Chapter 3.  Specifications

§301.   General Purpose and Policies

A.  Definition and Purpose

1.   Specification - any description of the physical functional, or performance characteristics, or of the nature of a supply, service, construction or major repair item.  The specification includes, as appropriate, requirements for inspecting, testing, or preparing a supply, service, or construction item for delivery.  Unless the context requires otherwise, the terms "specification" and "purchase description" are used interchangeably throughout these regulations.

2.   The purpose of a specification is to serve as a basis for obtaining a supply, service, or major repair item adequate and suitable for the state's needs in a cost effective manner, taking into account, to the extent practicable, the costs of ownership and operation as well as initial acquisition costs.  It is the policy of the state that specifications permit maximum practicable competition consistent with this purpose.  Specifications shall be drafted with the objective of clearly describing the state's requirements.

3.   All definitions as listed in R.S. 39:1556 and R.S. 39:1591 will apply.

B.   Nonrestrictiveness.  All specifications shall be written in such a manner as to describe the requirements to be met, without having the effect of exclusively requiring a proprietary supply, service, or major repair item, or procurement from a sole source, unless no other manner of description will suffice.  In that event, a written determination shall be made that is not practicable to use a less restrictive specification.

C.  Preference for Commercially Available Products.  It is the general policy of this state to procure standard commercial products whenever practicable.  In developing specifications, accepted commercial standards shall be used and unique requirements shall be avoided, to the extent practicable.

D.  Escalation and De-Escalation Clauses.  Bid specifications may contemplate a fixed escalation or de-escalation in accordance with a recognized escalation index.

AUTHORITY NOTE:  Promulgated in accordance with R.S. 39:1581.

HISTORICAL NOTE: Promulgated by the Office of the Governor, Division of Administration, State Purchasing, LR 21:566 (June 1995).

 

§303.   Availability of Documents

A.  Specifications and any written determination or other document generated or used in the development of a specification shall be available for public inspection pursuant to R.S. 44.1.

AUTHORITY NOTE:  Promulgated in accordance with R.S. 39:1581.

HISTORICAL NOTE:  Promulgated by the Office of the Governor, Division of Administration, State Purchasing, LR 21:566 (June 1995).

 

§305.   Authority to Prepare Specifications

A.  Statutory Authority of the Chief Procurement Officer and State Agencies.  The chief procurement officer is authorized to prepare specifications in accordance with R.S. 39:1652, subject to the authority granted purchasing agencies in R.S. 39:1653 of the Louisiana Procurement Code.

B.   Delegation of Authority to State Agencies.  The chief procurement officer may delegate in writing the authority to prepare and utilize specifications to purchasing agencies and using agencies for any type of supplies, services, or major repairs provided such delegations may be revoked by the chief procurement officer.

C.  Authority to Contract for Preparation of Specifications

1.   A contract to prepare specifications for state use in procurement of supplies or services may be entered into when a written determination is made by the chief procurement officer, or the head of a purchasing agency authorized to prepare such specifications, that there will be no substantial conflict of interest involved and it is otherwise in the best interest of the state.

2.   Whenever specifications are prepared by other than state personnel, the contract for the preparation of specifications shall require the specification writer to adhere to the requirements of this regulation.

AUTHORITY NOTE:  Promulgated in accordance with R.S. 39:1581.

HISTORICAL NOTE: Promulgated by the Office of the Governor, Division of Administration, State Purchasing, LR 21:566 (June 1995).

 

§307.   Procedures for the Development of Specifications

A.  Provisions of General Application

1.   Application of Section.  This Section applies to all persons who may prepare a specification for state use, including the chief procurement officer, the head of a purchasing agency, the head of a using agency, the designees of such officers, and also consultants, architects, engineers, designers, and other draftsmen of specifications used for public contracts.

2.   Specification of Alternates May Be Included. To the extent feasible, a specification may provide alternate descriptions of supplies, services, or major repair items where two or more design, functional, or performance criteria will satisfactorily meet the state's requirements.

AUTHORITY NOTE:  Promulgated in accordance with R.S. 39:1581.

HISTORICAL NOTE: Promulgated by the Office of the Governor, Division of Administration, State Purchasing, LR 21:566 (June 1995).

 

§309.   Definitions and Use

A.  Proprietary Specifications

1.   Definition.  Proprietary Specification - a specification that cites brand name, model number, or some other designation that identifies a specific product to be offered exclusive of others.

2.   Use

a.   Since use of a proprietary specification is restrictive, it may be used only when the chief procurement officer or the head of a purchasing agency makes a written determination that only the identified brand name item or items will satisfy the state's needs.

b.   Some examples of circumstances which could necessitate proprietary procurement are:

     i.  revolving fund purchases for resale, such as groceries, canned good, packing house products, drug sundries, candy, tobacco and other similar items;

     ii.  revolving fund purchases of foods for cafeterias, dining halls or dormitories;

    iii.  standard replacement parts such as automobiles, machinery, and equipment;

    iv.  repairs to automobiles, machinery, equipment, etc.

