Basic Procurement Law Office of the Inspector General

Basic Procurement Law Office of the Inspector General Commonwealth of Massachusetts MA Association of School Business Officials December 2, 2011 1

Massachusetts Procurement Laws p M. G. L c. 30 B: Supplies, services and interests in real property p M. G. L. c. 149: Building (vertical) construction p M. G. L. c. 30, § 39 M: Public works (horizontal) construction p M. G. L. c. 7, §§ 38 A½-38 O (Designer Selection Law): Design (architectural) services for building projects 2

Supervisory Agencies p Office of the Inspector General: M. G. L. c. 30 B and issues of fraud waste and abuse p Fair Labor Division, Office of the Attorney General: Issues relating to building and public work construction and the Designer Selection Law p Department of Labor Standards (DOLS), Department of Labor: Prevailing wage law 3

Prevailing Wage Law. c. 149, §§ 26 & 27 p Minimum wage that must be paid on (a) all public construction projects; and (b) certain service contracts, e. g. , trash hauling, school bus transportation p Applicable wage rates can be obtained from DOLS at www. mass. gov/dols/pw 4

M. G. L. c. 30 B: Applicability p Cities p Towns p Districts p Regional school districts p Counties p Agencies, boards, commissions, local authorities, departments, or instrumentalities of the above 5

M. G. L. c. 30 B: Applicability Contracts for: p Purchase of supplies and services p Sale of surplus supplies p Public works construction estimated to cost more than $10, 000 but not more than $25, 000 p Real property acquisitions and dispositions 6

c. 30 B Exemptions and Exceptions p Exemptions: where the procurement of a supply or services is completely exempt from c. 30 B; exemptions found at M. G. L. c. 30 B, § 1(b) p Exceptions: special cases where certain provisions of c. 30 B are relaxed or waived : (a) (b) (c) Sole source M. G. L. c. 30 B, § 7 Emergency M. G. L. c. 30 B, § 8 Proprietary specifications M. G. L. c. 30 B, § 14 7

Collaborative Purchasing p Statewide contracts: c. 7, § 22 A & c. 30 B, § 1(c); OSD (617. 720. 3300) p Collective purchasing: c. 7, § 22 B p GSA schedules: c. 30 B, § 1(f) (w) http: //www. gsa. gov/portal/ content/105300 (e) petersullivan@gsa. gov p Publicly procured supply contracts: c. 30 B, § 22 8

Definition of “Services” does not include Grant agreements; Employment agreements; or Collective bargaining agreements 9

Supplies and Services Procurement Less than $5, 000 “sound business practices” Between $5, 000 and $25, 000 Solicit 3 price quotes (oral or written) $25, 000 or more competitive sealed bids or proposals 10

Supplies and Services Sound Business Practices p “Sound business practices” defined as “ensuring receipt of favorable prices by periodically soliciting price lists or quotes” M. G. L. c. 30 B, § 2. 11

Supplies and Services: Price Quotes At least $5, 000 but less than $25, 000: p Develop a purchase description p Provide to at least three vendors n The law requires that you solicit three quotes, not that you receive three quotes p Request quote by phone, mail, fax, e-mail p Award contract to the lowest-priced vendor that meets your purchase description 12

Supplies and Services: Price Quotes Record: p Names and addresses of every vendor contacted for quotes p Name of each vendor that submitted quote p Date and amount of each quote received p Record must be kept for six years from the final date of payment under the contract 13

Supplies and Services: Invitation for Bids (IFB) $25, 000 or more: p Prepare the IFB p Advertise and distribute the IFB p Receive, open, and record bids p Evaluate bids p Award contract to the responsive and responsible bidder offering best price p Retain records 14

IFB: Purchase Description/ Scope of Services p Describe your needs in sufficient detail to ensure realistic, comparable prices p Don’t forget to include delivery terms, warranty requirements, training or technical support 15

IFB: Quality Requirements p Specify standards of quality for the supplies or services to be procured n Ex: Laser printer must be able to print at least 15 black and white pages per minute p Specify qualifications that a vendor must possess in order to properly perform the contract n Ex: Vendor must have 5 years of experience working with jurisdictions of a similar size 16

IFB: Standard Forms p Certificate of Good Faith (“non-collusion form”) n Must be submitted by bidders with their bids n Should be included in IFB package p Price form should be included in IFB p Bidders must also sign a Tax Compliance Certification (M. G. L. c. 62 C, § 49 A) 17

IFB: Rule for Award and Best Price p The rule for award tells bidders how you will determine the best price p Use a rule for award for multi-item bids: n One contract for all items: The contract will be awarded to the responsive and responsible bidder offering the best price. n Multiple contracts: The contract(s) will be awarded to the responsive and responsible bidder offering the lowest price for each item. 18

IFB: Contract Terms and Conditions p Provide vendors with a copy of the contract that the successful bidder will be required to sign p Consult with your legal counsel to develop a standard contract p Consult the checklist in Chapter 2 of the IG’s manual 19

IFB: Bid Submission Requirements p Date and time when sealed bids are due p Address where bids must be delivered p Any instructions on how to mark bid packages p Maximum amount of time you reserve to award the contract p Instructions on correcting, modifying, or withdrawing bids 20

Advertising the IFB: Content The advertisement must: p State where, when, and for how long the IFB may be obtained p Describe the supply or service needed p Include a notice that your jurisdiction reserves the right to reject any/all bids p Identify any board (or other body) that must approve the contract 21

