855-RICR-00-00-1
855-RICR-00-00-1. Rules and Regulations Governing Procurement (version Periodic Refile, 01/04/2002 to 03/06/2016)
RHODE ISLAND TURNPIKE AND
BRIDGE AUTHORITY
Procurement Rules
Adopted: December 13, 2000
312455.v2
11/13/00
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TABLE OF CONTENTS
Page
SECTION 1 - DEFINITIONS...........................................................................................................1
SECTION 2 - GENERAL PROVISIONS.......................................................................................10
2.1
PURPOSES AND POLICIES .............................................................................10
2.1.1
Administrative Practices and Policies.....................................................10
2.1.1.1
Underlying Purposes...........................................................10
2.1.1.2
Competition........................................................................10
2.1.1.3
Responsibility and Accountability........................................10
2.2
APPLICATION OF STATE PURCHASES ACT................................................11
2.2.1
Expenditure of Public Funds under any Contract....................................11
2.2.2
Option to Make Purchases Internally or through State Central Purchasing
Authority..............................................................................................11
2.2.2.1
[37-2-12] Internal Adherence............................................11
2.2.2.2
Use of State Central Purchasing Authority...........................11
2.2.2.3
Assignment.........................................................................11
2.3
DOCUMENTATION AND REPORTS...............................................................12
2.3.1
Purchase Reports .................................................................................12
2.3.1.1
[37-2-54(i)] Records of Purchases and Sales.....................12
2.3.1.2
[37-2-54(i)] Records of Trends in Costs and Prices...........12
2.3.1.3
Sole Source, Emergency and Small Purchases.....................12
2.3.1.3.1
[37-2-37] Retention and Inspection
of Sole Source, Emergency and Small ..............
2.3.2
Adequacy of Written Records...............................................................12
2.3.2.1
Source Selection and Pricing...............................................12
2.3.2.2
Extent May Vary................................................................12
2.3.2.3
Audit Trail Requirement......................................................12
2.3.3
Documentation Signed or Initialed.........................................................13
2.3.4
Form of Documentation........................................................................13
2.3.5
Audit of contractors' records.................................................................13
2.3.6
[37-2-36(b)] Documents Relating to Collusion.....................................14
2.3.7
[37-2-6] Determinations in Writing.......................................................14
2.3.8
[37-2-18(2)(d)] Bid Abstracts; Access................................................14
2.4
BREACH OF CONTRACT DISPUTES..............................................................15
2.4.1
[37-2-46] Authority to resolve contract and breach of contract
controversies........................................................................................15
2.4.2
[37-2-47] Failure to render timely decisions .........................................16
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2.4.3
Legal Remedy for Disputes...................................................................16
2.4.3.1
[37-2-48] Public Works Contracts....................................16
2.4.3.2
[37-2-49(b)] Other Contracts............................................16
2.5
RESOLUTION OF PROTESTS..........................................................................17
2.5.1
[37-2-51] Presumption of Correctness..................................................17
2.5.2
Authority to resolve protests .................................................................17
2.5.2.1
[37-2-52(a)] Solicitation or Selection for Award of Contract17
2.5.2.2
[37-2-52(b)] Protests........................................................17
2.5.2.3
[37-2-52(c)] Decision in Writing........................................17
2.5.2.4
Decision Final.....................................................................17
2.5.3
[37-2-53] Protest Tolls Solicitation or Award ......................................17
2.6
IMPREST FUNDS ..............................................................................................18
SECTION 3 - PROCUREMENT STRUCTURE AND ACCOUNTABILITY ................................19
3.1
PROCUREMENT AUTHORITY FOR RITBA ...................................................19
3.1.1
[37-2-54(c)] Approval by RITBA Required ........................................19
3.1.2
[37-2-1] RITBA Purchasing Agent's Duties .........................................19
3.1.3
[37-2-54(a)] RITBA Executive Director's Duties .................................19
3.1.4
[37-2-9(a)] Policy Determinations........................................................19
3.1.5
[37-2-54(d)] Inventories......................................................................19
3.1.5.1
Annual or Multi-Year Plans.................................................20
3.1.5.2
Procurement Plans..............................................................20
3.1.5.3
[37-2-45] Supply Disposition Process ...............................20
3.2
STRUCTURE AND RESPONSIBILITIES FOR RITBA
PROCUREMENT................................................................................................20
3.2.1
RITBA Executive Director's Responsibilities..........................................20
3.2.2
RITBA Purchasing Agent's Responsibilities ...........................................21
3.2.3
RITBA Budget Officer's Responsibilities ...............................................22
3.3
VIOLATIONS OF PURCHASING LAWS AND REGULATIONS...................22
3.3.1
Violation of RITBA Policy....................................................................22
3.3.2
Violation of Purchasing Code of Ethics..................................................22
3.3.3
Violations of State Code of Ethics.........................................................22
3.3.4
Violations of Purchasing Laws...............................................................22
3.3.5
[37-2-36(a)] Collusion Reported to Attorney General..........................22
3.3.6
Falsification of Certification Reported to Attorney General.....................22
SECTION 4 - CODE OF ETHICS AND PROFESSIONAL BEHAVIOR; STATE CODE OF
PROCUREMENT ETHICS.............................................................................................23
4.1
APPLICABILITY OF RHODE ISLAND CODE OF ETHICS............................23
4.2
RITBA POLICY..................................................................................................23
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4.3
PROHIBITED ACTIVITIES UNDER THE RHODE ISLAND CODE OF
ETHICS [36-14-5................................................................................................23
4.4
SUPPLEMENTAL STATE CODE OF PROCUREMENT ETHICS ...................25
4.4.1
General Requirements...........................................................................25
4.4.2
Relations With Suppliers.......................................................................26
SECTION 5 - VENDOR QUALIFICATION, PREQUALIFICATION AND
SOLICITATION ......................................................................................................29
5.1
RESPONSIBILITY AND AUTHORITY OF THE RITBA PURCHASING
AGENT................................................................................................................29
5.2
RESPONSIBILITIES OF BIDDERS AND OFFERORS.....................................29
5.2.1
[37-2-24(a)] Determination of Responsibility........................................29
5.2.1.1
[37-2-24(d)] Prohibition on Disclosure ..............................29
5.2.1.2
Factors in Responsibility Determination...............................29
5.2.1.3
Performance Bond Requirements........................................29
5.2.1.4
Bidder Registration Forms ..................................................29
5.2.1.4.1
General Terms and Conditions......................30
5.2.1.4.2
Significance of Signature...............................30
5.2.1.4.3
Prerequisite for Award.................................30
5.3
RITBA BIDDERS LIST.......................................................................................30
5.3.1
MBEs ..................................................................................................31
5.3.2
Changes...............................................................................................31
5.3.3
Registered and Unregistered Suppliers ..................................................31
5.3.3.1
Registered Suppliers...........................................................31
5.3.3.2
Unregistered Suppliers........................................................31
5.3.4
Restriction on Solicitation......................................................................31
5.3.5
Updated Bidder Registration Forms ......................................................32
5.3.6
Vendor Information File........................................................................32
5.4
PREQUALIFICATION OF CONTRACTORS...................................................32
5.4.1
[37-2-25] General Procurement...........................................................32
5.4.2
Prequalification Information...................................................................33
5.4.3
Supplementary Prequalification Information...........................................33
5.4.4
Inclusion Constitutes Prequalification.....................................................33
5.4.5
Construction Management ....................................................................33
5.4.5.1
Information Required..........................................................33
5.4.5.1.1
Firm History.................................................33
5.4.5.1.2
Personnel.....................................................34
5.4.5.1.3
Experience Information.................................34
5.4.5.1.4
Project Staffing ............................................34
5.4.5.1.5
Services.......................................................34
5.5
DEBARMENT AND SUSPENSION..................................................................35
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5.5.1
Exclusion..............................................................................................35
5.5.1.1
Exclusion Defined...............................................................35
5.5.1.1.1
Debarment...................................................35
5.5.1.1.2
Suspension...................................................35
5.5.1.1.3
Rejection.....................................................35
5.5.2
Just Cause for Debarment.....................................................................35
5.5.3
Just Cause for Suspension.....................................................................35
5.5.4
Just Cause for Rejection.......................................................................36
5.5.5
Written Notice......................................................................................36
5.5.6
Period of Suspension............................................................................37
5.5.7
Request for Reinstatement.....................................................................37
5.5.8
Reconsideration on a Case-by-Case Basis ............................................37
5.5.9
Protests................................................................................................37
5.5.10
[37-2-73] Pest Control Services..........................................................37
SECTION 6 - COMPETITIVE REVIEW AND SOURCE SELECTION........................................38
6.1
COMPETITION..................................................................................................38
6.2
GENERAL PROVISIONS ..................................................................................38
6.3
RULES FOR SOLICITATION............................................................................39
6.3.1
RITBA Bidders List..............................................................................39
6.3.2
MBEs and Rhode Island Businesses......................................................39
6.3.3
Notification and Advertising..................................................................39
6.3.4
Solicitation of those not on RITBA Bidders List.....................................40
6.3.5
Offers not Solicited...............................................................................40
6.3.6
Forms of Solicitation.............................................................................40
6.3.7
Measurable Criteria ..............................................................................40
6.3.8
Selection and Evaluation Criteria Defined ..............................................40
6.4
BIDDER SECURITY...........................................................................................41
6.4.1
[37-2-40(1)] Bond or Cash Equivalent ................................................41
6.4.2
[37-2-40(a)] Construction Contracts in excess of $50,000...................41
6.4.3
[37-2-40(b)] Minimum of Five Percent................................................41
6.4.4
[37-2-40(c)] Rejection for Noncompliance..........................................41
6.4.5
[37-2-40(d)] Bids Irrevocable .............................................................42
6.4.6
Return of Sureties of All But Three Lowest Bidders...............................42
6.4.7
Return of Low Bidder's Surety..............................................................42
6.5
CANCELLATION OF INVITATION FOR BIDS AND REQUEST FOR
PROPOSALS ......................................................................................................42
6.5.1
No Proposals Reasonably Close to Expectations...................................42
6.5.2
Only One Proposal...............................................................................42
6.6
CORRECTION OR WITHDRAWAL OF BIDS .................................................42
6.6.1
[37-2-18(f)] As Permitted by RITBA Executive Director .....................42
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6.6.2
Penalty.................................................................................................42
6.6.3
Requests for Correction or Withdrawal.................................................43
6.6.4
Correction of a bid ...............................................................................43
6.6.5
Withdrawal of bids ...............................................................................43
6.7
SOLICITATION METHODOLOGY..................................................................43
6.7.1
Procurements in Excess of $250 ...........................................................43
6.7.2
[37-2-22] Small Purchases..................................................................43
6.7.3
Three Bid Minimum..............................................................................44
6.7.4
[37-2-18(a)] Sealed, Written Competitive Bids in Excess of
$10,000 for Construction Contracts and $5,000 for All Others..............44
6.7.4.1
[37-2-18(a)] Factors in Determining Whether
Practicable .........................................................................44
6.7.4.2
[37-2-18(c)] Adequate Public Notice................................44
6.7.4.3
[37-2-18(d)] Opening of Bids............................................45
6.7.5
Formal Competitive Bids ......................................................................45
6.7.5.1
Procurements in Excess of $1,000; Written
Quotations..........................................................................45
6.7.5.2
Characteristics of Formal Bids ............................................45
6.7.6
Informal Competitive Bids.....................................................................45
6.7.6.1
Procurements Less Than $1,000; Oral Quotations...............45
6.7.6.2
Characteristics of Informal Bids...........................................45
6.7.6.3
Three Bid Minimum............................................................46
6.7.6.4
Maximizing Participation.....................................................46
6.7.6.5
Equitable Distribution..........................................................46
6.7.6.6
Written Justification.............................................................46
6.7.6.7
Quarterly Audit...................................................................46
6.7.7
Requests for Proposals .........................................................................46
6.7.7.1
When Used........................................................................46
6.7.7.2
Criteria to be Used.............................................................47
6.7.7.3
How Offers Evaluated ........................................................47
6.7.7.4
Award Solely on Basis of Cost ...........................................47
6.7.7.5
Full Documentation.............................................................47
6.8
SOURCE SELECTION AND CONTRACT AWARD........................................47
6.8.1
[37-2-18(e)] Award to Lowest Bid or Lowest Evaluated or Responsive
Bid.......................................................................................................47
6.8.1.1
Awards Within Sixty Days of Bid Opening..........................48
6.8.1.2
Special Consideration to MBEs ..........................................48
6.8.2
Ten Percent of Construction Contracts Exceeding $5,000 to
MBEs ..................................................................................................48
SECTION 7 - NEGOTIATION.......................................................................................................50
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7.1
GENERAL PROVISIONS ..................................................................................50
7.1.1
Objective .............................................................................................50
7.1.2
When Negotiation Used........................................................................50
7.2
COMPETITIVE NEGOTIATION.......................................................................50
7.3
PROCEDURES ...................................................................................................51
7.3.1
Request for Proposals ("RFPs") When Competitive Negotiation is Used51
7.3.2
Review and Discussion.........................................................................51
7.3.3
[37-2-54(b)] General Service Administration Contracts........................53
7.3.4
Request for Best and Final Offer...........................................................53
7.4
NONCOMPETITIVE NEGOTIATION..............................................................53
7.4.1
When Noncompetitive Negotiation Used...............................................53
7.4.2
Written Documentation.........................................................................54
7.5
TRUTH IN NEGOTIATIONS REQUIREMENTS - COST OR PRICING DATA54
7.5.1
[37-2-28(a)] Accuracy of Cost and Pricing Data..................................54
7.5.2
Applicability.........................................................................................54
7.5.3
Cost or Pricing Data Factors.................................................................55
7.5.4
When Requirement Met........................................................................55
7.5.5
Subcontracting Requirements................................................................55
7.5.5.1
Subcontractors' Cost or Pricing Data ..................................55
7.5.5.2
Certification........................................................................55
7.5.5.3
[37-2-28(b)] Adjustment Due to Inaccurate Cost or Pricing
Data of Contractor .............................................................55
7.5.5.4
Adjustment Due to Inaccurate Cost or Pricing Data of
Subcontractor.....................................................................56
7.6
GUIDELINES IN NEGOTIATIONS...................................................................56
7.6.1
Written Statement Regarding Negotiation..............................................56
7.6.2
Audit Clause.........................................................................................56
7.6.3
Unit Pricing...........................................................................................56
7.6.4
Analysis in Absence of Competitive Sealed Bidding...............................56
7.6.5
Contracts Terminated for the Convenience of RITBA............................56
7.6.6
Reimbursement of Costs.......................................................................57
SECTION 8 - SUPPLEMENTAL SERVICES ................................................................................58
8.1
GENERAL PROVISIONS ..................................................................................58
8.1.1
Need for Supplemental Services ...........................................................58
8.1.2
Change Orders to Professional Consultant Contracts.............................58
8.1.3
Competition for Supplemental Services .................................................58
8.1.4
Legal Services......................................................................................58
8.1.5
Architecture or Engineering...................................................................58
8.1.6
Construction Management Contractors .................................................58
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8.2
ARCHITECTURAL, ENGINEERING AND CONSULTANT SERVICES
SELECTION COMMITTEE ...............................................................................58
8.3
SUPPLEMENTAL SERVICES NOT EXCEEDING $5,000...............................59
8.4
ARCHITECTURAL, ENGINEERING AND CONSULTANT SERVICES
SELECTION PROCESS FOR SERVICES NOT EXCEEDING $20,000...........59
8.5
ARCHITECTURAL, ENGINEERING AND CONSULTANT SERVICES
SELECTION PROCESS FOR SERVICES EXCEEDING $20,000....................59
8.5.1
Solicitation............................................................................................59
8.5.1.1
[37-2-60] Public Announcement........................................59
8.5.2
Bidders' Conference.............................................................................60
8.5.3
[37-2-63(a)] Selection Committee.......................................................60
8.5.4
[37-2-63(a)] Additional Information.....................................................60
8.5.5
[37-2-63(b)] Negotiation with Highest Qualified Firm...........................60
8.5.6
[37-2-63(b)] Final Selection................................................................61
8.6
EVALUATION FOR SELECTION.....................................................................61
8.6.1
Criteria for Evaluation...........................................................................61
8.6.2
Statements Evaluated............................................................................61
8.7
REQUIREMENTS FOR SUPPLEMENTAL LEGAL SERVICES.......................61
8.7.1
[37-2-70] Professional services - Legal.................................................61
8.7.1.1
Criteria to be Demonstrated................................................61
8.7.1.2
Letter of Engagement..........................................................62
8.7.2
Minimum Requirements for Professionals...............................................62
8.8
AUDITING AND ACCOUNTING.....................................................................63
8.8.1
[37-2-59(c)] Procurement for Independent Audit.................................63
8.8.2
Purchase Requisitions for Independent Audit Services ...........................63
8.8.3
Contract Amendments..........................................................................63
SECTION 9 - CONTRACTS..........................................................................................................64
9.1
FUNDAMENTAL REQUIREMENTS AND PRINCIPLES FOR RITBA
CONTRACTS .....................................................................................................64
9.1.1
[37-2-54(c)] Purchase Order as Primary Contractual
Instrument ............................................................................................64
9.1.2
[37-2-13(d)] New Regulation has No Effect on Existing
Contract...............................................................................................64
9.1.3
[37-2-13(e)] RITBA Purchasing Regulations Incorporated by Reference64
9.1.4
[37-2-13(f)] Unlawful Contracts Void Ab Initio ...................................64
9.1.5
Supplemental Principles of Law - Obligation of Good Faith...................64
[9.1.6
Compliance with Applicable State and Federal Laws.............................65
9.1.7
[37-2-41] Contractor's Bonds.............................................................67
9.2
GENERAL CHARACTERISTICS OF RITBA CONTRACTS............................67
9.2.1
General Terms and Conditions ..............................................................67
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9.2.2
Termination..........................................................................................68
9.2.3
Mutual Agreement................................................................................69
9.2.4
Consideration.......................................................................................69
9.2.5
Capacity of Parties ...............................................................................69
9.2.6
Competence of Parties..........................................................................69
9.2.7
Duration...............................................................................................69
9.2.8
Designated Contact ..............................................................................69
9.2.9
Public Works/Construction Contracts ...................................................69
9.3
THE PURCHASE ORDER CONTRACT............................................................70
9.3.1
Entire Agreement..................................................................................70
9.3.2
Purchase Order Supplements................................................................70
9.4
MULTI-YEAR CONTRACTS ............................................................................70
9.4.1
[37-2-33(a)] When Permitted..............................................................70
9.4.2
[37-2-33(b)] Determination of Necessity.............................................71
9.4.3
[37-2-33(c)] Cancellation....................................................................71
9.4.4
Appropriate Cases for Multi-Year Contracts.........................................72
9.5
LETTER OF AUTHORIZATION........................................................................72
9.5.1
Letter of Authorization Instrument .........................................................72
9.5.2
Requirements of an LA.........................................................................72
9.6
CHANGES TO PURCHASE ORDERS ..............................................................73
9.6.1
Change Orders.....................................................................................73
9.6.2
Exclusive Documents for Changes.........................................................73
9.6.3
Prior Necessary Approvals...................................................................74
9.6.4
Changes Prior to Change Order............................................................74
9.6.5
Letter of Authorization..........................................................................74
9.7
TERMINATION OF CONTRACT.....................................................................74
9.7.1
Invalidity of Bidder Certifications...........................................................74
9.7.2
Written Notice of Termination...............................................................74
9.7.3
Cancellation of a Contract by RITBA for Nonperformance....................74
9.8
TYPES OF PURCHASE ORDER CONTRACTS...............................................76
9.8.1
Fixed Price (FP)...................................................................................76
9.8.1.1
The Firm Fixed Price (FFP)................................................76
9.8.1.2
The Fixed Price with Economic Price Adjustment (FPW/EPA)
..........................................................................................76
9.8.1.3
A Fixed Price Redeterminable (FPR)..................................76
9.8.1.4
The Fixed Price Incentive (FPI) ..........................................76
9.8.2
Cost Reimbursement.............................................................................76
9.8.2.1
A Cost No Fee (CNF).......................................................76
9.8.2.2
A Cost Sharing (CS) ..........................................................76
9.8.2.3
A Cost Plus Fixed Fee (CPFF)...........................................76
9.8.2.4
A Cost Plus Incentive Fee (CPIF).......................................77
ix
9.8.2.5
A Time and Materials (T/M)...............................................77
9.8.3
A Blanket Order...................................................................................77
9.8.3.1
A Pricing Agreement (PA)..................................................77
9.8.3.2
A Master Pricing Agreement (MPA)...................................77
9.8.3.3
A Term Contract................................................................77
9.8.4
Prohibited Contracts.............................................................................77
9.8.4.1
A Cost Plus Percentage of Cost (CPPC)............................77
9.8.4.2
A To Be Determined (TBD) ...............................................78
9.9
PRINCIPLES FOR SELECTION OF TYPE OF PURCHASE ORDER
CONTRACT.......................................................................................................78
9.9.1
Factors in Determining Type of Contract...............................................78
9.9.2
[37-2-32] Firm Fixed Price Contracts Preferred ...................................79
9.9.3
[37-2-31] Best Interests of RITBA.......................................................79
9.9.4
Cost Reimbursement Contracts.............................................................79
9.9.5
FPW/EPA Contracts............................................................................80
9.9.5.1
Types of Economic Adjustments.........................................80
9.9.5.1.1
Price Adjustment..........................................80
9.9.5.1.2
Labor and Material Adjustment ....................80
9.9.6
FPR Contracts .....................................................................................80
9.9.7
FPI Contracts.......................................................................................80
9.9.8
CNF Contracts ....................................................................................81
9.9.9
CPFF Contracts...................................................................................81
9.9.10
T/M Contracts......................................................................................81
9.9.11
L/H Contracts ......................................................................................81
9.9.12
MPA Contracts....................................................................................82
9.10
CONSTRUCTION CONTRACTING MANAGEMENT....................................82
SECTION 10 - EXCEPTIONS TO COMPETITIVE BIDDING REQUIREMENTS ......................83
10.1
AUTHORITY TO MAKE EXCEPTIONS TO THE REQUIREMENT
FOR COMPETITION.........................................................................................83
10.2
GOODS OR SERVICES OBTAINED BY RITBA FROM A STATE
AGENCY............................................................................................................83
10.3
SMALL PURCHASES NOT EXCEEDING $250...............................................83
10.3.1
Fair and Reasonable Price ....................................................................83
10.3.2
Verification When Doubt as to Reasonableness.....................................84
10.3.3
Equitable Distribution............................................................................84
10.3.4
Artificial Division of Larger Purchases Prohibited...................................84
10.4
SOLE SOURCE..................................................................................................84
10.4.1
Delegation to Purchasing Agent.............................................................84
10.4.2
Sole Source Categories ........................................................................84
10.4.3
Continuing Responsibility to Evaluate Market........................................85
x
10.4.4
Alternative Distributors and Manufacturers............................................85
10.4.5
Maintenance Contracts.........................................................................85
10.4.6
Nonprofit Providers..............................................................................85
10.5
EMERGENCIES..................................................................................................86
10.5.1
Remedy or Repair Exceeding $250.......................................................86
10.5.2
What Constitutes an Emergency............................................................86
10.5.3
Inadequate Anticipation........................................................................86
10.5.4
Commitments Beyond Emergency.........................................................86
10.5.5
State Emergency Response List ............................................................86
10.5.6
Emergency Response Officer................................................................86
10.5.7
Emergency Outside of Business Hours ..................................................87
10.5.8
Documentation.....................................................................................87
10.6
STANDARD OR ESTABLISHED CATALOGUE ITEMS..................................87
10.7
EXPENDITURES WHICH ARE NOT PROCUREMENTS................................87
10.7.1
Grants, Benefits, Entitlements, Subsidies and Reimbursements................87
10.7.2
Responsibility of RITBA to Promote State Competition.........................88
10.7.3
Special Provisions for Grants ................................................................88
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SECTION 1 - DEFINITIONS
For the purposes of these Procurement Rules, the following words and terms shall have the following
meanings:
"Architect" shall mean a person who, under the provisions of Section 5-1-2 of the General Laws of
Rhode Island, by reason of his knowledge of the mathematical and physical sciences, and the principles
of architecture and architectural design, acquired by professional education, practical experience, or
both, is qualified to engage in the practice of architecture as attested by his licensing as an architect in
this State. [37-2-7(26)]
"Benefits" shall mean monies or gifts provided by RITBA, to the extent permitted by law, to or on behalf
of individuals or entities, the distribution of which may not be prescribed by statute, regulation, or
program provisions.
