3-203.01 General Provisions(a)Conditions for Use: When, under regulations approved by the PSCRB, the Agency Head determines that the use of competitive sealed bidding is either not practicable or not advantageous to the State, a contract may be entered into by competitive sealed proposals. (b)Request for Proposal: Proposals shall be solicited through a Request for Proposal. (c)Public Notice: Adequate public notice of the Request for Proposal shall be given in the same manner as provided in Section 3-202.01(c) and 3-202.06 (Competitive Sealed Bidding, Public Notice). (d)Receipt of Proposals: Proposals shall be opened so as to avoid disclosure of contents to competing offerors during the process of negotiation. The agency shall prepare and keep a Register of Proposals which shall be open for public inspection after contract award. The Register of Proposals shall indicate the name of all vendors submitting proposals. (e)Evaluation Factors: The Request for Proposal shall state the relative importance of price and other evaluation factors in terms of important, very important, and critical. (f)Discussions with Responsible Offerors and Revisions to Proposal: If provided in the Request for Proposal and as set forth in these regulations, discussions may be conducted with responsible offerors who submit proposals determined to be reasonably susceptible to being selected for award. The discussions shall be for the purpose of clarification to assure full understanding of, and responsiveness to, the solicitation requirements. In conducting discussions, there shall be no disclosure of any information derived from competing offers. Offerors should be accorded fair and equal treatment with respect to any opportunity for discussion. Revision of proposals may be permitted after submissions and prior to award for the purpose of obtaining best and final offers. (g)Award: Award shall be made to the responsible offeror whose proposal is determined in writing to be the most advantageous to the State taking into consideration price and the evaluation factors set forth in the Request for Proposal. No other factors or criteria shall be used in the evaluation. 3-203.02Application The provisions of this section apply to every procurement of personal or professional services made by competitive sealed proposals.
3-203.03Conditions for Use of Competitive Sealed Proposals3-203.03.1"Practicable" Distinguished from "Advantageous" As used in Section 3-203.01 (Competitive Sealed Proposals, Conditions for Use), the words "practicable" and "advantageous" are to be given ordinary dictionary meanings:
(a)practicable means what may be accomplished or put into practical application; and, (b)advantageous means a judgmental assessment of what is in the State's best interest. Competitive sealed bidding may be practicable but not necessarily advantageous; that is, not in the State's best interest. 3-203.03.2General Discussion If competitive sealed bidding is not practicable, competitive sealed proposals should be used. If competitive sealed bidding is practicable, it must then be determined whether competitive sealed bidding is advantageous. If competitive sealed bidding is determined not to be advantageous, competitive sealed proposals should be used.
3-203.03.2.1Flexibility vs. Finality(a) Flexibility: The key element in determining advantageousness is the need for flexibility vs. the need for finality. The competitive sealed proposals method differs from competitive sealed bidding in that competitive sealed proposals: 1) permit discussions with competing offerors and changes in their proposals including price; and, 2) allow comparative judgmental evaluations to be made when selecting among acceptable proposals for award of the contract. (b) Finality: Another important difference between competitive sealed proposals and competitive sealed bidding is the finality of initial offers. Under competitive sealed proposals, alterations in the nature of a proposal and in prices may be made after proposals are opened. Such changes are not allowed under competitive sealed bidding (except to the extent allowed in the first phase of multi-step sealed bidding). Therefore, unless it is anticipated that a contract can be awarded solely on the basis of information submitted by bidders at the time of opening, competitive sealed bidding is neither practicable nor advantageous. 3-203.03.2.2Evaluation Factors Another consideration concerns the type of evaluations needed after offers are received. Where evaluation factors involve the relative abilities of offerors to perform, including degrees of technical or professional experience or expertise, use of competitive sealed proposals is the appropriate procurement method. Additionally, use of competitive sealed proposals is appropriate where the type of need to be satisfied involves weighing artistic and aesthetic values to the extent that price is a secondary consideration. Finally, where the types of services to be performed may require the use of comparative judgmental evaluations to evaluate them adequately, use of competitive sealed proposals is the appropriate method.
