Substitute House Bill No. 5332

Public Act No. 99-161

An Act Concerning Revision of State Purchasing Statutes and Procedures.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 4a-56 of the general statutes is repealed and the following is substituted in lieu thereof:

The Commissioner of Administrative Services or his designee [shall] may classify the requirements of the state government for [all] supplies, materials and equipment which may be purchased by the state [; shall] and may adopt as standards the minimum number of qualities, sizes and varieties of such supplies, materials and equipment consistent with the successful operation of the state government. [, and] If the commissioner adopts any such standards, the commissioner shall prepare, adopt and promulgate written specifications describing such standards, provided [standards and] specifications shall not be required for any supplies, materials or equipment for which the commissioner determines [in writing] that the cost of preparing [standards and] specifications would outweigh the benefits. In the preparation and revision of any such standard specification, the commissioner or his designee [shall] may seek the advice, assistance and cooperation of the state agencies concerned in order to ascertain their precise requirements. Each specification adopted for any commodity shall satisfy the requirements of the state departments, agencies and institutions which are to make use of the same, unless the commissioner approves a waiver of the specification and states the reason for the waiver in writing. [Each standard specification describing the commodity shall, until revised or rescinded, apply alike in terms and effect to each future purchase and contract for such commodity.] In developing specifications for the purchase of motor vehicles, the commissioner or his designee shall consider motor vehicles using alternative fuels. The commissioner may adopt the energy performance standards established pursuant to subsection (j) of section 16a-38.

Sec. 2. Section 4a-57 of the general statutes is repealed and the following is substituted in lieu thereof:

(a) All purchases of, and contracts for, supplies, materials, equipment and contractual services, except [gas, water and electric light and power services, and] purchases and contracts made pursuant to the provisions of subsection [(c)] (b) of this section and public utility services as provided in subsection (e) of this section shall be based, when possible, on competitive bids or competitive negotiation. [Any personal property which has become obsolete, unserviceable or unusable may be sold (1) on the basis of competitive bids, (2) at public auction or (3) at a retail store owned by the state and open to the public.] The commissioner shall solicit competitive bids or proposals by providing notice of the planned purchase in a form and manner that the commissioner determines will maximize public participation in the competitive bidding or competitive negotiation process, including participation by small contractors, as defined in section 32-9e, and promote competition. In the case of an expenditure which is estimated to exceed [ten] fifty thousand dollars, such notice shall be inserted, at least five calendar days before the final date of submitting bids or proposals, in two or more publications, at least one of which shall be a major daily newspaper published in the state and shall be posted on the Internet. Each notice of a planned purchase under this subsection shall indicate the type of goods and services to be purchased and the estimated value of the contract award. The notice shall also contain a notice of state contract requirements concerning nondiscrimination and affirmative action pursuant to section 4a-60 and, when applicable, requirements concerning the awarding of contracts to small contractors, minority business enterprises, individuals with a disability and nonprofit corporations pursuant to section 32-9e. Each bid and proposal shall be kept sealed or secured until opened publicly at the time stated in the notice soliciting such bid or proposal.

[(b) (1) Any personal property to be sold under section 4a-52 and subsection (a) of this section at a public auction shall be offered first to municipalities and transit districts and sold to a municipality or transit district at a price to be determined by the commissioner or his designee. If no municipality or transit district purchases such personal property, the commissioner shall solicit bids from the public at a public auction and shall sell the property to the highest public bidder. (2) If the commissioner is unable to sell any property to the highest public bidder pursuant to subdivision (1) of this subsection, the commissioner shall offer the property for sale to the public at a retail store owned by the state. If the commissioner is unable to sell any property at such store, he shall donate the property to a charitable or other nonprofit organization. If the commissioner is unable to donate the property to such an organization, he shall dispose of the property.]

