to the contract.
5.
Funding Availability;
a.
A Funding Availability
statement should be added to any contract that has funding within the
contract with effective dates (beginning and/or ending dates) that differ from
that of the overall contract.
b.
The Form DHHS-9196, Funding Availability, or any similar format
that clearly states the necessary information may be used for this purpose.
c. The Form DHHS-9196
(or alternate format for the same purpose) iililiee shall
be made a legal attachment to | the contract.
6.
Matching Terms;
a. Specification of matching terms is
required when funds included in the contract have a required match from state
and/or local funds. (If the standard, OCC-approved Form DHHS-9193
or Form DHHS-9194 eii are utilized, no additional
documentation | regarding matching arrangements is required.)
b. This specification shall be made a legal
attachment.
7.
Reimbursement Rate Increase Approval, Form DHHS-1951;
a. Rate increase approvals are not effective
until the date of signature by the Governor of Arkansas on the Form
DHHS-1951.
b. An approved
Form DHHS-1951 is required for rate increases for services. Note
exceptions in Chapter Nine of this Manual.
c. The Form DHHS-1951 shall not
be made a legal attachment.
8.
Independent Contractor Checklist,
Form DHHS-9356; -
a. This form should
be completed by divisioni if contractor is an individual or sole proprietor
contracting to provide services.
b.
This form is used to assess the status of the individual or sole proprietor as
an independent contractor rather than a DHHS employee.
c. The Form DHHS-9356 shall not
be made a legal attachment.
9.
Waivers of Policy;
a. The requesting division/office Director or
designee should obtainsufemit ee approvals for waivers of any DHHS promulgated
policy tofrom the DHHS /OFA/Chief Fiscal Officer or designee l.
b. Waiver approvals shall not be made legal
attachments.
10.
Certificate of Authority from the Secretary of State; |
a. The Certificate of Authority
or documentation of its issuance is required for contracts with
out-of-state corporations transacting business in Arkansas, (see "Foreign
Corporations Transacting Business in Arkansas" in Appendix)
b. If the out-of-state contractor does not
provide services in Arkansas or is otherwise exempt -(see
"Foreign Corporations Transacting | Business in Arkansas" in
Appendix), a Certificate of Authority is not necessary.
c. This certificate shall not be made a legal
attachment.
11.
Suspension of the Rules Letter (see sample letter in Appendix); |
a. This letter is required for all contracts
requiring legislative review that are submitted to DFA after the due-date due
to DFA. |
b. This letter shall not
be made a legal attachment.
12.
Business Associate Agreement (BAA),
Form DHS-4001;
a. BAA's, when
required, are to be signed by the contractor to demonstrate their compliance
with the Health Insurance Portability and Accountability Act (HIPAA) and
included as legal attachments to the standard PCS contract.
b. BAA's are required for ALL new standard
PCS contracts with the following divisions:
(1.) Division of Children and Family Services
(DCFS);
(2.) Division of
Developmental Disabilities Services (DDS);
(3.) Division of Behavioral Health
(DBH);
(4.) Division of Health
(DOH)
(5.) Division of Youth
Services (DYS); and
(6.)
DMS.
c. BAA's are
required for new standard PCS contracts with the following divisions ONLY IF
those contracts deal with protected healthcare information (PHI)t:
(1.) DHHS
(2.) OFA
(3.) OCC
d. BAA's are NOT required for new standard
PCS contracts with the following divisions:
(1.) Division of Childcare and Early
Childhood Education (DCCECE);
(2.)
Division of Services for the Blind (DSB);
(3.) Division of Volunteerism
(DOV);
(4.) Division of County
Operations (DCO); and
(5.) Division
of Aging and Adult Services (DAAS).
13.
Tobacco Settlement Attachment.
|
In accordance with Act 1586 of 2003, standard PCS contracts
funded by Tobacco Settlement funds (which shall be clearly identified on the
Forms OSP-1 - and categorized as "Other"), shall
include a legal attachment stating:
"The Division of______________is not obligated to continue
funding this contract paid from the proceeds of the Tobacco Settlement in the
event that Tobacco Settlement funds are not sufficient to finance the contract.
State funds will not be used to replace Tobacco Settlement funds when such
funds expire unless appropriated by the General Assembly and authorized by the
Governor."
IV.
Signing and Routing of Standard PCS
ContractsA. The division shall secure
electronic approval of the division Director or designee on the contract
proposal.
B. CSS ACO shall secure
the signature of the contractor on the contract proposal.