"Bid" shall mean an executed document submitted by a bidder in response to an Invitation for Bids or a
Request for Quotation.
(a) "firm bid" shall mean a bid that binds the bidder until a stipulated time of expiration.
(b) "sealed bid" shall mean a bid which has been submitted in a sealed envelope to prevent its
contents from being revealed or known before the deadline for the submission of all bids to
enhance fair competition.
"Bid Abstract" shall mean a summary of responsive bids to a solicitation.
"Bid Bond" shall mean an insurance agreement in which a third party agrees to be liable to pay a certain
amount of money in the event that a specific bidder, if his bid is accepted, failed to accept the contract
as bid.
"Bid Opening" shall mean the process through which bids are opened and the contents revealed for the
first time to RITBA, other bidders and to the public.
"Bid Registration" shall mean the process by which respective bidders register with the RITBA
Purchasing Agent.
"Bid Security" shall mean a sum of money or check deposited with and as instructed by the prospective
purchaser to guarantee that the bidder (depositor) will, if selected, accept the contract in accordance
with the bid.
"Bidder" shall mean any person submitting a competitive bid in response to a solicitation.
"Business" shall mean any corporation, partnership, individual, sole proprietorship, joint stock company,
joint venture, or other legal entity through which business is conducted. [37-2-7(1)]
"Change order" shall mean a written order signed by the RITBA Executive Director or the contractor
directing or allowing the contractor to make changes which the changes clause of the contract authorizes
the RITBA Executive Director or contractor to order without the consent of the contractor or RITBA
Executive Director. [37-2-7(2)]
"Commodity" shall mean an article of trade, a movable article of value, something that is bought or sold;
any movable or tangible thing that is produced or used as the subject of barter or sale.
"Competition" shall mean the process by which two or more vendors vie to secure the business of a
purchaser by offering the most favorable terms as to price, quality, delivery and/or service.
"Competitive bidder/offeror" shall mean responsible and responsive bidder or offeror.
"Construction" shall mean the process of building, altering, repairing, improving or demolishing any
public structures or building, or other public improvements of any kind to any public real property. It
does not include the routine maintenance or repair of existing structures, buildings, or real property
performed by salaried employees of the State or the RITBA in the usual course of their jobs. [37-2-
7(4)]
"Consultant" shall mean any person with whom RITBA has a contract which contract provides for the
person to give direction or information as regards a particular area of knowledge in which the person is
a specialist and/or has expertise.
"Contract" shall mean all types of agreements, including grants and orders, for the purchase or disposal
of supplies, services, construction, or any other items. It shall include awards, contracts of a fixed price,
cost, cost-plus-a-fixed-fee, or incentive type; contracts providing for the issuance of job or task orders,
leases, letter contracts, purchase orders and construction management contracts. It also includes
supplemental agreements with respect to any of the foregoing. With respect to the procurement
regulations set forth herein, "contract" shall not apply to labor contracts with employees of RITBA. [37-
2-7(5)]
"Contract Modification" shall mean any written alteration in the specifications, delivery point, rate of
delivery, contract period, price, quantity, or other contract provisions of any existing contract, whether
accomplished by unilateral action in accordance with a contract provision, or by mutual action of the
parties to the contract. It shall include bilateral actions, such as change orders, administrative changes,
notices of termination, and notices of the exercise of a contract option. [37-2-7(6)]
"Contractor" shall mean any person having a contract with RITBA. [37-2-7(7)]
3
"Data" shall mean recorded information, regardless of form or character. [37-2-7(8)]
"Designee" shall mean a duly authorized representative of a person holding a superior position. [37-2-
7(9)]
"Employee" shall mean an individual drawing a salary from RITBA, whether elected or not, and any
nonsalaried individual performing personal services for RITBA. [37-2-7(10)]
"Engineer" shall mean a person who, under the provisions of Section 5-8-2 of the General Laws of
Rhode Island, by reason of his special knowledge and use of the mathematical, physical and engineering
sciences and the principles and methods of engineering analysis and design, acquired by engineering
education and engineering experience, is qualified to practice engineering, as hereinafter defined, and as
attested by his registration as an engineer. [37-2-7(26)]
"Entitlements" shall mean monies or gifts provided by RITBA, to the extent permitted by law, as part of
subsidy programs for which the distribution of funds is determined in accordance with specific eligibility
criteria or by formula. Examples include but shall not be limited to: food stamps, general public
assistance, medical assistance payments, and school aid formula funds.
"Evaluated bid price" shall mean the dollar amount of a bid after bid price adjustments are made
pursuant to objective measurable criteria, set forth in the invitation for bids, which affect the economy
and effectiveness in the operation or use of the product, such as reliability, maintainability, useful life, and
residual value. [37-2-15(3)]
"Governmental body" shall mean any department, commission, council, board, bureau, committee,
institution, legislative body, agency, government corporation, including, without limitation, the Board of
Governors for Higher Education and Board of Regents - Elementary and Secondary Education or other
establishment of the executive, legislative, or judicial branch of the State. [37-2-7(11)]
"Grants" shall mean monies provided by RITBA, to the extent permitted by law, to or on behalf of
individuals or entities to underwrite specific costs of services or programs. Although grants may be
distributed for specific purposes, payment is not based upon supply of specific units of service or
products.
"Independent contractor" shall mean a person (individual or firm) who, in various degrees and/or
combinations:
(i) is available to the general public on a regular and consistent basis;
(ii) is free to work when and for whom he/she pleases;
4
(iii) is employed by more than one person or company at a time;
(iv) makes a significant investment in facilities not typically maintained by an employee; and
(v) can realize a profit or loss as a result of providing services or products.
"Invitation for Bids" shall mean all documents, whether attached or incorporated by reference, utilized
for soliciting proposals in accordance with the procedures set forth in Section 37-2-18 of the State
Purchases Act. [37-2-15(4)]
"May" shall mean permissive. [37-2-7(12)]
"MBE" or "Minority Business Enterprise" shall mean a small business concern, owned and controlled by
one or more minorities or women certified by the Rhode Island Department of Economic Development
to meet the definition established by Chapter 37-14.1 of the General Laws of Rhode Island.
"Negotiation" shall mean contracting by the provisions set forth in sections 37-2-19, 37-2-20, and
37-2-21 of the State Purchases Act. These sections refer to competitive negotiation, noncompetitive
negotiation, sole source, single source and emergency procurements, respectively. [37-2-7(13)]
"Negotiation" shall also mean the process of establishing contractual provisions and of gaining
contractual acceptance, other than solely as the result of normal competitive bidding (described
elsewhere herein). For the purpose of this definition, two distinct categories of negotiation shall be
recognized:
(a) "Competitive negotiation" shall mean a specialized bidding procedure characterized by
modifications to the offers of at least two vendors and/or alteration of the specifications for
which, or the terms and conditions under which, RITBA has solicited offers.
(b) "Noncompetitive negotiation" shall mean the establishment of contractual terms and
conditions, including but not limited to contract price, by discussions with a single vendor,
outside of the procedures established for competitive bidding.
"Offeror" shall mean an individual who proposes a specific offer to sell goods and services to RITBA,
whether in response to a bid or request for proposals or unsolicited.
"Person" shall mean any business, individual, organization or group of individuals. [37-2-7(14)]
"Personal services" shall mean services provided by persons who are paid directly by RITBA but are
not on the RITBA payroll.
5
"Practice of Engineering" shall mean any service or creative work, the adequate performance of which
requires engineering education, training and experience in the application of special knowledge of the
mathematical, physical and engineering sciences to such services or creative work as consultation,
investigation, evaluation surveys, planning and design of engineering systems, and the supervision of
construction for the purpose of assuring compliance with specifications; and embracing those services or
work in connection with any public or private utilities, structures, buildings, machines, equipment,
processes, work, or projects wherein the public welfare or the safeguarding of life, health, or property is
involved or concerned, and including such architectural work as is incidental to the practice of
engineering. [5-8-2]
"Prime contractor" shall mean a contractor who engages subcontractors in the course of satisfying the
requirements of fulfilling a contract.
"Procurement" shall mean the purchasing, buying, renting, leasing or otherwise obtaining of any supplies,
services, or construction. It shall also include all functions that pertain to the obtaining of any supply,
service, or construction item, including description of requirements, selection and solicitation of sources,
preparation and award of contracts, and all phases of contract administration. [37-2-7(15)]
"Professional Consultant" shall mean an individual or a firm which is a specialist and/or has the expertise,
as demonstrated by the possession of appropriate professional licensing, certification, and/or
experience, necessary to give advice, direction or information regarding that particular area of
knowledge.
Consultant services shall be characterized by research and analysis, recommended courses of
action, identification of priorities, and unspecified outcomes. Examples of professional consultations
include:
(i) systems analysis (computer, personnel, management review);
(ii) program analysis (medical program planning); and
(iii) policy recommendations (abandonment or adoption of programs, establishment of
decision criteria).
"Professional Service Provider" shall mean an independent contractor who is a specialist and/or has the
expertise, as demonstrated by professional licensing or certification and experience, necessary to carry
out tasks regarding that particular field of expertise.
Professional services shall be characterized by specific activities and/or the attainment of
measurable outcomes. Examples of professional services include:
6
(i) legal representation in litigation and administrative advice (interpretation of law, contracts,
etc.);
(ii) computer programming;
(iii) construction management; and
(iv) arbitration.
"Proprietary Information" shall mean information or data describing technical processes, mechanisms, or
operational factors that a business wishes to keep from general public view in order to maintain
competitive capabilities in the market.
"Protest" shall mean a complaint about a governmental action or decision brought by a prospective
bidder, a bidder, a contractor, or other interested party to the appropriate administrative section with
the intention of achieving a remedial result.
"Public Agency" shall be defined as set forth in Section 37-2-7(16) of the State Purchases Act. [37-2-
7(16)]
"Public works contract" shall mean a contract for grading, clearing, demolition, improvement,
completion, repair, alteration or construction of any public road or any bridge, or portion thereof, or any
public building or portion thereof, or any heavy constructions, or any public works projects of any
nature or kind whatsoever. [37-13-1]
"Public Works Contractor" shall mean a contractor, in accordance with Section 37-12-1 of the General
Laws of Rhode Island
"Purchase of Services" shall mean monies expended for the provision of specific units of time and effort
rather than an end product.
"Purchase Order" shall mean a document issued by the RITBA Purchasing Agent to formalize a
purchase transaction with a vendor. The purchase order shall contain statements as to the quantity,
description, and price of the goods or services ordered, applicable terms as to payment, discounts, date
of performance, transportation, and other factors or suitable references pertinent to the purchase and
execution by the vendor. Purchase orders shall include blanket orders, master pricing agreements, and
utility purchase orders.
"Purchase Requisition" shall mean a document whereby RITBA requests that a contract be entered into
to obtain goods and/or services for a specified need, and may include, but is not limited to, the technical
description of the requested item, delivery requirements, transportation mode request, criteria for
7
evaluation of proposals, and/or suggested sources of supply, and information supplied for the making of
any written determination and finding required by Section 37-2-6 of the State Purchases Act.
A "purchase requisition" shall also mean an internal document by which RITBA initiates a
procurement. The request may include, but is not limited to, a performance or technical description of
the requested item, delivery schedule, transportation mode, criteria for evaluation, suggested sources of
supply, and information related to the making of any written determination required by policy or
procedure. [37-2-7(17)]
"Purchasing Agent" shall mean that person appointed as the purchasing agent pursuant to Section 37-2-
7(19) and Section 3.1.2 of these Rules.
"Qualified Bidder" shall mean a bidder determined by the RITBA Purchasing Agent to meet standards
of business competence, reputation, financial ability, and product quality.
"Reimbursement" shall mean monies paid to a beneficiary, client, or claimant to make restoration for
expenses such person has undertaken.
"Request for Proposal (RFP)" shall mean all documents, whether attached or incorporated by reference,
utilized for soliciting competitive proposals. [37-2-15(5)]
"Request for Quotation (RFQ)" shall mean a document or oral solicitation used for seeking competition
on small purchases or on any purchase lower than the amount that requires competitive bidding.
"Responsible Bidder or Offeror" shall mean a qualified bidder who has the capability in all respects
including financial responsibility to perform fully the contract requirements, and the integrity and reliability
which will assure good faith performance. [37-2-15(6)]
"Responsive Bidder" shall mean a person who has submitted a bid under Section 37-2-18 of the State
Purchases Act which conforms in all material respects to the invitation for bids, so that all bidders may
stand on equal footing with respect to the method and timeliness of submission and as to the substance
of any resulting contract.
A "responsive bidder" shall also mean a person who has submitted a bid which conforms in all
material respects to the terms and conditions, specifications and any other requirements of the Bid
Invitation. [37-2-15(7)]
"RITBA Bidders List" shall mean a list maintained by the RITBA Purchasing Agent containing the names
and addresses of suppliers of various goods and services from whom bids, proposals, and quotations
can be solicited.
8
"Services" shall mean the rendering, by a contractor, of its time and effort rather than the furnishing of a
specific end product, other than reports which are merely incidental to the required performance of
services.
"Services" does not include labor contracts with employees of the RITBA or of State
agencies. [37-2-7(20)]
"Shall" shall mean imperative. [37-2-7(21)]
"Solicitation" shall mean the process of notifying prospective bidders or offerors that RITBA wishes to
receive bids for furnishing goods and services. The process may consist of public advertising, mailing
Invitations to Bid, posting notices, and/or telephone or telegraph messages to prospective bidders.
"Source Selection" shall mean the technique of appropriate selection by solicitation, e.g., competitive
sealed bidding, multi-step competitive sealed bidding, competitive negotiation, small purchase
procedure, sole source or emergency purchase.
"Special Services" shall mean services which RITBA deems necessary or desirable to purchase
provided by individuals or firms possessing special knowledge or skills for which formal licensing or
certification is not necessarily required. Examples of special services include:
(i) expert witness testimony;
(ii) art;
(iii) interpretation (languages, deaf);
(iv) public information;
(v) stenographic services; and
(vi) training.
"Specification" shall mean a description of what RITBA seeks to buy, and consequently, what a bidder
must be responsive to in order to be considered for award of a contract. A specification may be a
description of the physical or functional characteristics, or the nature of, a supply or service. It may
include a description of any requirements for inspecting, testing, or preparing a supply or service item for
delivery; a purchase description.
["Spot Purchase" shall mean a one-time purchase occasioned by a small requirement, an unusual
circumstance, or to take advantage of a favorable market condition.]
9
"Standard" shall mean a characteristic or set of characteristics for an item that, for reasons of
performance level, compatibility or interchangeability with other products, etc., is generally accepted by
producers and by users of the item as a required characteristic of all items for the designed purpose.
"State agency" shall mean any state governmental body other than the General Assembly or public body
as defined herein.
"State Purchasing Agent" shall mean the person appointed in accordance with Section 1 of the State
Purchases Act as the administrator of the State's central purchasing and contracting authority.
"State" shall mean the State of Rhode Island and any of its departments or agencies and public agencies.
[37-2-7(22)]
"State Bidders List" shall mean lists maintained by the State's Purchasing Agent containing the names
and addresses of suppliers of various goods and services from whom bids, proposals and quotations
may be solicited.
"Subcontractor" shall mean any person undertaking part of the work under the terms of the contract, by
virtue of an agreement with the prime contractor, who, prior to such undertaking, receives in writing the
consent and approval of RITBA.
"Subsidies" shall mean monies provided by RITBA, to the extent permitted by law, to or on behalf of
individuals or entities to assist in defraying general expenses.
"Supplemental Agreement" shall mean any contract modification which is accomplished by the mutual
action of the parties. [37-2-7(23)]
"Supplemental Services" shall mean all services performed in a capacity which supplements the basic
staffing of RITBA.
"Supplier" shall mean an actual or potential contractor; a vendor.
"Supplies" shall mean all property, including but not limited to leases of real property, printing and
insurance, except land or permanent interest in land. [37-2-7(24)]
"Vendor" shall mean a supplier or contractor.
10
SECTION 2 - GENERAL PROVISIONS
2.1
PURPOSES AND POLICIES
2.1.1 Administrative Practices and Policies
2.1.1.1
Underlying Purposes.
2.1.1.1.1 To simplify, clarify, and modernize purchasing activities
undertaken by the RITBA;
2.1.1.1.2 To permit the continuous development of purchasing policies
and practices;
2.1.1.1.3 To provide for increased public confidence in the procedures
followed in public procurement;
2.1.1.1.4 To insure fair and equitable treatment of all persons who deal
with the procurement system of the RITBA;
2.1.1.1.5 To provide increased economy in RITBA procurement
activities by fostering effective competition;
2.1.1.1.6 To provide safeguards for the maintenance of a procurement
system of quality, integrity and the highest ethical standards;
and
2.1.1.1.7 To provide for clearly defined accountability and responsibility
for procurement actions.
2.1.1.2
Competition - RITBA will operate an effective procurement system by
obtaining goods and services within a competitive environment whenever
possible. The primary method of assuring that procurements are to the
advantage of RITBA will be the use of competitive bidding procedures.
2.1.1.3
Responsibility and Accountability - All RITBA officials shall be responsible
for compliance with purchasing legislation enacted by the Rhode Island
General Assembly and with all related policies, rules, regulations,
procedures and codes promulgated by the State Chief Purchasing Officer
to the extent applicable and shall be held accountable for violations of the
spirit, intent and letter of these governing requirements. All RITBA
11
employees shall be responsible for carrying out their designated functions
with care, integrity and a sense of responsibility to the taxpayers of Rhode
Island for providing public services in the most cost-effective manner
possible.