[(c)] (b) The commissioner may, at his discretion, waive the requirement of competitive bidding or competitive negotiation in the case of minor nonrecurring and emergency purchases of [one] ten thousand dollars or less in amount. [The commissioner may use competitive negotiation to purchase or contract for advertising space or time after making a written determination, including the reasons therefor, that such action is in the best interest of the state.]

(c) The commissioner shall adopt regulations, in accordance with the provisions of chapter 54, establishing [(1) objective standards for determining when such competitive negotiation may be used instead of competitive bidding, including whether the character of such advertising space or time is more important than their relative cost, (2) procedures to be followed in making purchases, contracts or sales not subject to the competitive bid requirements of this section] (1) standards and procedures for using competitive negotiation for purchases and contracts, including but not limited to, criteria which shall be considered in making purchases by competitive negotiation and the weight which shall be assigned to each such criterion, and [(3)] (2) standards and procedures under which additional purchases may be made [on a limited basis] under existing contracts.

[(d) Notwithstanding the provisions of subsections (a) and (b) of this section, any personal state property that has become obsolete, unserviceable or unusable may be leased by the state to a municipality if the Commissioner of Administrative Services determines that: (1) An emergency situation exists in the municipality that could not be reasonably foreseen; (2) the municipality has no feasible alternative means of obtaining such property within a reasonable time; and (3) the lease would have a minimal fiscal and administrative impact on the state. Such lease shall be for not more than three months, unless extended for an additional three months by the commissioner. The municipality shall be solely liable for any damage to, or any damage or injury resulting from use of, such property and shall indemnify the state against all claims arising out of the use of such property.]

[(e)] (d) The commissioner, in consultation with the Commissioner of Environmental Protection and with the approval of the Secretary of the Office of Policy and Management, may waive the requirement of competitive bidding or competitive negotiation in the case of a purchase of cars or light-duty trucks in order to comply with any provisions of the general statutes regarding the purchase of alternative fuel vehicles or any such requirement of federal law.

(e) (1) The purchase of or contract for the following public utility services shall not be subject to competitive bidding or competitive negotiation: (A) Electric distribution services; (B) water services; (C) gas distribution services; (D) electric generation services until the date such services are competitive pursuant to the schedule set forth in section 16-244b, provided electric generation services shall be exempt from competitive bidding and competitive negotiation after said date if such services are provided by an electric municipal utility other than by a participating electric municipal utility, as defined in section 16-1, in the service area of said electric municipal utility; and (E) gas supply services until the date such services are competitive pursuant to legislative act or order of the Department of Public Utility Control, provided gas supply services shall be exempt from competitive bidding and competitive negotiation after said date if such services are provided by a gas municipal utility in the service area of said gas municipal utility.

(2) Any purchase of or contract by the department for electric generation services that are subject to competitive bidding and competitive negotiations shall be conducted in cooperation with the Office of Policy and Management pursuant to section 16a-14e.

Sec. 3. Section 4a-57a of the general statutes is repealed and the following is substituted in lieu thereof:

[(a) Notwithstanding the provisions of section 4a-57 the Commissioner of Administrative Services may establish a pilot program to sell or dispose of surplus state property through any method determined by the commissioner]

(a) The Commissioner of Administrative Services shall administer a property distribution program for the disposition of usable property that a state agency deems surplus to its operating needs. If any such property cannot be transferred between state agencies and there is not an immediate need to remove the property from a state facility, the commissioner shall offer the property for sale to municipalities and transit districts. If no municipality or transit district purchases the property, the commissioner shall offer the property for sale to the public. If the commissioner is unable to sell the property to a municipality or transit district or the public, the commissioner may donate the property to a nonprofit organization. The commissioner may dispose of any property that is not transferred, sold or donated. The commissioner shall establish a process for notifying municipalities and nonprofit organizations of their eligibility to receive surplus property under this subsection.

