(1)
Definitions.
(a) Capability, as used in Code
of Ala. 1975, §
41-4-130(7) (Definitions, Responsible Bidder or Offeror) of the State Procurement Code,
means, for the purpose of these Rules, capability at the time of award of the
contract.
(b) Discussions, as used
in the source selection process, means an exchange of information or other
manner of negotiation during which the offeror and the State may alter or
otherwise change the conditions, terms, and price of the proposed contract.
Discussions may be conducted in connection with competitive sealed proposals,
sole source, and emergency procurement; discussions are not permissible in
competitive sealed bidding (except to the extent permissible in the first phase
of multi-step sealed bidding).
(c)
Invitation to Bid means all documents, whether attached or incorporated by
reference, utilized for soliciting bids. A request for bid or RFB is an
Invitation to Bid.
(d)
Prequalification for Inclusion on Bidders Lists means determining in accordance
with Rule
355-4-3-.10 that a prospective bidder or offeror satisfies the
criteria established for being included on the bidders list.
(e) Solicitation means an Invitation for
Bids, a Request for Proposals, a request for quotations, or any other document
issued by the State for the purpose of soliciting bids or proposals to perform
a State contract.
(2)
General Provisions
(a) Extension of Time on
Indefinite Quantity Contracts. The time of performance of an indefinite
quantity contract may be extended upon agreement of the parties, provided the
extension is for 90 days or less and the Chief Procurement Officer or the head
of a Purchasing Agency determines in writing that it is not practical to award
another contract at the time of such extension.
(b) No Acceptable Bids or Proposals Received.
If no bid or proposal is received, or if all bids or proposals are rejected in
accordance with Rule
355-4-3-.08(3), in response to a solicitation (including
multi-step bidding), one of the following shall occur:
1. the Procurement Officer may seek quotes
that are responsive to the solicitation;
2. the Procurement Officer may cancel the
solicitation; or
3. if the Chief
Procurement Officer determines in writing that the need for the supply or
service continues and seeking quotes responsive to the solicitation would
likely be futile, the procurement may then be conducted under Rule
355-4-3-.05 (Sole Source Procurement) or
355-4-3-.06 (Emergency Procurements), as
appropriate.
(c) Only
One Bid or Proposal Received.
1. One Bid
Received. If only one responsive bid is received in response to an Invitation
for Bids (including multi-step bidding), an award may be made to the single
bidder if the Procurement Officer finds that the price submitted is fair and
reasonable, and that either other prospective bidders had reasonable
opportunity to respond, or there is not adequate time for re-solicitation.
Otherwise, the bid may be rejected pursuant to the provisions of Rule
355-4-3-.08 and:
(i) new bids may be
solicited;
(ii) the solicitation
may be cancelled; or
(iii) if the
Chief Procurement Officer determines in writing that the need for the supply or
service continues, but that the price of the one bid is not fair and reasonable
and there is no time for re- solicitation or re-solicitation would likely be
futile, the procurement may then be conducted under Rule
355-4-3-.05 (Sole
Source Procurement) or Rule
355-4-3-.06 (Emergency Procurements), as
appropriate.
2. One
Proposal Received. If only one proposal is received in response to a Request
for Proposals, the Procurement Officer may, as such officer deems appropriate,
either make an award in accordance with the procedures set forth in
Code of Ala. 1975, §
41-4-133 (Competitive Sealed Proposals) of the State Procurement Code and Rule
355-4-3-.03 (Competitive Sealed Proposals) or, if time permits, resolicit for
the purpose of obtaining multiple competitive sealed proposals.
(d) Multiple or Alternate Bids or
Proposals.
Alternative bids are multiple bids with substantive variations
from the same bidder in response to an Invitation to Bid. Alternative proposals
are multiple proposals with substantive variations from the same Offeror in
response to a Request for Proposals. Alternative bids or proposals will be
considered, unless specifically forbidden by the Solicitation. If a bidder or
Offeror submits alternate bids or proposals that are forbidden in the
Solicitation, the Procurement Officer will only accept the bidder's base bid or
Offeror's base proposal, if that base bid or proposal is clearly identified,
and will not accept any other alternate bids or proposals. If a base bid or
base offer is not identified, all bids or offers will be rejected.
