Pursuant to the authority vested in the Director of the Office of State Procurement by Ark. Code Ann. § 19-11-217 and in compliance with the Arkansas Procedure Act, Ark. Code Ann. § 25-15-201 et seq., the Director of the Office of State Procurement, with the approval of the Director of the Department of Finance and Administration, as evidenced by his signature below, does hereby promulgate and amend the following rules for the enforcement and administration of the Arkansas Procurement Code.
R3: 19-11-203.Proprietary SoftwareSoftware exemption under subsection (14)(BB) does not apply to the initial purchase of proprietary software. Nor does the exemption apply to the purchase of software that is part of any mandatory software contract. Exempt software purchases shall include the purchase of additional proprietary software licenses, copies, license renewals, software upgrades, and proprietary software support for proprietary software after the initial purchase.
R4: 19-11-203.Signatures definedThe definition of "signed" for the purposes of submitting a solicitation response can be found in the Uniform Commercial Code, Ark. Code Ann. § 4-1-201(39) (General Definitions), which "...includes any symbol executed or adopted by a party with present intention to authenticate a writing." Allowance should therefore be made for any mark or writing, whether printed or cursive, which that person uses as his signature. Electronic signatures shall also be permitted, unless otherwise prohibited by law, pursuant to Ark. Code Ann. § 25-32-107.
R5: 19-11-203.Tax-Supported Institutions defined." Tax-supported institutions" means institutions that derive at least fifty percent (50%) of their revenue by appropriation from a taxing jurisdiction.
R5: 19-11-217.State Certification.The State Procurement Director may create a statewide procurement training and certification program to advance state agency procurement personnel's knowledge.
R1: 19-11-221.Sale, acquisition or use of commodities by a public procurement unit.Department of Correction Industry Program.
(1) The Department of Correction is authorized to enter into contracts, purchase orders, compacts or agreements with the appropriate officials of agencies of other states or of the federal government for the buying and selling of raw materials, goods and products produced by and belonging to their respective institutions. The buying and selling of these materials will be for the purpose of producing finished products through a correctional industries program.(2) The Department of Correction shall be governed by Ark. Code Ann. § 12-30-101 et seq., § 12-30-201 et seq., and other appropriate laws when utilizing the provisions of these regulations. The procurement official/agent for the Department of Correction is authorized to enter into contracts, orders, compacts or agreements pursuant to these regulations.(3) Copies of all such contracts, orders, compacts or agreements entered into under the provisions of this regulation shall be kept by the Department of Correction with respect to all transactions, deliveries, and obligations under each contract, compact, or agreement(4) All records and reports required pursuant to this regulation shall be available to public inspection during normal business hours, and shall be retained for a period of five (5) years after completion of the contract, compact, or agreement.R1: 19-11-230Competitive sealed proposals Request for Proposals for which OSP is responsible shall be posted on the OSP website in adequate time to allow response.
R2: 19-11-230Competitive sealed proposalsConditions of use. The key element in determining the necessity for utilization of the competitive sealed proposal method is the type of evaluation required. Where evaluation involves the relative abilities of bidders to perform, including the degree of technical or professional experience, and price is not the only consideration, use of competitive sealed proposals is appropriate. Further, where the types of supplies or services may require the use of comparative, judgmental evaluation, competitive sealed proposals is the appropriate procurement method.
R3: 19-11-230.Competitive sealed proposals.Proposal submission.
(1) Bidders shall submit proposals at the place and on or before the date and time set in the Request for Proposal. Proposals received after the date and time designated for the proposal opening are considered late and shall not be considered.(2) All proposals and any modifications to the proposals previously filed, received prior to the date and time fixed for opening the proposals, shall be kept secure and unopened. If a proposal is submitted and the Request for Proposals number is not clearly marked to indicate the date and time of the proposal opening the State Procurement Director or agency procurement official shall make a reasonable attempt, including, but not limited to, opening, marking and resealing, to determine which Request for Proposal the submission is for, resealing it and shall open it formally at the date and time of that proposal opening.(3) Retrieval of a proposal for purposes of modification or withdrawal shall be permitted prior to date and time of opening upon positive identification of a bona fide representative of the business.R4: 19-11-230.Competitive sealed proposals.Request for Proposals opening. The names of the bidders may be read aloud. An abstract of proposals listing the names of bidders shall be prepared by the entity responsible for the RFP and shall be retained in the Request for Proposals file and shall be available for public inspection.
