BILL REQ. #: H-3338.1
| State of Washington | 63rd Legislature | 2014 Regular Session |
Read first time 01/16/14. Referred to Committee on Government Operations & Elections.
AN ACT Relating to making nonsubstantive changes to procurement law; amending RCW 28B.10.029, 35.57.080, 36.100.190, 39.04.190, 39.26.070, 39.26.090, 39.26.235, 39.26.251, 39.26.255, 39.26.271, 39.35C.050, 39.35C.090, and 43.19.1919; reenacting and amending RCW 39.26.010; and repealing RCW 43.19.520, 43.19.525, and 43.19.533.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 28B.10.029 and 2013 c 291 s 27 are each amended to
read as follows:
(1)(a) An institution of higher education may, consistent with RCW
28B.10.925 and 28B.10.926, exercise independently those powers
otherwise granted to the director of enterprise services in chapter
((43.19)) 39.26 RCW in connection with the purchase and disposition of
all material, supplies, services, and equipment needed for the support,
maintenance, and use of the respective institution of higher education.
(b) Property disposition policies followed by institutions of
higher education shall be consistent with policies followed by the
department of enterprise services.
(c)(i) Except as provided in (c)(ii) and (iii) of this subsection,
purchasing policies and procedures followed by institutions of higher
education shall be in compliance with chapters 39.19, ((39.29)) 39.26,
and 43.03 RCW((, and RCW 43.19.1917, 43.19.685, 39.26.260 through
39.26.271, and 43.19.560 through 43.19.637)).
(ii) Institutions of higher education may use all appropriate means
for making and paying for travel arrangements including, but not
limited to, electronic booking and reservations, advance payment and
deposits for tours, lodging, and other necessary expenses, and other
travel transactions based on standard industry practices and federal
accountable plan requirements. Such arrangements shall support
student, faculty, staff, and other participants' travel, by groups and
individuals, both domestic and international, in the most cost-effective and efficient manner possible, regardless of the source of
funds.
(iii) Formal sealed, electronic, or web-based competitive bidding
is not necessary for purchases or personal services contracts by
institutions of higher education for less than one hundred thousand
dollars. However, for purchases and personal services contracts of ten
thousand dollars or more and less than one hundred thousand dollars,
quotations must be secured from at least three vendors to assure
establishment of a competitive price and may be obtained by telephone,
electronic, or written quotations, or any combination thereof. As part
of securing the three vendor quotations, institutions of higher
education must invite at least one quotation each from a certified
minority and a certified woman-owned vendor that otherwise qualifies to
perform the work. A record of competition for all such purchases and
personal services contracts of ten thousand dollars or more and less
than one hundred thousand dollars must be documented for audit
purposes.
(d) Purchases under chapter ((39.29)) 39.26, 43.19, or 43.105 RCW
by institutions of higher education may be made by using contracts for
materials, supplies, services, or equipment negotiated or entered into
by, for, or through group purchasing organizations.
(e) The community and technical colleges shall comply with RCW
43.19.450.
(f) Except for the University of Washington, institutions of higher
education shall comply with RCW 43.19.769, 43.19.763, and 43.19.781.
(g) If an institution of higher education can satisfactorily
demonstrate to the director of the office of financial management that
the cost of compliance is greater than the value of benefits from any
of the following statutes, then it shall be exempt from them: RCW
43.19.685 and 43.19.637.
(h) Any institution of higher education that chooses to exercise
independent purchasing authority for a commodity or group of
commodities shall notify the director of enterprise services.
Thereafter the director of enterprise services shall not be required to
provide those services for that institution for the duration of the
enterprise services contract term for that commodity or group of
commodities.
(2) The council of presidents and the state board for community and
technical colleges shall convene its correctional industries business
development advisory committee, and work collaboratively with
correctional industries, to:
(a) Reaffirm purchasing criteria and ensure that quality, service,
and timely delivery result in the best value for expenditure of state
dollars;
(b) Update the approved list of correctional industries products
from which higher education shall purchase; and
(c) Develop recommendations on ways to continue to build
correctional industries' business with institutions of higher
education.