Advertising the IFB: Where p Publish the ad in a local newspaper at least two weeks before bid due date p Post the ad in your jurisdiction for at least two weeks, up to the bid due date p If the purchase will cost $100, 000 or more, advertise in the Goods and Services Bulletin, published by the Secretary of State 22

Receiving, Opening, and Recording Bids p Open all bids at the time specified in the IFB p Open bids in an open meeting or in front of one or more witnesses p Reject any late bids p Keep a record of the names of all bidders and the amounts of the bids p All bids are public records 23

Evaluating Bids p Follow p Be the rules in your IFB consistent and fair p Determine whether the bidder offering the best price is “responsive and responsible” 24

Responsive & Responsible p “Responsive”: Bidder offers what was specified in IFB p “Responsible”: Bidder has the capability, integrity, and reliability to perform the contract 25

Final IFB Steps p Select the responsive and responsible bidder offering the best price p Award and execute the contract p Retain records for six years from the final date of payment under the contract p Monitor contractor performance for the term of the contract 26

Request for Proposals (RFP) $25, 000 or more: p Jurisdiction must have appointed a CPO p Use when there are factors in addition to price that you want to compare and you may be willing to pay more money for p CPO must make a written determination that the selection of the most advantageous offer requires comparative judgments in addition to price before soliciting proposals 27

Unique RFP Requirements p Develop comparative evaluation criteria for the specific features for which you might be willing to pay more money p Decide how comparative criteria will be used to rate proposals n Highly advantageous n Advantageous n Not advantageous n Unacceptable p Specify in RFP the factors that will differentiate each rating 28

Unique RFP Requirements: Comparative Criteria Quality requirement – At least three (3) years of relevant experience. p (HA) The proposer has at least five (5) years of experience consulting with municipalities on projects of similar size and scope to this project. p (A) The proposer has at least three (3) years of experience consulting with municipalities on projects of similar size and scope to this project. p 29

Unique RFP Requirements p Price and non-price proposals must be sealed in separate envelopes p Proposals may not be opened publicly p Non-price proposals must be opened at time specified in the RFP in front of one or more witnesses p Register of proposals must be prepared and made available for public inspection 30

Unique RFP Requirements p Individual(s) responsible for evaluating nonprice proposals may not see price proposals until the evaluation of non-price proposals is complete p Most advantageous proposal is selected, taking into consideration proposal evaluations and proposal prices p Proposals do not become public records until after the evaluation process is complete 31

Proprietary Specifications, c. 30 B, § 14 p Cite a brand name or have the effect of restricting the procurement to one product p Purchasing official must n Document the procurement file with written justification that “no other manner of description suffices” n Advertise and solicit competition as required by Chapter 30 B. 32

Sole-Source Procurements, c. 30 B, § 7 p Sole-source procurement: The award of a new contract for supplies or services to a single source, without soliciting price quotes, bids, or proposals p Permitted only for contracts under $25, 000, except: Educational materials, library books, and software maintenance if only one practicable source n Regulated utilities: water, gas, electricity, sewer, and telephone if only one practicable source n 33

Sole-Source Procurements, c. 30 B, § 7 Before making a sole-source procurement: p Conduct a reasonable investigation to determine whether competition exists p Document in writing that only one practicable source for the supply or service exists 34

Sole-Source Procurements, c. 30 B, § 7 p Record of sole-source procurement must include: n Vendor’s name n Contract amount and type n List of supplies or services procured n Written determination that only one practicable source existed 35

Emergency Procurements, c. 30 B, § 8 p When the time needed to comply with any requirement of M. G. L. c. 30 B would endanger the health or safety of people or their property, you may waive that requirement p You must comply with M. G. L. c. 30 B to the extent practicable 36

Emergency Procurements, c. 30 B, § 8 p Document: n Basis for determining that the emergency exists n Vendor’s name n Contract type and amount n List of the supplies or services procured n Procedures used to solicit competition p Submit the record of emergency procurement to the Goods and Services Bulletin 37

Conclusion p Questions? n Supplies n Services 38

Office of the Inspector General MCPPO Courses n Massachusetts Certified Public Purchasing Official Assistance Joyce Mc. Entee Emmett, MCPPO Director Email: Emmett. JM@maoig. net To register: www. mass. gov/ig/mcppo/regmcppo. pdf 39

Chapter 30 B Procurement Assistance n OIG Publications found at pwww. mass. gov/ig - Municipal, County, District, & Local Authority Procurement of Supplies & Services and Real Property (The Chapter 30 B Manual) - The Procurement Bulletin (Published quarterly) 40

Chapter 30 B Procurement Assistance § OIG Publications found at www. mass. gov/ig - The Practical Guide to Drafting Effective Invitations for Bids and Requests for Proposals -Charts on Public Procurement Procedures 41

Chapter 30 B Procurement Assistance Chapter 30 B Attorney of the Day (617) 722 -8838 (phone) 9: 00 a. m. to 4: 30 p. m. 42

QUESTIONS OR COMMENTS Nicholas Read, Deputy General Counsel Office of the Inspector General One Ashburton Place Room 1311 Boston, Massachusetts 02108 (t) 617. 722. 8852 (f) 617. 723. 2334 (e) readni@maoig. net 43