R5: 19-11-230.Competitive sealed proposals(a) Evaluation. The evaluation shall be based on the evaluation factors set forth in the Request for Proposals. All members of evaluation committees shall participate in Evaluation Committee Training sponsored either by OSP or the college or university agency procurement official. Evaluations will be conducted in accordance with the OSP Policy. A written recommendation shall be made by the evaluation committee and submitted by the chairperson to the State Procurement Director or agency procurement official stating the basis on which the recommendation for award was found to be most advantageous to the state.(b)(1) Responsibility of offeror. Past performance of an offeror may be used by the procurement agency to determine whether the offeror is "responsible." No points for past performance may be used in the evaluation scoring criteria. Past performance must be supported by written documentation not greater than three (3) years old. Documentation may be a formal Vendor Performance Report, an informal memo (signed and dated) or any other appropriate authenticated notation of performance to the vendor file. Reports, memos and files may be in electronic form. Past performance may be positive or negative. (i) Past performance on contracts from other Arkansas State Agencies may also be used for evaluation. Supporting documentation should be provided.(ii) Past performance evaluation should not take the place of suspension or debarment procedures.(2) The awarding of points for references may be used as evaluation scoring criteria if set forth in the solicitation.(c) Tie bids. In the event the evaluation of criteria and awarding of points result in a tie bid, the person responsible for awarding a contract must ensure that all offers meet specifications. An award will be made by lot (flip of a coin). The coin flip will be done in the presence of a witness by the person responsible for awarding the contract. The witness must be an employee of the State of Arkansas. Documentation of the coin flip must be included on the abstract or proposal history sheet and be signed by both parties.R6: 19-11-230.Rejection.Grounds for rejection of proposals include but shall not be limited to:
(1) failure of a proposal to conform to the essential requirements of a Request for Proposals;(2) a proposal imposing conditions which would modify the stated terms and conditions of the Request for Proposal;(3) any proposal determined by the procurement official in writing to be unreasonable as to price;(4) failure to furnish a bond when required by a Request for Proposals; and(5) any or all proposals when the procurement official makes a written determination that it is in the best interest of the State.R7: 19-11-230.Correction or withdrawal of proposals.(1) The State Procurement Director or agency procurement official may waive technicalities or minor irregularities in proposals which do not affect the material substance of the Request for Proposals when it is in the State's best interest to do so.(2) Amendments to proposals shall be allowed if the amendments are in writing and signed, are received prior to the date and time of the proposal opening, and clearly indicate the date and time of proposal opening and Request for Proposals number.(3) If there is a suspected proposal mistake, the State Procurement Director or agency procurement official may request confirmation of a proposal and shall request the confirmation to be made in writing. The response of any bidder who fails or refuses to clarify in writing within a reasonable time any matter contained in his proposal shall be rejected. The written clarification shall become a part of the contract awarded on the basis of that proposal.(4) Proposal prices shall not be increased after the date and hour of the proposal opening.(5) When a mistake in a proposal is claimed by the vendor prior to award and the evidence is clear and convincing that a material mistake was made in the proposal, and that due to such mistake the proposal submitted was not the proposal intended, the bidder may be permitted to withdraw his proposal.R8: 19-11-230.Negotiations.(a) Negotiation of Request for Proposals should be authorized in those cases where the best interests of the State are served. Negotiations are begun with the highest ranked offeror based on the scores as established in the Request for Proposals' scoring criteria. If a satisfactorily negotiated contract cannot be developed, the bidder may be declared non-responsive and time permitting, the negotiation process may be repeated with the next respondent deemed most likely to be awarded a contract.(b) Prior to negotiation, the Request for Proposals file must include documentation giving the stated purpose for the negotiation and the objective to be achieved.(c) An agency should investigate with the provider determined most likely to be awarded a contract, factors affecting the price, performance, and scope of services to be offered including current market conditions.(d) Prior to initiating negotiations, the agency must develop a plan to include at least: (1) The acceptable range of price, the desired "best" price and the highest acceptable price.(2) Adjustments to the scheduled delivery of services that may have an impact on price.(3) Acceptable modifications in the overall scope of work.(4) A prioritized list of acceptable changes in services that may result in price reduction.(5) Timetable for completion of negotiation.(e) No part of any negotiation plan shall be revealed to bidder(s) or made available for public review until after a contact award.(f) An acceptable negotiated contract shall list the agreed upon terms, conditions, specifications, quantities and pricing, and be signed by the agency and the provider.(g) All proposals may be rejected if, after evaluation of the proposals, including consideration of any clarifying or explanatory information submitted by the bidders, it is determined by the procurement official that no satisfactory proposal has been received.R9: 19-11-230.Cancellation of the Request for Proposals.A notice of cancellation of an OSP Request for Proposals shall be posted on the OSP website. The proposals may be returned if properly identified.