C. CSS shall route the signed contract to
Records Management Unit (RMU) for processing.
D. RMU shall route to DFA those contracts for
which DFA review is required.
V.
Legislative and DFA Review of
Standard PCS Contracts |
A. Following
their review of the standard PCS contract, DFA will forward those | contracts
that are over $25,000.00 for legislative review at the next regularly scheduled
Review or PEER subcommittee meeting.
a. Review
Subcommittee usually meets the first Wednesday of each month.
b. PEER Subcommittee usually meets the first
Thursday of each month.
B. It is very important for the division to
have knowledgeable representatives | in attendance at the committee meeting to
answer programmatic and budgetary questions about the specific contracts on the
agenda as well as more general questions concerning the entire program. Typical
questions that can be anticipated include:
1.
What was the procurement method?
2.
If the procurement were Sole Source, why was a competitive method not
utilized?
3. If the procurement
were competitive, how many responses were received and | how did the other
responses compare to that of the selected entity (including, at times, the
relative comparison of cost proposals)?
4.
What are the services being provided and how will contractor
performance be monitored?
5. Where are the services provided?
6. What source of funding is being utilized,
and what are the future plans for this program?
7. lf an out-of-state contractor were
selected, what steps were made to find a qualified in-state vendor?
C. Upon completion of their
review, the Review and PEER Subcommittees will send | their recommendations to
the Legislative Council for consideration.
D. Legislative Council, which usually meets
the third Friday of each month, reviews the | contract and provides OSP a
report on their review and their findings as to the propriety of the contract.
E. Following receipt of the
Legislative Council's reporti, DFA will approves or denyies the PCS
contract.
VI.
Entry
of Standard PCS Contracts into AASIS
A. For athese standard PCS contracts
over $25,000.00 e eilie eee
iI:T
1. Upon approval
of the contract by DFA, division shall approve the outline agreement, if
necessary.
2. CSS shall coordinate
OSP's approval of the outline agreement.
3. Contract Management Unit (CMU) or the
division shall create the PO, if applicable.
4. CSS shall coordinate OSP's approval of the
PO, for those PO's CMU creates.
B. For a standard PCS contracts
$25,000.00 and under: |
1. Upon approval of the contract by DFA,
division shall approve the outline agreement, if necessary.
2. CMU or the division shall create the PO,
if necessary.
NOTE: The PO must ele accurately reflect the standard PCS
contract in every | aspect, including the compensation/reimbursable breakout,
contractor name and address, and total funding.
VII.
Distribution
of Standard PCS ContractsA. Upon
approval of the contract by DFA, RMU shall ill receive the original approved
contract from DFA and post it to the DHHS Contract Archival System
(CAS).
B. RMU shall distribute a
copy of the signed contract to the contractor.
C. RMU shall notify the division, the CSS
Supervisor, and CMU that the contract is available on CAS.
D. RMU shall maintain the T-he-original
contract le iie on file iin the Records Room. All requests for contract
information from the RMURecords Room should reference the contract number.
VIII.
Amendments
to Standard PCS Contracts
A.
Timeframes
Amendments to standard PCS contracts should adhere to the same
timeframes outlined for the development of new contracts.
B.
General Amendment
Requirements1. Amendments to standard
PCS contracts are required when any element on the Form OSP-1 or
any of the legal attachments is revised to the extent that it materially
affects the contractor or DHHS in any way. The contracting parties shall
mutually agree upon amendments.
2.
Contracts can NOT be amended to add services that are outside the realm of the
procurement for the original contract (ex., a division CANNOT procure for
counseling services, develop a contract for
counseling services, then add therapy
services to the contract at a later date just because the need
arises.)
3 Minor revisions or
administrative corrections that affect only the internal administration of a
contract do not require an amendment; these may be accomplished as "change"
actions.
4. Changing a
contractor's Taxpayer Identification Number (TIN) cannot be accomplished as a
-change- or an amendment. To change a contractor's TIN, the contract with the
former TIN must be closed and a
new contract with the new TIN must
be created.
For this to be allowable without re-procuring, however,
iethatr-the new contractor must be is-stiW-virtually the same as the former in
every respect except for the TIN. The new contractor shall complete
a Form PCS-D, if required, -aftand an individual
authorized by the contractor shall signsigfis an affidavit attesting to the
following:
a. {44 There has been no
material change in ownership and the new contractor, although its corporate
name may be different, is the same as the former contractor except for the TIN,
AND
b. T[GREATER THAN] The new
contractor will abide by all terms stated in the underlying | procurement
document(s) and any response(s) made by the original contractor.