(b) No surplus motor vehicle owned by the state that has been declared to be a constructive total loss pursuant to section 38a-353 shall be offered for sale at an auction conducted under the provisions of subsection (a) of this section to anyone other than any person, firm or corporation licensed in accordance with the provisions of section 14-52 or 14-67l. No surplus motor vehicle owned by the state with a certificate of title stamped "SALVAGE PARTS ONLY" or which has ten or more major component parts damaged beyond repair shall be offered for sale at an auction conducted under the provisions of subsection (a) of this section to anyone other than any person, firm or corporation licensed in accordance with the provisions of section 14-67l.

(c) The state may lease to a municipality any personal state property that has become obsolete, unserviceable or unusable if the Commissioner of Administrative Services determines that: (1) An emergency situation exists in the municipality that could not be reasonably foreseen; (2) the municipality has no feasible alternative means of obtaining such property within a reasonable time; and (3) the lease would have a minimal fiscal and administrative impact on the state. Such lease shall be for not more than three months, unless extended for an additional three months by the commissioner. The municipality shall be solely liable for any damage to, or any damage or injury resulting from use of, such property and shall indemnify the state against all claims arising out of the use of such property.

Sec. 4. Section 4a-58 of the general statutes is repealed and the following is substituted in lieu thereof:

(a) There shall continue to be a Standardization Committee, which shall consist of the Commissioner of Administrative Services, the Comptroller or his designee, the Treasurer or his designee, and such administrative heads of state departments or their authorized agents as are designated for that duty by the Governor.

(b) Whenever an emergency exists by reason of extraordinary conditions or contingencies that could not reasonably be foreseen and guarded against, or because of unusual trade or market conditions, the Commissioner of Administrative Services, [with the approval of the Standardization Committee may, if it is for the best interest of the state, waive the requirement that purchases be based on competitive bids or competitive negotiation as provided in section 4a-57 or in the case of perishable goods waive the requirement that sales be based on competitive bids as provided in said section 4a-57] or, in the case of purchases, leases and contracts for information systems, information technology personal property and telecommunication systems, the Chief Information Officer, may, if it is in the best interests of the state, waive the competitive bid or proposal requirements set forth in section 4a-57, as amended by this act. If any such procurement is estimated to cost fifty thousand dollars or more, such waiver shall be subject to the approval of the Standardization Committee. A statement of all [such] purchases [and sales] made under the provisions of this section shall be set forth in the annual report of the Commissioner of Administrative Services.

Sec. 5. Section 4a-63 of the general statutes is repealed and the following is substituted in lieu thereof:

(a) The Commissioner of Administrative Services may disqualify any person, firm or corporation, for up to two years, from bidding on contracts with the Department of Administrative Services, pursuant to section 4a-57, as amended by this act, for supplies, materials, equipment and contractual services required by any state agency, for one or more causes set forth under subsection (c) of this section. The commissioner may initiate a disqualification proceeding [only] after consulting with the purchasing agency, if any, and the Attorney General and shall provide notice and an opportunity to be heard to the person, firm or corporation which is the subject of the proceeding. The commissioner shall issue a written decision within ninety days of the last date of such hearing and state in the decision the reasons for the action taken and, if the person, firm or corporation is being disqualified, the period of such disqualification. The commissioner shall send the decision to such person, firm or corporation by certified mail, return receipt requested. The written decision shall be a final decision for the purposes of sections 4-180 and 4-183.

(b) Before initiating such a proceeding or during the proceeding, the commissioner may, after consulting with any such purchasing agency and the Attorney General, suspend the person, firm or corporation from being considered for the awarding of such a contract for such supplies, materials, equipment or contractual services, if the commissioner determines that there is probable cause for disqualification under subsection (a) of this section. No such suspension shall exceed three months. The commissioner may suspend such a person, firm or corporation only by issuing a written decision setting forth the reasons for, and the period of, the suspension. The commissioner shall send the decision to such person, firm or corporation by certified mail, return receipt requested.