3.   Competition.  The procurement officer shall seek to identify sources from which the designated brand name item can be obtained and shall solicit such sources to achieve whatever degree of competition is practicable.  If only one source can supply the requirement, the procurement shall be made under Chapter 9 (Sole Source Procurement) of these regulations.

4.   Reports.  The chief procurement officer shall submit reports to the commissioner or cabinet department head within 90 days after the end of the fiscal year stating any brand name contracts used; the number of suppliers solicited; the identity of these suppliers; the supplier awarded the contract; and the contract price.

B.   Brand Name or Equal Specification

1.   Definition.  A specification that cites brand names, model number, or other identifications as representing quality and performance called for, and inviting bids on comparable items or products of any manufacturer.

2.   Use.  Some examples of circumstances which could necessitate the use of brand name or equal specifications are:

a.   no specification for a common or general use item or qualified products list is available; or

b.   time does not permit the preparation of another form of specification, not including a brand name specification; or

c.   the nature of the product or the nature of the state's requirements makes use of a brand name or equal specification suitable for the procurement; or

d.   use of a brand name or equal specification is in the state's best interest;

e.   specifications shall seek to designate as many different brands as are practicable as "or equal" references and shall state that substantially equivalent products to those designated will be considered for award.

3.   Competition

a.   Where a brand name or equal specification is used in a solicitation, the solicitation shall contain explanatory language that the use of a brand name is for the purpose of describing the standard of quality, performance, and characteristics desired and is not intended to limit or restrict competition.

b.   Unless the chief procurement officer or the head of a purchasing or using agency authorized to finally approve specifications determines that the essential characteristics of the brand name included in the specifications are commonly known in the industry or trade, brand name or equal specifications shall include a description of the particular design, functional, or performance characteristics which are required.

C.  Qualified Products List

1.   Definition.  Qualified Products List - a specification developed by evaluating brands and models of various manufacturers of an item and listing those determined to be acceptable as eligible to be offered on the next Invitation for Bids; on Approved Brands List.

2.   Use.  A qualified products list may be developed with the approval of the chief procurement officer, or the head of a purchasing or using agency authorized to develop qualified products lists, when testing or examination of the supplies or major repair items prior to issuance of the solicitation is desirable or necessary in order to best satisfy state requirements.

3.   Comments, Final Approval, Revisions, and Cancellation.  Comments on final approval of, and revisions to the proposed criteria and methodology for establishing and maintaining a qualified products list, and the cancellation thereof, shall follow the procedures of Subsection D.3.b-e of this Section applicable to specifications for common or general use items.

4.   Solicitation

a.   When developing a qualified products list, a representative group of potential suppliers shall be solicited in writing to submit products for testing and examination to determine acceptability for inclusion on a qualified products list.  Any potential supplier, even though not solicited, may offer its products for consideration.

b.   Inclusion on a qualified products list shall be based on results of tests or examinations conducted in accordance with prior published requirements.

D.  Common or General Use Item

1.   Definition.  Specification for a Common or General Use Item - a specification which has been developed and approved for repeated use in procurement in accordance with the provisions of R.S. 39:1651.A and B.

2.   Use.  If a specification for a common or general use item has been developed or a qualified products list has been developed for a particular supply, service, or major repair item, or need, it shall be used unless the chief procurement officer or the head of a purchasing agency makes a written determination that its use is not in the state's best interest and that another specification shall be used.

3.   Special Additional Procedures

a.   Preparation and Utilization.  A specification for common or general use shall, to the extent practicable, be prepared to be utilized:

     i.  when a supply, service, or major repair item is used in common by several using agencies or used repeatedly by one using agency, and the characteristics of the supply, service, or major repair item as commercially produced or provided remain relatively stable while the frequency or volume of procurement is significant;

     ii.  where the state's recurring needs require uniquely designed or specially produced items; or

    iii.  when the chief procurement officer, or the head of a purchasing or using agency authorized to prepare such specifications, finds it to be in the state's best interest.

b.   In the event a using agency requests the preparation of a specification for a common or general use item, the chief procurement officer shall prepare such a specification if such officer determines the conditions in Clauses i -iii of this Subparagraph have been met.

c.   Comments on the Draft.  The chief procurement officer, or the head of a purchasing or using agency preparing a specification for a common or general use item, shall provide an opportunity to comment on the draft specification to the using agencies, and as reasonable a number of manufacturers and suppliers as such officer deems appropriate.

d.   Final Approval.  Final approval of a proposed specification for a common or general use item shall be given only by the chief procurement officer, or by the head of a purchasing or using agency authorized to give such approval.

e.   Revisions.  Revisions to specifications for common or general use items which do not change the technical elements of the specifications but which are necessary for clarification may be made upon approval of the chief procurement officer, or the head of a purchasing or using agency authorized to approve such specifications.  Interim revisions to fit the requirements for a particular procurement which change the technical elements of the specification may be made by the chief procurement officer, or the head of a purchasing or using agency authorized to approve such a specification.  All other revisions shall be made in accordance with Subsection D.3.a-d of this Section.

f.    Cancellation.  A specification for a common or general use item may be canceled by the chief procurement officer, or by the head of a purchasing or using agency authorized to give final approval to such specifications.

