REPORT TITLE:
Concessions on Public Property


DESCRIPTION:
Provides the DOT and all other State departments with more
flexibility in securing concessionaries.

 
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THE SENATE                              S.B. NO.           
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO CONCESSIONS ON PUBLIC PROPERTY.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  Chapter 102, Hawaii Revised Statutes, is amended
 
 2 by adding a new section to be appropriately designated and to
 
 3 read as follows:
 
 4      "§102-  Competitive sealed proposals.  (a)  Competitive
 
 5 sealed proposals may be utilized to enter into concession
 
 6 contracts when the head of a purchasing agency determines in
 
 7 writing that the use of competitive sealed bidding is either not
 
 8 practicable or not advantageous to the government agency.
 
 9 Factors to be considered in determining whether competitive
 
10 sealed bidding is not practicable or advantageous include:
 
11      (1)  Whether the award determination involves the
 
12           consideration of factors in addition to financial
 
13           return to the governmental agency;
 
14      (2)  Whether oral or written discussions may need to be
 
15           conducted with offerors concerning technical and
 
16           financial aspects of their proposals;
 
17      (3)  Whether offerors may need to be afforded the
 
18           opportunity to revise their proposals, including
 
19           financial return to the government agency; and
 

 
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 1      (4)  Whether award may need to be based upon a comparative
 
 2           evaluation as stated in the request for proposals of
 
 3           differing financial return, quality, and contractual
 
 4           factors in order to determine the most advantageous
 
 5           offering to the government agency.  Quality factors
 
 6           include technical and performance capability and the
 
 7           content of the technical proposal.
 
 8      (b)  Proposals shall be solicited through a request for
 
 9 proposals.
 
10      (c)  Notice of this request for proposals shall be given in
 
11 the same form and manner for advertisements for bids in section
 
12 102-4.
 
13      (d)  Proposals shall be opened so as to avoid disclosure of
 
14 contents to competing offerors during the process of negotiation.
 
15 A register of proposals shall be prepared and shall be open for
 
16 public inspection after contract award.
 
17      (e)  The request for proposals shall state the relative
 
18 importance of financial return to the government agency and other
 
19 evaluation factors.
 
20      (f)  Discussions may be conducted with responsible offerors
 
21 who submit proposals determined to be reasonably susceptible of
 
22 being selected for award for the purpose of clarification to
 
23 assure full understanding of, and responsiveness to, the
 

 
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 1 solicitation requirements.  Offerors shall be accorded fair and
 
 2 equal treatment with respect to any opportunity for discussion
 
 3 and revision of proposals, and revisions may be permitted after
 
 4 submissions and prior to award for the purpose of obtaining best
 
 5 and final offers.  In conducting discussions, there shall be no
 
 6 disclosure of any information derived from proposals submitted by
 
 7 competing offerors.
 
 8      (g)  Award shall be made to the responsible offeror whose
 
 9 proposal is determined in writing to be the most advantageous
 
10 taking into consideration the financial return to the government
 
11 agency and the evaluation factors set forth in the request for
 
12 proposals.  No other factors or criteria shall be used in the
 
13 evaluation.  The contract file shall contain the basis on which
 
14 the award is made."
 
15      SECTION 2.  Section 102-1, Hawaii Revised Statutes, is
 
16 amended to read as follows:
 
17      "§102-1  Definition.  The word "concession" as used in this
 
18 chapter means the grant to a person of the privilege to:
 
19      (1)  Conduct operations [that are essentially retail in
 
20           nature,] involving the sale of goods, wares,
 
21           merchandise, or services to the general public[, such
 
22           as restaurants, cocktail lounges, soda fountains, and
 
23           retail stores,] including, but not limited to, food and
 

 
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 1           beverage establishments, retail stores, and
 
 2           advertising, communications and telecommunication
 
 3           services, in or on buildings under the jurisdiction of
 
 4           any government agency; and
 
 5      (2)  Operate a parking lot on property owned or controlled
 
 6           by the State with the exception of buildings,
 
 7           facilities, and grounds operated by or otherwise under
 
 8           the jurisdiction of the department of education[.]; and
 
 9      (3)  Use, for compensation, space on public property to
 
10           display advertising and to conduct operations for
 
11           communications purposes."
 
12      SECTION 3.  Section 102-2, Hawaii Revised Statutes, is
 
13 amended to read as follows:
 
14      "§102-2  Contracts for concessions; bid or competitive
 
15 sealed proposals required, exception.(a)  Except as otherwise
 
16 specifically provided by law, no concession or concession space
 
17 shall be leased, let, licensed, rented out, or otherwise disposed
 
18 of either by contract, lease, license, permit, or any other
 
19 arrangement, except under contract let after public advertisement
 
20 for sealed tenders or sealed proposals in the manner provided by
 
21 law; provided that the duration of the grant of the concession or
 
22 concession space shall be related to the investment required but
 
23 in no event to exceed fifteen years.
 

 
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 1      (b)  The bidding and proposal requirements of subsection (a)
 
 2 shall not apply to concessions or space on public property set
 
 3 aside for the following purposes:
 
 4      (1)  For operation of ground transportation services at
 
 5           airports;
 
 6      (2)  For lei vendors;
 
 7      (3)  For airline and aircraft operations;
 
 8      (4)  For automatic teller machines and vending machines,
 
 9           except vending machines located at public schools
 
10           operated by blind or visually handicapped persons in
 
11           accordance with section 302A-412;
 
12      (5)  For operation of concessions set aside without any
 
13           charge;
 
14      (6)  For operation of concessions by handicapped or blind
 
15           persons; except concessions operated in the public
 
16           schools by blind or visually handicapped persons in
 
17           accordance with section 302A-412;
 
18      (7)  For operation of concessions on permits revocable on
 
19           notice of thirty days or less; provided that no such
 
20           permits shall be issued unless the premises covered
 
21           under the permit is no longer being used for the
 
22           existing purposes, and that the permit is issued as a
 
23           temporary use of the premises until the governmental
 

 
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 1           agency proceeds to use the premises for a new purpose;
 
 2           and provided further that no permits shall be issued
 
 3           for more than one year;
 
 4      (8)  For operation of concessions or concession spaces for a
 
 5           beach service association dedicated to the preservation
 
 6           of the Hawaii beachboy tradition, incorporated as a
 
 7           nonprofit corporation in accordance with state law, and
 
 8           whose members are appropriately licensed or certified
 
 9           as required by law; [and]
 
10      (9)  For operation of concessions at county zoos, botanic
 
11           gardens, or other county parks which are
 
12           environmentally, culturally, historically, or
 
13           operationally unique and are supported, by nonprofit
 
14           corporations incorporated in accordance with state law
 
15           solely for purposes of supporting county aims and goals
 
16           of the zoo, botanic garden, or other county park and
 
17           operating under agreement with the appropriate agency
 
18           solely for such purposes, aims, and goals[.]; and
 
19     (10)  For operations of concessions that do not admit of
 
20           competition, and for which there is only one source of
 
21           the good or service, which determination shall be made
 
22           in writing by the head of the government agency
 
23           awarding the concession and included in the concession
 

 
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 1           file.
 
 2      (c)  The bidding and proposal requirements of subsection (a)
 
 3 shall not apply to any nonrenewable dispositions granting rights
 
 4 for a period not in excess of fourteen days."
 
 5      SECTION 4.  Statutory material to be repealed is bracketed.
 
 6 New statutory material is underscored.
 
 7      SECTION 5.  This Act shall take effect upon its approval.
 
 8 
 
 9                           INTRODUCED BY: ________________________
 

 
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