(e) Procuring State-Produced
Supplies or Services.
Using Agency requirements may be fulfilled by procuring
supplies produced or services performed incident to the State's own programs,
such as industries of correctional institutions. The Chief Procurement Officer
or the head of a Purchasing Agency shall determine whether such supplies or
services meet the State's requirements and whether the price represents a fair
market value for such supplies or services. If it is determined that such
requirements cannot be met by State-produced supplies or services, or the price
is not fair and reasonable, the procurement may be made from the private sector
in accordance with the State Procurement Code. When such procurements are made
from other State agencies, the private sector shall not be solicited to compete
against State agencies.
(f)
Bid and Performance Bonds for Supply Contracts or Service Contracts. Bid and
performance bonds or other security may be required for supply contracts or
service contracts as the Chief Procurement Officer, the head of a Purchasing
Agency, or such officer's designee deems advisable to protect the interest of
the State. Any such requirements must be set forth in the solicitation. Bid or
performance bonds should not be used as a substitute for a determination of
bidder or offeror responsibility.
(g) Conditioning Bids or Proposals Upon Other
Awards Not Acceptable. Any bid or proposal which is conditioned upon receiving
award of both the particular contract being solicited and another State
contract shall be deemed nonresponsive and not accepted.
(3) Relations Between Agencies
(a) Purchase Requests by Agencies. Chief
Procurement Officer's Authority to Reject. When the Chief Procurement Officer,
after consultation with the requesting agency, decides that processing the
purchase request is clearly not in the best interest of the State or that
further review is needed, such officer shall return such purchase request to
the requesting agency. A statement of the reasons for its return shall
accompany the returned request. Examples of reasons a purchase request may be
returned include, but are not limited to:
1.
the request can be satisfied from existing State stocks or State
contracts;
2. the request exceeds
agency needs;
3. the supplies or
services requested could be procured more economically at a different time
without detriment to the State;
4.
the quality requested is inconsistent with State standards and usage;
or
5. requirements/specifications
lack detail to successfully conduct a solicitation.
(4) Unsolicited Offers
(a) An unsolicited offer is any offer other
than one submitted in response to a solicitation. The Chief Procurement Officer
is responsible for considering, evaluating, and accepting or rejecting an
unsolicited offer and must do so in accordance with the State Procurement
Code.
(5) Novation or
Change of Name
(a) No Assignment. No State
contract is transferable, or otherwise assignable, without the written consent
of the Chief Procurement Officer or the head of a Purchasing Agency provided,
however, that a contractor may assign monies receivable under a contract after
due notice to the State.
(b)
Recognition of a Successor in Interest; Novation.
When in the best interest of the State, a successor in interest
may be recognized in a novation agreement in which the transferor and the
transferee shall agree that:
1. the
transferee assumes all of the transferor's obligations;
2. the transferor waives all rights under the
contract as against the State; and
3. unless the transferor guarantees
performance of the contract by the transferee, the transferee shall, if
required, furnish a satisfactory performance bond.
(c) Change of Name. When a contractor
requests to change the name in which it holds a contract with the State, the
Procurement Officer responsible for the contract shall, upon receipt of a
document indicating such change of name (for example, an amendment to the
articles of incorporation of the corporation), enter into an agreement with the
requesting contractor to effect such a change of name. The agreement changing
the name shall specifically indicate that no other terms and conditions of the
contract are thereby changed.
(d)
Notice to Comptroller. Before taking action on a contractor's request for
assignment, recognition of a successor in interest, or change of name, the
Chief Procurement Officer or head of a Purchasing Agency shall coordinate with
the Comptroller's Office to ensure compliance with the State's Fiscal Policies
and Procedures.
(6)
Purchase of Items Separately from Construction Contract. The Chief Procurement
Officer is authorized to determine whether a supply item or group of supply
items shall be included as a part of, or procured separately from, any contract
for construction.