R10: 19-11-230.Ethical standards.In accordance with Ark. Code Ann. § 19-11-708(a), (b), and (c), the following statement must be conspicuously set forth in all contracts and solicitations costing more than $5,000: "It shall be a breach of ethical standards for a person to be retained, or to retain a person, to solicit or secure a state contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, except for retention of bona fide employees or bona fide established commercial selling agencies maintained by the contractor for the purpose of securing business."
R11: 19-11-230.Procedures for approval of information technology products or services obtained by competitive sealed proposals.Agencies must submit to the Department of Finance and Administration Office of Intergovernmental Services State Technology Planning (STP) any Invitation for Bid, (IFB), Request for Proposals (RFP) or Request for Qualifications (RFQ) for Information Technology products or services where the anticipated cost is $100,000.00 or more. In addition, any IFB, RFP or RFQ that includes Information Technology products or services as part of the IFB, RFP or RFQ, where that part may be $100,000.00 or more, must be submitted to STP for approval.
If approved by STP, a letter of approval must be submitted to the Office of State Procurement prior to release of the Request for Proposals. STP shall have ten (10) business days from receipt of the Request for Proposals documents to complete the necessary reviews. If the STP review is not completed within the time frame allowed, the agency and STP must mutually agree to an extension of the review process.
R1: 19-11-235.Nonresponsibility.(a)(1) Determination of responsibility is made prior to the award of a contract.(2) A non-responsible bidder or offeror is one who has been determined through evaluation of bid/offer to lack the capability, integrity and/or reliability to fully perform the contract.(b) Determination of responsibility may include, but not be limited to, one or any combination of the following:(1) the ability, capacity and skill to perform the contract or provide the service;(2) the responsibility and experience of the business;(3) the quality of performance on previous contracts or services;(4) the previous and existing compliance by the business with laws relating to the contract or services;(5) the sufficiency of the financial resources and ability of the bidder to perform the contract or provide the services.R1: 19-11-242.Agency commodity management procedures Disposition of commodities other than computers and electronic equipment.(a) Resale. Marketing and Redistribution ("M & R") shall make available to agencies and tax supported entities commodities in serviceable condition and/or commodities of potential use by agencies or tax supported entities for a twenty-day period prior to making them available to the general public. During the twenty-day hold period commodities shall be sold to agencies or tax supported entities by Marketing and Redistribution. Commodities that historically have not sold to agencies or tax supported entities or items that are unserviceable may be offered for sale to the general public without the requirement of the twenty-day hold period. The Director may waive the 20 day requirement when he determines that such waiver is in the state's best interest.(b) Intrastate Agency Sale. Commodities that are no longer needed by an agency may be sold to another agency by completing and submitting an Intrastate Agency Sale Form, which can be found on the M & R website under forms, to Marketing & Redistribution. This form shall be completed and forwarded electronically from the selling agency to the purchasing agency, then to M & R, where it is forwarded to DFA Office of Accounting for completion and transfer of funds.(c) Disposal. When commodities have no scrap or resale value, a certificate of property disposal ("CPD") form shall be submitted to Marketing and Redistribution, which shall then return to the requestor within ten (10) working days, a certificate of property disposal authorization, indicating the proper handling procedure for the commodities.(d) Cannibalization. "Cannibalization" means the process whereby a nonexpendable surplus or excess commodity is dismantled for parts to be used as replacements or as components of other machines or devices.(1) The disassembly of an item for use of its component parts for repair or maintenance of a similar item will only be authorized if such action has greater potential value and benefit than disposal or trade-in of the item in its existing form. Authorization for cannibalization shall be approved by Marketing and Redistribution prior to any disassembly or removal of components parts. If authorized, the item will be removed from the agency's property listing by the requesting agency. Any residual material remaining after cannibalization must be processed through Marketing and Redistribution. Requests for authorization for cannibalization shall be expedited. If properly marked, authorization should be returned to agency with ten (10) working days. It is understood that there may be no residual material remaining after cannibalization, but if any, residual material must be processed through Marketing and Redistribution.