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

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

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

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

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

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

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

8. Collaborative Purchasing 8  Statewide contracts: c. 7, §22A & c. 30B, §1(c); OSD (617.720.3300)  Collective purchasing: c. 7, §22B  GSA schedules: c. 30B, §1(f) (w) http://www.gsa.gov/portal/ content/105300 (e) petersullivan@gsa.gov  Publicly procured supply contracts: c. 30B, §22

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

38. 38 Conclusion Conclusion  Questions? Supplies Services

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

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

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

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

43. QUESTIONS OR COMMENTS Nicholas Read, Deputy General Counsel Office of the Inspector General One Ashburton Place Room 1311 Boston, Massachusetts 02108 (t)617.722.8852 (f)617.723.2334 (e)readni@maoig.net 43