SB2011 SD1

PART I

SECTION 1. Chapter 103D, Hawaii Revised Statutes, is amended by adding a new section to part I to be appropriately designated and to read as follows:

"§103D‑ Moneys for trade missions and goodwill trips. (a) Notwithstanding any provision of this chapter to the contrary, any moneys received by, on behalf of, or for the benefit of a governmental body pursuant to a solicitation of funds by the governmental body to cover the costs and expenses of trade missions and goodwill trips, shall be deposited into the general fund and disbursed pursuant to legislative appropriation. This subsection shall not apply to payments received by the State for booths and participation fees."

SECTION 2. There is appropriated out of the general revenues of the State of Hawaii the sum of $50,000 or so much thereof as may be necessary for fiscal year 2008-2009 to cover the costs and expenses of trade missions and goodwill trips of the State.

The sum appropriated shall be expended by the department of business, economic development, and tourism for the purposes of this Act.

PART II

SECTION 3. Section 103D-110, Hawaii Revised Statutes, is amended to read as follows:

"§103D-110 Education and training. (a) The department of human resources development, either alone or in cooperation with any governmental body, including the department of labor and industrial relations, or in cooperation with other states, the federal government, or other persons may:

[(1) ~~Develop and maintain a comprehensive training and development program for procurement professionals of the State and the several counties;~~

~~(2)~~] (1) Conduct or participate in procurement education and training for persons not employed by the State; and

[~~(3)~~] (2) Sponsor a purchasing certification program conducted by a voluntary organization of procurement professionals.

(b) The state procurement office, in cooperation with the department of human resources development, shall develop and maintain a procurement practices training and development program for procurement officers of the State and the several counties. Attendance shall be mandatory for procurement officers to ensure that their agency's procurement practices are in compliance with the procurement code and that proper procurement decisions are made consistent with this chapter."

PART III

SECTION 4. Section 103D-201, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) The state procurement policy board shall consist of seven members. Notwithstanding [~~the limitations of~~] section 78-4, the members of the board shall include:

(1) The comptroller[;] as an ex-officio non-voting member;

(2) A county employee with significant high-level procurement experience[~~; and~~], to be nominated by the governor; and

(3) Five persons who shall not otherwise be full-time employees of the State or any county; provided that at least one member shall be a certified professional in the field of procurement, at least one member shall have significant high-level, federal procurement experience, and at least two members shall have significant experience in the field of health and human services[.]; and provided further that of the five persons, two shall be nominated by the governor from a list of names submitted to the governor by the president of the senate and two shall be nominated by the governor from a list of names submitted to the governor by the speaker of the house of representatives.

Each appointed member shall have demonstrated sufficient business or professional experience to discharge the functions of the state procurement policy board. [The initial and subsequent members of the policy board, other than the comptroller, shall be appointed by the governor from a list of three individuals for each vacant position, submitted by a nominating committee composed of four individuals chosen as follows: two persons appointed by the governor; one person appointed by the president of the senate; and one person appointed by the speaker of the house.] Except as provided in this section, the selection and terms of the policy board members shall be subject to the requirements of section 26-34. No member of the state procurement policy board shall act concurrently as a chief procurement officer. The members of the state procurement policy board shall devote such time to their duties as may be necessary for the proper discharge thereof."

PART IV

SECTION 5. Section 103D-202, Hawaii Revised Statutes, is amended to read as follows:

"§103D-202 Authority and duties of the policy board. (a) Except as otherwise provided in this chapter, the state procurement policy board shall have the authority and responsibility to adopt rules, consistent with this chapter, governing the procurement, management, control, and disposal of any and all goods, services, and construction[.], and to appoint the administrator of the state procurement office under section 103D-204. All rules shall be adopted in accordance with chapter 91; provided that the state procurement policy board shall have the power to issue interim rules by procurement directives, which shall be exempt from the public notice, public hearing, and gubernatorial approval requirements of chapter 91. The interim rules shall be effective for not more than eighteen months.

(b) The state procurement policy board shall consider and decide matters of policy within the scope of this chapter including those referred to it by a chief procurement officer.

(c) The state procurement policy board [~~shall have the power to~~] shall audit and monitor the implementation of its rules and the requirements of this chapter; but shall not exercise authority over the award or administration of any particular contract, or over any dispute, claim, or litigation pertaining thereto.

The state procurement policy board shall annually audit a minimum of two executive departments, divisions, or agencies, to be randomly selected, to ensure compliance with this chapter. In addition, the state procurement policy board shall select any department, division, or agency for compliance audits:

(1) Based upon a pattern of non-compliance;

(2) Based upon circumstances of a particular procurement that may indicate an intention to circumvent this chapter; or

(3) As otherwise authorized by law;

provided that there shall be follow-up audits of a department, division, or agency that has been previously audited under paragraphs (1) or (2).

The state procurement office shall report the results of all compliance audits to the legislature no later than twenty days before the convening of each regular session."

