Specifications

Section 1400 Section 1400.3005  Specifications a)         The Chief Procurement Officer shall write or authorize the writing of all specifications. b)         Specifications Prepared by Other Than State Personnel 1)         Specifications may be prepared by other than Treasurer's office personnel, including, but not limited to, consultants, architects, engineers, designers and other drafters of specifications for public contracts.  Contracts for the preparation of specifications by other than State personnel must require the specification writer to adhere to State requirements. 2)         The person who prepared the specifications may not submit a bid or proposal to meet the procurement need unless the Chief Procurement Officer determines in writing that it would be in the best interest to accept a bid or proposal from that person and a notice to that effect is published as provided in Section 1400.1505. 3)         Non-Prohibited Acts This Section does not prohibit a person or business from submitting a bid or proposal or entering into a contract if the person or business: A)        Initiated a communication with an employee of the State to provide general information about industry trends and innovations, products, services or industry best practices. B)        Responded to a communication initiated by an employee of the State for the purposes of providing information to evaluate new products, services or technologies. C)        Received or possessed written material obtained from a State employee from public sources, such as through an internet search, or literature packets obtained in conjunction with an event such as a trade show. D)        Provided, at the request of the State, general marketing material or makes a general sales presentation to show the person's qualifications or product capabilities.  Material may be personalized for the procuring agency provided any personalization is obtained from publicly available sources. E)        Provided technology supplies or services demonstrated to the State that represent industry trends and innovation and is not specifically tailored to meet the State's needs. 4)         Prohibited Acts A)        Specifications.  A person or business may not submit specifications to the Treasurer's office unless requested to by a State employee. With the exception of standard specifications that a vendor makes available to any potential purchaser, the Chief Procurement Officer or his or her designee must approve a Treasurer's office employee's request for specifications for a particular transaction. B)        Assistance to State Employees.  A person or business is prohibited from bidding on a solicitation and from having a contract or subcontract if the person or business assisted a Treasurer's office employee who, by the nature of his or her duties, has the authority to participate personally and substantially in the decision to award a State contract.  Assistance to a Treasurer's office employee may include any of the following: i)          Draft (writes or assists the State with writing all or part of the procurement document); ii)         Review (reads the document or comments on the procurement document or signified approval or disapproval); iii)        Direct (any activity relating to giving instructions or commands or in supervising or overseeing the preparation of the procurement document); iv)        Prepare (any activity relating to organizing or distributing the documents, including through the Treasurer's website); or v)         Provides similar assistance, e.g., conducting research or providing any advice used in drafting, reviewing, directing or preparing procurement documents. C)        A person (and its affiliated or related entities) that contracts with the Treasurer's office to write specifications for a particular procurement may not submit a bid or proposal or receive a contract or subcontract for that procurement. 5)         Exceptions.  Any person or business who responds to an advertised request for information or other publicly available opportunity to provide information related to the procurement need or to review drafts of all or part of proposed procurement documents shall not be disqualified by virtue of responding to the State's publicly advertised request. c)         Procedures for the Development of Specifications 1)         All procurements must be based on specifications that accurately reflect the State's needs.  Specifications must clearly and precisely describe the salient technical or performance requirements. 2)         Specifications must not include restrictions that do not significantly affect the technical requirements or performance requirements, or other legitimate State needs.  All specifications must be written in a manner that describes the requirements to be met, without having the effect of exclusively requiring a proprietary supply or service, or procurement from a sole source, unless no other manner of description will suffice. 3)         Any specifications or standards adopted by business, industry, a not-for-profit organization or governmental unit may be adopted by reference. 4)         A specification may provide alternate descriptions when two or more design, functional or performance criteria will satisfactorily meet the State's requirements. d)         Brand Name or Equal Specification 1)         Brand name or equal specifications may be used when the Chief Procurement Officer determines in writing that: A)        time does not permit the preparation of another form of specification, not including a brand name specification; B)        the nature of the product or the nature of the requirement makes use of a brand name or equal specification suitable for the procurement; or C)        use of a brand name or equal specification is in the State's best interest. 2)         Brand name or equal specifications must seek to designate more than one brand as "or equal", and must further state that substantially equivalent products to those designated will be considered for award. 3)         Required Characteristics.  Unless the Chief Procurement Officer determines that the essential characteristics of the brand names included in the specifications are commonly known in the industry or trade, brand name or equal specifications must include a description of the particular design, functional or performance characteristics that are required. 4)         Nonrestrictive Use of Brand Name or Equal Specifications.  When a brand name or equal specification is used in a solicitation, the solicitation must contain explanatory language that the use of a brand name is for the purpose of describing the standard of quality, performance and characteristics desired and is not intended to limit or restrict competition.  "Or equal" submissions will not be rejected because of minor differences in design, construction or features that do not affect the suitability of the product for its intended use.  The burden of proof that a product is equal is on the offeror. e)         Brand Name Only Specification 1)         Use.  A brand name only specification may be used only when the Chief Procurement Officer makes a written determination that is made part of the procurement file that only the identified brand name item or items will satisfy the State's needs.  Brand name alone may be specified in order to ensure compatibility in existing systems, to preserve warranty, to ensure maintenance, or as authorized in writing by the Chief Procurement Officer.  The Chief Procurement Officer may, pursuant to an authorized competitive procedure, select a particular vendor to provide supplies or services for a specified period of time.  For that period, the supplier of additional, related and updated supplies and services may be limited to the selected vendor or the brand initially selected. 2)         Competition.  The Chief Procurement Officer shall seek to identify sources from which the designated brand name item or items can be obtained and shall solicit those sources to achieve whatever degree of competition is practicable.  If only one source can supply the requirement, the procurement must be made as a sole source procurement. 3)         Small and Emergency Procurements.  Brand name only specifications may be used when procuring items under Sections 1400.2020 (small purchases) and 1400.2030 (emergency procurements). f)         Pre-Solicitation Request for Information When the Chief Procurement Officer does not have sufficient information about available supplies or services to issue a solicitation, the officer may issue a pre-solicitation request for information inviting vendors to submit non-price information about the availability of specified types of supplies and services.  Vendors may be provided an opportunity to comment on the RFI itself and make suggestions as to the scope and information being requested that would facilitate the best possible responses from the vendor community.  Public notice of the pre-solicitation request for information shall be published at least 14 days before the date set for the receipt of information. The submission of information by a vendor in response to a pre-solicitation request for information is not a prerequisite for that vendor to respond to a subsequent solicitation for the types of supplies and services for which information was solicited, and the issuance of a pre-solicitation request for information does not commit the Treasurer's office to make any procurement of supplies or services of any kind.  The Treasurer's office may, consistent with Section 1400.2505(l), require that vendors responding to the RFI clearly identify any confidential information and may require vendors submit an additional copy of their bid, offer or response that omits or redacts information claimed to be exempt under FOIA.  All other information received through a pre-solicitation request for information will be available for public review.