(c) Causes for disqualification or suspension from bidding on contracts shall include the following:

(1) Conviction or entry of a plea of guilty for commission of a criminal offense as an incident to obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract;

(2) Conviction or entry of a plea of guilty under state or federal law for embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property or any other offense indicating a lack of business integrity or business honesty which affects responsibility as a state contractor;

(3) Conviction or entry of a plea of guilty under state or federal antitrust, collusion or conspiracy statutes arising out of the submission of bids or proposals;

(4) Noncompliance with contract provisions, of a character regarded by the commissioner to be of such gravity as to indicate a lack of responsibility to perform as a state contractor, including deliberate failure, without good cause, to perform in accordance with specifications or time limits provided in a contract;

(5) A recent record of failure to perform or of unsatisfactory performance in accordance with the terms of one or more contracts, unless such failure to perform or unsatisfactory performance was caused by acts beyond the control of the contractor or supplier; or

(6) Any other cause the commissioner determines to be so serious or compelling as to affect responsibility as a state contractor, including disqualification by another governmental entity, having caused financial loss to the state or having caused a serious delay or inability of state officials to carry out their duties on a past contract or contracts.

Sec. 6. Section 2-71p of the general statutes is repealed and the following is substituted in lieu thereof:

(a) As used in this section, unless the context indicates a different meaning, "supplies", "materials" and "equipment" mean any and all articles of personal property furnished to or used by the Legislative Department, including all printing, binding, publication of laws, stationery, forms and reports; "contractual services" means any and all laundry and cleaning service, pest control service, janitorial service, security service, the rental and repair, or maintenance, of equipment, machinery and other state-owned personal property, advertising and photostating, mimeographing, data entry, data processing and other similar service arrangements where the services are provided by persons other than state employees; "competitive bidding" means the submission of prices by persons, firms or corporations competing for a contract to provide supplies, materials, equipment or contractual services, under a procedure in which the contracting authority does not negotiate prices; "competitive negotiation" means a procedure for contracting for supplies, materials, equipment or contractual services, in which (1) proposals are solicited from qualified suppliers by a request for proposals and (2) changes may be negotiated in proposals and prices after being submitted; "bidder" means a person, firm or corporation submitting a competitive bid in response to a solicitation; and "proposer" means a person, firm or corporation submitting a proposal in response to a request for proposals.

(b) (1) All purchases of, and contracts for, supplies, materials, equipment and contractual services required by the Legislative Department, except [gas, water and electric light and power services and] purchases made pursuant to subsection (c) of this section and public utility services as provided in subsection (e) of this section [;] and (2) all sales by said department of such personal property which has become obsolete, unserviceable or unusable, shall be based, when possible, on competitive bids or competitive negotiation, provided in the case of such sales, the Joint Committee on Legislative Management may, in its discretion, sell the property at public auction. The committee shall solicit competitive bids or proposals by sending notices to prospective suppliers and by posting notice on a public bulletin board in a building under the supervision and control of the Joint Committee on Legislative Management. Each bid and proposal shall be kept sealed or secured until opened publicly at the time stated in the notice soliciting such bid. If the amount of the expenditure or sale is estimated to exceed [ten] fifty thousand dollars, competitive bids or proposals shall be solicited by public notice, inserted at least once in not fewer than three daily newspapers published in the state, and at least five calendar days before the final date for submitting bids. All purchases or sales of ten thousand dollars or less in amount shall be made in the open market, but shall be based, when possible, on at least three competitive quotations.

(c) The committee may waive the requirement of competitive bidding or competitive negotiation in the case of minor nonrecurring and emergency purchases of [one] ten thousand dollars or less in amount. [The committee may use competitive negotiation to purchase or contract for data processing equipment, programs or services or advertising space or time, after making a written determination, including the reasons therefor, that such action is in the best interest of the state.] The committee shall adopt guidelines establishing [(1) objective standards for determining when such competitive negotiation may be used instead of competitive bidding, including whether the character of such data processing equipment, programs or services or advertising space or time is more important than their relative cost, (2) procedures to be followed in making purchases, contracts or sales not subject to the competitive bid requirements of this section] (1) standards and procedures for using competitive negotiation for purchases and contracts, including but not limited to, criteria which shall be considered in making purchases by competitive negotiation and the weight which shall be assigned to each such criterion and [(3)] (2) standards and procedures under which additional purchases may be made [on a limited basis] under existing contracts.

