Mo. Code Regs. tit. 7 § 10-11.020

Current through Register Vol. 49, No. 18, September 16, 2024

Section 7 CSR 10-11.020 - Procedures for Solicitation, Receipt of Bids, and Award and Administration of Contracts

PURPOSE: This amendment will add clarity to paragraph (5)(B)2. of this rule, add the word business to specify days in subsection (5)(C) and section (10) of this rule, as well as align the dollar amounts to current bid limits, and to provide instruction in the event of a bid protest in subsection (10)(B) of this rule.

(1) Informal Procurement Methods. When the procurement is estimated to be less than twenty-five thousand dollars ($25,000), an informal method of solicitation may be utilized. Informal methods of procurement may include invitation for quotation (IFQ), telephone quotes, etc.

(A) The division will establish a target date and time for submission of quotations.

(B) The division may proceed with the evaluation and award any time after the expiration of the target date and time. Quotations received after the target date and time, but before the award of a contract, may be included in the evaluation at the discretion of the division.

(2) Request for Bid/Invitation for Bid. A formal method of solicitation will be used when the procurement is estimated to be twenty-five thousand dollars ($25,000) or more. The formal method of solicitation will be either an invitation for bid (IFB) or request for bid (RFB), etc.

(A) In a formal solicitation, sealed responses will be submitted to the division, or a secured electronic database, by the time set for the opening of bids.

(B) Formal bids received after the time set for the opening of bids will not be opened.

(C) After the bid opening, all bids received in response to an IFB are available for public review.

(D) When the division decides in its discretion that all bids are unacceptable and circumstances do not permit a rebid, negotiations may be conducted by the division with only those bidders who submitted bids in response to the IFB. Upon determination that negotiations will be conducted, the bids and related documents will be closed to public viewing in accordance with section 610.021, RSMo.

(3) Request for Proposals. Formal request for proposal (RFP) solicitation methods will be used when the procurement requires the utilization of competitive negotiation.

(A) In response to an RFP, sealed responses will be submitted to the division, or a secured electronic database, by the time set for the opening of the proposals.

(B) Formal proposals received after the time set for the opening of bids/proposals will not be opened.

(C) Proposals received in response to an RFP are available for public review after a contract is executed or all proposals are rejected.

(D) Offerors who obtain information concerning a competitor's proposal may be disqualified for consideration for a contract award.

(4) Indefinite Delivery Contracts (IDC). IDC may be utilized for facility maintenance, construction, repair, rehabilitation, renovation, or alteration services of a recurring nature when the delivery times and quantities are indefinite with a total cost of less than twenty-five thousand dollars ($25,000).

(5) Single Feasible Source. The division may waive the requirement of competitive bids or proposals for supplies when the division has determined in writing that there is only a single feasible source for the supplies. Immediately upon discovering that other feasible sources exist, the division shall rescind the waiver and proceed to procure the supplies through the competitive processes as described in this rule.

(A) A single feasible source exists when-

1. Supplies are proprietary and only available from the manufacturer or a single distributor; or

2. Based on past procurement experience, it is determined that only one (1) distributor services the region in which the supplies are needed; or

3. Supplies are available at a discount from a single distributor for a limited period of time.

(B) When the single feasible source procurement method is utilized, the following guidelines will be used:

1. The following guidelines may be utilized to determine if supplies can be purchased as a single feasible source due to being proprietary:

A. The parts are required to maintain validity of a warranty;

B. Additions to a system must be compatible with original equipment;

C. Only one (1) type of computer software exists for a specific application;

D. Factory authorized maintenance must be utilized to maintain validity of a warranty;

E. The materials are copyrighted and are only available from the publisher or a single distributor; or

F. The services of a particular provider are unique, e.g., entertainers, authors, etc.;

2. If past procurement activity indicates only one (1) bid has been submitted in a particular region, a single feasible source procurement may be authorized. In these situations, the division will monitor the market for developing competition; and

3. The following guidelines may be utilized to determine if supplies may be purchased as a single feasible source due to being available at a discount for a limited period of time:

A. The discounted price is compared to a price established through a reasonable market analysis; and

B. The discounted price should normally be at least ten percent (10%) less than the current contract or other comparable price. A discount of less than ten percent (10%) may be acceptable under appropriate market conditions. The discount should be compared to a price which, where feasible, is within the most recent twelve (12) months.