E.   Use of Functional or Performance Descriptions.  State agencies should emphasize functional or performance criteria while limiting design or other detailed physical descriptions to those necessary to meet the needs of the state to the extent practicable.

AUTHORITY NOTE:  Promulgated in accordance with R.S. 39:1581.

HISTORICAL NOTE: Promulgated by the Office of the Governor, Division of Administration, State Purchasing, LR 21:566 (June 1995).

 

Chapter 5.  Competitive Sealed Bidding

§501.   Content of the Invitation for Bids

A.  Invitation for Bids

1.   Purchases where the estimated cost is over $5,000 shall be made  by sending out written Invitations for Bids to at least five responsible bidders, and if feasible, use should be made of State Purchasing's computerized vendor list. Purchases where the estimated cost is over $25,000 shall be advertised in accordance with R.S. 39:1594. All advertisements or written Invitations for Bids shall contain general descriptions of the classes of commodities on which bids are solicited and shall state:

a.   the date and time when bids will be received, opened and publicly read;

b.   the names and locations of the state agencies for which the purchases are to be made;

c.   where and how specifications and bid forms may be obtained.

2.   The Invitation for Bids shall be on the state's standard forms containing all pertinent information and shall be full and complete including specifications, quantities, units, packaging and number of containers to the case.

B.   Content.  The Invitation for Bids shall include the following:

1.   the purchase description, evaluation factors, delivery or performance schedule, and inspection and acceptance requirements not included in the purchase description; and

2.   the contract terms and conditions, including warranty and bonding or other security requirements, as applicable.

C.  Incorporation by Reference.  The Invitation for Bids may incorporate documents by reference provided that the Invitation for Bids specifies where such documents can be obtained.

D.  Special Conditions.  If any special conditions are to apply to a particular contract, they shall be included in the Invitation for Bid.

E.   Types of Purchases.  Purchases are made in two different ways.

1.   Open Market: a purchase made other than under a schedule or term contract.

2.   Term Contracting: a technique by which a source of supply is established for a specific period of time.  Term contracts are usually based on indefinite quantities to be ordered "as needed", although such contracts can specify definite quantities with deliveries extended over the contract period.

AUTHORITY NOTE:  Promulgated in accordance with R.S. 39:1581.

HISTORICAL NOTE: Promulgated by the Office of the Governor, Division of Administration, State Purchasing, LR 8:328 (July 1982), amended LR 21:566 (June 1995).

 

§503.   Bidding Time

A.  Bidding time is the period of time between the date of distribution of the Invitation for Bids and the date set for opening of bids.  In each case bidding time will be set to provide bidders a reasonable time to prepare their bids.  For bids over $25,000, a minimum of 21 days should be provided unless the chief procurement officer or his designee deems that a shorter time is necessary for a particular procurement.  However, in no case shall the bidding time be less than 10 days, except as provided in R.S. 39:1598 and Chapter 11 of these rules and regulations.

AUTHORITY NOTE:  Promulgated in accordance with R.S. 39:1581.

HISTORICAL NOTE: Promulgated by the Office of the Governor, Division of Administration, State Purchasing, LR 8:328 (July 1982), amended LR 21:566 (June 1995).

 

§505.   Addenda Modifying Invitation for Bids

A.  Addenda modifying invitation for bids shall not be issued within a period of three working days prior to the advertised time for the opening of bids, excluding Saturdays, Sundays and any other legal holidays.  If the necessity arises to issue an addendum modifying an Invitation for Bid within the three working day period prior to the advertised time for the opening of bids, then the opening of bids shall be extended exactly one week, without the requirement of re-advertising.  Addenda shall be sent to all prospective bidders known to have received an Invitation for Bid.

AUTHORITY NOTE:  Promulgated in accordance with R.S. 39:1581

HISTORICAL NOTE: Promulgated by the Office of the Governor, Division of Administration, State Purchasing, LR 8:328 (July 1982), amended LR 21:566 (June 1995).

 

§507.   Bidder Submissions

A.  Bid Forms.  All written bids, unless otherwise provided for, must be submitted on, and in accordance with, forms provided, properly signed.  Bids submitted in the following manner will not be accepted:

1.   bid contains no signature indicating an intent to be bound;

2.   bid filled out in pencil; and bids must be received at the address specified in the Invitation for Bids prior to bid opening time in order to be considered.