(3) Higher education and correctional industries shall develop a
plan to build higher education business with correctional industries to
increase higher education purchases of correctional industries
products, based upon the criteria established in subsection (2) of this
section. The plan shall include the correctional industries'
production and sales goals for higher education and an approved list of
products from which higher education institutions shall purchase, based
on the criteria established in subsection (2) of this section. Higher
education and correctional industries shall report to the legislature
regarding the plan and its implementation no later than January 30,
2005.
(4)(a) Institutions of higher education shall set as a target to
contract, beginning not later than June 30, 2006, to purchase one
percent of the total goods and services required by the institutions
each year produced or provided in whole or in part from class II inmate
work programs operated by the department of corrections. Institutions
of higher education shall set as a target to contract, beginning not
later than June 30, 2008, to purchase two percent of the total goods
and services required by the institutions each year produced or
provided in whole or in part from class II inmate work programs
operated by the department of corrections.
(b) Institutions of higher education shall endeavor to assure the
department of corrections has notifications of bid opportunities with
the goal of meeting or exceeding the purchasing target in (a) of this
subsection.
Sec. 2 RCW 35.57.080 and 1999 c 165 s 8 are each amended to read
as follows:
In addition to provisions contained in chapter 39.04 RCW, the
public facilities district is authorized to follow procedures contained
in chapter 39.26 RCW ((43.19.1906 and 43.19.1911)) for all purchases,
contracts for purchase, and sales.
Sec. 3 RCW 36.100.190 and 1995 c 396 s 16 are each amended to
read as follows:
In addition to provisions contained in chapter 39.04 RCW, the
public facilities district is authorized to follow procedures contained
in chapter 39.26 RCW ((43.19.1906 and 43.19.1911)) for all purchases,
contracts for purchase, and sales.
Sec. 4 RCW 39.04.190 and 1993 c 198 s 2 are each amended to read
as follows:
(1) This section provides a uniform process to award contracts for
the purchase of any materials, equipment, supplies, or services by
those municipalities that are authorized to use this process in lieu of
the requirements for formal sealed bidding. The state statutes
governing a specific type of municipality shall establish the maximum
dollar thresholds of the contracts that can be awarded under this
process, and may include other matters concerning the awarding of
contracts for purchases, for the municipality.
(2) At least twice per year, the municipality shall publish in a
newspaper of general circulation within the jurisdiction a notice of
the existence of vendor lists and solicit the names of vendors for the
lists. Municipalities shall by resolution establish a procedure for
securing telephone or written quotations, or both, from at least three
different vendors whenever possible to assure that a competitive price
is established and for awarding the contracts for the purchase of any
materials, equipment, supplies, or services to the lowest responsible
bidder as defined in chapter 39.26 RCW ((43.19.1911)). Immediately
after the award is made, the bid quotations obtained shall be recorded,
open to public inspection, and shall be available by telephone inquiry.
A contract awarded pursuant to this section need not be advertised.
Sec. 5 RCW 39.26.010 and 2012 c 224 s 2 are each reenacted and
amended to read as follows:
The definitions in this section apply throughout this chapter
unless the context clearly requires otherwise.
(1) "Agency" means any state office or activity of the executive
and judicial branches of state government, including state agencies,
departments, offices, divisions, boards, commissions, institutions of
higher education as defined in RCW 28B.10.016, and correctional and
other types of institutions.
(2) "Bid" means an offer, proposal, or quote for goods or services
in response to a solicitation issued for such goods or services by the
department or an agency of Washington state government.
(3) "Bidder" means an individual or entity who submits a bid,
quotation, or proposal in response to a solicitation issued for such
goods or services by the department or an agency of Washington state
government.
(4) (("Businesses owned and operated by persons with disabilities"
means any for-profit business certified under chapter 39.19 RCW as
being owned and controlled by persons who have been either:)) "Client services" means services provided directly to agency
clients including, but not limited to, medical and dental services,
employment and training programs, residential care, and subsidized
housing.
