Report Title:

Public Contracts; Bid Protest; Procurement Policy Board

Description:

Requires that the electronic posting of contracts awards of $5,000 or more for the procurement of professional services also include the ranking of the persons selected; requires the purchasing agency to notify in writing all offerors that solicited an award of their non-selection not later than the day of the posting of the award, including specified information; increases the time for protesting an award from five to seven days of its posting. (CD1)

THE SENATE	S.B. NO.	2827
TWENTY-FOURTH LEGISLATURE, 2008		S.D. 1
STATE OF HAWAII		H.D. 1
		C.D. 1

A BILL FOR AN ACT

RELATING TO PUBLIC CONTRACTS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

     SECTION 1.  Section 103D-304, Hawaii Revised Statutes, is amended by amending subsection (i) to read as follows:

     "(i)  Contracts awarded under this section for $5,000 or more shall be posted electronically within seven days of the contract award by the chief procurement officer or designee and shall remain posted for at least one year.  Written notification to the non-selected persons ranked under subsection (g) shall be sent not later than the day of the posting of the award.  Information to be posted shall include, but not be limited to:

     (1)  The names of the persons submitted under subsection (g)[;], including the ranking;

     (2)  The name of the person or organization receiving the award;

     (3)  The dollar amount of the contract;

     (4)  The name of the head of the purchasing agency or designee making the selection; and

     (5)  Any relationship of the principals to the official making the award."

     SECTION 2.  Section 103D-701, Hawaii Revised Statutes, is amended to read as follows:

"§103D-701  Authority to resolve protested solicitations and awards.  (a)  Any actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation or award of a contract may protest to the chief procurement officer or a designee as specified in the solicitation.  Except as provided in sections 103D-303 and 103D-304, a protest shall be submitted in writing within [five] seven working days after the aggrieved person knows or should have known of the facts giving rise thereto; provided that a protest of an award or proposed award shall in any event be submitted in writing within [five] seven working days after the posting of award of the contract under section 103D-302 or 103D-303, if no request for debriefing has been made, as applicable; provided further that no protest based upon the content of the solicitation shall be considered unless it is submitted in writing prior to the date set for the receipt of offers.

(b)  The purchasing agency shall notify in writing all offerors that solicited an award of a contract of their non-selection not later than the day of the posting of the award.  Information posted publicly about the award shall include, where applicable, but is not limited to:

(1) The names of offerors soliciting an award of the contract;

(2) The numerical scores given by the evaluation committee to the acceptable and potentially acceptable proposals, and if a best and final offer was requested, the names of the priority-listed offerors and their final numerical scores;

(3) The name of the successful offeror and dollar amount of the award; and

(4) The basis for making the award to the successful offeror; provided that trade secrets or other proprietary or confidential information shall not be disclosed.

     [(b)] (c)  The chief procurement officer or a designee, prior to the commencement of an administrative proceeding under section 103D-709 or an action in court pursuant to section 103D‑710, may settle and resolve a protest concerning the solicitation or award of a contract.  This authority shall be exercised in accordance with rules adopted by the policy board.

     [(c)] (d)  If the protest is not resolved by mutual agreement, the chief procurement officer or a designee shall promptly issue a decision in writing to uphold or deny the protest.  The decision shall:

     (1)  State the reasons for the action taken; and

     (2)  Inform the protestor of the protestor's right to an administrative proceeding as provided in this part, if applicable.

     [(d)] (e)  A copy of the decision under subsection [(c)] (d) shall be mailed or otherwise furnished immediately to the protestor and any other party intervening.

     [(e)] (f)  A decision under subsection [(c)] (d) shall be final and conclusive, unless any person adversely affected by the decision commences an administrative proceeding under section 103D-709.

     [(f)] (g)  In the event of a timely protest under subsection (a), no further action shall be taken on the solicitation or the award of the contract until the chief procurement officer makes a written determination that the award of the contract without delay is necessary to protect substantial interests of the State.

     [(g)] (h)  In addition to any other relief, when a protest is sustained and the protestor should have been awarded the contract under the solicitation but is not, then the protestor shall be entitled to the actual costs reasonably incurred in connection with the solicitation, including bid or proposal preparation costs but not attorney's fees."

     SECTION 3.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 4.  This Act shall take effect upon its approval.