(d) Whenever an emergency exists by reason of extraordinary conditions or contingencies that could not reasonably be foreseen and guarded against, or because of unusual trade or market conditions, the committee may, if it is for the best interest of the state, waive the requirement that purchases be based on competitive bids or competitive negotiation as provided in this section. A statement of all such purchases and sales made under the provisions of this subsection shall be set forth in the annual report of the committee.

(e) The purchase of or contract for the following public utility services shall not be subject to competitive bidding or competitive negotiation: (A) Electric distribution services; (B) water services; (C) gas distribution services; (D) electric generation services until the date such services are competitive pursuant to the schedule set forth in section 16-244b, provided electric generation services shall be exempt from competitive bidding and competitive negotiation after said date if such services are provided by an electric municipal utility other than by a participating electric municipal utility, as defined in section 16-1, in the service area of said electric municipal utility; and (E) gas supply services until the date such services are competitive pursuant to legislative act or order of the Department of Public Utility Control, provided gas supply services shall be exempt from competitive bidding and competitive negotiation after said date if such services are provided by a gas municipal utility in the service area of said gas municipal utility.

[(e)] (f) As used in this section, "lowest responsible qualified bidder" means the bidder whose bid is the lowest of those bidders possessing the skill, ability and integrity necessary to faithful performance of the work based on objective criteria considering past performance and financial responsibility. Bidders shall submit with their bids essential information concerning their qualifications, in such form as the committee may require by specification in the bid documents. The committee may waive minor irregularities in bids and proposals if it determines that such a waiver would be in the best interest of the state. As used in this subsection, the term "minor irregularities" shall not include variations in the quality, unit price or date of delivery or completion of supplies, materials, equipment or contractual services, or exceptions to programs required under the general statutes. The committee shall state the reasons for any such waiver in writing and include such statement in the contract file.

[(f)] (g) All open market orders or contracts shall be awarded to (1) the lowest responsible qualified bidder, the qualities of the articles to be supplied, their conformity with the specifications, their suitability to the requirements of the state government and the delivery terms being taken into consideration and, at the discretion of the committee, life-cycle costs and trade-in or resale value of the articles may be considered where it appears to be in the best interest of the department or (2) the proposer whose proposal is deemed by the committee to be the most advantageous to the department, in accordance with the criteria set forth in the request for proposals, including price and evaluation factors. In considering past performance of a bidder for the purpose of determining the "lowest responsible qualified bidder", the committee shall evaluate the skill, ability and integrity of the bidder in terms of the bidder's fulfillment of past contract obligations and his experience or lack of experience in delivering supplies, materials, equipment or contractual services of the size or amount for which bids have been solicited. If any such bidder refuses to accept, within ten days, a contract awarded to him, such contract may be awarded to the next lowest responsible qualified bidder, and so on until such contract is awarded and accepted. If any such proposer refuses to accept, within ten days, a contract awarded to him, such contract shall be awarded to the next most advantageous proposer, and so on until the contract is awarded and accepted. There shall be a written evaluation made of each bid. This evaluation shall: Identify the vendors and their respective costs and prices; document the reason why any vendor is deemed to be nonresponsive; and recommend a vendor for award. The committee shall submit to the Auditors of Public Accounts an annual report of all awards made pursuant to the provisions of this section.

