Provides for equally weighted pre-selection criteria for design professional services. Amends code to include requirement for $250 bond in order to pursue administrative review of awards. Creates emergency repair and maintenance program for repair and maintenance of public schools.

A BILL FOR AN ACT

(b) Notwithstanding the provisions under sections 40-57 and 40-58, if a contractor fails to timely file all tax returns and pay all taxes, interest, and penalties due to the State or Internal Revenue Service during the term of a contract, the state or county [contracting] procurement officer or agent shall immediately assign any progress payment due to the contractor, if any (provided such payment is not subject to any restriction or encumbrance), to the State payable to the department of taxation or to the Internal Revenue Service to the credit of the contractor, whichever the case may be; provided that the department of taxation may first offset its tax debt against the sum owed to the contractor. The state or county [contracting] procurement officer or agent shall assign as many progress payments as necessary, including the final payment, to cover the amount of the tax delinquency.

(e) This section shall not apply to:

"§103-55 Wages, hours, and working conditions of employees of contractors performing services. (a) Before any offeror enters into a contract to perform services in excess of [$25,000] the limits in section 103D-305 for any governmental agency, the offeror shall certify that the services to be performed will be performed under the following conditions:

Wages. The services to be rendered shall be performed by employees paid at wages or salaries not less than the wages paid to public officers and employees for similar work.

Compliance with labor laws. All applicable laws of the federal and state governments relating to workers' compensation, unemployment compensation, payment of wages, and safety will be fully complied with.

(b) No contract to perform services for any governmental contracting agency in excess of [$25,000] the limits in section 103D-305 shall be granted unless all the conditions of this section are met. Failure to comply with the conditions of this section during the period of contract to perform services shall result in cancellation of the contract, unless such noncompliance is corrected within a reasonable period as determined by the procurement officer. Final payment of a contract or release of bonds or both shall not be made unless the procurement officer has determined that the noncompliance has been corrected.

It shall be the duty of the governmental contracting agency awarding the contract to perform services in excess of [$25,000] the limits in section 103D-305 to enforce this section.

(c) This section shall apply to all contracts to perform services in excess of [$25,000] the limits in section 103D-305, including contracts to supply ambulance service and janitorial service.

"§103D-304 Procurement of professional services. (a) Professional services shall be procured in accordance with sections 103D-302, 103D-303, 103D-305, 103D-306, or 103D-307, or this section. Design professional services furnished by licensees under chapter 464 shall be procured in accordance with this section or section 103D-307. Contracts for professional services shall be awarded on the basis of demonstrated competence and qualification for the type of services required, and at fair and reasonable prices.

(b) At a minimum, before the beginning of each fiscal year, the head of each purchasing agency shall publish a notice inviting persons engaged in providing professional services which the agency anticipates needing in the next fiscal year, to submit current statements of qualifications and expressions of interest to the agency. Additional notices may be given if:

The chief procurement officer may specify a uniform format for statements of qualifications. Persons may amend these statements by filing a new statement prior to the date designated for submission.

(c) The head of the purchasing agency shall designate a review committee consisting of a minimum of three [employees from the agency or from another governmental body,] persons with sufficient education, training, and licenses or credentials for each type of professional service which may be required. The committee shall review and evaluate all submissions and other pertinent information, including references and reports, and prepare a list of qualified persons to provide these services. Persons included on the list of qualified persons may amend their statements of qualifications as necessary or appropriate. Persons shall immediately inform the head of the purchasing agency of any change in information furnished which would disqualify the person from being considered for a contract award.

(d) Whenever during the course of the fiscal year the agency needs a particular professional service, the head of the purchasing agency shall designate a [screening] selection committee to evaluate the statements of qualification and performance data of those persons on the list prepared pursuant to subsection (c) along with any other pertinent information, including references and reports. The [screening] selection committee shall be comprised of a minimum of three [employees of the purchasing agency] persons with sufficient education, training, and licenses or credentials in the area of the services required. [If the purchasing agency and using agency are different, the committee shall include at least one qualified employee from the using agency. When the committee includes an employee from a using agency, the employee shall be appointed by the head of the using agency. If qualified employees are not available from these agencies, the officers may designate employees of other governmental bodies.] The [primary] selection criteria employed [by the screening committee], each of equal importance, shall [include but not] be [limited to]:

The [screening] selection committee may add sub-criteria within each criterion, and shall evaluate the submissions of persons on the list prepared pursuant to subsection (c) and any other pertinent information which may be available to the agency, against the selection criteria. The committee may conduct confidential discussions with any person who is included on the list prepared pursuant to subsection (c) regarding the services which are required and the services they are able to provide. In conducting discussions, there shall be no disclosure of any information derived from proposals submitted by competing offerors. The committee shall provide the head of the purchasing agency with the names of a minimum of three persons who the committee concludes are the most qualified to provide the services required, with a summary of each of their qualifications. The contract file shall contain a copy of [the criteria established for the selection and] the committee's summary of qualifications for each of the persons provided to the head of the purchasing agency by the committee.

(e) [The head of the purchasing agency shall evaluate the summary of qualifications for each of the persons provided by the screening committee and may conduct additional discussions with any of them. The head of the purchasing agency shall then rank the persons based on the selection criteria.] The head of the purchasing agency shall negotiate a contract with the first ranked person, including a rate of compensation which is fair and reasonable, established in writing, and based upon the estimated value, scope, complexity, and nature of the services to be rendered. If a satisfactory contract cannot be negotiated with the first ranked person, negotiations with that person shall be formally terminated and negotiations with the second ranked person on the list shall commence. Failing accord with the second ranked person, negotiations with the next ranked person on the list shall commence. If a contract at a fair and reasonable price cannot be negotiated, the [screening] selection committee [may] shall be asked to submit a minimum of three additional persons for the head of the purchasing agency to [rank, and] resume negotiations in the same manner provided in this subsection. Negotiations shall be conducted confidentially.

