Current through Register Vol. 48, No. 38, September 20, 2024
a) The Chief
Procurement Officer shall write or authorize the writing of all
specifications.
b) Specifications
Prepared by Other Than State Personnel
1)
Specifications may be prepared by other than Treasurer's office personnel,
including, but not limited to, consultants, architects, engineers, designers
and other drafters of specifications for public contracts. Contracts for the
preparation of specifications by other than State personnel must require the
specification writer to adhere to State requirements.
2) The person who prepared the specifications
may not submit a bid or proposal to meet the procurement need unless the Chief
Procurement Officer determines in writing that it would be in the best interest
to accept a bid or proposal from that person and a notice to that effect is
published as provided in Section
1400.1505.
3) Non-Prohibited Acts
This Section does not prohibit a person or business from
submitting a bid or proposal or entering into a contract if the person or
business:
A) Initiated a communication
with an employee of the State to provide general information about industry
trends and innovations, products, services or industry best
practices.
B) Responded to a
communication initiated by an employee of the State for the purposes of
providing information to evaluate new products, services or
technologies.
C) Received or
possessed written material obtained from a State employee from public sources,
such as through an internet search, or literature packets obtained in
conjunction with an event such as a trade show.
D) Provided, at the request of the State,
general marketing material or makes a general sales presentation to show the
person's qualifications or product capabilities. Material may be personalized
for the procuring agency provided any personalization is obtained from publicly
available sources.
E) Provided
technology supplies or services demonstrated to the State that represent
industry trends and innovation and is not specifically tailored to meet the
State's needs.
4)
Prohibited Acts
A) Specifications. A person or
business may not submit specifications to the Treasurer's office unless
requested to by a State employee. With the exception of standard specifications
that a vendor makes available to any potential purchaser, the Chief Procurement
Officer or his or her designee must approve a Treasurer's office employee's
request for specifications for a particular transaction.
B) Assistance to State Employees. A person or
business is prohibited from bidding on a solicitation and from having a
contract or subcontract if the person or business assisted a Treasurer's office
employee who, by the nature of his or her duties, has the authority to
participate personally and substantially in the decision to award a State
contract. Assistance to a Treasurer's office employee may include any of the
following:
i) Draft (writes or assists the
State with writing all or part of the procurement document);
ii) Review (reads the document or comments on
the procurement document or signified approval or disapproval);
iii) Direct (any activity relating to giving
instructions or commands or in supervising or overseeing the preparation of the
procurement document);
iv) Prepare
(any activity relating to organizing or distributing the documents, including
through the Treasurer's website); or
v) Provides similar assistance, e.g.,
conducting research or providing any advice used in drafting, reviewing,
directing or preparing procurement documents.
C) A person (and its affiliated or related
entities) that contracts with the Treasurer's office to write specifications
for a particular procurement may not submit a bid or proposal or receive a
contract or subcontract for that procurement.
5) Exceptions. Any person or business who
responds to an advertised request for information or other publicly available
opportunity to provide information related to the procurement need or to review
drafts of all or part of proposed procurement documents shall not be
disqualified by virtue of responding to the State's publicly advertised
request.
c) Procedures
for the Development of Specifications
1) All
procurements must be based on specifications that accurately reflect the
State's needs. Specifications must clearly and precisely describe the salient
technical or performance requirements.
2) Specifications must not include
restrictions that do not significantly affect the technical requirements or
performance requirements, or other legitimate State needs. All specifications
must be written in a manner that describes the requirements to be met, without
having the effect of exclusively requiring a proprietary supply or service, or
procurement from a sole source, unless no other manner of description will
suffice.
3) Any specifications or
standards adopted by business, industry, a not-for-profit organization or
governmental unit may be adopted by reference.
4) A specification may provide alternate
descriptions when two or more design, functional or performance criteria will
satisfactorily meet the State's requirements.
d) Brand Name or Equal Specification
1) Brand name or equal specifications may be
used when the Chief Procurement Officer determines in writing that:
A) time does not permit the preparation of
another form of specification, not including a brand name
specification;
B) the nature of the
product or the nature of the requirement makes use of a brand name or equal
specification suitable for the procurement; or
C) use of a brand name or equal specification
is in the State's best interest.
2) Brand name or equal specifications must
seek to designate more than one brand as "or equal", and must further state
that substantially equivalent products to those designated will be considered
for award.
3) Required
Characteristics. Unless the Chief Procurement Officer determines that the
essential characteristics of the brand names included in the specifications are
commonly known in the industry or trade, brand name or equal specifications
must include a description of the particular design, functional or performance
characteristics that are required.
4) Nonrestrictive Use of Brand Name or Equal
Specifications. When a brand name or equal specification is used in a
solicitation, the solicitation must contain explanatory language that the use
of a brand name is for the purpose of describing the standard of quality,
performance and characteristics desired and is not intended to limit or
restrict competition. "Or equal" submissions will not be rejected because of
minor differences in design, construction or features that do not affect the
suitability of the product for its intended use. The burden of proof that a
product is equal is on the offeror.
e) Brand Name Only Specification
1) Use. A brand name only specification may
be used only when the Chief Procurement Officer makes a written determination
that is made part of the procurement file that only the identified brand name
item or items will satisfy the State's needs. Brand name alone may be specified
in order to ensure compatibility in existing systems, to preserve warranty, to
ensure maintenance, or as authorized in writing by the Chief Procurement
Officer. The Chief Procurement Officer may, pursuant to an authorized
competitive procedure, select a particular vendor to provide supplies or
services for a specified period of time. For that period, the supplier of
additional, related and updated supplies and services may be limited to the
selected vendor or the brand initially selected.
2) Competition. The Chief Procurement Officer
shall seek to identify sources from which the designated brand name item or
items can be obtained and shall solicit those sources to achieve whatever
degree of competition is practicable. If only one source can supply the
requirement, the procurement must be made as a sole source
procurement.
3) Small and Emergency
Procurements. Brand name only specifications may be used when procuring items
under Sections 1400.2020 (small purchases) and
1400.2030 (emergency
procurements).
f)
Pre-Solicitation Request for Information
When the Chief Procurement Officer does not have sufficient
information about available supplies or services to issue a solicitation, the
officer may issue a pre-solicitation request for information inviting vendors
to submit non-price information about the availability of specified types of
supplies and services. Vendors may be provided an opportunity to comment on the
RFI itself and make suggestions as to the scope and information being requested
that would facilitate the best possible responses from the vendor community.
Public notice of the pre-solicitation request for information shall be
published at least 14 days before the date set for the receipt of information.
The submission of information by a vendor in response to a pre-solicitation
request for information is not a prerequisite for that vendor to respond to a
subsequent solicitation for the types of supplies and services for which
information was solicited, and the issuance of a pre-solicitation request for
information does not commit the Treasurer's office to make any procurement of
supplies or services of any kind. The Treasurer's office may, consistent with
Section 1400.2505(l),
require that vendors responding to the RFI clearly identify any confidential
information and may require vendors submit an additional copy of their bid,
offer or response that omits or redacts information claimed to be exempt under
FOIA. All other information received through a pre-solicitation request for
information will be available for public review.