2.2
APPLICATION OF STATE PURCHASES ACT
2.2.1 Expenditure of Public Funds under any Contract. In accordance with Section 37-2-4
of the General Laws of Rhode Island, Chapter 2 of Title 37 of the General Laws of
Rhode Island (the "State Purchases Act") shall apply to every expenditure of public
funds, except as otherwise provided by law, by RITBA under any contract or like
business agreement, excepting only those contracts or like business agreements
between RITBA and the State or its political subdivisions or other governments. It
shall also apply to the disposal of RITBA supplies. Nothing in the State Purchases
Act or in the regulations promulgated thereunder shall prevent RITBA from complying
with the terms and conditions of any grant or funding, including without limitation, any
grant or funding from or through the Federal Highway Administration or any state
agency, or any gift, bequest or co-operative agreement.
2.2.2 Option to Make Purchases Internally or through State Central Purchasing Authority
2.2.2.1
[37-2-12] Internal Adherence - RITBA does not have to utilize the State
Central Purchasing Authority, but RITBA, through its existing internal
purchasing functions, shall adhere to the general principles, policies and
practices set forth in the State Purchases Act.
2.2.2.2
Use of State Central Purchasing Authority - RITBA may utilize the State
Central Purchasing Authority as a procurement agency provided that such
activity is conducted in accordance with all purchasing policies, procedures
and regulations promulgated by the State Chief Purchasing Officer.
2.2.2.3
Assignment - Nothing contained in these Procurement Rules shall prevent
RITBA from accepting assignment of any contract from the State of Rhode
Island, any of its departments, including without limitation the Rhode Island
Department of Transportation or any other entity; provided, however, that
any such contract shall have been awarded in accordance with the
requirements of the State Purchases Act.
12
2.3
DOCUMENTATION AND REPORTS
2.3.1 Purchase Reports
2.3.1.1
[37-2-54(i)] Records of Purchases and Sales - RITBA shall maintain
records of all purchases and sales made under its authority.
2.3.1.2
[37-2-54(i)] Records of Trends in Costs and Prices - RITBA shall also
maintain records of trends in costs and prices, including savings realized
through improved practices.
2.3.1.3
Sole Source, Emergency and Small Purchases -
2.3.1.3.1 [37-2-37] Retention and Inspection of Sole Source,
Emergency and Small Purchases Records - A summary shall
be compiled annually by the purchasing agent, within ninety
(90) days following the close of the fiscal year of sole source,
emergency and small purchases during the preceding fiscal
year. The summary shall:
(1) Name each contractor; and
(2) State the amount and type of each contract.
All documentation of contracts made for sole source,
emergency and small purchase procurements shall be retained
for a period of five (5) years and made available for public
inspection.
2.3.2 Adequacy of Written Records. Adequate written records shall be maintained in
RITBA's purchasing files to document procurement activities, reasons for selection of
the supplier's product and justification of price.
2.3.2.1
Source Selection and Pricing - At a minimum, documentation shall include
adequate justification of source selection and pricing.
2.3.2.2
Extent May Vary - The extent of documentation may vary with RITBA
needs and requirements and the value and complexity of the purchase.
2.3.2.3
Audit Trail Requirement - RITBA procurement officials shall be required
to provide an "audit trail" for every purchase. Such documentation shall be
13
recorded and maintained in accordance with procedures established by the
RITBA Purchasing Agent. RITBA purchasing personnel shall document
and maintain records of all actions with respect to a purchase for the
purpose of:
2.3.2.3.1 providing background information to assure that informed
decisions are made at each step in a procurement;
2.3.2.3.2 rationale for action taken;
2.3.2.3.3 providing information for reviews and audits conducted by
RITBA purchasing management and audit agencies; and
2.3.2.3.4 furnishing facts in the event of litigation.
2.3.3 Documentation Signed or Initialed. Purchasing documentation shall be signed or
initialed (as appropriate) by duly authorized RITBA officials. Such signature or
initialing shall constitute certification by the official that the action documented meets
the administrative requirements for which he or she is responsible.
2.3.4 Form of Documentation. Documentation records may be in the form of copies,
microfilms, computer files or other means permitted in accordance with procedures
established and published by the State Chief Purchasing Officer or shall be original
documents as required by law or the State Controller.
2.3.5 Audit of contractors' records
2.3.5.1
[37-2-34(b)] RITBA may audit the books and records of any person who
has submitted cost or pricing data for certain negotiated contracts or
change orders at any time until the period of record retention as set forth in
Section 37-2-34(c) shall have expired. The right to audit hereunder shall
only extend to those books and records reasonably connected with cost or
pricing data submitted in accordance with Section 37-2-27.
2.3.5.1.1 "Certain negotiated contracts or change orders" shall mean
negotiated contracts exceeding fifty thousand dollars
($50,000) and negotiated change orders exceeding twenty five
thousand dollars ($25,000).
2.3.5.2
[37-2-34(c)] RITBA may audit the books and records of a contractor or
any subcontractor under any negotiated contract or subcontract other than
14
a firm fixed-price type contract, provided, however, that this subsection
shall not limit the right to audit as set forth in subsection (b) of Section 37-
2-34.
2.3.5.3
[37-2-34(b) and (c)] Such books and records shall be maintained by the
contractor for a period of three (3) years from the date of final payment
under the prime contract and by the subcontractor for a period of three (3)
years from the date of the final payment under the subcontract.
2.3.6 [37-2-36(b)] Documents Relating to Collusion. All documents involved in any
procurement in which collusion is suspected shall be retained until the Attorney
General gives notice that they may be released, and all such documents shall be made
available to the Attorney General or his designee upon request.
2.3.7 [37-2-6] Determinations in Writing. Every determination required by the State
Purchases Act and the policies contained herein shall be in writing and based upon
written findings of fact by the RITBA official making the determination. These
determinations and written findings shall be retained in an official contract file in the
RITBA office.
2.3.8 [37-2-18(2)(d)] Bid Abstracts; Access. Each bid, together with the name of the
bidder, shall be recorded and an abstract made available for public inspection.
Subsequent to the award, all documents pertinent to the awarding of the bid shall be
made available and open to public inspection and retained in the bid file.
2.3.8.1
All documentation records shall be subject to public disclosure with the
following exceptions:
2.3.8.1.1 Proprietary information submitted by vendors; and
2.3.8.1.2 Information furnished by a bidder in connection with an inquiry
related to responsibility, including without limitation confidential
financial information.
2.3.8.2
The RITBA Purchasing Agent shall assure that information not in the public
domain is not divulged.
2.3.8.3
Bids shall not be available for public inspection at the bid opening. Bid
abstracts shall be available for public inspection at the RITBA office no
later than ten (10) working days after an award has been made.
15
2.3.8.4
Requests for access to records other than bid abstracts shall be made in
writing and signed by the applicant.
2.3.8.4.1 The RITBA Purchasing Agent shall have a reasonable time to
respond to requests for access to information.
2.3.8.4.2 Reviews of document records shall be permitted by
appointment only and shall be conducted under the supervision
of a RITBA official.
2.3.8.4.3 No documentation shall be removed from the premises of the
RITBA office without the written consent of the RITBA
Executive Director.
2.4
BREACH OF CONTRACT DISPUTES
2.4.1 [37-2-46] Authority to resolve contract and breach of contract controversies. Prior
to the institution of arbitration or litigation concerning any contract, claim, or
controversy, the RITBA Executive Director is authorized, subject to any limitations or
conditions imposed by regulations and in accordance with the terms and conditions of
the applicable contract, to settle, compromise, pay, or otherwise adjust the claim by
or against or controversy with, a contractor relating to a contract entered into by
RITBA including a claim or controversy based on contract, mistake,
misrepresentation, or other cause for contract modification or rescission, in an amount
not greater than Five Percent (5%) of the dollar value of such contract, or Ten
Thousand Dollars ($10,000), whichever is greater, but excluding any claim or
controversy involving penalties or forfeitures prescribed by statute or regulation where
an official other than the RITBA Executive Director is specifically authorized to settle
or determine such controversy. The RITBA Executive Director shall advise the
RITBA Board of Directors of the amount and nature of any such settlement,
compromise, payment or other adjustment of claim promptly after he completes the
same. The RITBA Board of Directors shall have the authority to make any
settlement, compromise, payment or other adjustment of claim in an amount greater
than such 5% or $10,000, whichever is greater.
2.4.1.1
"Contract dispute" shall mean a circumstance whereby a contractor and
RITBA are unable to arrive at a mutual interpretation of the requirements,
limitations, or compensation for the performance of a contract.
16
2.4.1.2
The RITBA Executive Director shall be authorized to resolve contract
disputes between contractors and RITBA upon the submission of a
request in writing from the contractor, which request shall provide:
2.4.1.2.1 a description of the problem, including all appropriate citations
and references from the contract in question;
2.4.1.2.2 a clear statement by the party requesting the decision of his
interpretation of the contract; and
2.4.1.2.3 a proposed course of action to resolve the dispute.
2.4.1.3
The RITBA Purchasing Agent shall determine whether:
2.4.1.3.1 the interpretation provided is appropriate;
2.4.1.3.2 the proposed solution is feasible; or
2.4.1.3.3 another solution may be negotiable.
2.4.2 [37-2-47] Failure to render timely decisions. This section shall apply to a claim or
controversy arising under contracts between RITBA and its contractors. If such a
claim or controversy is not resolved by mutual agreement, the RITBA Executive
Director or his designee shall promptly issue a decision in writing. A copy of the
decision shall be mailed or otherwise furnished to the contractor. If the RITBA
Executive Director does not issue a written decision within thirty (30) days after
written request for a final decision, or within such longer period as might be
established by the parties to the contract in writing, then the contractor may proceed
as if an adverse decision had been received.
2.4.3 Legal Remedy for Disputes
2.4.3.1
[37-2-48] Public Works Contracts - Disputes involving public works
contracts shall be resolved in accordance with the provisions for arbitration
set forth in Chapter 16 of Title 37 of the General Laws of Rhode Island.
2.4.3.2
[37-2-49(b)] Other Contracts - Any person, firm or corporation, having a
lawfully authorized written contract with RITBA may bring an action
against RITBA on the contract, including but not limited to actions either
for breach of contract or for enforcement of contract or for both. All
17
defenses in law or equity, except the defense of governmental immunity,
shall be preserved to RITBA.
2.5
RESOLUTION OF PROTESTS
2.5.1 [37-2-51] Presumption of Correctness. The decision of any RITBA official, board,
agent, or other person appointed by the State concerning any controversy arising
under, or in connection with, the solicitation or award of a contract, shall be entitled to
a presumption of correctness and shall not be disturbed unless the decision was
procured by fraud; in violation of constitutional or statutory provisions; in excess of
the statutory authority of RITBA; made upon unlawful procedure; affected by other
error of law; clearly erroneous in view of the reliable, probative, and substantial
evidence on the whole record; or arbitrary or capricious or characterized by the
abuse of discretion or clearly unwarranted exercise of discretion.
2.5.2 Authority to resolve protests
2.5.2.1
[37-2-52(a)] Solicitation or Selection for Award of Contract. The
RITBA Executive Director or his designee shall have authority to
determine protests and other controversies of actual or prospective
bidders or offerors in connection with the solicitation or selection for award
of a contract.
2.5.2.2
[37-2-52(b)] Protests. Any actual or prospective bidder, offeror, or
contractor who is aggrieved in connection with the solicitation or selection
for award of a contract may file a protest with the RITBA Executive
Director. A protest or notice of other controversy must be filed promptly
and in any event within two (2) calendar weeks after such aggrieved
person knows or should have known of the facts giving rise thereto. All
protests or notices of other controversies must be in writing.
2.5.2.3
[37-2-52(c)] Decision in Writing. The RITBA Executive Director shall
promptly issue a decision in writing. A copy of that decision shall be
mailed or otherwise furnished to the aggrieved party and shall state the
reasons for the action taken.
2.5.2.4
Decision Final. Any such decision by the RITBA Executive Director shall
be considered final for purposes of the Administrative Procedures Act set
forth in R.I. GEN. LAWS §§ 42-35-1 et seq.
2.5.3 [37-2-53] Protest Tolls Solicitation or Award. In the event of a protest timely filed
under Section 37-2-52(b) of the State Purchases Act, RITBA shall not proceed
18
further with the solicitation or award involved, until the RITBA Executive Director
makes a written and adequately supported determination that continuation of the
procurement is necessary to protect a substantial interest of RITBA.
2.6
IMPREST FUNDS
[[37-2-55(a)] RITBA may establish one (1) or more imprest cash funds in an amount not
greater than Two Hundred Fifty Dollars ($250) for the purpose of making disbursements
requiring prompt cash outlay, and to carry out the provisions of the State Purchases Act.]
19
SECTION 3 - PROCUREMENT STRUCTURE AND ACCOUNTABILITY
3.1
PROCUREMENT AUTHORITY FOR RITBA
3.1.1 [37-2-54(c)] Approval by RITBA Required. No purchase or contract shall be
binding on RITBA unless approved by RITBA in accordance with the provisions
hereof.
3.1.2 [37-2-1] RITBA Purchasing Agent's Duties. Within RITBA there shall be a
purchasing agent who shall be appointed by the RITBA Executive Director with the
approval of the RITBA Board of Directors. The Executive Director may serve as
purchasing agent. [37-2-11] The RITBA Purchasing Agent shall be the administrator
of the RITBA division of purchases and shall:
3.1.2.1
[37-2-11(1)] Serve as the procurement and contracting agent of RITBA
for individual contracts in an amount not greater than One Thousand Five
Hundred Dollars ($1,500);
3.1.2.2
[37-2-11(2)] Recommend regulations, rules, and procedures to the
RITBA Executive Director;
3.1.2.3
[37-2-11(3)] Purchase or otherwise acquire, or, with the approval of the
RITBA Executive Director, delegate the purchase and acquisition of, all
supplies, services and construction for RITBA.
3.1.3 [37-2-54(a)] RITBA Executive Director's Duties. The RITBA Executive Director,
except as otherwise provided by law, shall serve as the procurement and contracting
agent of RITBA for individual contracts greater than One Thousand Five Hundred
Dollars ($1,500) but not greater than Fifty Thousand Dollars ($50,000). He shall
also serve as the procurement and contracting agent of RITBA for individual contracts
greater than Fifty Thousand Dollars ($50,000), and for all contracts relating to
RITBA's interest in real property, provided that the RITBA Board of Directors has
approved such contracts.
3.1.4 [37-2-9(a)] Policy Determinations. The RITBA Executive Director shall consider
and decide matters of policy with regard to RITBA procurement. The RITBA
Executive Director shall have the power of review with respect to the implementation
of regulations and policy determinations.
3.1.5 [37-2-54(d)] Inventories. The RITBA Executive Director shall require RITBA to
take and maintain inventories of plant and equipment.
20
3.1.5.1
Annual or Multi-Year Plans - The RITBA Executive Director may require
the purchasing agent to submit annual or multi-year plans for proposed
procurements of supplies, material, equipment, and supplemental services.
3.1.5.2
Procurement Plans - The RITBA Executive Director may require the
submission of procurement plans with the submission of budget requests.
3.1.5.3
[37-2-45] Supply Disposition Process - The RITBA Executive Director
shall sell or otherwise dispose as permitted by the Master Indenture of
Trust between RITBA and State Street Bank and Trust Company, as
Trustee securing Revenue Bonds dated as of December 15, 1997 (the
"Master Indenture of Trust") of all property (excluding any interest in real
property, which must be authorized by the RITBA Board of Directors) of
RITBA which is not needed or no longer useful in connection with the
construction or the maintenance or the operation of the system (as defined
in the Master Indenture of Trust), as determined by the RITBA Executive
Director pursuant to the provisions of Chapter 7 of Title 37 of the General
Laws of Rhode Island. The determination of RITBA shall be set forth in
writing. Such writing shall describe the property and state the reasons why
RITBA believes disposal should be effected. All instruments required by
law to be recorded which convey any interest in any such real property so
disposed of shall be executed and signed by RITBA pursuant to the
provisions of Chapter 7 of Title 37 of the General Laws of Rhode Island.
3.2
STRUCTURE AND RESPONSIBILITIES FOR RITBA PROCUREMENT
3.2.1 RITBA Executive Director's Responsibilities. The RITBA Executive Director shall be
responsible for:
3.2.1.1
Policy formulation and dissemination;
3.2.1.2
Establishing standards;
3.2.1.3
Defining and promulgating procedures;
3.2.1.4
Monitoring and evaluating RITBA purchasing activity to ensure that
RITBA is attaining the most advantageous procurements possible; and
21
3.2.1.5
Determining courses of action when the policies and procedures outlined
herein require interpretation and/or when situations arise where conflicts
exist or occur.
3.2.2 RITBA Purchasing Agent's Responsibilities. The RITBA Purchasing Agent shall be
responsible for:
3.2.2.1
Assuring adherence to state procurement laws, regulations, rules, codes
and procedures;
3.2.2.2
Supervising procurement activity within RITBA;
3.2.2.3
Assuring that delegated purchasing authority is exercised properly;
3.2.2.4
Establishing and maintaining good relations with suppliers and potential
suppliers without conflicts of interest;
3.2.2.5
Assuring that procurements are made in a context which supports to the
greatest extent possible:
3.2.2.5.1 competitive purchases;
3.2.2.5.2 opportunities for minority and women owned/operated
businesses; and
3.2.2.5.3 opportunities for local Rhode Island enterprises;
3.2.2.6
Assuring that a pool of responsible, qualified suppliers is developed,
maintained and utilized;
3.2.2.7
Assuring compliance with appropriate competitive bidding procedures
throughout RITBA's procurement system;
3.2.2.8
Promoting standardization of requirements to increase opportunities for the
economic advantages of combined purchasing;
3.2.2.9
Establishing and monitoring standards of quality;
3.2.2.10 Assuring that goods and services are delivered according to specified
requirements; and
22
3.2.2.11 Supervising RITBA's warehousing and inventory activities.
3.2.3 RITBA Budget Officer's Responsibilities. The RITBA Budget Officer shall be
responsible for reviewing all purchase documentation for certification as to the
availability of the funds necessary to support a purchasing commitment and authorizing
expenditures as requested.
3.3
VIOLATIONS OF PURCHASING LAWS AND REGULATIONS
3.3.1 Violation of RITBA Policy. Deliberate disregard for RITBA regulations, policies and
procedures shall be subject to disciplinary action, including dismissal of RITBA
employees and debarment of vendors conducting business within the State.
3.3.2 Violation of Purchasing Code of Ethics. Violations of the State Purchasing Code of
Ethics adopted by RITBA and set forth herein shall be subject to appropriate
sanctions by the RITBA Executive Director including: censure, dismissal, suspension,
and debarment.
3.3.3 Violations of State Code of Ethics. Suspected violations of State Code of Ethics laws
and regulations regarding procurement or RITBA procurement Code of Ethics set
forth herein shall be reported in confidence to the RITBA Executive Director and
acted upon by the RITBA Executive Director in accordance with the rules and
regulations established by the State Ethics Commission.
3.3.4 Violations of Purchasing Laws. Violations of purchasing laws, regulations, policies,
and procedures shall be reported to the RITBA Executive Director , who shall have
authority to apply sanctions.
3.3.5 [37-2-36(a)] Collusion Reported to Attorney General. When for any reason
collusion is suspected among any bidders or offerors, a written notice of the facts
giving rise to such suspicion shall be transmitted to the Attorney General.
3.3.6 Falsification of Certification Reported to Attorney General. Suspected falsification of
certifications shall be referred to the Attorney General for investigation and
prosecution.
23
SECTION 4 - CODE OF ETHICS AND PROFESSIONAL BEHAVIOR;
STATE CODE OF PROCUREMENT ETHICS
4.1
APPLICABILITY OF RHODE ISLAND CODE OF ETHICS
All RITBA officials and employees shall be subject to the provisions of Chapter 14 of Title 36
of the General Laws of Rhode Island, as amended from time to time (the "Code of Ethics"),
all regulations promulgated by the Rhode Island Ethics Commission, as amended from time to
time, and any special provisions of this section.
4.2
RITBA POLICY
[36-14-1] It is the policy of RITBA that RITBA officials and employees must adhere to the
highest standards of ethical conduct, respect the public trust and the rights of all persons, be
open, accountable and responsive, avoid the appearance of impropriety, and not use their
positions for private gain or advantage.
4.3
PROHIBITED ACTIVITIES UNDER THE RHODE ISLAND CODE OF ETHICS
[36-14-5] RITBA officials and employees shall comply with all requirements of the Code of
Ethics, including without limitation the following:
4.3.1 No person subject to the Code of Ethics shall have any interest, financial or
otherwise, direct or indirect, or engage in any business, employment, transaction or
professional activity, or incur any obligation of any nature, which is in substantial
conflict with the proper discharge of his or her duties or employment in the public
interest and of his or her responsibilities as prescribed in the laws of this State.
4.3.2 No person subject to the Code of Ethics shall accept other employment which will
either impair his or her independence of judgment as to his official duties or
employment or require him or her, or induce him or her, to disclose confidential
information acquired by him or her in the course and by reason of his or her official
duties.
4.3.3 No person subject to the Code of Ethics shall willfully and knowingly disclose, for
pecuniary gain, to any other person, confidential information acquired by him or her in
the course of and by reason of his or her official duties or employment or use any
information for the purpose of pecuniary gain.