B.   Bid Samples and Descriptive Literature

1.   Descriptive literature means information available in the ordinary course of business which shows the characteristics, construction, packaging, or operation of an item which enables the state to consider whether the item meets its specifications and needs.

2.   Bid Sample means a sample to be furnished by a bidder to show the characteristics of the item offered in the bid.

3.   Bid samples or descriptive literature may be required when it is necessary to evaluate required characteristics of the items bid.

4.   The Invitation for Bids shall state whether bid samples or descriptive literature should be submitted.  Unsolicited bid samples may not be returned.

5.   When required, samples must be received not later than the time set or specified for bid opening, free of expense to the state.  Samples should be marked plainly with name and address of bidder, bid number and opening date of bid, also memorandum indicating whether bidder desires return of sample or samples.  Providing they have not been used or made useless through tests, when requested, samples submitted will be returned at bidder's risk and expense.  All samples submitted are subject to mutilation as the result of tests by the agency.  Failure to submit samples within time allowed will result in disqualification or nonconsideration of bid.

C.  Conditional Bids.  Conditional bids are subject to rejection in whole or in part.  A conditional bid may be accepted if the condition is not a substantial deviation from the Invitation for Bid.

D.  All or Part.  Bids may be considered for all or part of total quantities.

E.   Bids Binding.  Unless otherwise specified, all formal bids shall be binding for a minimum of 30 calendar days.  Nevertheless, if the lowest responsive and responsible bidder is willing to keep his price firm in excess of 30 days, the state may award to this bidder after this period has expired, or after the period specified in the formal bid has expired.

F.   Net Prices.  Bid prices, unless otherwise specified, must be net including transportation and handling charges prepaid by contractor to destination.

G.   Taxes.  Vendor is responsible for including all applicable taxes in the bid price.

AUTHORITY NOTE:  Promulgated in accordance with R.S. 39:1581.

HISTORICAL NOTE: Promulgated by the Office of the Governor, Division of Administration, State Purchasing, LR 8:328 (July 1982), amended LR 21:566 (June 1995).

 

§509.   Bidder Lists

A.  Bidder lists may be compiled to provide the state with the names of businesses that may be interested in competing for various types of state contracts.  Unless otherwise provided, inclusion or exclusion of the name of a business does not indicate whether the business is responsible in respect to a particular procurement or otherwise capable of successfully performing a state contract.

B.   Where feasible, use should be made of the State Purchasing's computerized vendor list.  It shall be the responsibility of the bidder to confirm that his company is in the appropriate bid category.

AUTHORITY NOTE:  Promulgated in accordance with R.S. 39:1581.

HISTORICAL NOTE: Promulgated by Office of the Governor, Division of Administration, State Purchasing, LR 8:329 (July 1982), amended LR 21:566 (June 1995).

 

§511.   Pre-Bid Conferences

A.  Pre-bid conferences may be conducted to explain the procurement requirements.  They shall be announced to all prospective bidders known to have received an Invitation for Bids and shall be advertised if over $25,000 and attendance is mandatory.  The conference should be held long enough after the Invitation for Bids has been issued to allow bidders to become familiar with it, but sufficiently before bid opening to allow consideration of the conference results in preparing their bids.  Nothing stated at the pre-bid conference shall change the Invitation for Bids unless a change is made by written addenda as provided in §505.

AUTHORITY NOTE:  Promulgated in accordance with R.S. 39:1581.

HISTORICAL NOTE: Promulgated by the Office of the Governor, Division of Administration, State Purchasing, LR 8:329 (July 1982), amended LR 21:566 (June 1995).

 

§515.   Pre-Opening Modification or Withdrawal of Bids

A.  Procedure. Bids may be modified or withdrawn by written, telegraphic or fax notice received at the address designated in the Invitation for Bids prior to the time set for bid opening, as recorded by date stamp at the purchasing agency.

B.   Withdrawal of Bids.  A written request for the withdrawal of a bid or any part thereof will be granted if the request is received prior to the specified time of opening.  If a bidder withdraws a bid, all bid documents shall remain the property of the state, unless return is requested in writing.

C.  Disposition of Bid Security.  Bid security, if any, shall be returned to the bidder if requested when withdrawal of the bid is permitted.

D.  Records.  All documents relating to the modification or withdrawal of bids shall be made a part of the appropriate procurement file.

AUTHORITY NOTE:  Promulgated in accordance with R.S. 39:1581.

HISTORICAL NOTE: Promulgated by the Office of the Governor, Division of Administration, State Purchasing, LR 8:329 (July 1982), amended LR 21:566 (June 1995).

 

§517.   Late Bids

A.  Formal bids and addenda thereto, received at the address designated in the Invitation for Bids after time specified for bid opening will not be considered, whether delayed in the mail or for any other causes whatsoever.  If a bid is delayed by actions of the agency handling the solicitation, and this delay prejudices a vendor, then the agency shall cancel the solicitation and re-bid. In no case will late bids be accepted.

