Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO:
KRS
45A.085,
45A.090
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
45A.035 authorizes the Secretary of the
Finance and Administration Cabinet to promulgate administrative regulations for
the implementation of the Kentucky Model Procurement Code (KRS Chapter 45A).
KRS
45A.085 authorizes the secretary to
promulgate administrative regulations concerning contracts awarded by
competitive negotiation. This administrative regulation implements the
provisions of
KRS
45A.085 and
45A.090
relating to competitively negotiated contracts.
Section 1. A contract may be awarded by
competitive negotiation if the purchasing officer determines in writing that:
(1) Due to the complex nature or technical
detail of a particular procurement, specifications cannot be fairly and
objectively prepared so as to permit competition in the solicitation of sealed
bids;
(2) High technology
electronic equipment is available from a limited number of sources of supply
and specifications cannot practicably be prepared except by reference to the
specifications of the equipment of a single source of supply;
(3) Solicitation of competitive sealed bids
is not practicable; or
(4)
Conditions described in
KRS
45A.085(3) or
45A.090(1)
exist.
Section 2.
(1) If it has been determined that it is not
practical to solicit competitive bids as provided in Section 1 of this
administrative regulation, except if such determination is based on the
existence of the conditions mentioned in
KRS
45A.085(3) or
45A.090(1),
action to obtain a procurement by competitive negotiations shall commence by
solicitation of written proposals in the manner specified by
KRS
45A.080(3),
200 KAR
5:306, and 200 KAR 5:307.
(2) A solicitation of proposals for
competitive negotiations shall state:
(a) That
the purchasing agency proposes to enter into competitive negotiations with
responsible offerors;
(b) The date,
hour and place that written proposals shall be received;
(c) The type of procurement
involved;
(d) A description of the
supplies or services sought;
(e)
Detailed specifications, or the location where detailed specifications may be
obtained;
(f) The evaluation
factors to be considered in determining the proposal most advantageous to the
Commonwealth;
(g) The proposed
method of award of contract;
(h)
Other information as, in the opinion of the purchasing officer, may be
desirable or necessary to reasonably inform potential offerors about the
requirements of the procurement or the limits of the competitive
negotiations;
(i) The existence of
a funding limitation, if determined to be in the best interest of the
Commonwealth; and
(j) The amount of
the funding limit, if it is determined by the Director of the Division of
Material and Procurement Services or the Director of the Division of
Contracting and Administration for procurements undertaken by those divisions
that disclosure of the amount of the funding limit will promote competition and
will be in the best interest of the Commonwealth.
(3) If a funding limit has been established,
proposals that exceed the funding limit may be rejected.
Section 3. All written proposals received by
the purchasing agency in response to a solicitation shall be kept secure and
unopened until the date and hour set for opening the proposals. Proposals not
clearly marked as such may be opened for identification purposes, and shall be
appropriately identified with reference to the particular procurement and
resealed until the time for opening proposals.
Section 4. At the close of business on, or at
the beginning of the next business day after the date fixed for receiving
proposals for competitive negotiations, all proposals received as of the close
of business on that date shall be transmitted to the purchasing officer for the
procurement for opening. Proposals shall not be subject to public inspection
until negotiations between the purchasing agency and all offerors have been
concluded and a contract awarded to the responsible offeror submitting the
proposal determined by the purchasing officer in writing to be the most
advantageous to the Commonwealth, based upon the price and the evaluation
factors set forth in the solicitation.
Section
5.
(1) The purchasing officer
shall examine each written proposal received for general conformity with the
terms of the procurement. If it has been provided in the solicitation that an
award may be made without written or oral discussions, the purchasing officer
may, upon the basis of the written proposals received, award the contract to
the responsible offeror submitting the proposal determined in writing to be the
most advantageous to the Commonwealth. If, after the proposals have been
examined, it is determined that written or oral discussions should be had with
the offerors, the purchasing officer shall determine in writing, based on an
individual review, those proposals received that are eligible to be selected
for award of a contract. Each responsible offeror that is eligible to be
selected for award of a contract shall be contacted by the purchasing officer
and a meeting scheduled for discussion of the offeror's proposals. The
purchasing officer shall not be required to conduct discussions under the
circumstances of or relative to the topics enumerated in
KRS 45A.085(6)(a), (b) or
(c).
(2) Discussions with offerors shall be held
informally and may be conducted orally, in writing, or both, as determined by
the purchasing officer to be the most advantageous to the Commonwealth. If,
after discussions with all responsible offerors have concluded, or after
examination of the written proposals initially submitted, it is determined that
no acceptable proposal has been submitted, all proposals may be rejected and,
in the discretion of the purchasing officer, new proposals may be solicited as
provided in Sections 1 to 4 of this administrative regulation, or the
procurement may be abandoned.
(3)
Procedures for conducting negotiations and for the manner in which proposals
will be evaluated shall be established by the purchasing officer for each
procurement and shall be set forth in the request for proposals. The purchasing
officer may request offerors to submit written clarification or explanation of
their proposals and the proposal of any offeror who fails to respond or to
request an extension of time to respond within the time requested, may be
rejected.
(4) Proposals shall be
evaluated based on factors stated in the request for proposals. Numerical or
other appropriate rating systems may be used. All evaluation documentation,
scoring, and summary conclusions shall be in writing, and made a part of the
file records for the procurement.
(5) The purchasing officer may notify
offerors that as of a date stated negotiations shall be closed and further
negotiations modifications or clarifications of proposals shall not be
received.
Section 6. The
purchasing officer shall prepare a written summary of all oral discussions in
competitive negotiations setting forth both the dates and the general substance
of the discussions. Verbatim records of the discussion shall not be
required.
Section 7. If, after
solicitation for proposals to enter into competitive negotiations only one (1)
proposal responsive to the solicitation is received, the purchasing officer may
commence negotiations with the single offeror and any resulting contract
entered into with that offeror shall be deemed to have been competitively
negotiated and awarded in accordance with
KRS
45A.085 and this administrative regulation.
The terms and conditions of the contract shall not in any material respect
deviate in a manner detrimental to the purchasing agency from the terms and
conditions specified in the solicitation for proposals.
STATUTORY AUTHORITY:
KRS
45A.035,
45A.085