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Procurement Code Training June 7, 2012

Procurement Code Training June 7, 2012. SB 153 Procurement Amendments Effective: May 1, 2013. 1. Invitations for Bid 2. Competitive Sealed Proposals (RFPs) Requests for Information Reverse Auctions Multi-Step Sealed Bidding Small Purchases Multi-Year Contracts.

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Procurement Code Training June 7, 2012

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  1. Procurement Code Training June 7, 2012

  2. SB 153 Procurement AmendmentsEffective: May 1, 2013 1. Invitations for Bid 2. Competitive Sealed Proposals (RFPs) • Requests for Information • Reverse Auctions • Multi-Step Sealed Bidding • Small Purchases • Multi-Year Contracts

  3. SB 153 Procurement AmendmentsEffective: May 1, 2013 8. Prequalification of Bidders and Offerors 9. Cost Proposals Evaluated Separately From Evaluation Committee 10. Award Justification Statement– Cost Benefit Analysis 11. Protest and Appeals Process SB 114 - Immediate 12. Sections Eliminated - Preference for Recycled Paper and Paper Products - Preference for Alkaline Paper 13. Enhanced Penalties - Enhanced Penalties for Violations of Procurement Code

  4. 63G-6a-104 Definitions of Government Entities "Authorized purchasing entity" means:(a) a non-executive state procurement unit; or (b) a state purchasing unit. "External procurement unit" means: (a) a buying organization not located in this state which, if located in this state, would qualify as a public procurement unit; or (b) an agency of the United States.

  5. 63G-6a-104 Definitions of Government Entities (3) "Local government unit" means: (a) a county; (b) a municipality; (c) a political subdivision created by counties or municipalities under Title 11, Chapter 13, InterlocalCooperation Act; or (d) the Utah Housing Corporation.

  6. 63G-6a-104 Definitions of Government Entities "Local public procurement unit" means: (a) a local district, as defined in Section 17B-1-102; (b) a special service district, defined in Section 17D-1-102 ; (c) a local building authority, defined in Section 17D-2-102 ; (d) a conservation district, as described in Title 17D, Chapter 3, Conservation District Act; (e) a public corporation, other than the Utah Housing Corporation;

  7. 63G-6a-104 Definitions of Government Entities "Local public procurement unit" means:(f) a community development and renewal agency; (g) a school district; (h) a public school, including a local school board or a charter school; (i) Utah Schools for the Deaf and Blind; (j) the Utah Education Network;

  8. 63G-6a-104 Definitions of Government Entities "Local public procurement unit" means: (k) an institution of higher education of the state; (l) a county or municipality, and each office or agency of the county or municipality, unless the county or municipality adopts its own procurement code by ordinance; (m) a county or municipality, and each office or agency of the county or municipality, that has adopted this entire chapter by ordinance;

  9. 63G-6a-104 Definitions of Government Entities "Local public procurement unit" means: (n) a county or municipality, and each office or agency of the county or municipality, that has adopted a portion of this chapter by ordinance, to the extent that the term is used in the adopted portion of this chapter; or (o) two or more of the entities described in this Subsection (4), acting under legislation that authorizes intergovernmental cooperation.

  10. 63G-6a-104 Definitions of Government Entities (5) "Non-executive state procurement unit" means:(a) the state legislative branch; (b) a public procurement unit in the state legislative branch; (c) the state judicial branch; (d) a public procurement unit in the state judicial branch; or (e) a public transit district, organized under Title 17B, Chapter 2a, Part 8, Public Transit District Act.

  11. 63G-6a-104 Definitions of Government Entities (6) "Public entity" means any state or local government entity, located in Utah, including: (a) the state legislative branch, including the Legislature and each house, staff office, committee, subcommittee, or other part of the state legislative branch; (b) the state executive branch, including the governor's office and each department, division, agency, office, and bureau in the state executive branch; (

  12. 63G-6a-104 Definitions of Government Entities (6) "Public entity" means any state or local government entity, located in Utah, including: (c) the state judicial branch, including the Utah Supreme Court, the Utah Court of Appeals, the Judicial Council, and each court, office, and other part of the state judicial branch; (d) a municipality or county, regardless of whether the municipality or county has adopted this chapter or any part of this chapter; (e) a public procurement unit; and (f) any other entity that expends public funds.