AUTHORITY NOTE:  Promulgated in accordance with R.S. 39:1581.

HISTORICAL NOTE: Promulgated by the Office of the Governor, Division of Administration, State Purchasing, LR 8:329 (July 1982), amended LR 21:566 (June 1995).

 

§519.   Receipt, Opening and Recording of Bids

A.  Receipt.  Upon receipt, all bids and modifications will be time-stamped but not opened.  They shall be stored in a secure place until bid opening time.

B.   Opening and Recording

1.   Bids and modifications shall be opened publicly, in the presence of one or more witnesses, at the time and place designated in the Invitation for Bids.  The names of the bidders and the bid price shall be read aloud or otherwise made available and shall be recorded.

2.   The opened bids shall be available for public inspection, in accordance with Chapter I, Title 44.

C.  Postponed OpeningsCExceptions.  In the event that bids are scheduled to be opened on a day that is a federal holiday, or if the governor by proclamation creates an unscheduled holiday, or for any cause that exists that creates a nonworking day, bids scheduled to be opened on that day shall be opened on the next working day at the same address and time specified in the Invitation for Bids.

AUTHORITY NOTE:  Promulgated in accordance with R.S. 39:1581.

HISTORICAL NOTE: Promulgated by the Office of the Governor, Division of Administration, State Purchasing, LR 8:329 (July 1992), amended LR 21:566 (June 1995).

 

§521.   Mistakes in Bids

A.  Correction or Withdrawal of Bids.  Patent errors in bids or errors in bids supported by clear and convincing evidence may be corrected, or bids may be withdrawn, if such correction or withdrawal does not prejudice other bidders,  and such actions may be taken only to the extent permitted under these regulations.  A request to withdraw a bid after the bid opening must be made within three business days after bid opening, and supported in writing.  If it is determined that the error is patently obvious, then the bid may be withdrawn, and if a bid guaranty was required it shall be returned to the bidder.

B.   Minor Informalities.  Minor informalities are matters of form rather than substance which are evident from the bid document, or insignificant mistakes that can be waived or corrected without prejudice to other bidders; that is, the effect on price, quantity, quality, delivery, or contractual conditions is not significant. The chief procurement officer or the head of a purchasing agency may waive such informalities or allow the bidder to correct them depending on which is in the best interest of the state. Examples include, but are not limited to,  the failure of a bidder to:

1.   return the number of signed bids required by the Invitation for Bids;

2.  sign the bid, but only if the unsigned bid is accompanied by other signed material indicating the bidder's intent to be bound;

3.   sign or initial write-overs, or corrections in bids;

4.   get an agency's certification that a mandatory job-site visit was made; and

5.   return nonmandatory pages of the bid proposal.

C.  Mistakes Where Intended Bid is Evident.  If the mistake and the intended bid are clearly evident on the face of the bid document, the bid shall be corrected to the intended bid and may not be withdrawn.  Some examples of mistakes that may be clearly evident on the face of the bid document are typographical errors, errors in extending unit prices, unit prices placed in the extended amount column, and failure to return an addendum provided there is evidence that the addendum was received.  When an error is made in extending total prices the unit bid price will govern.  Under no circumstances will a unit bid price be altered or corrected unless it is obvious that a unit price is submitted in a different unit of measure than shown on the bid form and the bidder's extended total verifies that the unit bid price was submitted using a wrong unit of measure, then the unit price may be changed to correspond with the correct unit of measure.

AUTHORITY NOTE:  Promulgated in accordance with R.S. 39:1581.

HISTORICAL NOTE: Promulgated by the Office of the Governor, Division of Administration, State Purchasing, LR 8:329 (July 1982), amended LR 21:566 (June 1995).

 

§523.   Bid Guaranty and Bond

A.  Bid Guaranty

1.   When specified in the Invitation for Bids, a bid bond, cashier's check, or certified check, made payable to the Department of the Treasury of the state of Louisiana, for the amount specified, must accompany each bid.

2.   If a bid bond is used, it shall be written by a surety or insurance company currently on the U.S. Department of the Treasury Financial Management Service list of approved bonding companies which is published annually in the Federal Register, or by a Louisiana domiciled insurance company with at least an A-rating in the latest printing of the A.M.  Best's Key Rating Guide to write individual bonds up to 10 percent of policyholders' surplus as shown in the A.M.  Best's Key Rating Guide.

B.   Performance Bond

1.   Any performance bond furnished shall be written by a surety or insurance company currently on the U.S. Department of the Treasury Financial Management Service list of approved bonding companies which is published annually in the Federal Register, or by a Louisiana domiciled insurance company with at least an A-rating in the latest printing of the A.M.  Best's Key Rating Guide to write individual bonds up to 10 percent of policyholders' surplus as shown in the A.M.  Best's Key Rating Guide or by an insurance company that is either domiciled in Louisiana or owned by Louisiana residents and is licensed to write surety bonds.