If the new contractor is NOT virtually the same as the former
contractor and/or the new contractor does not sign the affidavit, the
divisioneshallmust re-procure.
5. PCS contracts that have expired cannot be
amended.
6. An amendment to extend
a standard PCS contract is allowable only if the original contract contains
language supporting the extension (the extension clause is found in Section 12
of the
Form OSP-1) AND if the procurement included information
relative to the extension possibility.
NOTE: The extension period added to a contract by
an amendment should not cross the biennium.
7. All amendments to standard PCS contracts
that add money require an amendment to the corresponding outline agreement and
PO in AASIS, if applicable.
8. For
every amendment to applicable PCS contracts over $25,000.00, a current signed
and dated Form PCS-Dile eiii- shall be submitted for the
contractor and all subcontractors receiving over $25,000.00 who are affected by
this amendment.
9. Amendments to
PCS contracts are not binding until they are approved and ie
by the DHHSOHS Director or designee and contractor and approved by DFA, if
applicable.
10. The effective date
of an amendment to extend an otherwise expiring contract shall be no
later than the expiration date of the expiring contract.
11. Divisions should initiate all amendments,
except for those necessitated for administrative purposes only and for
amendments to contracts for the Together We Can (TWC) program.
12. For every amendment, the division should
submit an electronic authorization to CSS to develop the amendment. (In those
instances where the division developed their own PCS contract, they shall also
develop the amendments to that contract.)
C.
Development of Amendments to
Standard PCS Contracts
1. The
following procedures apply to amendment development actions executed by CSS
(for amendment development actions executed by the division, proceed to 2.
below).
a. The amendment authorization from
the division is required to include:
(1.)
Completed Form DHHS-9190
(2.) Any revised or additional attachments to
the Form OSP-1, if applicable
(3.) Approval/certification of performance
indicators |
(a.)
Performance Based
Contracting Certification
completed by division/office staff, for current, unchanged
performance indicators (the Form DHS-1366 may be used for
certification.)
(b.) CSS
approval for new or revised performance | indicators
b. Upon receipt of the amendment
authorization, assigned CSS | individual(s) shall review the authorization,
consult with the contractor, complete the amendment proposal, and review the
completed amendment proposal for technical compliance and completeness.
2.The complete amendment
package shall include:
a.
Amendment to
Professional or Consultant Services Contract, (Form OSP-1A)
NOTE: It is ABSOLUTELY CRITICAL that, if applicable, the
funding tally to the penny and that the
funding split is accurate !!! Failure to have 100%
accuracy in either of these crucial areas will result in the legislative review
staff rejecting the amendment!!!
3. Other elements that may be required to
complete the amendment include but are not limited to the following:
a.
Form PCS-D
All amendments to non-exempt standard PCS contracts greater
than $25,000.00 require disclosure on the contractor and on all subcontractors
receiving over $25,000.00 who are affected by the amendment.
b.
Performance Based Contracting
Certification
This is required from divisioni for current performance |
indicators not changed by this amendment. Form DHHS-1366 may be
used for this purpose.
Note: New or revised performance
indicators require current CSS approval.
c. New or
Revised Attachments
Any new or revised attachments to the Form OSP-1
should be included and referenced appropriately on the Form OSP-1
A.
(1.) An attachment is
considered "new" when it is being added to the contract with this amendment. A
new attachment "stands on its own" and does not replace any attachment that is
already in the contract. A new attachment should be numbered consecutively in
accordance with the existing attachments and should reflect an effective date
commensurate with the effective date of the amendment.
(2.) An attachment is considered a "revision"
when it replaces an attachment that is already in the contract. It should be
assigned the same attachment number as the attachment it replaces and should
reflect an effective date commensurate with the effective date of the
amendment.
(3.) An attachment is
considered an
"addendum" to an existing attachment when it is
being added to the contract with this amendment. An addendum is similar to a
"new" attachment in that it does not replace any existing attachment BUT it
closely relates to an existing attachment to which it is made an addendum. An
addendum should be numbered as a subset of the relative attachment (ex.,
Attachment 1a, or Attachment 1, Addendum 1.) An addendum should
reflect an effective date commensurate with the effective date of the
amendment.
Reimbursement Rate Increase Approval,
d.
Form (DHHS-1951)
An approved Form DHS-1951 is required if the
amendment increases rates for services. Note exceptions in Chapter Nine
of this Manual.
e.