(C) The division shall post any proposed single feasible source purchase with an estimated expenditure of ten thousand dollars ($10,000) or more. The proposed purchase will be advertised through an electronic medium available to prospective bidders or offerors and the general public at least five (5) business days before the contract is to be awarded. Advertising may be waived, if not feasible, due to the supplies being available at a discount for only a limited period of time.

(6) Emergency Procurement. When conditions meet the criteria of an emergency situation as defined in 7 CSR 10-11.010, emergency procurement procedures may be utilized. Formal competitive bids or proposals may be waived, but an emergency procurement should be made with as much informal bidding as practicable. Only those supplies which are necessary to alleviate the emergency may be purchased using emergency procedures.

(7) Cooperative Procurement. When circumstances dictate that it would be most advantageous, the division may purchase supplies from or in cooperation with another governmental entity.

(A) Supplies purchased from another governmental entity should be limited to those supplies which are provided directly by such entity.

(B) Supplies purchased in cooperation with another governmental entity may be purchased based on contracts established in accordance with that entity's laws and regulations.

(8) Applicable Procedures. Regardless of the solicitation method utilized, the following procedures apply:

(A) All solicitation documents will use standardized terms and conditions;

(B) The division may request bids/proposals for new equipment employing the trade-in of used equipment. The solicitation document may request pricing with a trade-in and without a trade-in;

(C) The division may require bid/proposal, payment, and/or performance bonds. The solicitation document shall identify the acceptable form and amount of any required bid/proposal, payment, and/or performance bond. In addition-

1. The bid/proposal bond of unsuccessful vendors may be returned after the finalization of the award to the successful vendor. If the successful vendor fails to execute the contract with the commission, the amount of the bid/proposal bond of the successful vendor may be forfeited to the commission.

2. The bid/proposal bond of the successful vendor may be returned after the receipt of the successful vendor's payment and/or performance bond. If the contractor fails to submit the payment and/or performance bond as required, the bid/proposal bond may be forfeited to the commission and the contract voided;

(D) In the event the division receives a container which is not identifiable as responsive to a specific bid/proposal, an authorized person within the division may open the container to determine the contents. If the contents are determined to be responsive to a division bid/proposal, the container will be resealed and the solicitation number, opening date, and time will be noted on the outside and included with all bids at the official time for opening the responses;

(E) After the bid/proposal opening, a vendor may be permitted to withdraw a bid/proposal prior to award at the sole discretion of the division if there is a verifiable error in the bid/proposal and enforcement of the bid would impose an unconscionable hardship on the vendor. This withdrawal will be considered only after receipt of a written request and supporting documentation from the vendor. The vendor's sole remedy for an error other than an obvious clerical error is bid withdrawal. Withdrawal of a bid/proposal may result in forfeiture of the bid/proposal bond;

(F) For bids/proposals with a value of twenty-five thousand dollars ($25,000) or more, a ten percent (10%) preference is given to bidders/offerors who can certify that goods or commodities to be provided in accordance with the contract are manufactured or produced in the United States or imported in accordance with a qualifying treaty, law, agreement, or regulation over bidders whose products do not qualify. Failure to provide a certification may result in forfeiture of any preference. This preference does not apply to bids/proposals for goods or commodities purchased with federal funds;

(G) In addition to cost, subjective judgment may be utilized in the evaluation of bids/proposals provided the method is published in the solicitation document;

(H) The division may request samples to be provided free of charge for evaluation purposes. Samples not destroyed by testing will be returned at the vendor's expense if return of the samples is stipulated in the vendor's bid/proposal. Samples submitted by a vendor who receives the award may be kept for the duration of the contract for comparison with shipments received;

(I) During the course of a solicitation, vendors may be required to demonstrate proposed products or services under coordination of the division;

(J) Applicable preference statutes will be applied when bids are equal in all respects. If bids are equal in all respects after all applicable statutory preferences are applied, a formal drawing of lot will be used to award the contract. Whenever practical, the drawing will be held in the presence of the vendors who are considered equal. If this is not practical, the drawing will be witnessed by a disinterested person;

(K) The division may make multiple awards from a single solicitation document when such awards are in the best interest of the commission as determined in the sole discretion of the division;

(L) The solicitation file or facsimile thereof shall be made available to the public for inspection at any time after an award is made; and

(M) The approval of the division is required prior to shipment or performance when substitution of items, personnel, or services is proposed, unless otherwise specified in the contract.