(2) Motor vehicles eligible to be registered for highway use (cars and trucks), whether registered or not, may be cannibalized after obtaining authorization from Marketing and Redistribution. These vehicles WILL NOT be removed from the property listing until the carcass of the vehicle has been disposed of by Marketing and Redistribution. In no event shall more than ninety days (90) elapse between the authorization of cannibalization and processing of the carcass by Marketing and Redistribution. These procedures do not exempt an agency from compliance with any other requirements relating to the disposal or acquisition of motor vehicles.(e) Handling of Surplus Equipment. Agencies with surplus items must contact Marketing and Redistribution to schedule a delivery or pick-up date. A Surplus Disposal Form ("SDF") shall be transmitted by the agency showing the agency name, address, phone number, contact person and listing of all items with serial and property numbers (if available). The Surplus Disposal Form will be processed by Marketing and Redistribution when the surplus items are delivered or picked up.R1: 19-11-243.Allocation of proceeds from sale or disposal of surplus commodities(a) Using agency. The allocation of proceeds from the sale, lease, or disposal of surplus commodities, and proceeds from an insurance policy for loss of property because of fire, storm or other causes, less appropriate fees, will be made and deposited to the using agency which had possession of the commodity. Such allocations and deposits will be made at the sooner of when the using agency's account balance has reached at least fifty dollars ($50.00) or the end of each fiscal year.(b) Fee schedule. The Office of State Procurement will develop a fee schedule to defray the costs of the commodity management program. The fee schedule will set forth various charges for services rendered.R1: 19-11-244.Protest Periods(a) The statute allows for two periods in which protests may be lodged. The first such period to protest is open to any "actual or prospective bidder, offeror, or contractor" who takes issue with the specifications contained in a solicitation. Such person may protest the solicitation in writing no later than seventy-two (72) hours before the date and time specified in the solicitation.(b) The second such period to protest is open only to those persons who actually submitted bids or responses to a solicitation. Such persons may protest the award of a contract in writing within fourteen (14) calendar days after they know or should have known of the facts giving rise to their protest.R3: 19-11-245.Authority to debar or suspend.(a) General. Any bidder or contractor to the state of Arkansas who, except for good cause shown, shall have done any of the matters listed in subsection (2) may be suspended or debarred from consideration for award of contracts.(b) Causes for debarment or suspension. The causes for debarment or suspension include, but are not limited to, the following:(1) conviction for commission of a criminal offense as an incident to obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract;(2) conviction under state or federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, or any other offense indicating a lack of business integrity or business honesty which currently, seriously, and directly affects responsibility as a state contractor;(3) conviction under state or federal antitrust statutes arising out of submission of bids or proposals;(4) violation of contract provisions, as set forth below, of a character which is regarded by the State Procurement Director or the head of a procurement agency to be so serious as to justify debarment action:(A) deliberate failure without good cause to perform in accordance with the specifications or within the time limit provided in the contract; or(B) a recent record of failure to perform or of unsatisfactory performance in accordance with the terms of one or more contracts; provided that failure to perform or unsatisfactory performance caused by acts beyond the control of the contractor shall not be considered to be a basis for debarment;(5) continuous failure to post bid or performance bonds, or to provide alternate bid or performance guarantee in the form acceptable to the procurement agency in lieu of a bond, as required by an invitation for bids or a solicitation