  13. 63G-6a-104 Definitions of Government Entities (7) (a) "Public procurement unit" means: (i) the Senate; (ii) the House of Representatives; (iii) a staff office of the state legislative branch; (iv) a state executive branch department, division, office, bureau, or agency; (v) the Utah State Supreme Court; (vi) the Judicial Council; (vii) a state judicial district; or (viii) a local public procurement unit.

  14. 63G-6a-104 Definitions of Government Entities (7) "Public procurement unit" means: (b) "Public procurement unit" does not include a political subdivision created by counties or municipalities under Title 11, Chapter 13, Interlocal Cooperation Act.

  15. 63G-6a-104 Definitions of Government Entities (8) "State purchasing unit" means: (a) the division; (b) the following entities, to the extent that the entities have express statutory authority to engage in a procurement without the involvement of the division: (i) the State Building Board, in Section 63A-5-101; (ii) DFCM, created in Section 63A-5-201;      (iii) the attorney general's office; (iv) UDOT, created in Section 72-1-201; or       (v) a district court;

  16. 63G-6a-104 Definitions of Government Entities (8) "State purchasing unit" means: (c) an institution of higher education of the state; (d) a school district; (e) a public school, including a local school board or a charter school; or (f) a local public procurement unit.

  17. 63G-6a-104 Definitions of Government Entities Name of Governmental Entity: _________________________________ YesNo Authorized Purchasing Entity External Procurement Unit Local Government Unit Local Public Procurement Unit Non-Executive State Procurement Unit Public Entity Public Procurement Unit State Purchasing Unit    

  18. 63G-6a-104 Definitions of Government Entities State PurchasingU of U Authorized Purchasing Entity . . . . . . . . . . . . . Yes . . . . . . . . . . . . . .Yes External Procurement Unit Local Government Unit Local Public Procurement Unit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Yes Non-Executive State Procurement Unit Public Entity . . . . . . . . . . . . . . . . . . . . . . . . . . Yes . . . . . . . . . . . . . . . Yes Public Procurement Unit . . . . . . . . . . . . . . . . Yes . . . . . . . . . . . . . . . Yes State Purchasing Unit . . . . . . . . . . . . . . . . . . . Yes . . . . . . . . . . . . . . .Yes

  19. 63G -6a Part 7 Request for Proposals • When to use a RFP? • What must be in a RFP? • Evaluations of Proposals • Cost-benefit Analysis • Awards, Cancellations, Disqualifications • Multiple Stages

  20. 63G -6a Part 7 Request for Proposals When to Use a RFP? • Procurement Officer determines, in writing that a RFP will provide the best value to the unit. • Appropriate uses include: • Professional Services; • Design-build projects; and, • Cost is not the most important factor or other factors, in addition to cost, are highly significant.

  21. 63G -6a Part 7 Request for Proposals What must be in a RFP? • Timelines and submission requirements • All the subjective and objective evaluation criteria • Contract terms and conditions • All Criteria weights and scoring • Cost Formula

  22. 63G -6a Part 7 Request for Proposals Evaluation of Proposals • The Evaluation Committee • Three individuals, at least one must be from the using agency; • No conflicts of interest; • Prohibited from knowing the costs, unless: • The head of the authorized purchasing entity signs a written statement: • Waiving the requirement • Why the requirement is waived • Makes the statement public

  23. 63G - 6a – 707(5) Separation of Cost/Pricing Except as provided in Subsection (6) or (7), each member of the evaluation committee is prohibited from knowing, or having access to, any information relating to the cost, or the scoring of the cost, of a proposal until after the evaluation committee submits its final recommended scores on all other criteria to the authorized purchasing entity. Biggest complaint regarding State’s RFP process: “Choose who you want - make up phony scores to justify selection” Separating Costs/Pricing from the Evaluation Committee helps to ensure the integrity of the scoring process and reduces the opportunity to manipulate the selection process.