2.   No surety or insurance company shall write a performance bond which is in excess of the amount indicated as approved by the U.S. Department of the Treasury Financial Management Service list or by a Louisiana domiciled insurance company with an A-rating by A.M. Best up to a limit of 10 percent of policyholders' surplus as shown by A.M. Best; companies authorized by this Paragraph who are not on the treasury list shall not write a performance bond when the penalty exceeds 15 percent of its capital and surplus, such capital and surplus being the amount by which the company's assets exceed its liabilities as reflected by the most recent financial statements filed by the company with the Department of Insurance.

3.      In addition, any performance bond furnished shall be written by a surety or insurance company that is currently licensed to do business in the state of Louisiana.  If a performance bond has been required, the requirement cannot be waived, unless otherwise allowed by Louisiana statutes.

AUTHORITY NOTE:  Promulgated in accordance with R.S. 39:1581.

HISTORICAL NOTE: Promulgated by the Office of the Governor, Division of Administration, State Purchasing, LR 8:330 (July 1982), amended LR 21:566 (June 1995).

 

§525.   General Guaranty

A.  At a minimum, the state shall require that the contractor submit to the following guarantees.

1.   Hold the state, its agents and employees harmless against any liability for negligent acts or omissions by the contractor.

2.   Hold the state, its agents and employees harmless against any liability for infringement of any copyright or patent arising from performance of this contract.

3.   Protect the state against latent defective material or workmanship and to repair or replace any damages or marring occasioned in transit.

4.   Pay for all necessary permits, licenses and fees and give all notices and comply with all laws, ordinances, rules and regulations of the city or town in which the installation is to be made or the contract to be performed, and of the state of Louisiana.

B.   The contractor may propose substitute guarantees which provide greater protection to the state.

AUTHORITY NOTE:  Promulgated in accordance with R.S. 39:1851.

HISTORICAL NOTE: Promulgated by the Office of the Governor, Division of Administration, State Purchasing, LR 8:330 (July 1982), amended LR 21:566 (June 1995).

 

§527.   Bid Evaluation and Award

A.  General.  The contract is to be awarded "to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the Invitation for Bids."  See R.S. 39:1594.G (Competitive Sealed Bidding, Award) of the Louisiana Procurement Code.  The Invitation for Bids shall set forth the requirements and criteria which will be used to determine the lowest responsive bidder.  No bid shall be evaluated for any requirements or criteria that are not disclosed in the Invitation for Bids.

B.   Responsibility and Responsiveness

Responsive Bidder - a person who has submitted a bid under R.S. 39:1594 which conforms in all substantive respects to the invitation for bids including the specifications set forth in the invitation.

Responsible Bidder or Offeror - a person who has the capability in all respects to perform the contract requirements and the integrity and reliability which will assure good faith performance.

C.  Product Acceptability

1.   The Invitation for Bids shall set forth the evaluation criteria to be used in determining product acceptability.  It may require the submission of bid samples, descriptive literature, technical data, or other material.  It may also provide for:

a.   inspection or testing of a product prior to award for such characteristics as quality or workmanship;

b.   examination of such elements as appearance, finish, taste, or feel; or

c.   other examinations to determine whether the product conforms with any other purchase description requirements, such as unit packaging.  If bidder changes the unit or packaging, and it is determined that the change prejudices other bidders, then the bid for the changed item shall be rejected.

2.   The acceptability evaluation is not conducted for the purpose of determining whether one bidder's item is superior to another but only to determine that a bidder's offering is acceptable as set forth in the Invitation for Bids.  Any bidder's offering which does not meet the acceptability requirements shall be rejected.

D.  Determination of Lowest Bidder

1.   Following determination of product acceptability as set forth in Subsection C of this Section, if any is required, bids will be evaluated to determine which bidder offers the lowest cost to the state in accordance with the evaluation criteria set forth in the Invitation for Bids.  Only objectively measurable criteria which are set forth in the Invitation for Bids shall be applied in determining the lowest bidder.  Examples of such criteria include but are not limited to transportation cost, and ownership or life-cycle cost formula.  Evaluation factors need not be precise predictors of actual future costs, but to the extent possible, such evaluation factors shall:

a.   be reasonable estimates based upon information the state has available concerning future use; and

b.   treat all bids equitably.

E.   Restrictions.  A contract may not be awarded to a bidder submitting a higher quality item than that required by the Invitation for Bids unless the bid is also the lowest bid as determined under Subsection D of this Section.  Further, this Section does not permit negotiation with any bidder.

AUTHORITY NOTE:  Promulgated in accordance with R.S. 39:1581.

HISTORICAL NOTE: Promulgated by the Office of the Governor, Division of Administration, State Purchasing, LR 8:330 (July 1982), amended LR 21:566 (June 1995).

 

§529.   Tie Bids

A.  Definition

Tie Bids - low responsive bids from responsible bidders that are identical in price and which meet all requirements and criteria set forth in the Invitation for Bids.