3-203.03.3When Competitive Sealed Bidding is Not Practicable Competitive sealed bidding is not practicable unless the nature of the procurement permits award to a low bidder who agrees by its bid to perform without condition or reservation in accordance with the purchase description, delivery or performance schedule, and all other terms and conditions of the Invitation for Bid. Factors to be considered in determining whether competitive sealed bidding is or is not practicable include:
(a) whether the contract needs to be other than a fixed-price type; (b) whether oral or written discussions may need to be conducted with offerors concerning technical and price aspects of their proposal; (c) whether offerors may need to be afforded the opportunity to revise their proposal including price; (d) whether award may need to be based upon a comparative evaluation as stated in the Request for Proposal of differing price, quality, and contractual factors in order to determine the most advantageous offering to the State (quality factors include technical and performance capability and the content of the technical proposal); and, (e) whether the primary consideration in determining award may not be price. 3-203.03.4When Competitive Sealed Bidding is Not Advantageous A determination may be made to use competitive sealed proposals if it is determined that it is not advantageous to the State, even though practicable, to use competitive sealed bidding. Factors to be considered in determining whether competitive sealed bidding is not advantageous include:
(a) if prior procurements indicate that competitive sealed proposals may result in more beneficial contracts for the State; and, (b) whether the factors listed in Subsections 3-203.03.3(b) through (d) of this section are desirable in conducting a procurement rather than necessary; if they are, then such factors may be used to support a determination that competitive sealed bidding is not advantageous. Note:The following is offered as an example of circumstances when formal competitive sealed bidding is "practicable" but not "advantageous."
It could be "practicable" to invite competitive sealed bids on a functional specification prepared by the State for services that are highly specialized such as producing job classifications; however, the contract award would likely better serve the State's interest if it were made on the basis of the most advantageous proposal rather than the lowest responsive and responsible bidder. For this reason, it would not be "advantageous" to the State to take competitive sealed bids; that is, the State's specification could conceivably result in an acceptable product, but another could have been obtained more economically and in a form that would better serve the needs of the State. Competitive sealed proposals would also afford the opportunity to discuss design characteristics with the offerors as the discussions proceeded.
3-203.03.5Determinations to be Made Before Competitive Sealed Proposals May Be Utilized Before a contract may be entered into by competitive sealed proposals, the Agency Head shall make the following determinations:
(a) that competitive sealed bidding is either not practicable or not advantageous to the State; (b) that the agency does not have the personnel or resources to perform the services required under the proposed contract, or that the services can be performed more economically by someone other than state personnel; (c) the nature of the relationship to be established between the using agency and the contractor of the proposed contract; and, (d) that the using agency has developed and fully intends to implement a written plan for utilizing such services which will be included in the contractual statement of work. 3-203.04Content of the Request for Proposal3-203.04.1Preparation of the Request for Proposal The Request for Proposal shall be prepared in accordance with Section 3-203.03 (Conditions for Use of Competitive Sealed Proposals) regarding Invitation for Bid provided that it shall also include:
(a) a statement that discussions may be conducted with offerors who submit proposals determined to be reasonably susceptible of being selected for award, but that proposals may be accepted without such discussions; and, (b) a statement of when and how price should be submitted. 3-203.04.2Form of the Request for Proposal The Request for Proposal shall be in the form specified by the Procurement Officer and contain at least the following information:
(a) type of services required; (b) a description of the work involved; (c) an estimate of when and for how long the services will be required; (d) the type of contract to be used; (e) a date by which proposals for the performance of the services shall be submitted; (f) a statement that the proposals shall be in writing; (g) a statement that offerors may designate those portions of the proposals which contain trade secrets or other proprietary data which may remain confidential in accordance with Mississippi Code Annotated §§ 25-61-9 and 79-23-1 (1972, as amended); (h) a statement of minimum information that the proposal shall contain, including: (1) the name of the offeror, the location of the offeror's principal place of business and, if different, the place of performance of the proposed contract; (2) the age of the offeror's business and average number of employees over a previous period of time, as specified in the Request for Proposal; (3) the abilities, qualifications, and experience of all persons who would be assigned to provide the required services; (4) a listing of other contracts under which services similar in scope, size, or discipline to the required services were performed or undertaken within a previous period of time, as specified in the Request for Proposal; and, (5) a plan giving as much details as is practical explaining how the services will be performed. (i) the factors to be used in the evaluation and selection process and their relative importance. (See Appendix B for sample Request for Proposal.) 3-203.05Proposal Preparation Time Proposal preparation time shall be set to provide offerors a reasonable time to prepare their proposals.
3-203.06Form of Proposal The manner in which proposals are to be submitted, including any forms to be used, may be included as part of the Request for Proposal.
3-203.07Public Notice Public notice shall be given by distributing the Request for Proposal in the same manner provided for distributing an Invitation for Bid under Section 3-202.06 (Public Notice).