for proposals;(6) substitution of commodities without the prior written approval of the contracting authority;(7) failure to replace inferior or defective commodities within a reasonable time after notification by the procurement agency or the agency to which such commodity has been delivered;(8) refusal to accept a contract awarded pursuant to the terms and conditions of the contractor's bid;(9) falsifying invoices, or making false representations to any state agency or state official, or untrue statements about any payment under a contract or to procure award of a contract, or to induce a modification in the price or the terms of a contract to the contractor's advantage;(10) collusion or collaboration with another bidder or other bidders in the submission of a bid or bids for the purpose of lessening or reducing competition;(11) falsifying information in the submission of an application for listing on a state vendor's list;(12) repeated failure of a vendor or any of its owners to pay all outstanding tax liabilities to the State of Arkansas;(A) "repeated failure" shall include, but not be limited to,(i) the existence of seven (7) or more certificates of indebtedness, liens, or other evidence of tax indebtedness that are in the public record during any biennial period;(ii) the suspension or revocation of a state excise tax permit or any other state permit for non-payment of taxes;(iii) the existence of three (3) or more writs of garnishment issued for non-payment of taxes during any biennial period;(B) This rule shall not apply to (i) tax debts that are the subject of an administrative or judicial proceeding contesting the validity of such debt until such proceedings are concluded and such tax debts are adjudicated to be valid, or(ii) any outstanding individual tax liability of a non-owner employee of a vendor or that of non-controlling, individual shareholders in a Subchapter C corporation;(13) any other cause the State Procurement Director or head of a procurement agency determines to be so serious and compelling as to affect responsibility as a state contractor, including debarment by any other governmental entity for any cause; or violation of the ethical standards set forth in Ark. Code Ann. § 19-11-708.(c) Debarment. Prior to any action for debarment, the Office of State Procurement or agency procurement official shall notify the bidder of the opportunity for a hearing at least fourteen (14) days prior to said hearing. Such notification shall state the facts of any allegation or claim. The State Procurement Director or the head of a procurement agency shall consult with the Attorney General or his designee prior to debarring a person for cause from consideration for award of contracts.(d) Debarment hearing. (1) The director or head of a procurement agency shall form a Committee composed of three qualified individuals, from government and private industry to hear the Debarment proceedings.(2) The Attorney General or his designee representing the Director or the head of a procurement agency will have the right to present evidence and elicit testimony from witnesses and cross examine opposing witnesses before the Committee.(3) The Contractor may be heard in person or by counsel, may cross-examine witnesses and may offer witnesses, documentary evidence and/or evidentiary depositions in defense of the debarment charges. The committee will subpoena witnesses for the Contractor upon timely request. Should Contractor fail to appear, the Committee shall proceed to hear the state's evidence and make its recommendations to the Director or head of a procurement agency.(4) After hearing the evidence the Committee will make recommendations to the Director or head of the procurement agency.(5) The Director or head of a procurement agency will receive the recommendation and review the record of the hearing and make a decision regarding the debarment.(e) Decision. The written decision concerning debarment will be sent to the contractor within 14 days and shall state the reasons for the action taken and shall inform the debarred person involved of his rights to judicial review.(f) Other remedies. The procedures in this section shall not preclude the taking of other action by the state, based on the same facts, as may be otherwise available, either at law or in equity.(g) Distribution of decisions. All agency procurement officials shall send a copy of any determination of debarment to the Office of State Procurement and the Office of State Procurement shall post the results of any debarment on the OSP website.R4: 19-11-265.Reporting of Contracts for Commodities including Services with a projected total cost greater than $250,000These are contracts where the purchase of the commodities/equipment includes services that an agency would not purchase independently.