  24. 63G -6a Part 7 Request for Proposals Evaluation of Proposals • Evaluations • Use only the criteria published in the RFP; • Examples of criteria: • Experience • Performance Ratings • Management Plans • Cost • Other as Specified in RFP • Criteria not published cannot be used;

  25. 63G -6a Part 7 Request for Proposals Awards • Award the contract to the responsive and responsible offeror with the highest total score; • If the highest total score is disqualified, to the next highest total score. Cancellation • Cancel the procurement without awarding a contract’ • Make publicly available a written justification for the cancellation.

  26. 63G -6a Part 7 Request for Proposals Disqualifications • Violation of the Utah Procurement Code; • Unlawful or Unethical Conduct; or • “(d) a change in circumstances that, had the change been known at the time the proposal was submitted, would have caused the proposal not to have the highest score.” • Make a written finding stating the reasons; • Provide a copy to the offeror

  27. 63G -6a Part 7 Request for Proposals Multiple Stages • When to Use: • An earlier stage is used to qualify offerors; • Narrow the number of offerors that will move on to subsequent stages. • Conduct • All stages of a multiple stage process must be conduct in accordance with the Utah Procurement Code.

  28. 63G-6a-708Cost-Benefit Analysis If the contract is awarded to an offeror other than the lowest cost offeror, and the difference between the cost of the accepted proposal and the lowest proposal exceeds the greater of $10,000 or 5% of the lowest cost offer, an authorized purchasing entity shall include, with the statement described in Subsection (1), an informal written cost-benefit analysis that: (a) explains, in general terms, the advantage to the public procurement unit of awarding the contract to the higher cost offeror;

  29. 63G-6a-708Cost-Benefit Analysis (b) includes, except as provided in Subsection (2)(c), the estimated added financial value to the public procurement unit of each criteria that justifies awarding the contract to the higher cost offeror; (c) includes, to the extent that assigning a financial value to a particular criteria is not practicable, a statement describing: (i) why it is not practicable to assign a financial value to the criteria; and (ii) in nonfinancial terms, the advantage to the public procurement unit, based on the particular criteria, of awarding the contract to the higher cost offeror;

  30. 63G-6a-708Cost-Benefit Analysis demonstrates that the value of the advantage to the public procurement unit of awarding the contract to the higher cost offeror exceeds the value of the difference between the cost of the higher cost offeror and the cost of the lower cost offerors; and (e) includes any other information required by rule made by the applicable rulemaking authority.

  31. Example #1Cost/Benefit Analysis Vendor “A” = $6,700,000 Vendor “B” = $5,000,000 Vendor “A” ranked #1 by Selection Committee Vendor “A” $1,700,000 (34%) more than “B”

  32. Cost - Benefit Analysis – Justification Statement  1. Unlike Vendor “B”, the overall technical qualities of Vendor “A” are vastly superior. Vendor “A” reached across all areas of evaluation and included: (a) Addressing all areas of the RFP, (b) Administration materials & protocols, (c) Alignment to national standards, (d) Validity of measuring the program performance, (e) Validly reporting modality level information, (f) A growth plan for changing the instrument as research in the field advances, (g) References, (h) Scoring & reporting systems, (i) Ancillary materials to support program needs, (j) Strength of consortium involvement to meet state needs. 2. The product from Vendor “A” will require no use of state funded personnel hours. The other vendor’s product would require the use of state funded personnel hours related to additional development and review of product. At this time, no dollar value to this item. 3. Vendor “A” provides other quantifiable benefits including the use of established research-based standards for Utah saving the state the cost of developing such standards on its own. Cost savings conservatively estimated at $126,000. 4. Vendor “A” provides an unquantifiable benefit of membership in a 20 state consortium. Part of this benefit is involvement in state of the art research in the field. Additionally, consortium involvement benefits Utah at the federal level including meeting national evaluation standards. Benefit of membership = cost savings of approximately $15,000.