4.3.4 No person subject to the Code of Ethics shall use in any way his or her public office
or confidential information received through his or her holding any public office to
obtain financial gain, other than that provided by law, for himself or herself or any
24
person within his or her family or business associate or any business by which the
person is employed or which the person represents.
4.3.5 No person subject to the Code of Ethics shall:
4.3.5.1
Represent himself or herself before RITBA. In cases of hardship the
Ethics Commission may permit such representation upon application by the
official and provided that he or she shall first:
4.3.5.1.1 Advise RITBA in writing of the existence and the nature of his
or her interest in the matter at issue;
4.3.5.1.2 Recuse himself or herself from voting on or otherwise
participating in RITBA's consideration and disposition of the
matter at issue; and
4.3.5.1.3 Follow any other recommendations the Ethics Commission
may make to avoid any appearance of impropriety in the
matter.
4.3.5.2
Represent any other person before RITBA.
4.3.5.3
Act as an expert witness before RITBA with respect to any matter
RITBA's disposition of which will or can reasonably be expected to
directly result in an economic benefit or detriment to himself or herself, or
any person within his or her family or any business associate of the person
or any business by which said person is employed or which the person
represents.
4.3.5.4
Shall engage in any of the activities prohibited by subsections 4.3.5.1,
4.3.5.2 or 4.3.5.3 of this section for a period of one year after he or she
has officially severed his or her position with RITBA; provided, however,
that this prohibition shall not pertain to a matter of public record in a court
of law.
4.3.6 No business associate of any person subject to the Code of Ethics shall represent
himself or herself or any other person or act as an expert witness before RITBA
unless (i) he or she shall first advise RITBA of the nature of his or her business
relationship with the person subject to the Code of Ethics, and (ii) the person subject
to the Code of Ethics shall recuse himself or herself from voting on or otherwise
participating in RITBA's consideration and disposition of the matter at issue.
25
4.3.7 No person subject to the Code of Ethics or spouse (if not estranged) or dependent
child or business associate of the person or any business by which the person is
employed or which the person represents, shall solicit or accept any gift, loan, political
contribution, reward, or promise of future employment based on any understanding
that the vote, official action or judgment of the person would be influenced thereby.
4.3.8 No person subject to the Code of Ethics or any person within his or her family or
business associate of the person or any business entity in which the person or any
person within his or her family or business associate of the person has a ten percent
(10%) or greater equity interest or five thousand dollars ($5,000) or greater cash
value interest, shall enter into any contract with RITBA unless the contract has been
awarded through an open and public process, including prior public notice and
subsequent public disclosure of all proposals considered and contracts awarded;
provided, however, that contracts for professional services which have been
customarily awarded without competitive bidding shall not be subject to competitive
bidding if awarded through a process of public notice and disclosure of financial
details.
4.3.9 No person shall give or offer to any person covered by this Code of Ethics, or to any
candidate for public office, or to any person within his or her family or business
associate of any person, or to any business by which the person is employed or which
the person represents, any gift, loan, political contribution, reward, or promise of
future employment based on any understanding or expectation that the vote, official
action or judgment of the person would be influenced thereby.
4.3.10 No person subject to the Code of Ethics, shall, either directly or indirectly, through
any government agency, or through a business associate, or through any other person,
threaten or intimidate any complainant or witness or any family member of any
complainant or witness in any proceeding before the State Ethics Commission.
4.4
SUPPLEMENTAL STATE CODE OF PROCUREMENT ETHICS
The following supplemental State Code of Procurement Ethics is hereby adopted.
4.4.1 General Requirements. The following obligations shall apply to all RITBA employees
involved in the procurement process:
4.4.1.1
To consider, first, the interests of RITBA in all transactions;
4.4.1.2
To support and carry out RITBA policies;
26
4.4.1.3
To buy without prejudice;
4.4.1.4
To avoid any conflict of interest with respect to procurement, or the
appearance thereof;
4.4.1.5
To obtain the maximum ultimate value for each dollar of expenditure;
4.4.1.6
To subscribe to and work for honesty and truth in buying and selling, and
to denounce all forms and manifestations of commercial bribery; and
4.4.1.7
To respect obligation and to require that obligations to RITBA be
respected, consistent with good business practice.
4.4.2 Relations With Suppliers. A primary responsibility of RITBA purchasing personnel
shall be to maintain good relations with suppliers and potential suppliers.
Relationships shall be maintained in a manner which assures that no conflict of interest
situations arise.
4.4.2.1
All potential suppliers shall be afforded the courtesy of a fair opportunity to
present their capabilities and products.
4.4.2.2
Reasonable effort shall be made to provide fair bidding opportunities to all
qualified and interested suppliers.
4.4.2.3
[37-2-9(b)(7)] RITBA officials shall observe a commitment to maintain
the confidentiality of information submitted by suppliers and potential
suppliers.
4.4.2.3.1 Supplier proposals shall be treated in confidence with regard
to technical approach and terms and conditions.
4.4.2.3.2 Distribution of information contained in supplier proposals shall
be limited to those having a "need to know" as determined by
the RITBA Purchasing Agent.
4.4.2.3.3 Under no circumstances shall confidential information be made
available to other vendors.
4.4.2.3.4 RITBA personnel are prohibited from engaging in any conduct
which may tend to cause any existing or prospective supplier
of goods or services to believe that his relationship with
27
RITBA will be affected by his purchasing or failing to purchase
goods or services from any representative of RITBA.
4.4.2.3.5 Under no circumstances may a vendor provide to a RITBA
procurement official nor may a RITBA purchasing agent (any
person authorized by RITBA in accordance with procedures
prescribed herein acting within the limits of authority to commit
RITBA funds to obtain goods and services) accept any goods
or services, regardless of monetary value, for personal use for
less than fair market value.
4.4.2.3.6 [Reserved]
4.4.2.4
[Reserved]
4.4.3 It shall be the obligation of all RITBA employees to avoid conflicts of interest with
respect to procurement, and to report promptly to the RITBA Executive Director all
instances where a conflict exists or is suspected to exist.
4.4.3.1
Conditions under which a conflict of interest may be held to exist include,
but are not limited to the following:
4.4.3.1.1 Where a procurement official with a principal responsibility for
a category of goods or services:
4.4.3.1.1.1
receives personal enrichment as a result of an
award;
4.4.3.1.1.2
holds a secured financial interest in a firm
offering such goods or services;
4.4.3.1.1.3
receives indirect or subsequent income, by way
of employment, retainer, consultancy, or other
remuneration from a firm offering such goods or
services; or
4.4.3.1.1.4
has an immediate family member or blood
relative holding an equity interest, or a
management or directorial position in a firm
offering such goods or services.
28
4.4.3.1.2 Where any RITBA employee divulges or withholds information
(including, but not limited to, price, design, or requirement
information) with the intent or result that one vendor is
competitively advantaged over another.
4.4.3.1.3 Under any circumstances described in Chapter 36-14 of the
General Laws of Rhode Island.
4.4.4 The RITBA Executive Director shall have the responsibility to investigate all claims
with respect to conflicts of interest in procurement, to issue determinations which
define whether or not conflict, in fact, existed, and to take action to resolve such
conflict.
4.4.4.1
Resolution of conflict may include, but shall not be limited to, the following
measures:
4.4.4.1.1 Reassignment of the RITBA procurement official or other
RITBA employee involved;
4.4.4.1.2 Termination of employment of the RITBA procurement official
or other RITBA employee involved; and
4.4.4.1.3 Debarment of any and all vendors who may be involved.
4.4.5 [Reserved]
4.4.6 Membership and active participation in the meetings and activities of local purchasing
organizations are encouraged.
4.4.7 Samples provided by vendors shall be deemed to be the property of RITBA which
the RITBA Executive Director may determine appropriate for donation to charitable
organizations or needy individuals.
[4.4.8 Promotional programs and campaigns available through airlines, rental companies,
hotels, motels, etc., which provide bonuses and rebates, and result from RITBA paid
travel, shall be applied toward RITBA use or benefit and not personal use.]
4.4.9 Purchasing personnel shall not make purchases for personal use in the name of
RITBA or through the use of any RITBA procurement forms.
29
SECTION 5 - VENDOR QUALIFICATION, PREQUALIFICATION AND SOLICITATION
5.1
RESPONSIBILITY AND AUTHORITY OF THE RITBA PURCHASING AGENT
Unless notified in writing by the RITBA Executive Director to the contrary, the RITBA
Purchasing Agent shall be authorized to act on behalf of the RITBA Executive Director in
carrying out the responsibilities and authority set forth herein for selection, evaluation, approval,
debarment, suspension, rejection, and restriction of bidders and offerors.
5.2
RESPONSIBILITIES OF BIDDERS AND OFFERORS
5.2.1 [37-2-24(a)] Determination of Responsibility. A reasonable inquiry to determine the
responsibility of a bidder or offeror may be conducted. A written determination of
responsibility of a bidder or offeror shall be made and it shall be made in accordance with
the following regulations. The failure of a bidder or offeror to supply information
promptly (within five (5) working days unless otherwise specified by the RITBA
Purchasing Agent) in connection with an inquiry related to responsibility may be grounds
for a determination of nonresponsibility.
5.2.1.1
[37-2-24(d)] Prohibition on Disclosure - Except as otherwise provided by
law, information furnished by a bidder or offeror pursuant to this Section may
not be disclosed outside of RITBA without prior written consent of the bidder
or offeror.
5.2.1.2
Factors in Responsibility Determination - The RITBA Purchasing Agent may
utilize factors such as financial capability, reputation, management, etc., to
evaluate the responsibility and qualifications of potential suppliers in order to
develop a list of prospective bidders qualified to be sent invitations to bid.
5.2.1.3
Performance Bond Requirements - Ability to meet performance bond
requirements set forth for public works contractors in Section 37-13-14 of the
General Laws of Rhode Island shall be valid criteria for determination of
responsibility, provided that the RITBA Purchasing Agent may waive such
requirement for good cause for contracts not exceeding fifty thousand dollars
($50,000) except where prohibited by terms of a grant.
5.2.1.4
Bidder Registration Forms - The RITBA Purchasing Agent may require
interested suppliers to submit completed Bidder Registration Forms to RITBA
for consideration by the RITBA Purchasing Agent. The RITBA Purchasing
Agent may recommend to the RITBA Board of Directors that RITBA charge,
30
and the RITBA Board of Directors may adopt a resolution allowing RITBA to
charge, a reasonable fee to accompany each Bidder Registration Form.
5.2.1.4.1 General Terms and Conditions - A copy of RITBA's General
Terms and Conditions for contracts shall be distributed with the
Bidder Registration Form.
5.2.1.4.2 Significance of Signature - The Bidder Registration Form shall be
signed by a representative of the supplier who has the capacity to
enter into contracts. The signature shall be an original signature
made in ink and dated by the signatory. The signature shall affirm
that:
5.2.1.4.2.1
any and all information on the Bidder Registration
Form is true and accurate;
5.2.1.4.2.2
the existence of a relationship (blood, spousal,
adoptive, financial, etc.) between a principal of the
firm and any RITBA employee where a conflict of
interest which may exist has been disclosed; and
5.2.1.4.2.3
that falsification of information contained on a
signed Bidder Registration Form may be grounds
for criminal charges of perjury and that conviction
of such charges may be grounds for debarment.
5.2.1.4.3 Prerequisite for Award - As a prerequisite condition for contract
award, the RITBA Purchasing Agent may require any bidder to
complete a Bidder Registration Form and/or submit current
certifications of financial responsibility, affirmative action
compliance, drug-free and barrier free environment, status as
small, women-owned and/or disadvantaged businesses, and any
applicable requirement of federal law or regulation.
5.3
RITBA BIDDERS LIST
A RITBA Bidders List shall be maintained by the RITBA Purchasing Agent consisting of the
names and addresses of suppliers of various goods and services from whom bids, proposals, and
quotations can be solicited. The RITBA Purchasing Agent may utilize the RITBA Bidders List,
the State Bidders List, or a combination of both in soliciting bids, proposals, and quotations from
bidders.
31
5.3.1 MBEs. The RITBA Bidders List shall be formatted in a manner which identifies those
suppliers certified as MBEs by the Rhode Island Department of Economic Development.
5.3.2 Changes. The RITBA Purchasing Agent or his designee may add to or delete suppliers
from the RITBA Bidders List based on information made available to him.
5.3.3 Registered and Unregistered Suppliers. The RITBA Bidders List may consist of:
5.3.3.1
Registered Suppliers - The names of interested suppliers who have submitted
completed Bidder Registration Forms to RITBA which have been reviewed
and approved by the RITBA Purchasing Agent.
5.3.3.2
Unregistered Suppliers - Suppliers which have not expressed interest in selling
to RITBA by submitting a Bidder Registration Form, but who have been
determined by the RITBA Purchasing Agent, due to the nature of the firm's
status in the market, to be responsible and qualified with regard to particular
commodities. Inclusion of any firm on the RITBA Bidders List without a
supporting registration form shall be permitted with the written approval of the
RITBA Purchasing Agent.
5.3.4 Restriction on Solicitation. Based on the RITBA Purchasing Agent's review of a
supplier's level of financial responsibility and/or qualification, the RITBA Purchasing
Agent may restrict the items or size of orders for which a supplier will be solicited.
5.3.4.1
Restriction shall relate to:
5.3.4.1.1 limiting the kinds of goods and services for which the supplier may
be solicited to a portion of those indicated on a Bidder
Registration Form.
5.3.4.1.2 limiting the scope/amount of goods and services for which the
supplier may be solicited (e.g., categorizing a contractor by the
size of construction projects he is deemed capable of
undertaking).
5.3.4.2
The RITBA Purchasing Agent shall notify in writing any supplier whose
inclusion on the RITBA Bidders List has been restricted and the reason for
such action, informing the vendor that he has a right to request reconsideration
of such decision.
32
5.3.4.2.1 Upon receipt of a request for reconsideration from a vendor
providing sufficient justification for such reconsideration, the
RITBA Purchasing Agent may amend the RITBA Bidders List.
5.3.4.2.2 Within fifteen (15) calendar days after a request for
reconsideration has been denied in writing by the RITBA
Purchasing Agent, a vendor may submit an appeal to the RITBA
Executive Director, providing justification for his appeal.
5.3.4.2.3 The RITBA Executive Director shall make a determination on the
appeal within thirty (30) calendar days. Such decision shall be
final.
5.3.5 Updated Bidder Registration Forms. The RITBA Purchasing Agent may require
registered suppliers to resubmit updated Bidder Registration Forms annually, but at least
every five years.
5.3.6 Vendor Information File. RITBA shall maintain Vendor Information Files for the
following documentation purposes:
5.3.6.1
General
5.3.6.1.1 Bidder Registration Forms;
5.3.6.1.2 Results of investigations for prequalification, responsibility,
suspension, debarment, restriction, and nonperformance;
5.3.6.1.3 Certifications; and
5.3.6.1.4 Correspondence.
5.3.6.2
Bidding history; and
5.3.6.3
Performance history.
5.4
PREQUALIFICATION OF CONTRACTORS
5.4.1 [37-2-25] General Procurement. The RITBA Executive Director may provide for
prequalification of suppliers as responsible prospective contractors for particular types of
supplies, services, and construction. Solicitation mailing lists of potential contractors of
such supplies, services, and construction shall include but need not be limited to such
prequalified contractors. Prequalification shall not foreclose a written determination:
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5.4.1.1
Between the time of the bid opening or receipt of offers and the making of an
award, that a prequalified supplier is not responsible; or
5.4.1.2
That a supplier who is not prequalified at the time of bid opening or receipt of
offers is responsible.
5.4.2 Prequalification Information. Prequalification information may be submitted within a time
period subsequent to a project bidder's conference, which period has been specified in
the bid solicitation.
5.4.3 Supplementary Prequalification Information. The RITBA Purchasing Agent may conduct
supplementary prequalification examinations of registered bidders prior to solicitation or
award which include, but are not limited to:
5.4.3.1
requirement for additional certification(s);
5.4.3.2
requirement for demonstration of additional licensure;
5.4.3.3
requirement for recent financial information;
5.4.3.4
submission of an affirmative action employment plan; and
5.4.3.5
submission of the names of proposed MBE subcontractors and the value of
such subcontracts.
5.4.4 Inclusion Constitutes Prequalification. Inclusion of a supplier on the RITBA Bidders List
shall constitute a prequalification determination.
5.4.5 Construction Management.
5.4.5.1
Information Required. [37-2-27] A person who bids on a construction
management contract shall provide the following information, which
information shall constitute the prequalifications for a construction management
contract:
5.4.5.1.1 Firm History - Name of the firm, location of principal and branch
offices, length of time in business, firm ownership structure, and
annual construction management volume for each of the past five
(5) years including number of projects and total construction
volume.
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5.4.5.1.2 Personnel - Total number of the firm's personnel, other than
secretarial/clerical, by professional or skill group, and outside
firms which will be used to provide such services as estimating,
value engineering analysis, scheduling or computer services.
5.4.5.1.3 Experience Information - Experience information regarding
projects which the firm has constructed during the past five (5)
years, including those where the firm has served as construction
manager, including project name and address, year completed,
type of project, construction cost, and reference(s).
5.4.5.1.4 Project Staffing -
5.4.5.1.4.1
The firm's proposed management staff for the
project, including an organizational chart identifying
the firm's key staff members and showing how
each staff member interacts with other staff
members assigned to the project; and
5.4.5.1.4.2
A detailed resume for each key staff member
which summarizes education, professional
registration, professional society membership,
construction experience, and construction
management project experience.
5.4.5.1.5 Services -
5.4.5.1.5.1
Scope of preconstruction phase services, including
how such services are provided, with specific
attention to the first budget estimate, methods of
cost control, scheduling, value engineering and the
method of reporting project status and schedule
position;
5.4.5.1.5.2
Scope of construction phase services and how
such services are to be provided;
5.4.5.1.5.3
The firm's method of working with the project
architects, engineers, consultants and other
planning team members; and
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5.4.5.1.5.4
The firm's method of coordinating the efforts of
various trade contractors.
5.5
DEBARMENT AND SUSPENSION
5.5.1 Exclusion. The RITBA Executive Director may exclude a supplier from the RITBA
Bidders List and from the bidding process.
5.5.1.1
Exclusion Defined - "Exclusion" shall refer to:
5.5.1.1.1 Debarment - permanent removal from the RITBA Bidders List;
5.5.1.1.2 Suspension - temporary removal from the RITBA Bidders List; or
5.5.1.1.3 Rejection - lack of inclusion on the RITBA Bidders List.
5.5.2 Just Cause for Debarment. Just cause for debarment may include but shall not be limited
to:
5.5.2.1
Conviction of fraud or perjury;
5.5.2.2
Falsification of information on a Bidder Registration Form;
5.5.2.3
Substantial nonperformance on more than two contracts with RITBA or with
any Rhode Island state agency;
5.5.2.4
Debarment by the state or federal government; or
5.5.2.5
Lack of responsibility - withdrawal of more than two bids after an award has
been announced without written consent of the RITBA Purchasing Agent.
5.5.3 Just Cause for Suspension. Just cause for suspension may include but shall not be limited
to:
5.5.3.1
Any cause for debarment, depending on the severity of the violation;
5.5.3.2
Suspension by the state or federal government;
5.5.3.3
Substantial nonperformance on at least one contract;
36
5.5.3.4
Failure to respond to three consecutive solicitations for commodities which the
vendor has indicated on the Bidder Registration Form that he could supply; or
5.5.3.5
Lack of responsibility evidenced by:
5.5.3.5.1 Withdrawal of more than two bids within a two-year period, even
with the consent of the RITBA Purchasing Agent; or
5.5.3.5.2 Correction of more than three bids within a two-year period, with
or without the consent of the RITBA Purchasing Agent.
5.5.4 Just Cause for Rejection. Just cause for rejection may include but shall not be limited to:
5.5.4.1
Lack of a properly prepared and submitted Bidder Registration Form;
5.5.4.2
Refusal to submit a Bidder Registration Form:
5.5.4.3
Falsification of information on Bidder Registration or Certification Forms;
5.5.4.4
Suspension or debarment by the state or federal government;
5.5.4.5
Conviction of fraud or perjury; or
5.5.4.6
Lack of competence, financial responsibility, or other limitations related to the
ability of a supplier to provide the goods and services indicated on his Bidder
Registration Form.
5.5.5 Written Notice. The RITBA Executive Director shall notify in writing any registered
vendor whom he intends to debar, suspend or reject.
5.5.5.1
Such notice shall:
5.5.5.1.1 state the nature of and, in the case of suspension, the duration of
the sanction;
5.5.5.1.2 provide the vendor with a rationale for the decision; and
5.5.5.1.3 establish a specific time for reconsideration not less than two
weeks nor more than three weeks within which the vendor may
provide justification for why such action should not be
implemented.
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5.5.5.2
The provision for a reconsideration period shall not apply to those
circumstances where the RITBA Purchasing Agent has determined that
issuance of a purchase order to a particular vendor may present a serious
compromise of the interests of RITBA.
5.5.5.3
Upon the expiration of the reconsideration period, the RITBA Executive
Director shall notify the affected vendor of his final decision. If no request for
reconsideration has been submitted, the RITBA Executive Director shall
implement the appropriate action.
5.5.6 Period of Suspension. The RITBA Executive Director may suspend a vendor for not
less than a three month and not more than a two year period, depending on the severity
of a particular violation.