SECTION 6. Section 103D-204, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) The administrator shall be appointed by the [~~governor from a list of no less than three and no more than five names submitted by the~~] state procurement policy board. The appointment of the administrator shall require the advice and consent of the senate. The administrator may only be removed from office by the governor, provided the governor shall give prior notification of such removal to the chairperson of the state procurement policy board, the president of the senate, and the speaker of the house of representatives."

PART V

SECTION 7. Section 103D-206, Hawaii Revised Statutes, is amended to read as follows:

"§103D-206 Additional duties of the administrator of the procurement office. In addition to the duties referred to in section 103D-205, the administrator shall:

(1) Perform periodic review of the procurement practices of all governmental bodies;

(2) Assist, advise, and guide governmental bodies in matters relating to procurement[;], including determinations of corrective actions; provided that if a procurement officer fails to comply with any determination rendered by the administrator within thirty days from the date of the issuance of the determination, or longer if permitted upon request by the procurement officer, the procurement officer shall be subject to an administrative fine under section 103D-106, for every day of noncompliance;

(3) Develop and administer a statewide procurement orientation and training program;

(4) Develop, distribute, and maintain a procurement manual for all state procurement officials; and

(5) Develop, distribute, and maintain a procurement guide for vendors wishing to do business with the State and its counties."

PART VI

SECTION 8. The Hawaii public procurement code was originally enacted by Act 8, Special Session Laws of Hawaii 1993, codified as chapter 103D, Hawaii Revised Statutes. Since 1993, only one audit has been performed on the State's procurement practices. That audit in 1995, Auditor's Report No. 95-8, states in pertinent part in the summary:

We found that the administration has been slow in implementing the procurement code and has not taken the necessary steps to ensure effective implementation. The late start of the Procurement Policy Office without appropriate staff has limited the ability of the policy board to carry out its responsibilities. Furthermore, the late appointment of the interim administrator of the Procurement Office delayed development of an on-going training program, procurement manual, and a periodic review of the procurement process. Because rules were issued late and insufficient attention was paid to interpreting the law and communicating the rules clearly, we found a number of instances of noncompliance and confusion about the law and rules. . . .

The new procurement organization structure is ineffective with conflicting and unclear roles and responsibilities. The division of responsibility and authority between the administrator and the policy office is not clear in law or practice. Both have a responsibility to audit procurement practices. In addition, we found that the administrator has conflicting roles as the chief procurement officer (CPO) for the Executive Branch and as the individual responsible for reviewing procurement practices of all governmental agencies.

The legislature finds that a new audit is timely and necessary, given that thirteen years have elapsed since the 1993 audit and the recent problems in state procurement practices brought to light during the interim hearings by the senate committee on tourism and government operations. One of the concerns is the apparent noncompliance with procurement laws in the award of contracts, which is a critical element of public procurement.

The purpose of this part is to require the auditor to conduct a compliance, performance, and management audit of compliance with chapter 103D, Hawaii Revised Statutes, and the administrative rules adopted thereto.

SECTION 9. The auditor shall conduct a compliance, performance, and management audit of chapter 103D, Hawaii Revised Statutes, and the administrative rules adopted pursuant to chapter 103D. The audit shall be limited to the state procurement office and the purchasing agencies, as defined in section 103D-104, Hawaii Revised Statutes, of the State, not including the legislature, judicial branch, office of Hawaiian affairs, and the several counties.

The purpose of the audit, among other relevant issues as determined by the auditor, shall be to determine the implementation and compliance with chapter 103D, Hawaii Revised Statutes, including but not limited to:

(1) Compliance with requirements that contracts be awarded to the highest ranking bidder;

(2) The use of an evaluation committee by a procurement purchasing agency to score proposals based on evaluation criteria;

(3) Whether awards are based solely on qualifications, and not on other considerations such as personal judgments and biased preferences when selecting another bidder with a lower score;

(4) The proper documentation of each step of the procurement process by a purchasing agency and its chief procurement officer, including but not limited to, decisions and justifications to select a bidder and to award a contract;

(5) Whether adequate procurement practices training is made available to and regularly attended by appropriate procurement officials of state agencies; and

(6) The proper usage of an alternative procurement method.

SECTION 10. The auditor may contract with a private entity for purposes of conducting the audit and studies as may be required under this part.

SECTION 11. The auditor shall make an interim report of findings and recommendations to the legislature no later than twenty days prior to the convening of the regular session of 2009, and a final report on findings and recommendations, including proposals for statutory amendments, to the legislature no later than twenty days prior to the convening of the regular session of 2010.

SECTION 12. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2008-2009 for the auditor to contract for an audit pursuant to section 9 of this Act.

The sum appropriated shall be expended by the office of the auditor for the purposes of this part.

PART VII

SECTION 13. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 14. This Act shall take effect upon its approval; provided that sections 2 and 12 shall take effect on July 1, 2008.

THE SENATE	S.B. NO.	2011
TWENTY-FOURTH LEGISLATURE, 2008		S.D. 1
STATE OF HAWAII