HB526 HD1

SECTION 1. The legislature finds that the State's procurement process requires clear legislative direction to award contracts to responsible bidders or offerors in order to increase accountability, enhance performance, and utilize taxpayer dollars more efficiently. Currently, some state contracts may be awarded to the lowest bidder without regard to that bidder's poor past performance. Specifically, these bidders may be considered qualified despite their poor past performance on state contracts, which may result in repeated inefficiencies and substandard work.

Accordingly, the purpose of this Act is to:

(1) Require the past performance of contractors' positive, negative, or lack of previous experience to be considered in bid selection of a contractor; and

(2) Require departments to consider available assessments of previous performance on relevant and recent government and private contracts when making contract awards.

SECTION 2. Section 103D-104, Hawaii Revised Statutes, is amended as follows:

1. By adding a new definition to be appropriately inserted and to read:

""Past performance" means available recent and relevant performance of a contractor on state contracts that shall be considered in a responsibility determination within the relevance of the current solicitation, including the considerations of section 103D-702(b)."

2. By amending the definition of "responsible bidder or offeror" to read:

""Responsible bidder or offeror" means a person who has the capability in all respects to perform fully the contract requirements, and the integrity and reliability [~~which~~] that will assure good faith performance[.], pursuant to the responsibility determination standards adopted by the policy board."

SECTION 3. Section 103D-302, Hawaii Revised Statutes, is amended by amending subsection (f) to read as follows:

"(f) Bids shall be evaluated based on the requirements set forth in the invitation for bids. These requirements may include criteria to determine acceptability such as inspection, testing, quality, workmanship, delivery, and suitability for a particular purpose. Those criteria that will affect the bid price and be considered in evaluation for award shall be as objectively measurable[,] as possible, such as discounts, transportation costs, [~~and~~] total or life cycle costs[.], and the bidder's past performance on state contracts of similar scope, including but not limited to notices of deficiencies and failure to complete a procurement contract. The invitation for bids shall set forth the evaluation criteria to be used. No criteria may be used in bid evaluation that are not set forth in the invitation for bids."

SECTION 4. Section 103D-303, Hawaii Revised Statutes, is amended by amending subsection (g) to read as follows:

"(g) Award shall be made to the responsible offeror whose proposal is determined in writing to be the most advantageous, taking into consideration price and the evaluation factors set forth in the request for proposals[.], which shall include the offeror's past performance on state contracts of similar scope, including but not limited to notices of deficiencies and failure to complete a procurement contract. No [~~other factors or~~] criteria [~~shall~~] may be used in the evaluation[.] that are not set forth in the request for proposals. The contract file shall contain the basis on which the award is made."

SECTION 5. Section 103D-306, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) A contract may be awarded for goods, services, or construction without competition when the head of a purchasing agency determines in writing that there is only one source for the required good, service, or construction, the determination is reviewed and approved by the chief procurement officer, the written determination is posted in the manner described in rules adopted by the policy board, a review of past performance has been conducted, and no objection is outstanding. The written determination, any objection, past performance evaluations relied upon, and a written summary of the disposition of any objection shall be included in the contract file."

SECTION 6. Section 103D-310, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) Whether or not an intention to bid is required, the procurement officer shall determine whether the prospective offeror has the financial ability, resources, skills, capability, and business integrity necessary to perform the work. For [~~this~~] the purpose[~~, the~~] of making a responsibility determination, the procurement officer shall possess or obtain available information sufficient to be satisfied that a prospective offeror meets the applicable standards. The procurement officer shall consider past performance of the offeror as it applies to a responsibility determination for the current solicitation. The officer, in the officer's discretion, may require any prospective offeror to submit answers, under oath, to questions contained in a standard form of questionnaire to be prepared by the policy board. Whenever it appears from answers to the questionnaire or otherwise, that the prospective offeror is not fully qualified and able to perform the intended work, a written determination of nonresponsibility of an offeror shall be made by the head of the purchasing agency, in accordance with rules adopted by the policy board. The unreasonable failure of an offeror to promptly supply information in connection with an inquiry with respect to responsibility may be grounds for a determination of nonresponsibility with respect to such offeror. The decision of the head of the purchasing agency shall be final unless the offeror applies for administrative review pursuant to section 103D-709."

SECTION 7. 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 2021-2022 and the same sum or so much thereof as may be necessary for fiscal year 2022-2023 to develop and implement the guidance and related implementation training for the following tools:

(1) A past performance guide;

(2) A past performance database functional requirements document;

(3) The creation of a past performance database;

(4) The preparation and publication of rules, including sending of surveys, discussions, and publication fees;

(5) Training; and

(6) Annual database maintenance.

The sums appropriated shall be expended by the state procurement office for the purposes of this Act.

SECTION 8. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 9. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 10. This Act shall take effect on July 1, 2112.

HOUSE OF REPRESENTATIVES	H.B. NO.	526
THIRTY-FIRST LEGISLATURE, 2021		H.D. 1
STATE OF HAWAII