5.5.7 Request for Reinstatement. A vendor who has been suspended or rejected from the
RITBA Bidders List shall not be reinstated until he has submitted a request for
reinstatement to the RITBA Purchasing Agent with a new Bidder Registration Form.
Such request shall be submitted with evidence that the reason for the suspension or
rejection has been corrected.
5.5.8 Reconsideration on a Case-by-Case Basis. Reconsideration of suppliers who have been
rejected shall be undertaken on a case-by-case basis.
5.5.9 Protests. Protests of decisions rendered by the RITBA Executive Director shall be
administered in accordance with the requirements of [Section 37-2-52] of the State
Purchases Act.
5.5.10 [37-2-73] Pest Control Services. Upon receipt of an order from the Director of
Environmental Management pursuant to Section 23-25-28(a)(1) of the General Laws of
Rhode Island that an entity has violated pesticide control law, the RITBA Purchasing
Agent shall take such steps as are necessary to insure that such entity shall not be eligible
to receive RITBA contracts for pest control services for the duration of the period
enumerated in said Director's order.
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SECTION 6 - COMPETITIVE REVIEW AND SOURCE SELECTION
6.1
COMPETITION
In accordance with the purposes set forth in Section 37-2-2(b)(6) and subject to the exceptions
and other terms and conditions hereof, the RITBA Executive Director shall assure that all RITBA
procurement activities foster effective competition, such that economies in expenditure can be
obtained. A competitive environment shall be considered to exist when the following conditions
are met:
6.1.1 Two or more items or offers can be compared to determine relative merit;
6.1.2 Objective standards of comparison are fairly and impartially applied;
6.1.3 Offers are evaluated within a market context:
6.1.3.1
The lowest price offered may not be considered to be a competitive price
when not supported by evaluation of the market or market conditions within
which the offer was rendered; and
6.1.3.2
Market evaluation must be conducted using objective standards to assure
fairness and to encourage participation; and
6.1.4 An equal opportunity for participation in any procurement applies to all prospective
offerors, and affirmative action to achieve participation in the procurement process as a
means of achieving social objectives is accomplished without violation of these general
principles.
6.2
GENERAL PROVISIONS
6.2.1 Method of Source Selection. Except for purchases solicited pursuant to the provisions
for small purchases set forth in Section 6.7.2, all RITBA contracts and purchasers shall
be solicited through utilization of the Rhode Island Vendor Information Program (RIVIP).
Except as otherwise authorized by law, all RITBA contracts shall be awarded by:
6.2.1.1
Competitive sealed offers, pursuant to Section 6.7.4;
6.2.1.2
Competitive negotiation, pursuant to Section 7.2;
6.2.1.3
Noncompetitive negotiation, pursuant to Section 7.4;
39
6.2.1.4
Small purchase procedures, pursuant to Section 6.7.2;
6.2.1.5
Requests for Proposals; or
6.2.1.6
Where permitted by law, grants.
6.2.2 Rhode Island Vendor Information Program (RIVIP).
(a)
The director of administration shall institute an electronic vendor information
program which shall enable all invitations for bid and requests for a proposal
to be accessed electronically by all potential vendors. This program is to be
readily accessible through public access stations located at the following
locations: (1) One Capital Hill, Providence, Rhode Island; (2) City hall, town
hall or public library of each of the thirty-nine (39) cities and towns in the
state.
(b)
Further, the vendor information program shall be accessible to potential
vendors through means of computer modem. [37-2-17.1]
6.3
RULES FOR SOLICITATION
6.3.1 RITBA Bidders List. In general, solicitations will be sent only to those suppliers who
have formally expressed a desire to bid on the particular types of items which are the
subject of the bid solicitation; however, the RITBA Purchasing Agent may determine that
competition would be enhanced by soliciting bidders who are not on the established
RITBA Bidders List.
6.3.2 MBEs and Rhode Island Businesses. MBE and Rhode Island businesses shall be
solicited to the maximum extent determined by the RITBA Executive Director to be
practicable.
6.3.2.1
All solicitations described elsewhere under Small Purchase Procedure shall
include solicitation from at least one responsible supplier certified by the
Department of Economic Development as an MBE, where suppliers have
been identified for the product or service in question.
6.3.2.2
For all awards of $250 or less, RITBA shall attempt to utilize MBEs as
suppliers.
6.3.3 Notification and Advertising
40
6.3.3.1
Notices shall be published in sufficient time to afford suppliers a fair
opportunity to respond prior to the bid opening date and time [37-2-18].
6.3.3.2
Advertisements may be utilized in conjunction with requests for quotations or
proposals for products or services at any estimated level of expenditure if the
RITBA Purchasing Agent determines:
6.3.3.2.1 that the commodity or service is of such special nature that
opportunities for competition will be enhanced by extending
invitations to other than known suppliers;
6.3.3.2.2 that a purchase will be of interest to supportive industries, e.g.
construction projects;
6.3.3.2.3 that a purchase is unusually large or infrequent.
6.3.3.3
The RITBA Purchasing Agent may advertise in widely circulated newspapers
and/or trade journals to promote effective competition.
6.3.3.4
The RITBA Purchasing Agent may place advertisements in publications
directed to minority communities and/or women to enhance opportunities for
disadvantaged businesses to participate in the bidding process.
6.3.4 Solicitation of those not on RITBA Bidders List. The RITBA Purchasing Agent may
consider soliciting offers from prospective suppliers not on the RITBA Bidders List;
however, contract award shall be subject to the bidder satisfying all requirements for Bid
Registration prior to a bid opening or award of contract.
6.3.5 Offers not Solicited. RITBA shall be under no obligation to consider an offer which has
been submitted without solicitation.
6.3.6 Forms of Solicitation. Solicitations shall be prepared in a manner and form which enables
suppliers to submit fully responsive and knowledgeable offers, and which clearly defines
the criteria to be used in evaluating responses.
6.3.7 Measurable Criteria. Wherever possible, solicitations shall incorporate a standard
specification, describing the level of performance required, and measurable criteria which
define acceptance.
41
6.3.7.1
In certain cases, following detailed evaluation, brand name or other
designations may be defined as standard items, where it is determined to be in
the best interest of RITBA with regard to economies of scale, or cost or value
analysis.
6.3.7.2
RITBA may develop standards committees (product advisory committees) to
review, develop and update specifications and standard item designations for
frequently and/or extensively used products.
6.3.8 Selection and Evaluation Criteria Defined. Selection and evaluation criteria shall be
clearly defined in all solicitations.
6.3.8.1
[37-2-18(b)] The invitation for bids shall state whether award shall be made
on the basis of the lowest bid price or the lowest evaluated or responsive bid
price. If the latter basis is used, the objective measurable criteria to be utilized
shall be set forth in the invitation for bids, if available.
6.3.8.2
Unless alternate offers are clearly requested or allowed, only those offers
which are responsive, in all material respects, to the terms of the solicitation
shall be considered.
6.3.8.3
Used items may be purchased to achieve financial benefit if the manufacturer
will provide warranties for maintenance requirements and for the replacement
of parts. Such certification/warranties shall be the same as that provided for
new equipment. Purchase of used items which exceed a value of two hundred
fifty dollars ($250) shall require approval by the RITBA Executive Director.
6.4
BIDDER SECURITY
6.4.1 [37-2-40(1)] Bond or Cash Equivalent. Bidder's security shall be a bond provided by a
surety company authorized to do business in Rhode Island, or the equivalent in cash, in a
form satisfactory to RITBA.
6.4.1.1
The bidder may submit a certified check, bank check or money order as
surety instead of a bond.
6.4.1.2
All such sureties must be dated within 30 days of the bid opening date and
shall be valid for no less than 60 days from the bid opening date.
6.4.1.3
All such sureties shall be made payable to RITBA.
42
6.4.1.4
All sureties shall contain an identification of the bid number for which the
surety is intended.
6.4.2 [37-2-40(a)] Construction Contracts in excess of $50,000. Bidder security shall be
required for all competitive sealed bidding for construction contracts when the estimated
price exceeds fifty thousand dollars ($50,000). Nothing herein prevents the requirement
of such bonds on construction contracts under fifty thousand dollars ($50,000) when
circumstances warrant.
6.4.2.1
Bidder security may be required for contracts involving blanket orders,
services or high value items when the value of the contract exceeds five
thousand dollars ($5,000).
6.4.3 [37-2-40(b)] Minimum of Five Percent. Bidder's security shall be in an amount equal to
at least five percent (5%) of the amount of the bid.
6.4.4 [37-2-40(c)] Rejection for Noncompliance. When the invitation for bids requires that
bid security be provided, noncompliance requires that the bid be rejected; provided,
however, that the RITBA Executive Director may set forth by regulations exceptions to
this requirement in the event of substantial compliance.
6.4.5 [37-2-40(d)] Bids Irrevocable. After the bids are opened, they shall be irrevocable for
the period specified in the invitation for bids, provided that if a bidder is permitted to
withdraw his bid before award because of a mistake in the bid as allowed by law or
regulation, no action shall be taken against the bidder or the bidder's surety.
6.4.6 Return of Sureties of All But Three Lowest Bidders. After the bid opening the RITBA
Purchasing Agent shall return the sureties of all but the three (3) apparent lowest bidders.
When the evaluation of the bid has been completed, the RITBA Purchasing Agent shall
return all but the lowest bidder's surety.
6.4.7 Return of Low Bidder's Surety. After the low bidder has been notified of RITBA's intent
to proceed with a contract, the low bidder's bid surety shall be returned. When
performance, labor and/or material bonds are required, the bid surety shall be returned
upon receipt of the appropriate bond(s).
43
6.5
CANCELLATION OF INVITATION FOR BIDS AND REQUEST FOR PROPOSALS
[37-2-23] An invitation for bids, a request for proposals, or other solicitation may be cancelled,
or all bids or proposals may be rejected, if it is determined in writing that such action is taken in
the best interests of RITBA and approved by the RITBA Executive Director.
6.5.1 No Proposals Reasonably Close to Expectations. If a solicitation results in none of the
proposals being reasonably close to expectations, the RITBA Purchasing Agent may,
with the written approval of the RITBA Executive Director, declare all bids unacceptable
and resolicit the procurement.
6.5.2 Only One Proposal. If a solicitation results in only one proposal, the price of which is not
reasonably close to expectations, the RITBA Purchasing Agent may recommend that the
RITBA Executive Director declare the bid unacceptable and either resolicit the
procurement or ask that the price be negotiated with the vendor.
6.6
CORRECTION OR WITHDRAWAL OF BIDS
6.6.1 [37-2-18(f)] As Permitted by RITBA Executive Director. Correction or withdrawal of
bids may be allowed only to the extent described below.
6.6.2 Penalty. The RITBA Purchasing Agent or his designee shall be the sole determiner of
whether correction or withdrawal of bids may be made without penalty.
6.6.3 Requests for Correction or Withdrawal. The RITBA Purchasing Agent shall respond to
requests for correction or withdrawal within ten (10) working days, notifying the bidder
of the status of his bid, bid surety and continued inclusion in the RITBA Bidders List.
6.6.4 Correction of a bid
6.6.4.1
Correction of a bid at any time prior to bid opening may be permitted without
penalty when a bidder requests that his bid be returned and he resubmits a
corrected bid prior to the bid opening.
6.6.4.2
A vendor who fails to resubmit a corrected bid before the bid opening shall be
considered nonresponsive.
6.6.4.3
Requests by the apparent low bidder for correction of bids identifying all
error(s) and specifying corrective action shall be submitted in writing to the
RITBA Purchasing Agent and shall be re-evaluated with all other offers within
five (5) working days after the bid opening.
44
6.6.5 Withdrawal of bids
6.6.5.1
Requests for withdrawal of bids shall be submitted in writing to the RITBA
Purchasing Agent, providing an explanation for the action and advising the
RITBA Purchasing Agent as to why the bidder should not be suspended from
the RITBA Bidders List.
6.6.5.2
Withdrawal of bids without the written consent of the RITBA Purchasing
Agent shall result in forfeiture of bid sureties and shall result in suspension or
debarment from the RITBA Bidders List, depending upon the severity of the
violation.
6.7
SOLICITATION METHODOLOGY
6.7.1 Procurements in Excess of $5,000 for Construction and $2,500 for all Other Purchases.
Competitive offers shall be solicited for all procurements with a value greater than
$5,000 for construction and $2,500 for all other purchases except under specifically
prescribed circumstances set forth herein.
6.7.2 [37-2-22] Small Purchases. Procurements not to exceed an aggregate amount of ten
thousand dollars ($10,000) for construction and five thousand dollars ($5,000) for all
other purchases may be made in accordance with the following small purchase
regulations set forth below. Procurement requirements shall not be artificially divided so
as to constitute a small purchase under this section.
6.7.2.1
Small construction purchases shall include building, altering, repairing,
improving or demolishing buildings or other improvements to real property.
Small construction purchases shall not include routine maintenance or repair of
existing structures, buildings, or real property performed by salaried
employees of RITBA in the usual course of their jobs.
6.7.3 Three Bid Minimum. Competitive bids shall be obtained from a sufficient number of
suppliers to be considered representative of the industry cited. Although three bids shall
be considered the minimum, the RITBA Purchasing Agent may in some instances declare
the existence of two bids to be considered to provide adequate price competition. The
determination shall be made in writing and placed in the bid file.
6.7.4 [37-2-18(a)] Sealed, Written Competitive Bids in Excess of $10,000 for Construction
Contracts and $5,000 for All Others. Sealed written competitive bids shall be required
for purchase orders exceeding ten thousand dollars ($10,000) for construction contracts
45
and five thousand dollars ($5,000) for all other purchases unless such method is not
practicable.
6.7.4.1
[37-2-18(a)] Factors in Determining Whether Practicable - Factors to be
considered in determining if competitive sealed bidding is practicable shall
include whether specifications can be prepared which permit award on the
basis of either the lowest bid price or the lowest evaluated bid price, the
available sources, the time and place of performance, and other relevant
circumstances appropriate for the use of competitive sealed bidding.
6.7.4.2
[37-2-18(c)] Adequate Public Notice - Adequate public notice of the
invitation for bids shall be given a sufficient time prior to the date set forth
therein for the opening of bids. Such notice may consist of a written invitation
soliciting quotations from suppliers on RITBA's approved vendors list. Such
notice may include publication in a newspaper of general circulation in the
State of Rhode Island as determined by the RITBA Executive Director not
less than seven (7) days nor more than twenty-eight (28) days before the date
set for the opening of the bids. The RITBA Executive Director may make a
written determination that there is a need to waive the twenty-eight (28) day
limitation. The written determination shall state the reason why the
twenty-eight (28) day limitation is being waived and shall state the number of
days, giving a minimum and maximum, before the date set for the opening of
bids when public notice is to be given.
6.7.4.3
[37-2-18(d)] Opening of Bids - Bids shall be opened publicly at the time and
place designated in the invitation for bids. Each bid, together with the name of
the bidder, shall be recorded and an abstract made available for public
inspection as soon as practicable thereafter. Subsequent to the awarding of
the bid, all documents pertinent to the awarding of the bid shall be made
available and open to public inspection and retained in the bid file.
6.7.5 Formal Competitive Bids
6.7.5.1
Procurements in Excess of $1,000; Written Quotations - Except under
emergency circumstances, competitive bids shall be obtained in the form of
sealed written quotations for all procurements exceeding one thousand dollars
($1,000).
6.7.5.2
Characteristics of Formal Bids - A formal bid shall be distinguished by:
46
6.7.5.2.1 a specific date and time by which sealed written bids must be
submitted;
6.7.5.2.2 an opening and reading of all bids at a specified time at RITBA's
office; and
6.7.5.2.3 the solicitation of a minimum of three selected bidders who are
potential suppliers for the commodity or service to be procured.
6.7.6 Informal Competitive Bids
6.7.6.1
Procurements Less Than $1,000; Oral Quotations - Oral quotations (including
telephone) may be solicited for purchase orders with a value less than one
thousand dollars ($1,000). If RITBA is unable to verify prices using published
lists/catalogs or by market analysis, the lowest quotation obtained by
telephone solicitation for procurements exceeding two hundred fifty dollars
($250) shall be confirmed in writing.
6.7.6.2
Characteristics of Informal Bids - An informal bid shall be distinguished by:
6.7.6.2.1 lack of a specific time by which bids must be submitted;
6.7.6.2.2 lack of sealed written bids; quotes may be oral on the spot or by
telephone and confirmed at a later date in writing;
6.7.6.2.3 lack of an opening and reading of bids; and
6.7.6.2.4 the solicitation of selected registered or unregistered bidders who
are potential suppliers for the commodity or service to be
procured and/or vendors suggested for consideration by RITBA.
6.7.6.3
Three Bid Minimum - Informal bids shall be solicited from a minimum of three
suppliers.
6.7.6.4
Maximizing Participation - All informal bid invitations shall be conducted in
such fashion as to maximize the opportunity for participation of all responsible
suppliers.
6.7.6.5
Equitable Distribution - For those purchases not affected by regional
considerations, requests for quotations (RFQs) shall be distributed equitably
47
among various responsible suppliers. Where practical, a quotation will be
solicited from other than the previous supplier prior to placing a repeat order.
6.7.6.6
Written Justification - When informal competitive bids are received in
accordance with the provisions contained herein and award is not made to the
low bidder, the purchase order file shall be annotated with statements of how
the supplier was selected and why the price is fair and reasonable.
6.7.6.7
Quarterly Audit - RITBA purchasing management shall audit the use of
informal competitive bids. As a minimum, quarterly review of performance by
buyers should be conducted to sample (on a random basis) the
reasonableness and effectiveness of buyer use and documentation of the
informal bid process.
6.7.7 Requests for Proposals
6.7.7.1
When Used - Requests for Proposals (RFPs) shall be utilized to solicit
competitive offers in all cases where
6.7.7.1.1 Lowest price is not the sole or primary consideration to be used in
determining an award;
6.7.7.1.2 Performance is neither specific nor objective, and open to the
offeror's interpretation;
6.7.7.1.3 It is otherwise anticipated that offers may be substantially different and that
there is insufficient common ground for objective comparison; or
6.7.7.1.4 It is anticipated that changes will be made after proposals are opened and that
the nature of the proposals and/or prices offered will be negotiated prior to
award.
6.7.7.2
Criteria to be Used - Wherever possible, the Request for Proposals shall
define the performance or benefit required and shall set forth specific criteria
to be utilized in evaluation of offers.
6.7.7.3
How Offers Evaluated - Offers shall be evaluated by a committee comprised
of representatives of RITBA on the basis of:
6.7.7.3.1 The qualifications of the offerors, established by professional
accomplishment and previous experience;
48
6.7.7.3.2 Aspects of offers which provide benefit, other than those based
on cost; and
6.7.7.3.3 Other provisions of offers which are determined to serve the best
interests of RITBA.
6.7.7.4
Award Solely on Basis of Cost - Nothing herein shall be construed to
preclude the possibility of determining an award solely on the basis of cost.
6.7.7.5
Full Documentation - The evaluation of offers, including the weight assigned to
various aspects of the offers, and all award determinations, including the
reasons for a selection recommendation, shall be fully documented.
6.8
SOURCE SELECTION AND CONTRACT AWARD
6.8.1 [37-2-18(e)] Award to Lowest Bid or Lowest Evaluated or Responsive Bid. The
contract shall be awarded with reasonable promptness by written notice to the
responsive and responsible bidder whose bid is either the lowest bid price or lowest
evaluated or responsive bid price.
6.8.1.1
Awards Within Sixty Days of Bid Opening - Awards shall be made within
sixty (60) days of the bid opening unless expressly provided for to the
contrary in the solicitation. Bids may not be withdrawn during this period
without penalty without the express permission of the RITBA Purchasing
Agent.
6.8.1.2
Special Consideration to MBEs - In accordance with Chapter 14.1 of Title
37 of the General Laws of Rhode Island, the RITBA Purchasing Agent may,
after considering the overall cost to RITBA prior to making a final
determination of award, apply special consideration to the offers of MBEs
when:
6.8.1.2.1 the solicitation provides for such consideration;
6.8.1.2.2 the offer is fully responsive to the terms and conditions of the
solicitation;
6.8.1.2.3 the price offer made by the MBE is determined to be within a
competitive range (not to exceed five percent (5%) higher than the
lowest responsive price offer) for the product or service; and
49
6.8.1.2.4 the firm making the offer conforms to the definition of a minority
business enterprise as set forth herein.
6.8.2 Ten Percent of Construction Contracts Exceeding $5,000 to MBEs. In accordance with
the provisions of Section 37-14.1-7 of the General Laws of Rhode Island, ten percent
(10%) of the dollar value of the work performed against contracts for construction
exceeding five thousand dollars ($5,000) shall be performed by MBEs where it has been
determined that subcontract opportunities exist, and where certified MBE contractors are
available.
[6.8.2.1
Award of such contracts shall be subject to approval by the RITBA Executive
Director, based on the bidder's subcontracting plan. Such plan shall be
submitted to the RITBA Executive Director prior to or upon tentative
notification of award by the RITBA Purchasing Agent.]