Suspension of the Rules Letter
This letter is required for all amendments requiring
legislative review that are submitted to DFA after the dye-date to DFA (see
sample letter | in Appendix).
f.
Certification Regarding Lobbying,
Form DHHS-9350eiiieii
This certification is required if the amendment results in
contractor's funding exceeding $100,000.00 in federal funds per federal fund
source per fiscal year. Certification should be indicated on Form
DHHS-9350, unless provided elsewhere in the contract, i.e., on the
Form DHHS-9193orFormDHHS-9194.
4. Signing and Routing of Amendments to
Standard PCS Contracts Same as for standard PCS contracts above.
5. Legislative and DFA Review of Amendments
to Standard PCS Contracts
An amendment to a standard PCS contract requires review and
approval by DFA, and review by the Review or PEER Subcommittee if, and only
if:
a. The original contract required
review and the amendment increases the dollar amount to a resultant total that
is higher than any amount previously approved by DFA; or
b. The original contract did not require
review but the amendment increases the total to exceed $25,000.00.
6. Entry of Amendment to Standard
PCS Contracts into AASIS
Upon approval of the amendment, CMU or division shall revise
the outline agreement and PO accordingly, if necessary.
7. Distribution of Amendment
a. Upon approval of the contract by DFA, RMU
shall receive the original approved amendment from DFA and post it to CAS.
b. RMU shall distribute a copy of
the signed amendment to the contractor.
c. RMU shall notify the division, the CSS
Supervisor, and CMU that the contract is available on CAS.
d. RMU should maintain the original contract
on file in the Records Room. All requests for contract information from the RMU
Records Room should reference the contract
number.
IX.
Changes to Standard PCS
ContractsA. Minor revisions or
administrative corrections may be accomplished by aft iii -change- action.
-Change- actions affect only the internal administration of a contract and do
not materially affect the contractor or DHHS in any way.
1. Any change in financial
amount (either an increment or decrement in total obligation or a
zero-sum reallocation of compensation and reimbursable expenses) MUST be
executed as an amendment action.
2.
Any change in the percentage of state/federal funds
MUST be executed as an amendment action.
3. Any change that creates a material impact
on either contracting party MUST be executed as an amendment action.
B. CSS shalleel develop -change-
actions for all standard PCS contracts upon receipt of iiil authorizations from
the divisionierequesting such -change- actions. For those contracts that are
developed by the division/office, e--e l the division/office shall develop the
-change-action.
C. The following
procedures apply to change actions executed by CSS (for change actions executed
by the division, proceed to D. below).
1.
Division shall submit authorizations electronically. Required elements for the
authorization for CSS to develop a change action include:
a.
Form DHHS-9190; and
b. Explanatory memo explaining
change, if necessary,
2.
Upon receipt of the authorization, assigned CSS individual(s) shall review the
authorization, notify the contractor of the change, complete the change
proposal, and review the completed proposal for technical compliance and
completeness.
D. The
complete -change- packet shallii include, at a minimum:
1.
iiI Form
(DHHS-9190;)
2. Copy of
written notification to the contractor advising of the change; and
3. Explanatory memo from division/office
requesting change, if applicable. |
E.
E-.- ACO should submit
the completed change proposal to CMU and should notify Supervisor/designee of
completion of the assignment. Ieelee eilie il ee -iii-lliiliil il
F. Upon receipt of the change
packet, CMU should:
1. Verify completeness of
the -change- packet (andl-----forward
Il incomplete change proposals l to the CMU Manager for
resolution);
2. Input the
-change- into the systemT and initial the Form
DDHSHHS-9190;
3. Forward the
original -change- packet to RMU for inclusion in the contract; and
4. Forward a copy of the initialed Form
DHHS-9190 to the ACOCOv's Supervisor, upon which .-Supervisor shall
wtW-forward copies to the ACOCOv and the division.
X.
Line Item
Adjustments to Standard PCS Contracts
A.
Policy
1. Line item adjustments pertain to actual
cost reimbursement contracts only and do NOT«©t changeaffect the
total reimbursable expenses,
total | compensation
expenses, or total liability of the
contract.
2. Line item adjustments
should have prior approval from CSSeeiee before adjustments are
implemented.
3. If deviation from
the amount budgeted will not exceed $500.00 or 10% of the line item from which
funds are being moved (whichever is greater), no line item adjustment is
necessary.
4.