R2: 19-11-902Work center certification(a) Before commodities and services may be procured from Work Centers, the Work Center will be required to maintain evidence of: certification from the United States Department of Labor as a "sheltered workshop" and a license from the Division of Developmental Disabilities Services of the Arkansas Department of Human Services or certification from Arkansas Rehabilitation Services.(b) Before commodities or services may be procured from a work center for the blind, such work center will be required to maintain evidence of certification from the Division of Services for the Blind of the Department of Human Services.R1: 19-11-1008Procedures for Approval of Architects, Engineers and Land Surveyor ContractsWith the exception of those agencies exempt from Arkansas Building Authority review, all contracts for architectural, engineering and land surveyor services must be first reviewed by the Arkansas Building Authority for its recommendation and approval as to the propriety and legality of the contract. Agencies shall submit contracts requiring ABA review in accordance with the time guidelines as prescribed on the Office of State Procurement website. After receiving the recommendation and approval of the Arkansas Building Authority, the Office of State Procurement of the Department of Finance and Administration shall review and prepare such contracts for their ultimate submission to the Arkansas Legislative Council or the Joint Budget Committee.
In the event Arkansas Building Authority refuses to give a favorable recommendation to the propriety of a contract, the agency involved may request the Legislative Council to review the decision of Arkansas Building Authority. The Legislative Council may then request the Arkansas Building Authority to review their previous decision, abide by the decision of the Arkansas Building Authority, or request the agency to make changes in the contract.
In no event shall the Arkansas Building Authority have the final authority to deny a contract solely on the basis of its propriety.
R2: 19-11-1012.Contract Dates.For each professional and consultant service contract, the agency is required to enter the beginning and ending date of the contract. The beginning date of all contracts shall be defined as the date upon which performance of the services to be rendered under the contract are to begin and not the date upon which the agreement was made. This date should be arrived at with emphasis placed on the following:
(a) any contract or amendment to a contract that requires review by the Legislative Council Committee must be submitted to the Department of Finance and Administration, Office of State Procurement, in accordance with the time guidelines as prescribed on the Office of State Procurement website. The beginning date of the contract must not precede the date of the Arkansas Legislative Council meeting in which such contract is to be reviewed. The Legislative Council or the Joint Budget Committee, when the General Assembly is in session, shall provide the Chief Fiscal Officer with their review as to the propriety of the contract within thirty (30) days of said submission;(b) all contracts greater than $25,000, unless specifically excepted, must be filed with the Department of Finance and Administration and/or the Office of Construction of the Arkansas Building Authority.R4: 19-11-1012.Professional and Consultant Service Contract Form Each contract should be completed and include the following information:(1) agency assigned contract number or outline agreement and amendment number. For those contracts for which payment will be made wholly or in part against a Method of Financing, enter the assigned Method of Financing on the contract form.(2) date the agreement was signed by the agency and the contractor, the outline agreement or contract number and the vendor number. Also enter the agency's code (or business area) and title, division, if applicable, and the contractor's Federal ID number, name and address.(3) funding source: State, Federal, Cash, Trust or Other (specify).(4) any resources to be provided by the agency to the contractor as part of the agreement.(5) name of the agency representative who will represent the agency in coordinating the work of the contractor.(6) disclose all information as required under the terms of any existing Executive Order. The contractor shall also require the subcontractor to disclose the same information. Any existing Contract and Grant Disclosure and Certification Form shall be used for this purpose.R1: 22-8-102.Authority of Director(a) For the purposes of this subsection, "the director" shall refer to the Director of the Office of State Procurement.(b) All state agencies shall submit a written request to the State Procurement Director specifying all needed requirements for a lease of a vehicle. The Office of State Procurement will issue the solicitation based upon the criteria set forth by the agency to determine the lowest responsible and responsive bidder. The Office of State Procurement will award the contract for the lease after review by the Arkansas Legislative Council, or Joint Budget Committee when the General Assembly is in session.006.27.12 Ark. Code R. 001