B.   Resident Business Preference

1.   In state contracts awarded by competitive sealed bidding, resident businesses shall be preferred to nonresident businesses where there is a tie bid and where there will be no sacrifice or loss of quality.

2.   Resident Business - one authorized to do and doing business under the laws of this state, which either:

a.   maintains its principal place in business in the state; or

b.   employs a minimum of two employees who are residents of the state.

C.  Award.  In the discretion of the chief procurement officer or the head of a purchasing agency, award shall be made in any manner that will discourage tie bids.  A written determination justifying the manner of award must be made.  This would include, but is not limited to, consideration of such factors as resident business, proximity, past performance, delivery, completeness of bid proposal.   Tie bids over $10,000 must be reported to the attorney general.  See Chapter 23.  Reporting of Suspected Collusive Bidding or Negotiations.

AUTHORITY NOTE:  Promulgated in accordance with R.S. 39:1581.

HISTORICAL NOTE: Promulgated by the Office of the Governor, Division of Administration, State Purchasing, LR 8:330 (July 1982), amended LR 21:566 (June 1995).

 

§531.   Awarding of Bids

A.  Rejection of Bids.  The right is reserved to reject any or all bids in whole or in part, and to award by items, parts of items, or by any group of items specified.  Also, the right is reserved to waive technical defects when the best interest of the state thereby will be served.

B.   Information on Bid Results.  Information pertaining to results of bids may be secured by visiting the agency, except weekends and holidays, during normal working hours, or by complying with '535.

C.  Cash Discounts

1.   Open Market Purchases and Definite Quantity Term Contracts.  All cash  discounts will be taken.  However, cash discounts will only be considered in determining an award on terms for 30 days or more and at least one percent.

2.   Indefinite Quantity Term Contracts.  Cash discounts will be accepted and taken but will not be considered in determining awards.

D.  Increase or Decrease in Quantities.  Unless otherwise specified in the Invitation for Bids, the state reserves the right to increase or decrease the quantities of any item or items shown in the bid by 10 percent.

E.   Availability of Funds.  A contract shall be deemed executory only to the extent of appropriations available to each agency for the purchase of such articles.

F.   All or None Bids

1.   A business may limit a bid on acceptance of the whole bid, whereupon the state shall not thereafter reject part of such bid and award on the remainder.  An award shall be made to the "all or none" bid only if it is the overall low bid on all items, or those items bid.

2.   Overall low bid shall be that bid whose total bid, including all items bid, is the lowest dollar amount; be it an individual's bid or a computation of all low bids on individual items of those bids that are not conditioned "all or none."

a.   Open Market Purchases.  When multiple items are contained on any solicitation and the state chooses to make an item or group award in order to save the state the cost of issuing a different purchase order, an award may be made to a vendor on that item if the total bid for said item is $1,000 or less, and the difference between the low bidder and the bidder receiving the award is $100 or less.

b.   An "all or none" bid may be awarded in a similar fashion, to save the state the cost of issuing another purchase order, if the difference in the overall cost between the vendors is $100 or less and no single item exceeds $1,000.

AUTHORITY NOTE:  Promulgated in accordance with R.S. 39:1581.

HISTORICAL NOTE: Promulgated by the Office of the Governor, Division of Administration, State Purchasing, LR 8:330 (July 1982), amended LR 21:566 (June 1995).

 

§533.   Documentation of Award

A.  Following award, a record showing the basis for determining the successful bidder, including reasons for rejecting any nonresponsive bids, shall be made a part of the procurement file.

AUTHORITY NOTE:  Promulgated in accordance with R.S. 39:1581.

HISTORICAL NOTE: Promulgated by the Office of the Governor, Division of Administration, State Purchasing, LR 8:331 (July 1982), amended LR 21:566 (June 1995).

 

§535.   Publicizing Awards

A.  Written notice of award shall be sent to the successful bidder.  In procurement over $25,000, each unsuccessful bidder shall be notified of the award provided that he submitted with his bid a self-addressed stamped envelope requesting this information.  Notice of award shall be made a part of the procurement file.

AUTHORITY NOTE:  Promulgated in accordance with R.S. 39:1581.

HISTORICAL NOTE: Promulgated by the Office of the Governor, Division of Administration, State Purchasing, LR 8:331 (July 1982), amended LR 21:566 (June 1995).

 

§537.   Assignments

A.  No contract or purchase order or proceeds thereof may be assigned, sublet or transferred without written consent of the commissioner.  This does not include agencies exempt in R.S. 39:1572.

AUTHORITY NOTE:  Promulgated in accordance with R.S. 39:1581.

HISTORICAL NOTE: Promulgated by the Office of the Governor, Division of Administration, State Purchasing, LR 8:331 (July 1982), amended LR 21:566 (June 1995).