  33. Example #2Cost/Benefit Analysis RFP to evaluate the net cost of implementing regulations to reduce nutrients to Utah’s waters Vendor “A” = $477,000 Vendor “B” = $400,000 Vendor “A” $77,000 (19%) higher than “B”

  34. Cost Justification Statement Implementation of the nutrient criteria program will ultimately cost approximately $1.3 billion. The review team unanimously agreed that the proposal submitted by Firm “A” was superior. However, Firm “A’s” proposal was $77,000 higher than Firm “B”. Many of the savings anticipated from the superior product anticipated from Firm “A” are difficult to accurately quantify, however, we estimate hundreds of thousands in savings can be anticipated. Firm “A’s” proposal identified an approach for delivering all of the products specified in the RFP, whereas the proposal from Firm “B” did not include an approach for obtaining nutrient criteria tied to recreation users. The review team determined that Firm “A’s” expenses will exceed $100,000 for obtaining nutrient criteria tied to recreation users which more than explains the cost difference between the proposals. Firm “A’s” proposal was specific, clearly identifying how each work element would be addressed, whereas Firm “B’s” proposal described a general approach. The review team was more confident in the ability of Firm “A” to deliver a complete and accurate product. It is difficult to quantify the cost of mistakes resulting from inaccurate or incomplete information until they occur. However, given that this work will directly affect the implementation of a $1.3 billion program, it is reasonable to assume that mistakes resulting from inaccurate data could cost hundreds of thousands of dollars – if not millions. Note: The Division’s cost justification statement also included other areas of documented cost savings to the state associated with Firm “A’s” proposal.

  35. Example #3Cost/Benefit Analysis RFP for Health Care Related Services Firm “A” = $12,720 per year ($38,160 @ 3 yrs) RFP Selection Criteria: 30% Demonstrated ability to meet the scope of the work 20% Qualifications of staff proposed for the project I0% Demonstrated technical capability 10% References 30% Cost

  36. Cost Benefit Analysis The Selection Committee reviewed the proposals for all criteria in the RFP except cost which was withheld from the committee by State Purchasing. Firm “A” had a high level of experience proven ability to perform the work competently, which was based on references and resumes. Firm “A” has a larger local staff in Salt Lake City than Firm “B”. Firm “A” has outstanding qualifications and expertise and an extensive list of qualified adjusters and managers to assist with Utah claims. Conversely, Firm “B” provided the name of only a single adjuster. Firm “A’s” proposal indicated outstanding experience in handling Utah-specific claims. We estimate that the state will incur additional time working with a company that has most of its personnel located in distant locations and who does not have an extensive working knowledge of Utah laws and practices related to Utah claims. We estimate 200 additional hours for our personnel at an average hourly rate of $34 per hour equals $6,800 In addition, the division will incur additional travel costs of approximately $3,000. Firm “A” has contracts with both IHC and University of Utah Hospitals, whereas Firm “B” only has a contract with IHC. Last year the state’s program had approximately $1.1 million in claims. If roughly half of this amount, or $500,000, was from University Hospitals, Firm “A” would save the state’s Fund $150,000 to $200,000 per year or $450,000 to $600,000 over the three years of the contract.