3-203.08Pre-proposal Conferences Pre-proposal conferences may be conducted in accordance with Section 3-202.07 (Pre-Bid Conferences). Any such conference should be held prior to submission of initial proposals.
3-203.09Amendments to Requests for Proposals Amendments to Requests for Proposals may be made in accordance with Section 3-202.08 (Amendments to Invitations for Bids) prior to submission of proposals. After submission of proposals, amendments may be made in accordance with Section 3-202.19.2 (Procedure for Phase-One of Multi-Step Sealed Bidding, Amendments to the Invitation for Bid).
3-203.10Modification or Withdrawal of Proposals Proposals may be modified or withdrawn prior to the established due date in accordance with Section 3-202.09 (Pre-Opening Modification or Withdrawal of Bids). For the purposes of this section and Section 3-203.11 (Late Proposals, Late Withdrawals, and Late Modifications) below, the established due date is either the time and date announced for receipt of proposals or receipt of modifications to proposals, if any; or if discussions have begun, it is the time and date by which best and final offers must be submitted, provided that only offerors who submitted timely proposals may submit best and final offers.
3-203.11Late Proposals, Late Withdrawals, and Late Modifications Any proposal, withdrawal, or modification received after the established due date is late. See Section 3-203.10 (Modification or Withdrawal of Proposals) for the definition of "established due date." Any proposal, withdrawal, or modification not received at the place designated for receipt of proposals is late. Late proposals, withdrawals, or modifications may only be considered in accordance with Section 3-202.10 (Late Bids, Late Withdrawals, and Late Modifications).
3-203.12Receipt and Registration of Proposals Proposals shall not be opened publicly but shall be opened in the presence of two or more agency officials. Proposals and modifications shall be date-stamped or time/date-stamped upon receipt and held in a secure place until the established due date.
After the date established for receipt of proposals, a Register of Proposals shall be prepared by the Procurement Officer which shall include for all proposals:
(a) the name of each offeror; (b) the number of modifications received, if any; and, (c) a description sufficient to identify the service offered. The Register of Proposals shall be open to public inspection only after award of the contract. Proposals and modifications shall be shown only to personnel having a legitimate interest in them.
3-203.12.1Requests for Nondisclosure of Data If the offeror selected for award has requested in writing the nondisclosure of trade secrets and other proprietary data so identified, the Procurement Officer shall examine the request in the proposal to determine its validity prior to entering negotiations. If the parties do not agree as to the disclosure of data in the contract, the Agency Head shall inform the offeror in writing what portion of the proposal will be disclosed and that unless the offeror withdraws the proposal, the proposal will be so disclosed.
3-203.13 Evaluation of Proposals3-203.13.1Evaluation Factors in the Request for Proposal The Request for Proposal shall state all of the evaluation factors, including price, and their relative importance.
3-203.13.2Evaluation The evaluation shall be based on the evaluation factors set forth in the Request for Proposal. Numerical rating systems may be used but are not required. Factors not specified in the Request for Proposal shall not be considered. The following factors shall be listed and shall be considered in conducting the evaluation. The relative importance of these and other factors will vary according to the type of services being procured. The minimum factors are:
(a) the plan for performing the required services; (b) ability to perform the services as reflected by technical training and education, general experience, specific experience in providing the required services, and the qualifications and abilities of personnel proposed to be assigned to perform the services; (c) the personnel, equipment, and facilities to perform the services currently available or demonstrated to be made available at the time of contracting; (d) a record of past performance of similar work; and, 3-203.13.3Classifying Proposals For the purpose of conducting discussions under Section 3-203.14 (Proposal Discussions with Individual Offerors) below, proposals shall be initially be classified as:
(b) potentially acceptable (that is, reasonably susceptible of being made acceptable); or, (c) unacceptable. Offerors whose proposals are unacceptable shall be sent written notification promptly. The notification should state their proposal was deemed unacceptable and should include a specific reason or reasons for it being declared unacceptable.
3-203.14Proposal Discussions with Individual Offerors3-203.14.1"Offerors" Defined For the purposes of Section 3-203.01(f) (Competitive Sealed Proposals, Discussion with Responsible Offerors and Revisions to Proposals) and this section, the term "offerors" includes only those businesses submitting proposals that are acceptable or potentially acceptable. The term does not include businesses which submitted unacceptable proposals.