[6.9
MINORITY BUSINESS ENTERPRISES SET-ASIDES
Notwithstanding anything to the contrary herein, in order to assist RITBA in attaining its MBE
goals set forth elsewhere herein, RITBA may identify certain construction projects as
50
suitable for competitive bidding among MBEs only and, with respect to such projects, may solicit
bids therefor solely from MBEs, provided, however, that there exist at least three (3) MBEs with
capabilities consistent with contract requirements so as to permit competition, as required under
49 Code of Federal Regulations Part 23.]
51
SECTION 7 - NEGOTIATION
7.1
GENERAL PROVISIONS
7.1.1 Objective. The objective of negotiation shall be to secure advantageous terms and
conditions, and/or to exact improvements in terms and conditions offered to RITBA,
and/or to reduce potential cost to RITBA.
7.1.2 When Negotiation Used. Negotiation shall be used to establish or modify contractual
provisions in all cases where:
7.1.2.1
Responsive firm, fixed pricing is not the sole determinant for award;
7.1.2.2
Responses to competitive bidding suggest that lower pricing, or other
improvements in offers, are achievable;
7.1.2.3
Single or sole source procurements are made;
7.1.2.4
Responses to Requests for Proposals do not permit effective comparison, due
to the differing nature of the responses;
7.1.2.5
The scope of a contract changes during the performance period, such that
modification of price, or of other provisions, may be called for; or
7.1.2.6
The RITBA Purchasing Agent has determined in writing that a product, or the
market in which a product is sold, is noncompetitive in nature.
7.2
COMPETITIVE NEGOTIATION
When Competitive Negotiation Used. A contract may be awarded by competitive negotiation
when:
7.2.1 [37-2-19] it is determined in writing by the RITBA Purchasing Agent that the bid prices
received by competitive sealed bidding either are unreasonable as to all or part of the
requirements, or were not independently reached in open competition, and for which:
7.2.1.1
Each competitive bidder has been notified of the intention to negotiate and is
given reasonable opportunity to negotiate;
7.2.1.2
The negotiated price is lower than the lowest rejected bid by any competitive
bidder; and
52
7.2.1.3
The negotiated price is the lowest negotiated price offered by a competitive
offeror; or
7.2.2 In any case where the scope, term, or other requirements of the procurement have not
been determined at the time that a purchase requisition is issued, or where optional offers
are desired and encouraged, or where the value of the procurement has not been
definitively established.
7.3
PROCEDURES
7.3.1 Request for Proposals ("RFPs") When Competitive Negotiation is Used. When
competitive negotiation is used, RFPs shall be used in accordance with the following
procedure:
7.3.1.1
[37-2-19(b)] Adequate public notice of the RFP shall be given in the same
manner as provided for in competitive sealed bidding.
7.3.1.2
An RFP shall describe and enumerate the item(s) covered, their
specification(s), contract terms(s), and any other special provisions or
requirements.
7.3.1.2.1 [37-2-19(c)] The request for proposals shall indicate the relative
importance of price and other evaluation factors.
7.3.1.3
At a public opening of responses to RFPs, the RITBA Purchasing Agent shall
not be allowed to reveal other than the names of those responding. The
nature of responses shall not be subject to public disclosure until a contract
has been awarded.
7.3.2 Review and Discussion
7.3.2.1
[37-2-19(d)] Written or oral discussions shall be conducted with all
responsible offerors who submit proposals determined in writing to be
reasonably susceptible of being selected for award. Discussions shall not
disclose any information derived from proposals submitted by competing
offerors. Discussions need not be conducted:
7.3.2.1.1 With respect to prices, where such prices are fixed by law or
regulation, except that consideration shall be given to competitive
terms and conditions;
53
7.3.2.1.2 Where time of delivery or performance will not permit discussions;
or
7.3.2.1.3 Where it can be clearly demonstrated and documented from the
existence of adequate competition or accurate prior cost
experience with the particular supply, service, or construction
item, that acceptance of an initial offer without discussion would
result in fair and reasonable prices, and the request for proposals
notifies all offerors of the possibility that award may be made on
the basis of the initial offers.
7.3.2.2
Responses to the Request for Proposals shall be evaluated:
7.3.2.2.1 To determine nonresponsive offers, which shall be eliminated from
further consideration;
7.3.2.2.2 To determine the lowest-cost combination of options, terms, and
conditions, establishing a base-line; and
7.3.2.2.3 To establish a cost ranking of responses to that base-line.
7.3.2.3
[37-2-20(b)] Where there is more than one offeror, competitive negotiations
shall be conducted with the three (or two if there are only two) bidders
determined in writing to be the lowest responsive and responsible bidders to
the competitive sealed bid invitation. Such competitive negotiations shall be
conducted under the following restrictions:
7.3.2.3.1 If discussions pertaining to the revision of the specifications or
quantities are held with any potential offeror, all other potential
offerors shall be afforded an opportunity to take part in such
discussions.
7.3.2.3.2 A request for proposals, based upon revised specifications or
quantities, shall be issued as promptly as possible, shall provide an
expeditious response to the revised requirements, and shall be
awarded upon the basis of the lowest bid price or lowest
evaluated bid price submitted by any responsive and responsible
offeror.
7.3.2.3.2.1
The provisions of Section 37-2-20(2) may be
waived in any case where the lowest-cost response
54
is ten percent (10%) or more lower than the next
lowest cost offered.
7.3.3 [37-2-54(b)] General Service Administration Contracts. Neither the RITBA Executive
Director nor the RITBA Purchasing Agent is prohibited from negotiating with vendors
who maintain a General Service Administration price agreement with the United States of
America or any agency thereof or with the State of Rhode Island or any agency thereof;
provided, however, that no contract executed under this provision shall authorize a price
higher than is contained in the contract between General Service Administration and the
vendor affected.
7.3.4 Request for Best and Final Offer
7.3.4.1
On the basis of discussions with offerors, a request for Best and Final Offer,
which describes the requirements of the procurement in the final form, shall be
issued to all offerors still under consideration.
7.3.4.2
Each offeror shall submit a Best and Final Offer, which defines such offeror's
best price, and other terms, for the procurement.
7.3.4.3
Best and Final Offers shall be evaluated in the same fashion as a normal
competitive bid.
7.3.4.3.1 [37-2-19(d)] Award shall be made to the responsible and
responsive offeror whose proposal is determined in writing to be
the most advantageous to RITBA taking into consideration price
and the evaluation factors set forth in the request for proposals.
7.4
NONCOMPETITIVE NEGOTIATION
7.4.1 When Noncompetitive Negotiation Used. Noncompetitive negotiation may be used:
7.4.1.1
[37-2-20(a)] In the event that all competitive sealed bids submitted through a
formal solicitation result in bid prices in excess of the funds available for the
purchase, and the RITBA Executive Director determines in writing that there
are no additional funds available from any source so as to permit an award to
the lowest responsive and responsible bidder, and the best interests of RITBA
will not permit the delay attendant to a resolicitation under revised
specifications, or for revised quantities, under competitive sealed bidding;
55
7.4.1.2
to improve the price offered of the evaluated lowest-cost response to any
competitive bid;
7.4.1.3
where the RITBA Purchasing Agent has determined in writing that:
7.4.1.3.1 A single or sole source procurement is involved;
7.4.1.3.2 The product, or market in which a product is sold, is
noncompetitive in nature; or
7.4.1.3.3 Collusive or exclusionary selling practices are in evidence; or
7.4.1.4
to modify a contract during its performance, provided that no attempt is made
to reduce the contractual obligations of the supplier, vendor, or contractor, or
the contract term is not extended except in response to a request by the
supplier, vendor, or contractor in consideration for other substantive changes,
and where such extension of term of contract is determined in writing by the
Purchasing Agent to be in the best interests of RITBA.
7.4.2 Written Documentation. The conduct of noncompetitive negotiation including, but not
limited to, issues discussed, options considered, the rationale applied to decisions made
and agreements reached shall be documented in summary form and placed in the
purchase order file.
7.5
TRUTH IN NEGOTIATIONS REQUIREMENTS - COST OR PRICING DATA
7.5.1 [37-2-28(a)] Accuracy of Cost and Pricing Data. In all negotiated contracts, a
contractor shall submit cost or pricing data and shall certify that, to the best of his
knowledge and belief, the cost or pricing data submitted were accurate, complete, and
current as of a mutually determined specified date prior to the date of:
7.5.1.1
The pricing of any negotiated contract where the total contract price is
expected to exceed fifty thousand dollars ($50,000); or
7.5.1.2
The pricing of any change order or contract modification which is expected to
exceed twenty-five thousand dollars ($25,000), or such lesser amount in
either instance as may be prescribed by the RITBA Purchasing Agent.
7.5.2 Applicability
56
7.5.2.1
The requirements of Section 7.5.1 above apply to all change orders or
contract modifications over $25,000 incorporating an aggregate of changes
equal to this value, e.g., an additive change of $20,000 and a deductive
change of $11,000 are equal to an aggregate change value of $31,000 and
thus are subject to the requirements of this section.
7.5.2.2
[37-2-28(c)] The requirements of this section need not be applied to
contracts where the price negotiated is based on adequate price competition,
established catalogue or market prices of commercial items sold in substantial
quantities to the general public, prices set by law or regulation, or in
exceptional cases where it is determined in writing by the RITBA Executive
Director that the requirements of this section may be waived, and the reasons
for such waiver are stated in writing.
7.5.3 Cost or Pricing Data Factors. Cost or pricing data may include such verifiable factors as
all vendor quotations, nonrecurring costs, changes in production methods and production
or procurement volume, data in support of contractor projection of business prospects
and objectives, together with related costs of operations, unit cost trends such as those
associated with labor efficiency, make-or-buy decisions and estimated resources to attain
business goals and any other management decisions which reasonably could be expected
to have a significant bearing on costs under a proposed contract.
7.5.4 When Requirement Met. The requirement for submission of cost or pricing data is met
when all data reasonably available to the contractor have been submitted or identified in
writing at the time of agreement on price. The availability of books, records, and other
documents without specific identification and explanation shall not be considered
submission for the purposes of verification and agreement.
7.5.5 Subcontracting Requirements
7.5.5.1
Subcontractors' Cost or Pricing Data - In all contracts involving
subcontractors, prime contractors shall require subcontractors to submit cost
or pricing data for procurements in excess of fifty thousand dollars ($50,000)
unless exempted herein.
7.5.5.2
Certification - Prime contractors shall require subcontractors to certify that
cost and pricing data submitted are accurate, complete, and current as of the
date of agreement on price.
7.5.5.3
[37-2-28(b)] Adjustment Due to Inaccurate Cost or Pricing Data of
Contractor - Any contract, change, or modification thereto under which a
57
certificate is required shall contain a provision that the price to RITBA,
including profit or fee, shall be adjusted to exclude any significant sums by
which the RITBA Purchasing Agent finds that such price was increased
because the contractor furnished cost or pricing data which as of the date
agreed upon between the parties, was inaccurate, incomplete, or not current.
7.5.5.4
Adjustment Due to Inaccurate Cost or Pricing Data of Subcontractor - Prime
contractors must agree that the prime contract price shall be reduced in any
significant amounts by which the prime contract price was overstated because
a subcontractor did not submit accurate, complete, and current cost or pricing
data when required by law.
7.6
GUIDELINES IN NEGOTIATIONS
7.6.1 Written Statement Regarding Negotiation. The RITBA Purchasing Agent who is
responsible for the negotiation shall prepare a written statement at the conclusion of each
negotiation phase setting forth the principal elements of the price negotiation.
7.6.1.1
Sufficient detail shall be recorded to reflect the most significant considerations
controlling the establishment of the price.
7.6.1.2
If cost and pricing data were not required, a statement detailing the basis for
determining that the price was fair and reasonable and the extent to which the
data submitted were not a factor in the price negotiated shall be recorded.
7.6.2 Audit Clause. Contracts shall contain an audit clause which provides that if, after award,
the RITBA Purchasing Agent obtains information that submitted data were inaccurate,
incomplete or not current, or if the data were not adequately verified at the time of
negotiation, then a post-award audit shall be undertaken by the RITBA Purchasing Agent
or his designee and the contract shall be deemed to be automatically modified to reflect
the data submitted.
7.6.3 Unit Pricing. Contracts shall contain to the extent possible language which provides for
unit pricing for potential change orders.
7.6.4 Analysis in Absence of Competitive Sealed Bidding. The RITBA Purchasing Agent shall
conduct or shall obtain price analyses to ascertain whether the price quoted is fair and
reasonable in relation to comparable procurements when the absence of open market
competition precludes the use of competitive sealed bidding.
58
7.6.5 Contracts Terminated for the Convenience of RITBA. In the negotiation of settlements
of contracts which have been terminated for the convenience of RITBA:
7.6.5.1
Contract settlement shall be made in accordance with terms specified in the
purchase order;
7.6.5.2
In the absence of appropriate contract language, the vendor shall be paid for
costs incurred, plus a reasonable profit, until the contract was terminated; and
7.6.5.3
Penalties due to RITBA in accordance with a contract may be deducted from
any payment to which a vendor is entitled.
7.6.6 Reimbursement of Costs. To determine the allowability of incurred costs for the purpose
of reimbursing costs under contract provisions which provide for the reimbursement of
costs, reimbursements shall be made only upon the presentation of documented,
auditable evidence to RITBA that the vendor has incurred an eligible expense.
59
SECTION 8 - SUPPLEMENTAL SERVICES
8.1
GENERAL PROVISIONS
8.1.1 Need for Supplemental Services. The RITBA Executive Director may delegate to the
RITBA division of personnel all or a portion of responsibility for evaluation of the need
for supplemental services and for verification/validation of qualifications of proposed
service providers.
8.1.2 Change Orders to Professional Consultant Contracts. The RITBA Purchasing Agent
shall review proposed change orders to professional consultant contracts (other than
medical, dental and legal) which are reasonably estimated to exceed twenty thousand
dollars ($20,000) and shall determine whether such changes constitute a scope of service
requiring open competition.
8.1.3 Competition for Supplemental Services. To the extent practicable, selection of
supplemental service providers shall be based upon competition. The RITBA Purchasing
Agent shall require that, whenever possible, a scope of services be defined in terms for
which a bid or a response to a request for proposals may be solicited.
8.1.4 Legal Services. The RITBA Board of Directors shall recommend the final selection of
providers of legal services. RITBA shall not commit funds for proposed services prior to
receiving approval of the recommended provider from the RITBA Executive Director or
his designee.
8.1.5 Architecture or Engineering. In accordance with the provisions of Chapters 5-1 and 5-8
of the General Laws of Rhode Island, no contract shall be awarded to a person
practicing architecture or engineering who has not been professionally certified by the
appropriate registration boards.
8.1.6 Construction Management Contractors. Requirements for the selection of construction
management contractors shall be the same as those for the selection of architects and
engineers.
8.1.7 Selection of Professionals with Place of Business Located in Rhode Island. The State of
Rhode Island and Providence Plantations has a large number of architectural, engineering,
and consulting firms well qualified in their fields of endeavor. In instances where
contracts are entirely supported by state funds, it is the policy of RITBA that all other
things being equal, the services of these qualified and capable professionals with offices in
60
Rhode Island, or secondly those professionals who propose a joint venture with a Rhode
Island firm, be utilized. [37-2-59.1]
8.2
ARCHITECTURAL, ENGINEERING AND CONSULTANT SERVICES
SELECTION COMMITTEE
[37-2-59(b)] A selection committee appointed by the Chairperson of the RITBA Board of
Directors shall select persons or firms to render architectural, engineering and other professional
consultant services, other than medical, dental and legal services, which are reasonably estimated
to exceed twenty thousand dollars ($20,000).
8.2.1 A quorum shall require the presence of a majority of the committee and must be present
to conduct business.
8.2.2 The committee may utilize the services of such other persons it deems necessary to
provide technical advice in evaluating consultant proposals. Such technical advisors shall
not be considered members of the committee and shall not be entitled to vote on the
selection of candidates to be recommended for consideration by the RITBA Executive
Director.
8.3
SUPPLEMENTAL SERVICES NOT EXCEEDING $5,000
The RITBA Executive Director may delegate authority for selection of supplemental service
providers to the RITBA Purchasing Agent when the total annual (fiscal year) value of any such
relationship does not exceed five thousand dollars ($5,000).
8.4
ARCHITECTURAL, ENGINEERING AND CONSULTANT SERVICES
SELECTION PROCESS FOR SERVICES NOT EXCEEDING $20,000
When a professional consultant contract is estimated reasonably to be between five thousand
dollars ($5,000) and twenty thousand dollars ($20,000), the RITBA Executive Director may
establish a technical review committee to evaluate the qualifications of potential suppliers.
Membership shall be determined on a case by case basis.
The technical committee shall recommend no more than three candidates to the RITBA
Purchasing Agent, who shall forward his recommendations to the RITBA Executive Director,
who shall be responsible for the final selection.
8.5
ARCHITECTURAL, ENGINEERING AND CONSULTANT SERVICES
SELECTION PROCESS FOR SERVICES EXCEEDING $20,000
61
8.5.1 Solicitation
8.5.1.1
[37-2-60] Public Announcement - The RITBA Executive Director shall give
public notice of the need for professional architectural, engineering or
consultant services which are reasonably estimated to exceed twenty thousand
dollars ($20,000).
8.5.1.1.1 Such notice shall be published sufficiently in advance of the date
when responses must be received in order that interested parties
have an adequate opportunity to submit a statement of
qualifications and performance data.
8.5.1.1.2 The notice shall:
(a) contain a brief statement of the services required;
(b) describe the project;
(c) specify how a solicitation containing specific information on the
project may be obtained; and
(d) be published in a newspaper of general circulation in Rhode
Island and in such other publications as in the judgment of the
committee shall be desirable.
8.5.1.2
[37-2-61] The solicitation shall describe RITBA's requirements and set forth
evaluation criteria for the selection of the successful candidate and shall be
distributed to interested persons.
8.5.2 Bidders' Conference. A conference shall be held at which the following shall be
provided:
8.5.2.1
a description of the criteria to be used in evaluating a bidder's statement of
qualification and performance data for the purpose of selecting a firm;
8.5.2.2
a discussion and further definition of the scope of work; and
8.5.2.3
an on-site review, if appropriate.
8.5.3 [37-2-63(a)] Selection Committee. The selection committee shall select no more than
three (3) firms evaluated as being professionally and technically qualified.
62
8.5.4 [37-2-63(a)] Additional Information. The firms selected, if still interested in providing
the services, shall make a representative available to the RITBA Executive Director at
such time and place as he shall determine, to provide such further information as he may
require.
8.5.5 [37-2-63(b)] Negotiation with Highest Qualified Firm. The RITBA Executive Director
or his designee shall negotiate with the highest qualified firm for a contract for
architectural, engineering, or consultant services for RITBA at a level of compensation
which he determines to be fair and reasonable to RITBA. In making such determination,
the RITBA Executive Director shall take into account the following: professional
competence, technical merits, and fee structure.
8.5.6 [37-2-63(b)] Final Selection. The RITBA Board of Directors shall be responsible for
the final selection of the providers of architectural and engineering services.
8.6
EVALUATION FOR SELECTION
8.6.1 Criteria for Evaluation. Criteria for evaluation of candidates for supplemental services
shall include, but shall not be limited to:
8.6.1.1
Competence to perform the services as reflected by technical training and
education, general experience, experience in providing the required services,
and the qualifications and competence of persons who would be assigned to
perform the services;
8.6.1.2
Ability to perform the services as reflected by workload and availability of
adequate personnel, equipment, and facilities to perform the services
expeditiously;
8.6.1.3
Past performance as reflected by the evaluation of private persons and
officials of other governmental entities which have retained the services of the
firm with respect to such factors as control of costs, quality of work, and
ability to meet deadlines; and
8.6.1.4
In the case of consultant services, the vendor's proposed approach to the
project/assignment shall be an additional criterion.
8.6.2 Statements Evaluated. The selection committee shall evaluate the following in light of the
criteria set forth in the solicitation:
63
8.6.2.1
statements submitted in response to the solicitation of consultant services; and
8.6.2.2
other required statements of qualifications and performance data.
8.7
REQUIREMENTS FOR SUPPLEMENTAL LEGAL SERVICES
8.7.1 [37-2-70] Professional services - Legal. Before RITBA procures the services of an
attorney, it shall demonstrate to the satisfaction of RITBA's Board of Directors the
following:
8.7.1.1
Criteria to be Demonstrated
8.7.1.1.1 The need for the services required including the scope of the
services to be performed;
8.7.1.1.2 That no legal personnel employed by RITBA or the State on a
full-time basis are available to perform such services;
8.7.1.1.3 That funding is available, indicating from which sources such
funding is to be provided;
8.7.1.1.4 That attorneys to be engaged meet the following minimum
requirements:
8.7.1.1.4.1
professional licensing;
8.7.1.1.4.2
competence to perform such services as reflected
by formal training and education, general
experience and experience in providing the
required services and the qualifications and
competence of persons who would be assigned to
perform the services; and
8.7.1.1.4.3
ability to perform the services as reflected by
workload and availability of adequate personnel,
equipment and facilities to perform the services
expeditiously.