An amendment,
rather than a line item adjustment, -is required for any | budget revision
that:a. Affects the total liability of
the agreement;
b. Affects the
overall rate per unit of service;
c. Changes totals of compensation and/or
reimbursable expenses;
d. Adds a
new fund source (fund, fund center, or commitment item); or
e. Affects the contractoie or DHHS in a
material way. I
B.
Procedure
1. Line item adjustments should be initiated
by the divisionie or by the contractor (in which case the division/office
should indicate approval on the line item adjustment authorization.)
2. CSS shalll develop line item adjustments
for all PCS contracts that CSS developed upon receipt of electronic iiil
authorizations from the divisionsie requesting such line item adjustments. For
those contracts that wereafe developed by the divisioniee--e l, the
division/office shall develop the line item adjustments.
3. The following procedures apply to line
item adjustments executed by CSS (for line item adjustments executed by the
division, proceed to 4. below).
a. Division
shall submit authorizations for line item adjustment electronically. Required
elements for the authorization for CSS to develop a line item adjustment
include:
(1.) Request from the division;
and
(2.) Revised budget reflecting
the adjustment.
b. Upon
receipt of the line item adjustment authorization, assigned CSS individual(s)
shall review the authorization, consult with the contractor, review the revised
budget for technical compliance and completeness
4. The completed line item adjustment shall
include:
a. Division's request for a line item
adjustment;
b. Revised budget with
indication of CSS' approval added
5. CSS shall distribute approved line item
adjustment as follows:
a. Original shall be
submitted to RMU;
b. Copy shall be
sent to contractor;
c. Copy shall
be sent to ACO.
XI. Stand-alone
PO's for Professional
and Consultant
Services
A. General
requirements for
stand-alone
PO's for professional and consultant
services÷1. Divisions
typically negotiate with the contractor the terms of the stand-alone PO's.
2. Any PCS contract that DOES NOT
exceed $25,000.00 in compensation | should be executed in the stand-alone PO
format. A division
may, however, if circumstances
warrant, execute a PCS contract that does not exceed $25,000.00 as a "standard
PCS contract" on the
Form OSP-1.
Agencies shall NOT split known quantities into smaller |
($25,000.00 and below) amounts to avoid a standard contract.
3. Stand-alone PO's require neither DFA
review and approval nor legislative | review. However, multiple PO's to
the same contractor in the same fiscal year from the same cost center MUST be
reported to OSP to assist OSP in determining whether an agency is
issuing multiple PO's in an attempt to circumvent the requirement of
establishing a standard PCS contract.
4. Procurement regulations apply to
stand-alone PO's just as they do to standard PCS contracts, including the
requirement for prior approval by OSP foref any procurement method other than
CB.
5.
Performance
lindicatorsa. Performance indicators
are required for stand-alone PCS PO's except for those which are as
followslieel:
(1.) -li Procured by the
Sole Source by Law method;
(2.) -le ie Eexecuted as Emergency
| contracts;
(3.) -l- Ffor
Architectural and Engineering | services, which are awarded using ABA criteria;
or
(4.) -l Ffor $10,000.00
or less
b.
Performance indicators shall beam added to stand-alone PO's in the following
manner:
(1.) The division/office shall review
the
Contractor Certification Concerning Performance,- (Form
DHHS-9353
for a PO with a state agency or Form DHHS-9354 for
a PO with a non-state agency) with the contractor and secure the contractor's
signature on the Form DHHS-9353 or DHHS-9351 eiii. (A Form
DHHS-9353 or DHHS-
9354eiii with an original signature is required
for each and every stand-alone PO for professional and consultant services
above $10,000.00.)
(2.)
Division shall attach aA copy of the applicable performance indicators ll o the
Form DHHS-9353 or DHHS-9354eiii as Attachment I to
the PO. (-l CSS approval of performance indicators is required, as it is for
standard PCS contracts.)
(3.)
Division shall retain tThe original Form DHS-9353 or
DHS-9354eiiill i in the division/office files.
5. For those
stand-alone PO's for professional and consultant services funded by SSBG, the
division/office shall obtain the contractor's signature on the
Certification of Compliance for Social Services Block Grant (SSBG)
Funding, Form DHHS-9357.a. One
signature per contractor per fiscal year is sufficient. If a contractor has
more than one PO with SSBG funding, a copy of the signed certification for each
subsequent PO is sufficient. Faxed signatures are acceptable.
b. The division/office shall retain the
original Form DHHS-9357eiii in their files, giving a copy to the
contractor.
c. In creating the PO
in AASIS, the creator shall add the following text: "Vendor must adhere
to all State and Federal laws and regulations applicable to Social Services
Block Grant funding."