3-203.14.2Purposes of Discussions Discussions may be held to:
(a) promote understanding of the State's requirements and the offeror's proposals; (b) facilitate arriving at a contract that will be most advantageous to the State taking into consideration price and the other evaluation factors set forth in the Request for Proposal; and, (c) determine in greater detail such offeror's qualifications. 3-203.14.3Conduct of Discussions Offerors shall be accorded fair and equal treatment with respect to any opportunity for discussions and revisions of proposals. The Procurement Officer should establish procedures and schedules for conducting discussions. If, during discussions, there is a need for any substantial clarification of or change in the Request for Proposal, the Request for Proposal shall be amended to incorporate such clarification or change. Auction techniques (revealing one offeror's price to another) and/or disclosure of any information derived from competing proposals are prohibited. Any substantial oral clarification of a proposal shall be reduced to writing by the offeror. The Procurement Officer shall keep a record of the date, place, and purpose of meetings and those attending and place same in the agency's procurement file.
3-203.14.4Best and Final Offers If allowed by the Request for Proposal and if necessary for proper evaluation, the Procurement Officer shall establish a common date and time for the submission of best and final offers. Best and final offers shall be submitted only once; provided, however, the Agency Head may make a written determination that it is in the State's best interest to conduct additional discussions or change the State's requirements and require another submission of best and final offers. Otherwise, no discussion of or changes in the best and final offers shall be allowed prior to award. Offerors shall also be informed that if they do not submit a notice of withdrawal or another best and final offer, their immediate previous offer will be construed as their best and final offer.
3-203.15Mistakes in Proposals3-203.15.1Modification or Withdrawal of Proposals Proposals may be modified or withdrawn as provided in Section 3-203.10 (Modification or Withdrawal of Proposals).
3-203.15.2Confirmation of Proposal When the Procurement Officer knows or has reason to conclude before award that a mistake has been made in a proposal, such officer should request the offeror to confirm that the proposal is correct. If the offeror alleges mistake, the proposal may be corrected if the conditions set forth in Subsection 3-203.15.3 through 3-203.15.5 below are met.
3-203.15.3Mistakes Discovered after Receipt of Proposals but Before Award This subsection sets forth procedures to be applied in four situations in which mistakes in proposals are discovered after receipt of proposals but before award:
(a)During Discussions, Prior to Best and Final Offers: Once discussions are commenced with any offeror or after best and final offers are requested, any offeror may freely correct any mistake by modifying or withdrawing the proposal until the time and date set for receipt of best and final offers; (b)Minor Informalities: Minor informalities, unless otherwise corrected by an offeror as provided in this section, shall be treated as they are under competitive sealed bidding. See Section 3-202.12.4 (a) (Mistakes in Bids, Mistakes Discovered After Opening But Before Award); (c)Correction of Mistakes: If discussions are not held or if the best and final offers upon which award will be made have been received, mistakes may be corrected and the intended correct offer considered only if: (1) the mistake and the intended correct offer are clearly evident on the face of the proposal; or, (2) the mistake is not clearly evident on the face of the proposal, but the offeror submits proof of evidentiary value which clearly and convincingly demonstrates both the existence of a mistake and the intended correct offer, and such correction would not be contrary to the fair and equal treatment of other offerors. (d)Withdrawal of Proposals: If discussions are not held or if the best and final offers upon which award will be made have been received, the offeror may be permitted to withdraw the proposal if: (1) the mistake is clearly evident on the face of the proposal and the intended correct offer is not; (2) the offeror submits proof of evidentiary value which clearly and convincingly demonstrates that a mistake was made but does not demonstrate the intended correct offer; or, (3) the offeror submits proof of evidentiary value which clearly and convincingly demonstrates the intended correct offer but to allow correction would be contrary to the fair and equal treatment of the other offerors. 3-203.15.4Mistakes Discovered After Award Mistakes shall not be corrected after award of the contract except when the Agency Head finds it would be unconscionable not to allow the mistake to be corrected.
3-203.15.5Determinations Required When a proposal is corrected or withdrawn, or correction or withdrawal is denied under Subsections 3-203.15.3(b), (c), (d), or 3-203.15.4, a written determination shall be prepared and maintained in the agency procurement file showing that relief was granted or denied in accordance with these regulations. The Agency Head shall prepare the determination, except under Subsection 3-203.15.3(b), the determination may be prepared by the Procurement Officer.
3-203.16Award The Procurement Officer shall make a written determination showing the basis on which the award was found to be most advantageous to the State based on the factors set forth in the Request for Proposal.
3-203.17Publicizing Award Written notice of award shall be sent to all offerors. Notice of award shall be made available to the public.
27 Miss. Code. R. 1-3-203