(9) Minority and Women Business Enterprises. The division will encourage participation in the procurement process and fairness in consideration of bids/proposals submitted by Minority Business Enterprises (MBEs) and Women Business Enterprises (WBEs). Programs/procedures designed to accomplish these objectives may include: inclusion of MBE/WBE subcontractor requirements in solicitation documents, close review of bond requirements, targeted notice of procurement opportunities, utilization of minority and women personnel on evaluation committees, etc.

(10) Bid Protest. A bid or proposal award protest must be submitted in writing to the director or designee and received by the division within ten (10) business days after the date of award. If the tenth day falls on a Saturday, Sunday, or state holiday, the period will extend to the next state business day. A protest submitted after the ten- (10-) business-day period shall not be considered.

(A) The written protest should include the following information:

1. Name, address, and phone number of the protester;

2. Signature of the protester or the protester's representative;

3. Solicitation number;

4. Detailed statement describing the grounds for the protest; and

5. Supporting exhibits, evidence, or documents to substantiate claim.

(B) A protest which fails to contain the information listed above may be denied solely on that basis. All protests filed in a timely manner will be reviewed by the director or designee. The director or designee will only issue a determination on the issues asserted in the protest. A protest, which is untimely or fails to establish standing to protest, will be summarily denied. In other cases, the determination will contain findings of fact, an analysis of the protest, and a conclusion that the protest will either be sustained or denied. If the protest is sustained, remedies include canceling the award. If the protest is denied, no further action will be taken by the division.

(11) Award. A contract or purchase order is awarded based on the terms and conditions in the solicitation document. The director's discretion may be utilized in the evaluation of bids/proposals provided the evaluation categories and the relative percentage of impact are published in the solicitation document.

(A) Any bid/proposal failing to agree to, and comply with, all terms, conditions, and specifications stated in the solicitation document is considered nonresponsive to the solicitation and shall not be considered for the award of a contract or purchase order.

(B) The commission may reject all bids/proposals and may waive any minor informality or irregularity in a bid/proposal. The commission also may make multiple awards from a single solicitation document when permitted by the solicitation document.

(12) Corrections to Bid/Proposal Documents. When preparing a bid/proposal, a bidder/offeror may correct an error by marking it out or erasing it. The change should be initialed by the person signing the bid/proposal. Alterations or amendments to bid/proposals cannot be made after the time and date specified for the opening of bids/proposals. In the case of errors in the extension of price, the unit price will govern.

(13) Cancellation of Solicitation. The division may cancel a solicitation document at any time without cause.

(14) New Supplies. All supplies and equipment offered and furnished must be new and of current production unless the solicitation document specifically permits the offer of used items.

(15) Rejection of Supplies. Products, equipment, or items delivered that do not meet the specifications of the contract may be rejected. When rejected, the vendor must make immediate replacement in accordance with the specifications of the contract.

(16) Inspection. All materials, equipment, and supplies may be inspected and tested by the department. Items that do not meet the specifications of a contract may be rejected. The contractor is not relieved of any liability under the contract if the division fails to reject upon receipt or after part or all of the items have been consumed.

(17) Services. Services which have not been performed in accordance with specifications or the scope of work of a contract may be rejected. The vendor is not relieved of any liability under the contract if the division fails to reject upon receipt or after part or all of those services have been performed.

(18) Assignment. A contractor must request permission from the commission, in writing, to assign a contract or order. The division, acting on behalf of the commission, will provide written permission, if the division agrees to the request.

(19) Arbitration. The commission, unless specifically agreed upon by the parties in writing, shall not be bound by a compulsory arbitration or other compulsory dispute resolution provision which is present in any of vendor's forms or boilerplate.

7 CSR 10-11.020

AUTHORITY: sections 226.020, 226.130, 227.030, and 227.210, RSMo 2000.* Original rule filed April 5, 1993, effective Oct. 10, 1993. Rescinded and readopted: Filed June 5, 2009, effective Jan. 30, 2010.

Amended by Missouri Register November 15, 2018/Volume 43, Number 22, effective 12/31/2018

Amended by Missouri Register September 15, 2022/Volume 47, Number 18, effective 10/31/2022

*Original authority: 226.020, RSMo 1939; 226.130, RSMo 1939, amended 1993, 1995; 227.030, RSMo 1939; and 227.210, RSMo 1939.