19-11-230. Competitive sealed proposals — Definition.

19-11-230. Competitive sealed proposals — Definition. (a) Definition. “Competitive sealed proposals” means a method of procurement which involves, but is not limited to: (1) Solicitation of proposals through a request for proposals; (2) Submission of cost or pricing data from the offeror where required; (3) Discussions with responsible offerors whose proposals have been determined to be reasonably susceptible to being selected for award; and (4) An award made to the responsible offeror whose proposal is determined in writing to be the most advantageous considering price and evaluation factors set forth in the request for proposals. (b) When the use of competitive sealed bidding is not practicable and advantageous, a contract may be awarded by competitive sealed proposals. (c) Public notice of the request for proposals shall be given in the same manner as provided in § 19-11-229(d), which refers to public notice of competitive sealed bidding. (d)(1) The request for proposals shall indicate the relative importance of price and other evaluation factors. (2)(A) Except as provided in subdivision (d)(2)(B) of this section, cost shall be weighted at least thirty percent (30%) of the total evaluation score for a proposal submitted in response to the request for proposals. (B)(i) The State Procurement Director may approve that cost be weighted at a lower percentage of the total evaluation score for a proposal submitted in response to a request for proposals if the director makes a written determination that the lower percentage is in the best interest of the state. (ii) A state agency's failure to obtain the approval of the director under this subsection for a request for proposals with cost weighted at a lower percentage than required under subdivision (d)(2)(A) of this section is grounds for submitting a protest under § 19-11-244. (C) The use of a lower percentage under subdivision (d)(2)(B) of this section and the corresponding written determination by the director shall be submitted to the Legislative Council or, if the General Assembly is in session, the Joint Budget Committee, for review before the request for proposals is issued. (3) The state's prior experience with an offeror may be considered and scored as part of the offeror's proposal only: (A) To the extent that the request for proposals requests that all offerors provide references; and (B) If the offeror's past performance with the state occurred no more than three (3) years before the offeror submitted the proposal. (4) A state agency shall not include prior experience with the state as a mandatory requirement for submitting a proposal under this section. (e)(1) As provided in the request for proposals and under rule, discussions may be conducted with responsible offerors who submit proposals determined to be reasonably susceptible of being selected for award for the purpose of: (A) Clarifying solicitation requirements to assure full understanding of and responsiveness to the solicitation requirements; or (B) Negotiating a contract that is more advantageous to the state. (2)(A) If discussions conducted after the deadline for the receipt of proposals necessitate material revisions of proposals, each offeror determined to be responsible and reasonably susceptible of being awarded a contract shall be provided an opportunity to revise its proposal for the purpose of submitting a best and final offer. (B) An offeror may be permitted to revise its original proposal as a result of discussions only after the original submission deadline and before award for the purpose of providing a best and final offer. (C)(i) Before issuing the notice of award of a contract, the director or the agency procurement official may request a best and final offer from each responsible offeror that is reasonably susceptible of being awarded the contract. (ii) In responding to a request for a best and final offer, an offeror may: (a) Resubmit the offeror's original proposal with lower pricing or additional benefits, or both, in accordance with the specifications of the request for proposals; or (b) Submit a written response that states that the offeror's original proposal, including without limitation the pricing, remains unchanged. (iii) If a best and final offer is requested, the director or the agency procurement official shall evaluate each proposal submitted in response to the request for a best and final offer in determining the proposal that is the most advantageous to the state. (3) In conducting discussions, information derived from a proposal submitted by a competing offeror shall not be disclosed until after a notice of anticipation to award is announced. (f)(1) The director or an agency procurement official may seek the clarification of a submitted proposal. (2) A written response by an offeror under this subsection shall only clarify the submitted proposal and shall not add any substantive language to the submitted proposal or change the terms of the submitted proposal. (3) If the offeror fails or refuses to clarify any matter questioned about the offeror's proposal in writing by the deadline set by the director or agency procurement official, the proposal may be rejected. (4) If the offeror clarifies the matter questioned under this subsection in writing, the clarification shall be evaluated and become a part of any contract awarded on the basis of the offeror's proposal. (g)(1) 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, the evaluation factors set forth in the request for proposals, any best and final offers submitted, and the results of any discussions conducted with responsible offerors. (2) No other factors or criteria shall be used in the evaluation. (3) If it is determined that two (2) or more responsible offerors have tied scores after the evaluation of the proposals, the award shall be made to the responsible offeror that had one (1) of the tied scores and submitted the lowest price proposal. (4) The director or the agency procurement official may enter into negotiations with the responsible offeror whose proposal is determined in writing to be the most advantageous to the state when the best interests of the state would be served, including without limitation when the state can obtain: (A) A lower price without changes to the terms or specifications of the request for proposals; or (B) An improvement to the terms or specifications, or both, of the request for proposals without increasing the price of the proposal. (h)(1) The Office of State Procurement shall: (A) Encourage full discussion by the evaluators who are evaluating proposals submitted in response to a request for proposals under this section; and (B) Develop tools and templates to be used in evaluating proposals submitted in response to a request for proposals under this section that optimize the number of material scored attributes and provide for a limited range of possible scores for each attribute. (2)(A) A state agency may use one (1) or more private evaluators to evaluate proposals submitted in response to a request for proposals under this section. (B) A private evaluator used under this subsection shall be: (i) Held to the same requirements and prohibitions regarding conflicts of interest as state employees; (ii) A qualified volunteer, unless the state does not have the necessary expertise to evaluate the proposals, in which case a paid private evaluator may be used; and (iii) Eligible for travel reimbursement if the state agency decides to make travel reimbursement available. (C) The use of a private evaluator is not required. (D) If a state agency uses one (1) or more private evaluators, the use of a private evaluator shall be disclosed in the procurement file and in any information submitted to the Legislative Council or, if the General Assembly is in session, the Joint Budget Committee. (i)(1) A competitive sealed proposal may be cancelled or any or all proposals may be rejected in writing by the director or the agency procurement official. (2) Before the rejection of a proposal by the director, the decision to reject the proposal may be validated with the evaluation committee that evaluated the proposal. (3) A proposal may be rejected for failure to adhere to mandatory requirements.