8.7.1.2
Letter of Engagement. The attorney shall enter into a letter of engagement
with RITBA. The letter of engagement shall state the rate of compensation,
the scope of the services to be performed for the compensation and provision
64
for the payment of expenses incurred in connection with legal services. The
letter of engagement shall certify that the rate of compensation does not
exceed the rate of compensation charged by counsel to his or her preferred
public or private clients. A letter of engagement shall not be for more than one
(1) year.
8.7.2 Minimum Requirements for Professionals. Demonstration to the satisfaction of the
RITBA Executive Director that professionals meet minimum requirements may be
accomplished using the following:
8.7.2.1
RITBA may obtain annual verification of the status of an attorney(s) from the
Supreme Court listing of members of the Rhode Island Bar.
8.7.2.2
RITBA may obtain annual verification of the status of medical doctors and
medical professionals from the Department of Health.
8.7.2.3
The RITBA Executive Director may delegate authority to determine the
appropriateness of qualifications to RITBA personnel subject to the following:
8.7.2.3.1 Such delegation shall be at the request of and justified by the
Executive Director of RITBA;
8.7.2.3.2 A complete description of the evaluation procedure is provided;
and
8.7.2.3.3 The names, qualifications and official capacity of the persons
participating in the evaluation process or as members of
professional review boards are provided.
8.8
AUDITING AND ACCOUNTING
8.8.1 [37-2-59(c)] Procurement for Independent Audit. The procurement of auditing and
accounting services shall be subject to the provisions of Sections 22-13-6 and 35-7-13
of the General Laws of Rhode Island which require that the Auditor General shall review
and approve:
8.8.1.1
the proposed scope of services for an independent audit; and
8.8.1.2
the firm selected to conduct the audit.
65
8.8.2 Purchase Requisitions for Independent Audit Services. Purchase Requisitions for
independent audit services shall be submitted to the State Office of Purchases with
written verification of the Auditor General's approval of the proposed purchase of
services. Copies of correspondence from the Auditor General to RITBA shall be
considered sufficient authorization to proceed.
8.8.3 Contract Amendments. Contract amendments which materially increase the original
approved scope of work shall also require the Auditor General's authorization.
66
SECTION 9 - CONTRACTS
9.1
FUNDAMENTAL REQUIREMENTS AND PRINCIPLES FOR RITBA
CONTRACTS
9.1.1 [37-2-54(c)] Purchase Order as Primary Contractual Instrument. No purchase or
contract shall be binding on RITBA unless approved by RITBA in accordance with the
procedures set forth herein.
9.1.1.1
The terms and conditions of a valid Purchase Order and its supplements, as
issued by RITBA and signed by the RITBA Purchasing Agent or his designee,
shall constitute the primary contractual instrument of RITBA.
9.1.1.1.1 Unless specifically established by law or regulation adopted by the
RITBA Board of Directors, no other instrument shall constitute a
RITBA purchasing contract.
9.1.1.1.2 Oral Agreements - Any alleged oral agreement or arrangement
made by a bidder or contractor with RITBA or an employee of
RITBA may be disregarded and shall not be binding on RITBA
unless subsequently confirmed in writing by RITBA.
9.1.2 [37-2-13(d)] New Regulation has No Effect on Existing Contract. No State or RITBA
purchasing regulation shall change in any way a contract commitment by RITBA nor of a
contractor to RITBA which was in existence on the effective date of the regulation.
9.1.3 [37-2-13(e)] RITBA Purchasing Regulations Incorporated by Reference. The
provisions of RITBA purchasing regulations shall be considered to be incorporated by
reference in all RITBA contracts.
9.1.4 [37-2-13(f)] Unlawful Contracts Void Ab Initio. Contract provisions and contracts
entered into in violation of state law or RITBA purchasing regulations shall be void "ab
initio" (from inception).
9.1.5 Supplemental Principles of Law - Obligation of Good Faith
9.1.5.1
[37-2-3(a)] Unless displaced by the particular provisions of the State
Purchases Act, the principles of law and equity, including the Uniform
Commercial Code, the law merchant, and the law of contracts, including, but
67
not limited to, agency, fraud, misrepresentation, duress, coercion, mistake,
and bankruptcy, shall supplement these provisions.
9.1.5.2
[37-2-3(b)] Every contract or duty under this chapter shall impose upon both
parties the obligation of good faith in its performance and/or enforcement.
"Good faith" shall mean honesty in fact in the conduct or transaction
concerned and the observance of reasonable commercial standards of fair
dealing.
[9.1.6 Compliance with Applicable State and Federal Laws. Contractors and subcontractors
must comply with all applicable state and federal laws, as amended from time to time, to
the full extent that such laws are applicable, including without limitation:
9.1.6.1
All state statutes, including without limitation:
a.
State equal opportunity requirements, including without limitation,
Section 28-5.1-10 of the General Laws of Rhode Island;
b.
State prevailing wage statutes; and
c.
State Minority Business Enterprise statutes.
d.
Steel Products Procurement Act - R.I. GEN. LAWS Section 37-
2.1-1 et seq.
[9.1.6.2
All applicable federal statutes.
9.1.6.3
All Presidential executive orders, including without limitation:
a.
Executive Order 12372 - Intergovernmental Review of Federal
Programs.
b.
Executive Order 11246 - Equal Employment Opportunity.
9.1.6.4
All Gubernatorial executive orders.
9.1.6.5
All applicable federal regulations.
9.1.6.6
All state regulations.
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9.1.6.7
All applicable Office of Management and Budget Circulars, including without
limitation:
a.
A-87 - Cost Principles Applicable to Grants and Contracts with
State and Local Governments.
b.
A-128 - Audits of State and Local Governments.
9.1.7 [37-2-41] Contractor's Bonds. The provisions of chapter 12 of Title 37 of the General
Laws of Rhode Island shall apply to all construction contracts awarded under the State
Purchases Act.
9.1.7.1
"Performance Bond" shall mean a contract of guaranty executed subsequent to
award by a successful bidder to protect RITBA from loss due to contractor
inability to complete a contract.
9.1.7.2
Chapter 12 of Title 37 of the General Laws of Rhode Island requires that
every person awarded a public works contract shall furnish to RITBA good
and sufficient surety (performance bond) not less than fifty percent (50%) and
not more than one hundred percent (100%) of the contract price conditioned
that the contractor, principal in said bond, the person's executors,
administrators or successors, shall keep and perform the covenants,
conditions and agreements in the contract. However, provided that good
cause is shown, the Executive Director of RITBA may waive the requirements
for contracts not in excess of fifty thousand dollars ($50,000).
9.1.7.3
[37-13-14] A contractor's performance bond required for contracts
exceeding one thousand dollars ($1,000) under Chapter 37-12 must be
furnished by a surety company authorized to do business in Rhode Island.
9.1.7.4
Nothing herein shall prevent RITBA from requiring a contractor to furnish a
payment bond.
9.2
GENERAL CHARACTERISTICS OF RITBA CONTRACTS
9.2.1 General Terms and Conditions. The RITBA Purchasing Agent shall develop and make
available to potential suppliers a document stating the general terms and conditions
applicable to all quotations and RITBA purchasing contracts.
9.2.1.1
The General Terms and Conditions shall:
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9.2.1.1.1 be referenced and made a part of all solicitations for proposals
and quotations; all RITBA purchase orders, contracts, and letters
of authorization; and bidder registration documentation.
[9.2.1.1.2 provide notice to bidders that contract award may be subject to
the bidder signing an affirmation (certification) regarding certain
legal requirements or restrictions relating to foreign corporations,
goods produced in South Africa, disadvantaged business
enterprises, labor rates, local product preference, etc., as required
by the RITBA Purchasing Agent.]
9.2.1.2
When a contract has been entered into between RITBA and another party,
neither party shall have the legal right to add new terms or conditions without
the consent of the other, unless the contract so specifies.
9.2.1.3
All contract pricing shall be firm and fixed unless contract language provides
for reconsideration. Issuance of purchase orders shall not be made on the
basis of "advise pricing" (or "pricing to be determined") agreements. All
commitments shall be on the basis of estimated prices with a "not to exceed"
maximum authorization when firm, fixed pricing agreements are not possible.
9.2.1.4
Changes in scope, price, and length of contract period shall require contract
amendments which are specified in writing.
9.2.1.5
Unanticipated changes may be considered with the express consent of both
parties.
9.2.1.6
The issuance of a Purchase Change Order in accordance with the provisions
of the contract and other requirements specified herein shall be considered a
binding contract.
9.2.2 Termination. As appropriate, RITBA contracts shall include clauses which address
special conditions/procedures for termination of contract not contained in RITBA's
General Terms and Conditions; e.g., provisions for penalties or forfeitures for contract
noncompliance may be included; a convenience termination clause which permits RITBA
to terminate, at its own discretion, the performance of work in whole or in part, and to
make a settlement of the vendor's claims in accordance with appropriate regulations and
applicable contractual conditions.
9.2.3 Mutual Agreement. The agreement shall consist of an offer by one party, called the
offeror, and an acceptance by the other party, called RITBA.
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9.2.3.1
When a purchase order is issued which does not differ from the bid submitted
by an offeror, mutuality shall be assumed.
9.2.3.2
In accordance with the General Terms and Conditions which notify offerors
that the RITBA Purchasing Agent reserves the right to make partial bid
awards, mutuality shall be assumed when a purchase order does not differ
from the elements of a bid submitted by an offeror.
9.2.3.3
Any offer, whether in response to a solicitation for proposals or bids, or made
without a solicitation, which is accepted in the form of an order made by the
RITBA Purchasing Agent, or a RITBA official with purchasing authority
delegated by the RITBA Purchasing Agent, shall be considered a binding
contract.
9.2.4 Consideration. Although consideration to support a contract may assume other forms,
generally it shall mean the agreement to pay a sum of money for the delivery of the
desired items or services rendered. It shall not be essential that the consideration be of a
substantial consequence but shall have some value. Compensation shall be specified and
shall include but not be limited to: (a) terms of payment for partial delivery or completion;
(b) unit of cost (hourly rate, per report rate), if appropriate; (c) frequency/conditions for
payment - weekly, monthly, upon completion of percentage of work, etc.; and (d)
retainage, when appropriate.
9.2.5 Capacity of Parties. The contracting parties shall have the legal authority to enter into
contracts.
9.2.6 Competence of Parties. The contracting parties shall be of legal age and of sound mind.
9.2.7 Duration. Length of contract period shall be specified.
9.2.8 Designated Contact. A RITBA official from whom the contractor shall obtain direction
shall be named and/or a format for written authorization to deliver (e.g., request for
delivery form for master pricing agreement) shall be specified.
9.2.9 Public Works/Construction Contracts. Public Works/Construction Contracts shall
provide for the following:
9.2.9.1
Certificates of insurance to protect the general public or property belonging to
RITBA or the State from injury or loss arising from actions or inaction of the
contractor during the progress of a contract.
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9.2.9.2
Each contractor shall be responsible for providing satisfactory evidence of
complete coverage of all insurances, including without limitation workers'
compensation insurance, permits, and licenses required by state, city or town
statutes, ordinances, and/or regulations.
9.3
THE PURCHASE ORDER CONTRACT
9.3.1 Entire Agreement. When a purchase order form is used, the entire agreement with the
supplier shall, at all times, reside solely in the purchase order form and its supplements.
9.3.2 Purchase Order Supplements. Purchase Order Supplements shall consist of all of the
following documents:
9.3.2.1
RITBA's General Terms and Conditions;
9.3.2.2
RITBA's request for quotations or proposals, including specifications;
9.3.2.3
The contractor's offer which is responsive to the solicitation; and/or
9.3.2.4
As appropriate, additional contract provisions.
9.4
MULTI-YEAR CONTRACTS
9.4.1 [37-2-33(a)] When Permitted. Unless otherwise provided by appropriations therefor,
multi-year contracts for supplies and services may be entered into for periods extending
beyond the end of the fiscal year in which the contract was made, if funds for the first
fiscal year of the contemplated contract are available at the time of contracting. Payment
and performance obligations for succeeding fiscal years shall be subject to the availability
of funds therefor.
9.4.1.1
"Biennium" shall mean a period of time equal to two fiscal years.
9.4.1.2
"Fiscal year" shall mean RITBA's fiscal year.
9.4.1.3
Multi-year contracts which extend beyond a biennium shall be permitted
provided that:
9.4.1.3.1 funds for the first year of the biennium have been included in
RITBA's budget;
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9.4.1.3.2 contracts shall contain a standard clause which states that
implementation of the contract beyond the first fiscal year shall be
subject to the availability of funds; and
9.4.1.3.3 a written justification is placed in the purchase order file or the
category of procurement has by regulation or policy been
identified by the RITBA Executive Director as appropriate for
multi-year contracting, e.g., property leases.
9.4.1.4
Multi-year contracts shall specify the annual costs and total value of each
contract.
9.4.2 [37-2-33(b)] Determination of Necessity. Prior to the utilization of a contract as
described in subsection 37-2-33(1), it shall be determined in writing by the RITBA
Executive Director:
9.4.2.1
That estimated requirements cover the period of the contract and are
reasonably firm and continuing; and
9.4.2.2
That such contract will serve the best interests of RITBA by encouraging
effective competition or otherwise promoting economics in RITBA
procurement.
9.4.2.3
The RITBA Executive Director may delegate to the RITBA Purchasing Agent
all or a portion of the responsibility and authority to make such determinations.
9.4.3 [37-2-33(c)] Cancellation. When funds are not appropriated or otherwise made
available to support continuation of performance in a subsequent year of a multi-year
contract, the contract for such subsequent year may be cancelled and the contractor shall
be reimbursed for the reasonable value of nonrecurring costs incurred but not amortized
in the price of the supplies or services delivered under the contract.
[37-2-33(c)] The cost of cancellation may be paid from:
9.4.3.1
Funds in RITBA's budget currently available for performance of the contract;
9.4.3.2
Funds in RITBA's budget currently available for procurement of similar
supplies or services and not otherwise obligated; or
9.4.3.3
Funds in RITBA's budget made specifically for the payment of such
cancellation costs.
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9.4.4 Appropriate Cases for Multi-Year Contracts. Multi-year contracts shall be appropriate
purchasing instruments for transactions for which the nature of the goods and services will
remain relatively stable over time; and for which potential changes in price can be
predicted and agreed to in advance, including provisions for mandated escalation
requirements, such as:
9.4.4.1
Lease and lease-purchase agreements for equipment, real property, and
facilities;
9.4.4.2
Maintenance and repair of specialized equipment;
9.4.4.3
Special licensing agreements (computer, communication);
9.4.4.4
Special services for which the contract award is based on a request for
proposals;
9.4.4.5
Supplemental services, the approval of which is based upon the
recommendation of a RITBA selection committee; and selection by the
RITBA Executive Director;
9.4.4.6
Any other contractual relationship where it has been determined in writing by
the RITBA Executive Director that a long-term agreement shall be the most
cost-effective method of procurement.
9.5
LETTER OF AUTHORIZATION
When the RITBA Executive Director determines in writing that it is absolutely essential that the
vendor be given a binding commitment so that work can be commenced immediately and that
negotiation of a definitive contract cannot be accomplished in sufficient time, the RITBA
Purchasing Agent may issue a Letter of Authorization.
9.5.1 Letter of Authorization Instrument. A Letter of Authorization ("LA") shall mean a written
instrument binding only when signed by the RITBA Purchasing Agent, which authorizes
immediate commencement of implementation of the delivery of supplies or the
performance of services.
9.5.2 Requirements of an LA. Such instrument shall:
9.5.2.1
Represent a preliminary authorization subject to the subsequent issuance of a
purchase order.
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9.5.2.2
Be superseded by a definitive contract at the earliest practicable date not later
than the greater of the following:
9.5.2.2.1 the expiration of 180 days from the date of the LA; or
9.5.2.2.2 delivery of forty percent (40%) of the contract.
9.5.2.3
Be specifically negotiated and shall address the following contractual
requirements:
9.5.2.3.1 the vendor will proceed immediately with performance of the
contract, including procurement of necessary materials;
9.5.2.3.2 the extent and method of payment in the event of termination for
the convenience of RITBA or for default;
9.5.2.3.3 the vendor is not authorized to expend monies or incur obligations
in excess of the maximum liability of RITBA as set forth in the
letter contract;
9.5.2.3.4 the type of definitive contract contemplated;
9.5.2.3.5 as many definitive contract provisions as possible;
9.5.2.3.6 the vendor shall provide such price and cost information as may
reasonably be required by RITBA; and
9.5.2.3.7 the vendor and RITBA shall enter into negotiations promptly and
in good faith to reach agreement and execute a definitive contract.
9.6
CHANGES TO PURCHASE ORDERS
9.6.1 Change Orders. All agreements and changes to scope of work, price, or other terms
shall be incorporated into purchase orders via "change order" documents incorporating
contract amendments.
9.6.2 Exclusive Documents for Changes. Change Orders issued by RITBA shall be the only
binding documents which may create a change in a purchase order or any other contract.
9.6.3 Prior Necessary Approvals. Personnel shall not commit RITBA to technical/contractual
changes to purchase orders without first securing all necessary approvals.
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9.6.4 Changes Prior to Change Order. All written or oral potential changes may be
disclaimed as not being binding on the supplier or RITBA until formally incorporated in
the purchase order via a change order.
9.6.5 Letter of Authorization. In general, change orders shall be issued by RITBA following
receipt of quotations and discussions of price and delivery with the supplier. If
circumstances preclude immediate issuance of a formal change order, interim direction to
the supplier may be made via an LA signed by the RITBA Purchasing Agent.
9.7
TERMINATION OF CONTRACT
9.7.1 Invalidity of Bidder Certifications. If required bidder certifications are determined to be
invalid, the RITBA Purchasing Agent shall declare the purchase order void.
9.7.2 Written Notice of Termination. Notice of termination by either party shall be submitted in
writing to the other party in accordance with the termination clause of the contract.
9.7.3 Cancellation of a Contract by RITBA for Nonperformance
9.7.3.1
Cancellations of Purchase Order Contracts or Master Pricing Agreements
shall require the signature of the RITBA Purchasing Agent or his designee.
9.7.3.2
A contract may be cancelled or annulled at the contractor's expense upon
determination by the RITBA Purchasing Agent that a condition of
nonperformance exists.
9.7.3.3
"Nonperformance" shall mean lack of compliance with the contract
specifications and/or terms and conditions.
9.7.3.4
Cancellation by the RITBA Purchasing Agent for nonperformance shall be
subject to the following rules:
9.7.3.4.1 The RITBA Purchasing Agent shall notify the contractor in writing
that he or she is not in compliance with the contract. Such notice
of nonperformance shall:
9.7.3.4.1.1
specify the nature of the complaint;
9.7.3.4.1.2
direct the contractor to take corrective action;
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9.7.3.4.1.3
direct the contractor to respond in writing to the
notice of nonperformance within a specified time
period; and
9.7.3.4.1.4
notify the contractor that failure to respond as
directed may result in cancellation of the order.
9.7.3.5
If a contractor fails to take corrective action and/or respond to a notice of
nonperformance, the RITBA Purchasing Agent may issue a change order
cancelling the contract.
9.7.3.6
If, after reviewing the contractor's response, the RITBA Purchasing Agent
determines that the contractor is in compliance with the contract requirements,
he shall so notify the contractor in writing, providing a rationale for his
decision.
9.7.3.7
If the RITBA Purchasing Agent determines that valid extenuating
circumstances out of the control of the contractor have prevented compliance
with the contract requirements, he may amend the contract to provide for a
reasonable opportunity for the vendor to perform the contract, if necessary.
9.7.3.8
If the RITBA Purchasing Agent believes that a contractor's action or lack
thereof presents a clear and immediate danger to the public interest, he may
request in writing that the RITBA Executive Director authorize immediate
termination of the contractual relationship.
9.7.3.9
Copies of all communications with a contractor regarding nonperformance
shall be sent to the contractor's bonding company, power of attorney and
RITBA legal counsel.
9.7.3.10 If the RITBA Purchasing Agent determines that a contractor is unwilling or
unable to perform a contract, he shall:
9.7.3.10.1 direct the contractor's bonding company to assume responsibility
for the performance of the contract if a performance bond has
been issued;
9.7.3.10.2 so notify the contractor; and
9.7.3.10.3 notify the contractor whether he/she has been temporarily
suspended or permanently debarred from the RITBA Bidders List
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and shall be responsible for any costs incurred by RITBA in the
completion of the contract.
9.8
TYPES OF PURCHASE ORDER CONTRACTS
9.8.1 Fixed Price (FP)
9.8.1.1
The Firm Fixed Price (FFP) contract shall mean one which provides for a
price which is not subject to any adjustment by reason of the seller's cost
experience in the performance of the contract. This type of contract should be
used when the price is based on credible cost data for the completion of the
order.
9.8.1.2
The Fixed Price with Economic Price Adjustment (FPW/EPA) contract shall
mean one which provides for the upward or downward revision of stated
price upon the occurrence of certain economic conditions which are
specifically defined in the contract. These conditions are limited to those
beyond the control of the seller.
9.8.1.3
A Fixed Price Redeterminable (FPR) contract shall mean one which permits
reconsideration of price at a stated time after contract initiation when the only
supplier capable of performing a job cannot quote a fixed price with full
assurance that it will be fair and reasonable.