  37. Example #4Cost/Benefit Analysis The Review Committee recommends that Offeror “1” be awarded the contract Offeror “1” was $12,564 more per year than the lowest cost offeror

  38. Cost Justification Statement Offeror #1 demonstrated that its software application provided the most complete and comprehensive solution to the operational characteristics desired by Department. The application supplied each of the tasks identified in the RFP in a superior manner as compared to the other offerors. It is the review committee's opinion that the fit and completeness of Offeror #1’s solution as compared to the Department’s operational requirements more than justifies the increase of 8.4% over the lowest cost vendor. Once the Department’s staff is fully trained with this vendor's solution, it will result in an increase in the Department’s ability to provide customer service. We estimate that we will be able to save 19 to 27 hours per week using Offeror #1’s application as compared Offeror #3 (the low cost offeror). Using an average pay plus benefits rate for the group, this translates into a reduction of $22,205 to $31,555 for this Offeror's solution over the lowest cost Offeror.

  39. Example #5Cost/Benefit Analysis RFP = Highway Imaging andInventory program It is the Department's intent is to award to the responsible Proposer whose Proposal is most advantageous to the State, taking into consideration qualifications, price, and quality factors defined in the RFP The Selection Team recommends award to Firm “A” Cost difference Firm “A” and low cost = $311,336

  40. Best Value Analysis • Accuracy of Lane Miles: Thirty percent of $250 million of federal funds are allocated based upon proper lane miles being reported. A miscalculation of just 25 miles would mean being off by 0.18% every year, resulting in a risk of $135,000 in funding each year simply due to inaccurate calculations of lane miles. Firm “A’s” approach to reporting lane miles mitigates this risk. • Accuracy of Surface Areas: Surface Area measurement assists the Department in properly allocating $260 million in funding to specific projects. If Surface Areas are off by 4%, $10.4 Million could be misallocated. 10% of $10.4 million equates to a yearly loss of over $1 million in funds that could result from an incorrect calculation of surface area measurements. Firm “A’s” approach to calculating Surface Areas mitigates this risk. • Accuracy Increasing Safety: Quantifying the benefits to safety from collecting additional and more accurate roadway data is difficult. Many of the benefits are intrinsic to the process. If Firm “A” provides the Department with the additional information needed to eliminate one fatal crash per year, we project a benefit/cost ratio of 19:1 or $5.4 million.

  41. Example #6Cost/Benefit Analysis Cost Analysis The recommended vendor “A” was neither the highest bidder nor the lowest bidder in terms of cost. The lowest bidder was vendor “B” $20,000, with a cost significantly (59%) below the average bid of $49,000 for all bidders and 42% lower than the next lowest bidder at $35,000. The committee did not feel that the product being offered by vendor “B” was of the quality needed and would end up in additional agency costs of over $40,000 the first year and ongoing costs of $39,000 each year thereafter. The highest bidder, at $76,600 was vendor “C” with an overall product that the committee ranked 5th in terms of quality and ability to reach the Department’s target audience. The cost-benefit analysis above is insufficient. Vendor “B” should have been declared “Nonresponsive” and “Not Responsible” because their product was not of the quality needed and their cost was 59% below the average bid. This example is intended to show that the cost-benefit analysis cannot be used to justify errors made by an evaluation committee. Evaluation committees must perform appropriately and eliminate firms that do not meet the specifications of the RFP or that make clear pricing errors.

  42. 63G-6a-408 Small Purchases Current Code (63G-6-409) Small purchases shall be defined in, and may be made in accordance with procedures established by rules and regulations; except that the procurement requirement shall not be artificially divided so as to constitute a small purchase under this section. Effective May 1, 2013 Replaced by S.B. 153 – Utah Code 63G-6a-408

  43. 63G-6a-408 Small Purchases • The applicable rulemaking authority may make rules governing small purchases, including: (a) establishing the maximum expenditure that may qualify as a small purchase, unless otherwise provided by statute; (b) establishing expenditure thresholds and procurement requirements related to those thresholds; and  (c) the use of electronic, telephone, or written quotes.