6. Stand-alone PO's for professional and
consultant services require BAA's | under the following conditions:
a. Those for the following divisions require
BAA's IF the PO deals with PHI:
-DCFS-
-DDS
-DBMHS
-DOH
DYS
-DMS
-OFA
-OCC
* OST eie Ie eliee
ele ii
b.
Those for the following division do NOT require BAA's:
DCCECE
-DSBT
D-DOV
* -DCO
DAAS i*
7. For sStand-alone PO's for professional and
consultant services that contain
Tobacco Settlement funding-,
division shall add the e e following text eo the PO in AASIS:
"The Division of______________is not obligated to continue
funding this contract paid from the proceeds of the Tobacco Settlement in the
event that Tobacco Settlement funds are not sufficient to finance the contract.
State funds will not be used to replace Tobacco Settlement funds when such
funds expire unless appropriated by the General Assembly and authorized by the
Governor."
B.
Development of Stand-alone PO's for Professional and Consultant
Services
1. Upon selection of a
contractor through appropriate procurement means and after direct communication
with the contractor concerning the terms of the agreement reached, the
division/office shall enter a requisition into AASIS | reflecting all of the
details that need to be incorporated into the PO.
2. Division/office shall create their own PO
in AASIS from the requisition or forward the requisition in AASIS to CSSMU for
the creation of the PO.
XII.
Site Visits for PCS Contracts
|A.
Definition
Site visits are a means of on-site contract monitoring by
CSSF-OU of the following:
1. All
ose-PCS contracts over $5,000.00 developed by CSS; and
2. Tthose PCS contracts over $5,000.00 liiiie
hat contain SSBG funding which are developed by the division.
Site visits are not required for ABA-related PCS
contracts.
B.
Purpose
The purpose of site visits is to monitor contract activitys and
assist contractors in achieving and maintaining compliance with billing and
client eligibility requirements of the contracts. Site visits address fiscal,
administrative and legal | advisories and eligibility/billing audits.
C.
Policy
For each applicable PCS contract requiring a site visit, ACOCOr
should make a minimum of one site visit per contract year. This pertains to
standard PCS contracts as well as stand-alone PCS PO's.
XIII.
Billing for PCS
Contracts |
ArFor those PCS contracts developed by CSS, CSS shall:
A. Provide instructions on billing, if
necessary;
B. Explain any special
requirements for specific funding sources (ex., SSBG);
C. Supply billing forms or letter bill
format, if necessary
XIV.
Records Retention for PCS
ContractsA. DHHS should retain all PCS
contract information for a minimum of five years after the contract ends or is
terminated. Contracts containing HIPAA-related information must be retained for
a minimum of six years. This includes, but is not limited to, the following
information:
1. Original contract, amendments,
and all related documents, correspondence, etc.;
2. Contractor billings;
3. Site visit reports;
4. Audit reports and findings; and
5. Procurement
documentation.
B. In the
event any audit, litigation, or other action is initiated before the end of the
five year period, records should be retained until all issues arising out of
the action are resolved or until the end of the five (or six) year period,
whichever is later.
CHAPTER TWELVE
GRANTS
I.
Procedures
A. For those
contract payments processed through CMU, It takes approximately seven to ten
working days from the time an invoice reaches CMU for a warrant to be printed
and ready to mail. Before any invoice is approved for those payments processed
through CMU, the following requirements must be met:
1. CMU should have access to the legal
document for use in monitoring the payment request. All original signed
contracts should be on file in the CSS Records Room and available in the
archival system.
2. Each contractor
should have a Request for Taxpayer Identification Number and
Certification form (W-9) on file with OFA before payment can be
processed. W-9 Forms may be obtained from the Internal Revenue
Service office.
3. Providers should
comply with the DHHS audit requirements as outlined in
Arkansas
Department of Health and Human Services Audit Guidelines. Copies
may be obtained from
Arkansas Department of Health and Human Services Office of
Chief Counsel Audit Section P.O. Box 1437-Slot S270 Little Rock, Arkansas
72203-1437
4. Invoices
should be submitted to the division with which the contractor has a legal
agreement unless the contractor is given other instructions.
5. The division should check all invoices and
indicate their approval with a full, legible signature, date, and the words
"Approved to Pay". These should be routed to CMU as soon as possible for
processing.
B.
Summary of DHHS Invoice Procedures1.