 

§539.   Deliveries

A.  Extension of Time.  Any extension of time on delivery or project completion time must be requested in writing by the vendor and accepted or rejected in writing by the purchasing department.  Such extension is applicable only to the particular item or shipment affected.

B.   Additional Charges.  No delivery charges shall be added to invoices except when express delivery is substituted on an order for less expensive methods specified in contract.  In such cases, when requested by the agency, the difference between freight or mail and express charges may be added to the invoice.

C.  Weight Checking.  Deliveries shall be subject to reweighing on official scales designated by the state.  Payments shall be made on the basis of net weight of materials delivered.

D.  Rejection of Deliveries, Payment for Used Portion.  Payment for any used portion of delivery found (as a result of tests or otherwise) to be inferior to specifications or contract requirements, will be made by the state on an adjusted price basis, using the procedures outlined in R.S. 39:1673.

E.   Contracts - Reduction in Prices.  All state agencies will receive the benefit of any reduction in price on any unshipped portion of any commodity contract.  In the event the contractor reduces his price to any one state agency or political subdivision of the state, or makes a general reduction in price, all state agencies being supplied under these contracts are automatically entitled to the lower price; and the contractor shall rebate to all state agencies in a proportional amount.  Also, in the event the total purchases of all state agencies of any items covered by the contract entitle the state to a greater quantity discount, the state shall receive the quantity discount appropriated the total amount of actual purchases made by all state agencies.  All price reductions made by any supplier under these contracts, designed for the benefit of any state agency, shall be made directly to Purchasing, Division of Administration.  Also, the state agencies shall report any offer of a reduction in contract price to Purchasing, and the right is reserved to accept or reject such offers; but the best interest of the state as a whole will always be considered.

F.   Invoices.  Upon delivery of each order and its acceptance by the state agency, the supplier shall bill the state agency by means of invoice and the invoice shall make reference to the purchase order number, contract award number, and/or purchase requisition number.  All invoices shall be submitted by the supplier on the supplier's own invoice forms, in duplicate, directly to the accounting office of the state agency as required by the purchase order.

G.   Payment

1.   After receipt and acceptance of order and receipt of valid invoice, payment will be made by the state agency within 30 days.  Payment will be made at the respective unit prices shown on the bid or price schedule, less any percentages off list price, less federal excise tax (unless otherwise specified), less cash discount earned.

2.   If a state agency without reasonable cause fails to make any payment due within 90 days of the due date prescribed by contract, the state agency shall pay a penalty in accordance with R.S. 39:1695.

AUTHORITY NOTE:  Promulgated in accordance with R.S. 39:1581.

HISTORICAL NOTE: Promulgated by the Office of the Governor, Division of Administration, State Purchasing, LR 21:566 (June 1995).

 

Chapter 7.  Small Purchases

§701.   Small Purchases

A.  Any procurement not exceeding the amount established by executive order of the governor may be made in accordance with small purchase procedures prescribed by such executive order, except that procurement requirements shall not be artificially divided so as to constitute a small purchase under this Section.

B.   Any person who intentionally violates this Part will be penalized in accordance with R.S. 39:1679.

C.  See appropriate executive order entitled "Small Purchases."

AUTHORITY NOTE:  Promulgated in accordance with R.S. 39:1581.

HISTORICAL NOTE: Promulgated by the Office of the Governor, Division of Administration, State Purchasing, LR 8:331 (July 1982), amended LR 21:566 (June 1995).

 

Chapter 9.  Sole Source Procurement

§901.   Application

A.  These provisions shall apply to all sole source procurement unless emergency conditions exist as defined in Chapter 11 (Emergency Procurement) of these regulations.

B.   R.S. 39:1597 of the Louisiana Procurement Code provides in pertinent part: "A contract may be awarded for a required supply, service, or major repair without competition when, under regulations, the chief procurement officer or his designee above the level of procurement officer determines in writing that there is only one source for the required supply, service, or major repair item."

AUTHORITY NOTE:  Promulgated in accordance with R.S. 39:1581.

HISTORICAL NOTE: Promulgated by the Office of Governor, Division of Administration, State Purchasing, LR 8:331 (July 1982), amended LR 21:566 (June 1995).

 

§905.   Conditions for Use of Sole Source Procurement

A.  Determination

1.   The determination as to whether a procurement shall be made as a sole source shall be made by the chief procurement officer, or head of a purchasing agency.  Such determination shall be in writing.  Such officer may specify the application of such determination and its duration.  In cases of reasonable doubt, competition should be solicited.  Any request by a using agency that a procurement be restricted to one potential contractor shall be accompanied by an explanation as to why no other will be suitable or acceptable to meet the need.

2.   Sole source procurement is permissible only if a requirement is available from a single supplier.  A requirement for a particular proprietary item does not justify a sole source procurement if there is more than one potential bidder or offeror for that item.  Examples of circumstances which could necessitate sole source procurement are:

a.   where the compatibility of equipment, accessories, or replacement parts is the paramount consideration;

b.