  44. 63G-6a-408 Small Purchases (2)(a) Except as provided in Subsection (2)(b), a public procurement unit may not obtain a procurement item through a small purchase procurement process if the procurement item may be obtained through a state contract.   (b) Subsection (2)(a) does not apply:  (i) to a non-executive state procurement unit; (ii) if the procurement officer or the head of the state purchasing unit authorizes an exception to the requirement; or (iii) to a local public procurement unit. Note: currently discussing adding the following exception: (iv) for Emergency Procurements as outlined in 63G-6a-803: small purchases (under $1,000) may be made for emergency procurements of goods, supplies and services if it can be documented that the small purchase is required for immediate use and is necessary to facilitate the continuation of a project, facility maintenance or administrative operations. (c) An entity that is exempt from the requirements of Subsection (2)(a) is encouraged, but not required, to comply with Subsection (2)(a).

  45. 63G-6a-408 Small Purchases (3)(a) Except as provided n Subsection (3)(b), a public procurement unit: (i) may not use the small purchase procurement process described in this section for ongoing, continuous, and regularly scheduled procurements; and (ii) shall make its ongoing, continuous, and regularly scheduled procurements through a contract awarded through a procurement process described in this chapter or an applicable exception to a procurement process. (b) Subsection (3)(a) does not apply to an ongoing, continuous, or regularly scheduled procurement to the extent that the total expenditures for the procurement during a fiscal year do not exceed the maximum expenditure that the public procurement unit is permitted to make under this section, as established by rule made by the applicable rulemaking authority. Administrative Rule R33-3: “For purchases up to $1,000 the agency may select the best source without seeking competitive quotes.” R33-3 does not limit aggregate procurements under $1,000 from a single vendor. However, the Rule may be amended to require public procurement units to conduct an annual assessment of small purchases under $1,000 to determine if contracts for specific items should be put in place.

  46. 63G-6a-408 Small Purchases (4) It is unlawful for a person to intentionally or knowingly divide a procurement into one or more smaller procurements with the intent to make a procurement: (a) qualify as a small purchase, if, before dividing the procurement, it would not have qualified as a small purchase; or (b) meet a threshold established by rule made by the applicable rulemaking authority, if, before dividing the procurement, it would not have met the threshold.

  47. 63G-6a-408 Small Purchases (5) A division of a procurement that is prohibited under Subsection (4) includes doing any of the following with the intent or knowledge described in Subsection (4): (a) making two or more separate purchases; (b) dividing an invoice or purchase order into two or more invoices or purchase orders; or (c) making smaller purchases over a period of time.

  48. 63G-6a-408 Small Purchases (6) A person who violates Subsection (4) is subject to the criminal penalties described in Section 63G-6a-2305. (7) The Division of Finance within the Department of Administrative Services may conduct an audit of a public procurement unit in the state executive branch to verify compliance with the requirements of this section. (8) A public procurement unit in the state executive branch may not make a small purchase after May 1, 2013, unless the chief procurement officer certifies that the person responsible for procurements in the public procurement unit has satisfactorily completed training on this section and the rules made under this section. Note: The training requirement described in Section (8) is provided at the time P-cards are obtained. However, all other requirements of 63G-6a-408 are applicable to small purchases made with P-cards.

  49. 63G-6a-609Multiple Stage Bidding Process • An authorized purchasing entity may conduct a bid in multiple stages, to:   (a) narrow the number of bidders who will progress to a subsequent stage; (b) prequalify bidders for subsequent stages, in accordance with Section 63G-6a-403; (c) enter into a contract for a single procurement; or (d) award multiple contracts for a series of upcoming procurements.

  50. 63G-6a-609Multiple Stage Bidding Process • The invitation for bids for a multiple stage bidding process shall: (a) describe the requirements for, and purpose of, each stage of the process; (b) indicate whether the authorized purchasing entity intends to award: (i) a single contract; or (ii) multiple contracts for a series of upcoming procurements; and (c) state that: (i) the first stage is for prequalification only; (ii) a bidder may not submit any pricing information in the first stage of the process; and (iii) bids in the second stage will only be accepted from a person who prequalifies in the first stage.

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