An original invoice is required to process a payment. If the
invoice is handwritten (smaller companies), the invoice must have an original
signature, title, and date.
2.
The name of the company or
payee must be on each invoice.
3.
All services must be paid by
way of a PO.
4.
The PO number shall be indicated on the invoice.
5. All invoices must be billed to
the agency.
6. The invoice must
have a complete description of the goods or services being billed.
7. Invoices for services must have the
date(s) of service.
8. The invoice
must have the unit price and number of units billed or the lump sum price being
billed; this information must agree with the terms of the |
applicable contract or sub-grant. The invoice must also include
the total amount billed.
9.
If two or more names, corporate entities and/or addresses are printed on the
invoice (for example, in the case of collaboratives, coalitions, etc.) the
letterhead used for invoices must be that specifically of the payee, matching
the applicable Form W-9 and AASIS vendor number.
10. The invoice must not contain
abbreviations. These are not standardized and may cause AP staff to return the
invoice for explanation.
11. If the
invoice is to be paid by direct deposit, the invoice should include the
notation "DIRECT DEPOSIT" in the upper right hand corner.
12. If the invoice is to be paid separate and
apart from other invoices, the invoice should include the notation "SEPARATE
PAYMENT" in the upper right hand corner.
13. For contracts reimbursed on an actual
cost basis, the invoice should identify all expenses as
compensation or
reimbursable.
14. CMU staff will correct payment requests
submitted without all of the above information if possible. All verbal changes
agreed to by the program division and the contractor/sub-grantee should be
documented on the invoice. The CMU staff person should indicate "Approved to
Pay," sign and date the request, and forward to AP.
15. Prior to the end of the state's fiscal
year, CMU should submit information to all contract service providers and to
all divisions regarding instructions for end-of-year billings.
II.
Contractor Expenditure ReportsA.
Contractors may be required by the terms of the contract to submit periodic
expenditure reports. These reports should be submitted as required or payment
requests will be held in a pending status. The format of the expenditure report
should agree with the budget in the contract. Reports should be mailed to
Arkansas Department of Human Services Contract Support Section
P.O. Box 1437-Slot W205 Little Rock, Arkansas 72203-1437
B. For contracts reimbursed on a scheduled
reimbursement basis, CMU may reconcile actual expenditures against the payment
schedule and offset scheduled payments, if required by the terms of the
contract.
III.
Monitoring for Contract Compliance
Requests for payment not complying with all terms of the signed
agreement will be held in pending status by CMU or AP until resolved.
IV.
Recovery of
Overpayments
All recognized overpayments should be forwarded to the
Accounting Supervisor, CMU. The Accounting Supervisor will draft collections
correspondence for signature by the Assistant Director, CSS, and route recovery
of funds through AR.
V.
Settlements
All agreements that require settlement should be reconciled as
soon as possible following expiration of the agreement. Each contractor should
be notified in writing of all amounts payable or receivable requirements and
the procedures necessary to accomplish the settlement.
VI.
Internal Revenue Service (IRS)
Levies
All IRS levies will be forwarded to CMU. The CMU Accounting
Supervisor will receive and forward all payments specified to the IRS until
notified that the levy has been satisfied or released.
State of Arkansas SECRETARY OF STATE
State Capitol Little Rock, Arkansas 72201-1094
FOREIGN CORPORATIONS TRANSACTING BUSINESS IN
ARKANSAS
A foreign corporation may not transact
business in this state until it obtains a Certificate of Authority from the
Secretary of State.
The following activities, among others, do not constitute
transacting business as stated in A.C.A. §
4-27-1501(B):
1. Maintaining, defending, or settling any
proceeding;
2. Holding meetings of
the board of directors or shareholders, or carrying on other activities
concerning internal corporate affairs;
3. Maintaining bank accounts;
4. Maintaining offices or agencies for the
transfer, exchange, and registration of the corporation's own securities or
maintaining trustees or depositaries with respect to those
securities;
5. Selling through
independent contractors;
6.
Soliciting or obtaining orders, whether by mail or through employees or agents
or otherwise, if the orders require acceptance outside this state before they
become contracts;
7. Creating or
acquiring indebtedness, mortgages, and security interests in real or personal
property;
8. Securing or collecting
debts or enforcing mortgages and security interests in property securing the
debts;
9. Owning, without more,
real or personal property;
10.
Conducting an isolated transaction that is completed within thirty (30) days
and that is not one in the course of repeated transactions of a like
nature;
11. Transacting business in
interstate commerce.
