(a) If the Director determines that
competitive negotiation is not feasible for a contract with an estimated value
equal to fifteen thousand dollars ($15,000.00) or less, the contract may be let
by noncompetitive negotiation under Section 7 of this chapter without a bid
waiver from the Commission or the Governor.
(b) If the Director determines that
competitive sealed bidding is not feasible or practical for a contract with an
estimated value in excess of fifteen thousand dollars ($15,000), the Director
may submit their written determination to the Commission and seek approval for
the contract to be let by competitive negotiation under Section 8 of this
chapter. The Commission may approve such a bid waiver in accordance with the
following:
(i) The Director's written
determination and request for approval of competitive negotiation shall be
based on factors including, but not limited to:
(A) Whether the Commission attempted to
advertise for competitive sealed bids but was unsuccessful despite its good
faith attempts under Section 12 of this chapter. If the Commission received one
or more bids, the Commission shall explain why the bids received were
inadequate;
(B) Whether competitive
sealed bidding is impractical or infeasible due to a lack of competition in the
industry;
(C) Whether competitive
sealed bidding is impractical or infeasible because only a small number of
potential bidders are uniquely qualified for the work due to circumstances,
geographic disparities, experience with the project, or proprietary techniques
or technologies; or
(D) Whether
competitive sealed bidding is impractical or infeasible due to time or other
constraints that prevent completion of advertisement for competitive sealed
bids or any other requirements under this chapter.
(ii) Except as otherwise outlined in this
chapter, the Commission shall only approve bid waiver applications for
competitive negotiation in limited circumstances, including but not limited to:
(A) Advertising or re-advertising the project
for competitive sealed bid is not feasible or practical as determined by the
Director;
(B) A situation in which
only one source is available for the services or materials, whether due to
bidder domicile or proprietary technology; or
(C) An emergency situation necessitates the
immediate start of work or an expedited return to normal state service
operations and the immediate commencement of the work is necessary for those
operations to resume, and the Commission has complied with Section 6 of this
chapter.
(iii) The
Commission shall have ten (10) business days to review the Director's request
and make a determination. The Commission may request additional information to
reach a determination, which shall pause the review time until the requested
information has been submitted. If the requested information is not provided
within five (5) business days, the Commission may make a determination based on
available information.
(c) If the Director determines that
competitive negotiation is not feasible or practical for a contract with an
estimated value in excess of fifteen thousand dollars ($15,000.00), the
Director may submit their written determination to the Governor or the
Governor's designee and seek approval for the contract to be let by
noncompetitive negotiation under Section 7 of this chapter. The Governor or the
Governor's designee may approve such a bid waiver request in accordance with
subsection (b). The Director's written determination and its request for
noncompetitive negotiation shall be based on factors including, but not limited
to:
(i) Whether the Commission initiated a
competitive negotiation process but received an inadequate number of responses
to its solicitations despite the Commission's good faith attempts to secure
bids as required in Section 8 of this chapter. If the Commission received one
or more responses, the Commission shall explain why the bids received were
inadequate;
(ii) Whether
competitive negotiation is not practical or feasible because of a lack of
competition in the industry;
(iii)
Whether competitive negotiation is not practical or feasible because a single
entity is uniquely qualified for the work due to circumstances, geographic
disparities, experience with the project, or proprietary techniques or
technologies;
(iv) Whether an
emergency necessitates the immediate start of work to continue, or expedite the
return to, normal state service operations and the Commission has complied with
Section 6 of this chapter regarding emergency contracting; or
(v) Whether a prototype agreement exists
where the Commission may reuse a previously developed design or
product.
(d) The Director
shall submit bid waiver applications on standard bid waiver forms adopted by
the Commission.
(e) Upon approval
of a bid waiver by the Commission, the Governor, or their designees, as
applicable, the Commission may proceed to let the contract as stipulated in the
bid waiver.