[(g)] (h) When, in the opinion of the committee, the best interest of the state will be served thereby, it may order that any or all bids or proposals may be rejected. If all bids or proposals are so rejected, the committee shall advertise again for bids or proposals and such bids or proposals shall be opened, awarded and approved in like manner as provided in this section. If all bids or proposals received on a pending contract are for the same unit price or total amount, the committee may order the rejection of all bids or proposals and purchase of the required supplies, materials, equipment or contractual services in the open market, provided the price paid in the open market shall not exceed the bid price. Each bid or proposal, with the name of the bidder or proposer, shall be entered on a record, and each record, with the successful bid or proposal indicated thereon, shall, after the award of the order or contract, be open to public inspection.

[(h)] (i) Any purchase or contract for supplies, materials, equipment or contractual services contrary to the provisions of this section shall be void and of no effect.

Sec. 7. Section 4d-47 of the general statutes is repealed and the following is substituted in lieu thereof:

With respect to any state employee whose position is eliminated or who is laid off as a result of any contract or amendment to a contract which is subject to the provisions of this chapter and subsection (e) of section 1-205, subsection (c) of section 1-211, subsection (b) of section 1-212, section 4-5, 4a-50, 4a-51, subsection [(c)] (b) of section 4a-57, as amended by this act, subsection (a) of section 10-4e, subsection (a) of section 10a-151b, subsection (a) of section 19a-110 or subsection (b) of section 32-6i, or any subcontract for work under such contract or amendment, (1) the contractor shall hire the employee, upon application by the employee, unless the employee is hired by a subcontractor of the contractor, or (2) the employee may transfer to any vacant position in state service for which he is qualified, to the extent allowed under the provisions of existing collectively bargained agreements and the general statutes. If the contractor or any such subcontractor hires any such state employee and does not provide the employee with fringe benefits which are equivalent to, or greater than, the fringe benefits that the employee would have received in state service, the state shall, for two years after the employee terminates from state service, provide to the employee either (A) the same benefits that he received from the state or (B) compensation in an amount which represents the difference in the value of the fringe benefits that he received when in state service and the fringe benefits that he receives from the contractor or subcontractor.

Sec. 8. (NEW) (a) As used in this section:

(1) "Multiple criteria bid or proposal" means a bid or proposal for a contract that is to be awarded to the bidder or proposer who achieves the highest score in providing the state with a unique combination of attributes, including, but not limited to, price, skill, ability and integrity necessary for the faithful performance of the work, based on multiple criteria considering quality of product, warranty, life-cycle cost, past performance, financial responsibility and other objective criteria to be established for the contract; and

(2) "Supplies", "materials", "equipment" and "contractual services" have the same meanings assigned to such terms in section 4a-50 of the general statutes.

(b) Notwithstanding the provisions of chapter 58 of the general statutes, the Commissioner of Administrative Services shall establish a pilot program in which the commissioner may award contracts on or before June 30, 2001, for supplies, materials, equipment and contractual services on the basis of multiple criteria bids or proposals.

Sec. 9. (NEW) (a) As used in this section:

(1) "Multiple criteria bid or proposal" means a bid or proposal for a contract that is to be awarded to the bidder or proposer who achieves the highest score in providing the state with a unique combination of attributes, including, but not limited to, price, skill, ability and integrity necessary for the faithful performance of the work, based on multiple criteria considering quality of product, warranty, life-cycle cost, past performance, financial responsibility and other objective criteria to be established for the contract; and

(2) "Supplies", "materials", "equipment" and "contractual services" have the same meanings assigned to such terms in section 2-71p of the general statutes.

(b) Notwithstanding the provisions of chapter 18a of the general statutes, the Joint Committee on Legislative Management shall establish a pilot program in which the committee may award contracts on or before June 30, 2001, for supplies, materials, equipment and contractual services on the basis of multiple criteria bids or proposals.

Sec. 10. The Commissioner of Administrative Services shall study the implementation of section 8 of this act and, not later than January 1, 2001, shall submit a report on the commissioner's findings and recommendations to the joint standing committee of the General Assembly having cognizance of matters relating to government administration.

Sec. 11. This act shall take effect July 1, 1999.

Approved June 23, 1999

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