Corporations which fail to obtain a Certificate of Authority
may not maintain a proceeding in any court in this state based on a cause of
action arising from the transaction of business and may be found liable for
civil penalties ranging from $100 to $5,000.
For information regarding the application seeking authorization
to do business in this state please write,
Secretary of State
Corporation Department
Room 058
State Capitol
Little Rock, Arkansas 72201-1094
(501) 682-3409
(DHHS letterhead)
DISCLOSURE PRE-APPROVAL SAMPLE LETTER
(date) |
Office of State Procurement
Arkansas Department of Finance and
Administration
P.O. Box 2940
Little Rock, AR 72203
RE: Executive Order 98-04 Disclosure
Requirements
Dear (name of reviewing party)
;
Attached is a copy of the Disclosure Form for:
(provider's name).
This form indicates the following disclosure requiring
pre-approval of DFA:
1.
2.
3.
This agreement is a: (sub-grant or
Professional/Consultant Services contract)
The terms of the agreement are: (beginning and ending
dates)
The amount of the agreement is: (maximum
liability)
The procurement method for this agreement was:
(IFB, RFP-CSP, RFQ, Sole Source, QtheEmergency, Request for Application
[for sub-grants]).fr If Sole Source or EmergencyQther-,
indicate brief explanation for the Sole Source or EmergencyQther-
determination.)
Please make a determination as to whether an agreement
with this provider is | prohibited under EO-98-04. Please forward your response
to: (sender's name, title, address, and FAX#.)
Thank you.
Sincerely,
(name)
(title) |
(telephone number)
i
I(DHHS Letterhead) REQUEST FOR
SOLE SOURCE PROCUREMENT FOR PCS CONTRACTS SAMPLE MEMORANDUM
(must be in electronic format)
MEMORANDUM
TO: Joe Giddis, Director
DFA Office of State Procurement
FROM: Division Directoii
Director of (division
name)______________iiii
DATE: (cu rre nt d ate)
SUBJ: Request for Sole Source Procurement
(re: Contract with American Center for the Study of Widget
Policy)
1.
Why is this service
needed? Federal court enforcement of a settlement agreement which
stipulated that a nationally-recognized "watchdog" organization be contracted
for a five-year period to monitor this state's implementation of standardized
protocols for the delivery of widget services to eligible clients.
2.
What method(s) were used to
determine that a lack of responsible/responsive competition exists for this
service? Binding federal arbitration resulting from a class action
lawsuit.
3.
How was it
determined that this provider possesses exclusive capabilities? During
federal arbitration, plaintiff counsel recommended this organization as the
most qualified. The recommendation was accepted by defense counsel, validated
by the arbitrator, and included in the resultant federal court
decree.
4.
Why is this
service unique? It is a mandatory element of judicial enforcement of a
binding federal arbitration agreement.
5.
Are there patent or proprietary
rights that make the required service unavailable from other sources?
No.
6.
What would the
agency do if the provider/service were no longer available and what, if any,
program considerations make the use of a Sole Source critical to the successful
completion of the agency's task? Coordinate through the assigned federal
arbitrator to determine a replacement oversight agency acceptable to the
plaintiffs counsel. If DHS fails to uphold the federal court decree pertaining
to oversight of widget services, it will be held in contempt by the U.S.
8th Circuit Court of Appeals. Sanctions might
include loss of the state's share of federal funding from the Widget Service
Block Grant ($2,947,368 for FFY02), as well as assessment of actual and
punitive damages to aggrieved clients.
I
(DHHS Letterhead)
(date) SUSPENSION OF THE RULES
SAMPLE LETTER
The Honorable_______________, Co-Chairman
The Honorable_______________, Co-Chairman
Committee on Review Arkansas Legislative Council 315 State
Capitol Building Little Rock, AR 72201
SUBJECT: REQUEST FOR SUSPENSION OF THE RULES (CONTRACTOR
NAME)
Dear Co-Chairmen:
I am requesting a suspension of the rules in conjunction with
the required review process for the attached Professional Services contract
because negotiation of the terms delayed its submission. Consequently a
suspension of the rules is necessary in order to expedite the contract's
effective date of_____________.
This contract, developed by the Department of Health and Human
Services, Division of
______________________, proposes to provide
___________________ -
(service)_____________________________
(Provide a clear explanation of the critical nature of
the contract and the reason it could not be processed within the established
timeframes)
Your favorable consideration and review of this contract is
appreciated. Sincerely,
- (DHHS Director)