9.8.1.4
The Fixed Price Incentive (FPI) contract shall mean one which provides for
the adjustment of profit (fee) and price according to a sharing arrangement
based on the relationship which final negotiated total cost bears to the
negotiated target cost.
9.8.2 Cost Reimbursement
9.8.2.1
A Cost No Fee (CNF) contract shall mean one under which the seller
receives no fee.
9.8.2.2
A Cost Sharing (CS) contract shall mean one under which the seller not only
receives no fee but is reimbursed for only an agreed upon portion of its
allowable costs.
9.8.2.3
A Cost Plus Fixed Fee (CPFF) contract shall mean one which provides for
the payment of a fixed fee to the seller. The fixed fee negotiated does not vary
78
with actual cost, but may be adjusted as a result of any subsequent changes in
the work or service to be performed under the purchase order.
9.8.2.4
A Cost Plus Incentive Fee (CPIF) contract shall mean one which provides for
a fee which is adjusted by formula in accordance with the relationship which
total allowable costs bear to target costs, a target fee, a minimum and
maximum fee, and a fee adjustment formula. Upon completion of the order,
the fee is determined in accordance with the established formula as an
incentive for performance efficiency; however, there is no ceiling price
specified and the seller is under no obligation to complete the order once the
funds obligated have been exhausted.
9.8.2.5
A Time and Materials (T/M) contract shall mean one which provides for the
purchase of supplies or services on the basis of (1) direct labor hours at
specified fixed hourly rates (which rates include direct and indirect labor,
overhead and profit) and (2) material at cost. Material handling costs may be
included to the extent they are clearly excluded from any factor of the charge
computed against direct labor hours (L/H).
9.8.3 A Blanket Order shall mean an arrangement under which a purchaser contracts with a
vendor to provide the purchaser's requirements for an item or a service, on an
as-required and often over-the-counter basis. Such an arrangement sets a limit on the
period of time it is valid and the maximum amount of money which may be spent at one
time or within a specified period. (Usually, but not always, the funds for agency blanket
orders will be encumbered.)
9.8.3.1
A Pricing Agreement (PA) shall mean a special blanket order which
establishes the terms and conditions under which a specific item or a specific
category of items in an indefinite quantity, are to be purchased for a specific
period of time, usually one year.
9.8.3.2
A Master Pricing Agreement (MPA) shall mean a pricing agreement which
has been established on behalf of more than one entity. (Usually, funds for
MPA contracts are not encumbered.)
9.8.3.3
A Term Contract shall be synonymous with a MPA contract.
9.8.4 Prohibited Contracts. Use of the following types of contract is prohibited:
9.8.4.1
A Cost Plus Percentage of Cost (CPPC) contract shall mean one which
provides for a fee which is adjusted by percentage formula in accordance with
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the relationship to total cost. The percentage formula may be fixed, but fee
paid may be adjusted as a result of any subsequent changes in the work or
service to be performed under the purchase order. [37-2-29]
9.8.4.2
A To Be Determined (TBD) contract shall mean one which enables the buyer
and the seller to enter into a relationship with no predetermined terms at the
initiation of the contract.
9.9
PRINCIPLES FOR SELECTION OF TYPE OF PURCHASE ORDER CONTRACT
The selection of the appropriate type of contract is a matter which requires the exercise of
judgment in order to obtain fair and reasonable prices in accordance with the circumstances of
the procurement.
9.9.1 Factors in Determining Type of Contract. In determining the type of contract to be used,
consideration shall be given but not limited to such factors as:
9.9.1.1
Type and complexity of the item or scope of work to be performed;
9.9.1.2
Urgency of the requirement;
9.9.1.3
Prospective period of contract performance;
9.9.1.4
Degree of competition present;
9.9.1.5
Extent of completion of baseline and detail design, which in turn may influence
other considerations such as the adequacy and firmness of specifications, and
the availability of relevant historical pricing data and prior experience;
9.9.1.6
Availability of comparative price data, or lack of firm market prices or wage
levels;
9.9.1.7
Prior experience with the supplier;
9.9.1.8
Extent and nature of subcontracting contemplated;
9.9.1.9
Assumption of business risk;
9.9.1.10 Supplier technical capability and financial responsibility;
9.9.1.11 Administrative costs;
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9.9.1.12 Adequacy of the supplier's accounting system; and
9.9.1.13 Other concurrent contracts.
9.9.2 [37-2-32] Firm Fixed Price Contracts Preferred. Except with respect to firm fixed price
contracts, no contract type shall be used unless it has been determined in writing that the
proposed contractor's accounting system will permit timely development of all necessary
cost data in the form required by the specific contract type contemplated and that the
contractor's accounting system is adequate to allocate costs in accordance with generally
accepted accounting principles.
9.9.2.1
The firm fixed price contract shall be used in applications and under limitations
hereinafter set forth, unless the use of another type of contract is more
appropriate.
9.9.3 [37-2-31] Best Interests of RITBA. Subject to the limitations on entering into cost plus
percentage of cost and cost reimbursement contracts set forth herein, any type of
contract which will promote the best interests of RITBA may be used.
9.9.4 Cost Reimbursement Contracts
9.9.4.1
[37-2-30(a)] No contract providing for the reimbursement of the contractor's
cost plus a fixed fee (cost reimbursement) may be made through negotiation or
in sole source or emergency procurements unless it is determined in writing by
the RITBA Executive Director that such contract is likely to be less costly to
RITBA than any other type of contract, or that it is impracticable to obtain
supplies or service of the kind or quality required except under such a
contract.
9.9.4.2
[37-2-30(b)] Each contractor under a cost reimbursement type contract shall
obtain consent from the RITBA Executive Director, as provided for in the
contract, before entering into:
9.9.4.2.1 a cost reimbursement subcontract; or
9.9.4.2.2 any other type of subcontract involving more than ten thousand
dollars ($10,000) or ten percent (10%) of the estimated cost of
the prime contract, whichever is greater.
9.9.4.3
[37-2-30(c)] All cost reimbursement contracts shall contain a provision that
only costs recognized as allowable, in accordance with cost principles set
81
forth in regulations issued by the RITBA Executive Director will be
reimbursed.
9.9.5 FPW/EPA Contracts. When an FPW/EPA contract is employed, provisions shall be
included for downward adjustment of the contract price in those instances where the
prices or rates may be expected to fall below the base price agreed to by contract.
9.9.5.1
Types of Economic Adjustments. Types of economic adjustments shall include
but shall not be limited to:
9.9.5.1.1 Price Adjustment - a modification of the base purchase order
price on the basis of increases or decreases in published or
established prices of specific items.
9.9.5.1.2 Labor and Material Adjustment - a modification of the contract
base price on the basis of increases or decreases of wage rates,
specific material costs, or both, using agreed upon standards or
indices.
9.9.5.2
This type of contract may be appropriate where valid doubt exists as to the
predictability of economic conditions which will exist during a multi-year
contract period. Price adjustment provisions shall not be used to provide
protection to contractors against contingencies which arise from inaccurate
estimates of the quantities of labor or materials required for completion of a
contract.
9.9.6 FPR Contracts. When FPR contracts are employed the basis for adjustments shall be
established when the contract is negotiated and a cost baseline shall be established.
9.9.6.1
The following data shall be secured from each source before placing a
redeterminable order: number of estimated hours and method used in arriving
at hours; direct labor rates per hour; material cost, including both quantities
and unit prices; overhead rates (categorized by element); profit, any other data
deemed pertinent for analysis of the prices quoted.
9.9.6.2
The establishment of a redeterminable type of contract shall require the written
authorization of the RITBA Executive Director.
9.9.7 FPI Contracts. When FPI contracts are employed:
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9.9.7.1
There shall be an initially negotiated firm target cost, a target profit, a price
ceiling and a final profit and price adjustment formula. After completion, a
final cost shall be negotiated and a final price established in accordance with
the predetermined formula.
9.9.7.2
The circumstances must be such that targets are reasonably free of
contingencies and provided that a fair and reasonable incentive formula can be
established at the time of initial contract negotiation and the contract is of
sufficient duration to permit achievement of substantial cost reductions.
9.9.7.3
The same supplier cost data shall be required as for a redetermination
contract.
9.9.8 CNF Contracts. A CNF contract may be used for research and development work,
particularly with nonprofit organizations and educational institutions.
9.9.9 CPFF Contracts. A CPFF contract is suitable when:
9.9.9.1
The scope and nature of work cannot be definitely specified.
9.9.9.2
Definite specifications exist but the seller lacks a valid basis for estimating
costs because the supplies called for are not items regularly manufactured, or
the services called for have not been previously performed, or partial
experience will not reveal a proper pricing basis for the remainder of the
contract.
9.9.9.3
Specifications are not complete or major changes substantially affecting the
scope of production or construction work are expected.
9.9.9.4
Work is to be performed in a RITBA-owned facility with the use of
RITBA-owned equipment, materials, or personnel.
9.9.10 T/M Contracts. A T/M contract shall include the establishment of a cost limitation which
the seller may not exceed (except at his or her own risk). A T/M contract shall be used
only in situations when:
9.9.10.1 it is not possible at the time of placing the order to estimate the extent of the
work or to anticipate final costs with any reasonable degree of accuracy such
as: (1) engineering and design services; (2) certain repair, maintenance or
overhaul work; and (3) emergencies.
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9.9.10.2 provision is made for appropriate surveillance by RITBA personnel during
performance.
9.9.11 L/H Contracts. L/H contracts based solely on labor hours shall be considered a
subcategory of T/M contracts, subject to the same restrictions as the T/M contract and
shall be used only after the RITBA Purchasing Agent has determined that no other type
of contract is suitable for meeting the needs of the requisitioner.
9.9.12 MPA Contracts. Considerations for use of an MPA contract:
9.9.12.1 The MPA shall specifically state the term and probable volume consideration
of the agreement.
9.9.12.2 The seller shall be authorized to ship to RITBA only those items specified by a
delivery request (on a form to be provided) issued under the authority of the
Master Pricing Agreement. RITBA is obligated for payment only to the extent
of the specific quantities set forth in the delivery request or for express
considerations applicable to the contract itself.
9.9.12.3 The specific category of items to be purchased may be listed in a catalog
prepared specifically for the agreement, a catalog of items offered for sale by
a supplier, a national catalog published by a catalog publishing firm, or such
other lists of items as may, from time to time, be determined as being a legally
sufficient description of the item or items being purchased.
9.10
CONSTRUCTION CONTRACTING MANAGEMENT
[37-2-39] Responsibility for selection of methods of construction contracting management. For
construction contracting management contracts exceeding One Million Dollars ($1,000,000), the
RITBA Executive Director shall provide for as many alternative methods of management of
construction contracting as he or she may determine to be feasible, setting forth criteria to be
used in determining which method of management of construction is to be used for a particular
project, and granting to the RITBA Board of Directors the discretion to select the appropriate
method of construction contracting for a particular project; provided, however, that the RITBA
Executive Director shall execute and include in the contract file a written statement setting forth
the facts which led to the selection of a particular method of management of construction
contracting in each instance.
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SECTION 10 - EXCEPTIONS TO COMPETITIVE BIDDING REQUIREMENTS
10.1
AUTHORITY TO MAKE EXCEPTIONS TO THE REQUIREMENT FOR
COMPETITION
In certain circumstances competitive bidding for purchases may not be the most cost-effective
approach to procurement. The RITBA Purchasing Agent may, with the approval of the RITBA
Executive Director, waive requirements for competitive sealed bidding in accordance with
Section 37-2-54 of the General Laws of Rhode Island, including without limitation in the
following circumstances:
10.1.1 Contractual services where no competition exists, such as telephone service, electrical
energy, and other public utility services;
10.1.2 Where rates are fixed by law or ordinance;
10.1.3 All other commodities, equipment and services which, in the reasonable discretion of the
RITBA Executive Director, are available from only one source;
10.1.4 Interests in real property;
provided, however, the RITBA Executive Director may require competitive bidding in any
circumstances where he deems that competition may enhance RITBA's ability to attain cost
savings.
10.2
GOODS OR SERVICES OBTAINED BY RITBA FROM A STATE AGENCY
Goods or services obtained by RITBA from a state agency, such as printing from Prison
Industries or use of Central Service Accounts, shall be exempt from competition. However,
internal service fund purchases shall be made in accordance with all policies and procedures for
competitive procurements. NOTE: Purchases of services from state higher educational
institutions are subject to competitive review and require the submission of Purchase Requisitions.
10.3
SMALL PURCHASES NOT EXCEEDING $250
Competitive bids shall not be required for purchase orders up to $250 in value if the prices are
considered to be reasonable; however, RITBA officials shall be encouraged to obtain informal
quotes.
10.3.1 Fair and Reasonable Price. It shall be the responsibility of RITBA personnel to exercise
good judgment as to what is a fair and reasonable price.
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10.3.2 Verification When Doubt as to Reasonableness. Specific action to verify the
reasonableness of a price shall be taken when it is suspected that the price may not be
reasonable, e.g., comparison to previous price paid or personal knowledge of the item
involved.
10.3.3 Equitable Distribution. When practicable, an effort shall be made so that purchase orders
up to $250 in value shall be distributed equitably among suppliers. Quotations should be
solicited from the previous supplier and other bidders prior to placing a repeat order so
as to ensure equitable distribution and enhance competition. Additional bidders should
be different from previously unsuccessful bidders. When practicable, effort shall be made
to solicit small disadvantaged minority or women-owned businesses.
10.3.4 Artificial Division of Larger Purchases Prohibited. Under no circumstance shall
purchases exceeding $250 be artificially divided into component parts to circumvent the
competitive process. Abuses of this limitation will be reported to the RITBA Executive
Director who will hold the responsible party accountable for violations.
10.4
SOLE SOURCE
[37-2-21(a)] A contract may be awarded for a supply, service, or construction item without
competition when the RITBA Executive Director determines, in writing, that there is only one
source for the required supply, service, or construction item.
10.4.1 Delegation to Purchasing Agent. The RITBA Executive Director may delegate the
authority for determination of sole source to the RITBA Purchasing Agent.
10.4.2 Sole Source Categories. Sole source categories may include:
10.4.2.1 items of a unique nature which are unavailable from other sources due to
patents or proprietary processes;
10.4.2.2 books, maps, periodicals, and technical pamphlets, films, video and audio
cassettes obtained from publishers;
10.4.2.3 certain computer software;
10.4.2.4 licenses - computer software, electronic transmittal;
10.4.2.5 specialized replacement/repair parts or expansion parts necessary to maintain
the integrity of system or function, e.g. scientific research;
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10.4.2.6 works of art for museum or public display;
10.4.2.7 specialized services for which there is only one documented accepted source,
such as transactions involving unique professional services and/or educational
institutions, e.g., visiting speakers or professors, and performing artists;
repair/maintenance agreements with manufacturers;
10.4.2.8 advertisements, public notices in magazines, trade journals, newspapers,
television;
NOTE: Purchase of advertising and public relations campaign services must
be established through a competitive selection process.
10.4.3 Continuing Responsibility to Evaluate Market. This provision excepting sole source
procurements from competitive bidding shall not be interpreted to reduce the
responsibility of RITBA to evaluate the market continuously to research product
alternatives and develop additional sources (distributors).
10.4.4 Alternative Distributors and Manufacturers. In attempting to achieve the goal of
maximizing competition to the greatest extent possible, alternative distributors and
manufacturers shall be pursued to sole source items by using compatible replacement
parts as long as warranties are not affected by substitution.
10.4.5 Maintenance Contracts. Maintenance contracts based upon sole source determination
shall be subject to the following:
10.4.5.1 Annual maintenance contracts in excess of $1,000 shall require approval by
the RITBA Executive Director.
10.4.5.2 All multi-year contracts shall require approval by the RITBA Executive
Director.
10.4.5.3 To achieve better pricing, when the total amount for all contracts with the
same supplier exceeds one thousand dollars ($1,000), RITBA shall
consolidate such requirements.
10.4.6 Nonprofit Providers. The RITBA Executive Director or his designee may, at his initiation
or upon the review of a justified request and/or recommendation from the RITBA
Executive Director, make a determination that a category of nonprofit providers
constitutes sole source suppliers for certain types of service.
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10.5
EMERGENCIES
[37-2-21(b)] Notwithstanding any other provision of the State Purchases Act or these
procurement rules, the RITBA Executive Director may make or authorize others to make
emergency procurements when there exists a threat to public health, welfare or safety under
emergency conditions as defined in regulations; provided, that such emergency procurements
shall be made with such competition as is practicable under the circumstances. A written
determination of the basis for the emergency and for the selection of the contractor shall be
included in the contract file.
10.5.1 Remedy or Repair Exceeding $250. In accordance with procedures established by the
RITBA Purchasing Agent, authorized officials of RITBA shall be permitted to react
quickly to critical situations when the cost for a remedy or repair is in excess of $250 and
there is not sufficient time to undertake a public, formal, or informal bidding process.
10.5.2 What Constitutes an Emergency. An emergency shall mean a situation to which an urgent
response is required. Immediate dangers to health and safety, threats to property and
necessary functions, and failures of critical equipment constitute emergencies.
10.5.3 Inadequate Anticipation. Inadequate anticipation of need shall not be considered
justification for "emergency" purchases.
10.5.4 Commitments Beyond Emergency. Commitments which extend beyond the immediate
response to the emergency shall be prohibited, i.e., prevention of future problems by
corrective measures other than the immediate restoration of function must be pursued
through the competitive purchasing process.
10.5.5 State Emergency Response List. The State Office of Purchases shall establish, through
competitive bidding, a list of emergency response vendors and shall make such list
available to RITBA.
10.5.5.1 When possible, RITBA shall obtain services from a list of vendors selected by
competitive process to provide specialized trade in emergencies.
10.5.5.2 If an emergency cannot be addressed by a designated vendor, the Office of
Purchases shall assist in obtaining names and telephone numbers of
responsible vendors.
10.5.6 Emergency Response Officer. Upon determination of the existence of an emergency,
RITBA's designated emergency response officer shall consult with the RITBA Purchasing
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Agent before committing to a particular vendor. The RITBA Purchasing Agent shall
maintain logs of all oral confirmations of authorization to proceed.
10.5.7 Emergency Outside of Business Hours. If the emergency occurs outside of business
hours for the RITBA division of purchases, RITBA shall be authorized to proceed in
accordance with the principles and policies of sound procurement practices outlined
herein.
10.5.8 Documentation. All emergency purchases shall be documented in accordance with
procedures established by the RITBA Purchasing Agent. RITBA shall maintain
documentation for the emergency situation and response action in writing. All emergency
documentation forms shall be signed by either the RITBA Executive Director or the
designated emergency response official.
10.6
STANDARD OR ESTABLISHED CATALOGUE ITEMS
Standard or established catalogue items may be identified by the RITBA Executive Director as
exceptions to competitive bidding. RITBA officials may submit requests and justification for
Delegated Purchase Authority for the acquisition of such items to the RITBA Purchasing Agent,
who shall recommend an appropriate course of action to the RITBA Executive Director.
10.7
EXPENDITURES WHICH ARE NOT PROCUREMENTS
10.7.1 Grants, Benefits, Entitlements, Subsidies and Reimbursements. Grants, benefits,
entitlements, subsidies and reimbursements shall not be considered procurements. The
following types of expenditures shall not be subject to the provisions of the State
Purchases Act for competitive procurement:
10.7.1.1 Reimbursement to local governments.
10.7.1.2 Reimbursements of third parties for client-demand services shall be
considered benefits for which competitive solicitation is not required.
10.7.1.3 Entitlements for specific recipients or categories of recipients as prescribed by
legislative mandate (including federal programs).
10.7.1.4 Grants, subsidies, entitlements or benefits purchased on behalf of, or paid
directly to, individuals.
10.7.1.5 Employee expenses, subsidies and benefits. Examples include but shall not be
limited to:
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(a) travel, meals, parking, mileage;
(b) allowances (e.g., tools, clothing) per union contract;
(c) fees - dues/membership, tuition costs, conference registration; and
(e) tests/examinations/certifications.
10.7.2 Responsibility of RITBA to Promote State Competition
10.7.2.1 RITBA may obtain services or provide programs on behalf of clients through
grants to nonprofit or other entities; however, the purchase of services and
programs for which recipients can be defined as suppliers/vendors shall be
obtained by a request for proposal procedure to obtain the advantages of
competition.
10.7.2.2 Nonprofit status shall not automatically exempt organizations from being
subject to competitive purchasing principles.
10.7.3 Special Provisions for Grants
10.7.3.1 Grants in the form of subsidies or general assistance shall be administered by
RITBA in accordance with legal mandates restricting or defining the use of
such funds.
10.7.3.2 All grant transactions shall be approved in accordance with requirements
established by the RITBA budget office.
10.7.3.3 Grants for the provision of programs, services, and facility improvements shall
not be provided without agreements or contracts which:
10.7.3.3.1 specify the purpose for the grant;
10.7.3.3.2 specify method and terms of payment;
10.7.3.3.3 define service or product, if required;
10.7.3.3.4 outline any legal limitations on the funding;
10.7.3.3.5 set a time limit for distribution of funds;
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10.7.3.3.6 require maintenance of records for a specified period of time;
10.7.3.3.7 provide for auditing; and
10.7.3.3.8 provide for termination of agreement/contract.
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