(f) Contracts awarded under this section shall be posted electronically within seven days of the contract award by the chief procurement officer and shall remain posted for at least one year. Information to be posted shall include:

(g) Contracts for professional services of less than $25,000 may be negotiated by the head of a purchasing agency, with any [two] persons who appear on the list of qualified persons established pursuant to subsection (c). Negotiations shall be conducted in the manner set forth in subsection (e), [but without establishing any order of preference.] using the ranking of person based on the selection criteria of subsection (d) as determined by the head of the purchasing agency. No contract for the construction of a project shall be awarded to the firm that designed the project or its subsidiaries or affiliates."

"§103D-323 Bid security. (a) Unless the policy board determines otherwise by rules, bid security shall be required only for construction contracts to be awarded pursuant to sections 103D-302 and 103D-303 and when the price of the contract is estimated by the procurement officer to exceed [$25,000] the limits in section 103D-305 or, if the contract is for goods or services, the purchasing agency secures the approval of the chief procurement officer. Bid security shall be a bond provided by a surety company authorized to do business in the State, or the equivalent in cash, or otherwise supplied in a form specified in rules."

"§103D-324 Contract performance and payment bonds. (a) Unless the policy board determines otherwise by rules, the following bonds or security shall be delivered to the purchasing agency and shall become binding on the parties upon the execution of the contract if the contract which is awarded exceeds [$25,000] $50,000 and is for construction, or the purchasing agency secures the approval of the chief procurement officer:

"PART VII. LEGAL AND CONTRACTUAL REMEDIES

§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. A protest shall be submitted in writing within five 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 working days after the posting of award of the contract either under section 103D-302 or 103D-303, 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. Any actual or prospective bidder, offeror, or contractor who submits a protest to the chief procurement officer or a designee as specified in the solicitation shall also post a bond in the amount of $250 with the chief procurement officer or the designee as specified in the solicitation, payable to the respective department of the chief procurement officer or the designee as specified in the solicitation. Such bond shall be forfeit if the protest be found to be without merit or the protest is decided against the protestor."

"PART . Emergency School Repair & Maintenance Program

103D- . Definitions.

"Architect/Engineer team" shall mean an individual or group of individuals licensed under chapter 464 as either an architect or professional engineer.

"Department" shall mean the department of accounting and general services.

103D- . Pre-qualification of Architect/Engineer teams; criteria. The department will make a list of not more than six pre-qualified Architect/Engineer teams available to the principal of each public school. The criteria employed by the department for pre-qualifying an Architect/Engineer team shall be of equal importance and shall include:

A greater the volume of work as noted in (5) shall bear negatively towards the selection of any Architect/Engineer team. The department shall also make available to the principal of each public school their prioritized repair and maintenance lists for each respective school.

103D- . Discretion to select Architect/Engineer teams. Each principal shall select an Architect/Engineer team from the list of pre-qualified teams. The principal shall have the discretion to select any team from the list. The chosen team will work with the principal of the school to create a prioritized twenty-year repair and maintenance plan for the school.

103D- . Contractor selection. Upon completion of the twenty-year repair and maintenance plan, the principal and the Architect/Engineer team shall select a contractor to complete the repair and maintenance projects according to the plan. The criteria for selecting a contractor, in descending order of importance, shall be:

A greater the volume of work as noted in (6) shall bear negatively towards the selection of any contractor. Upon selection of a contractor, the principal and the Architect/Engineer team shall submit the plan and choice of contractor to the department. Based on addressing the highest priority items on the plan, the principal and the Architect/Engineer team shall draft and submit an itemized purchase order of services and materials, the overall cost of which is at or below the limits set forth in section 103D-305, to the department.

103D- . Plan review; criteria. The department shall have the option of reviewing the above documents or delegating the review to the master consultant. Should the department choose to do so, the department shall review:

If the department cannot approve or disapprove of the plan, contractor selection, or purchase order with reasons or compliance requirements, as may be applicable, within twenty-one working days, the department shall delegate the review to the master consultant.

103D- . Master consultant; duties and contracts. There is hereby created a master consultant who shall review:

when such task is delegated to it by the department. No more than four master consultants shall be selected by the department. The department shall negotiate an open quantity contract with a set price for review of an individual school's repair and maintenance package as noted immediately above. The negotiated contract between the department and the master consultant shall include a clause for liquidated damages if the master consultant does not approve or disapprove of the plan, contractor selection, or purchase order with reasons or compliance requirements, as may be applicable, within twenty-one working days from the time of receipt of the repair and maintenance package from the department. The liquidated damages shall be no greater than the amount of the purchase order of the respective school whose package is not reviewed within the twenty-one working day time frame. A master consultant, or its subsidiaries or affiliates, shall not be eligible to receive any award of contract or purchase order as a result of this program."

SECTION 9. There is appropriated out of the ___________ the sum of $1.00, or so much thereof as may be necessary for fiscal year 2002-2003, for the purpose of effectuating the school repair and maintenance program in section 9 of this Act; provided that moneys unexpended as of October 1, 2002 shall lapse into the general fund.

SECTION 10. The sum appropriated shall be expended by the department of accounting and general services for the purposes of this Act.

SECTION 11. All contracts entered into under statutes or portions of statutes repealed or amended by this Act shall continue to be honored until their termination. The provisions of this Act shall not be applied so as to impair any contract existing as of the effective date of this Act or to otherwise be violative of either the Hawaii Constitution or Article I, section 10, of the United States Constitution.

SECTION 12. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 13. This Act shall take effect upon its approval; provided that on September 30, 2002, sections 1 through 9 of this Act shall be repealed.