(a) Determined by the department of social and health services to
have a developmental disability, as defined in RCW 71A.10.020;
(b) Determined by an agency established under Title I of the
federal vocational rehabilitation act to be or have been eligible for
vocational rehabilitation services;
(c) Determined by the federal social security administration to be
or have been eligible for either social security disability insurance
or supplemental security income; or
(d) Determined by the United States department of veterans affairs
to be or have been eligible for vocational rehabilitation services due
to service-connected disabilities, under 38 U.S.C. Sec. 3100 et seq.
(5)
(((6))) (5) "Community rehabilitation program of the department of
social and health services" means any entity that:
(a) Is registered as a nonprofit corporation with the secretary of
state; and
(b) Is recognized by the department of social and health services,
division of vocational rehabilitation as eligible to do business as a
community rehabilitation program.
(((7))) (6) "Competitive solicitation" means a documented formal
process providing an equal and open opportunity to bidders and
culminating in a selection based on predetermined criteria.
(((8))) (7) "Contractor" means an individual or entity awarded a
contract with an agency to perform a service or provide goods.
(((9))) (8) "Debar" means to prohibit a contractor, individual, or
other entity from submitting a bid, having a bid considered, or
entering into a state contract during a specified period of time as set
forth in a debarment order.
(((10))) (9) "Department" means the department of enterprise
services.
(((11))) (10) "Director" means the director of the department of
enterprise services.
(((12))) (11) "Estimated useful life" of an item means the
estimated time from the date of acquisition to the date of replacement
or disposal, determined in any reasonable manner.
(((13))) (12) "Goods" means products, materials, supplies, or
equipment provided by a contractor.
(((14))) (13) "In-state business" means a business that has its
principal office located in Washington.
(((15))) (14) "Life-cycle cost" means the total cost of an item to
the state over its estimated useful life, including costs of selection,
acquisition, operation, maintenance, and where applicable, disposal, as
far as these costs can reasonably be determined, minus the salvage
value at the end of its estimated useful life.
(((16))) (15) "Master contracts" means a contract for specific
goods or services, or both, that is solicited and established by the
department in accordance with procurement laws and rules on behalf of
and for general use by agencies as specified by the department.
(((17))) (16) "Microbusiness" means any business entity, including
a sole proprietorship, corporation, partnership, or other legal entity,
that: (a) Is owned and operated independently from all other
businesses; and (b) has a gross revenue of less than one million
dollars annually as reported on its federal tax return or on its return
filed with the department of revenue.
(((18))) (17) "Minibusiness" means any business entity, including
a sole proprietorship, corporation, partnership, or other legal entity,
that: (a) Is owned and operated independently from all other
businesses; and (b) has a gross revenue of less than three million
dollars, but one million dollars or more annually as reported on its
federal tax return or on its return filed with the department of
revenue.
(((19))) (18) "Purchase" means the acquisition of goods or
services, including the leasing or renting of goods.
(((20))) (19) "Services" means labor, work, analysis, or similar
activities provided by a contractor to accomplish a specific scope of
work.
(((21))) (20) "Small business" means an in-state business,
including a sole proprietorship, corporation, partnership, or other
legal entity, that:
(a) Certifies, under penalty of perjury, that it is owned and
operated independently from all other businesses and has either:
(i) Fifty or fewer employees; or
(ii) A gross revenue of less than seven million dollars annually as
reported on its federal income tax return or its return filed with the
department of revenue over the previous three consecutive years; or
(b) Is certified with the office of women and minority business
enterprises under chapter 39.19 RCW.
(((22))) (21) "Sole source" means a contractor providing goods or
services of such a unique nature or sole availability at the location
required that the contractor is clearly and justifiably the only
practicable source to provide the goods or services.
(((23))) (22) "Washington grown" has the definition in RCW
15.64.060.
Sec. 6 RCW 39.26.070 and 2012 c 224 s 8 are each amended to read
as follows:
A convenience contract is a contract for specific goods or
services, or both, that is solicited and established ((by the
department)) in accordance with procurement laws and rules ((on behalf
of and)) for use by a specific agency or a specified group of agencies
as needed from time to time. A convenience contract is not available
for general use and may only be used as specified by the department.
Convenience contracts are not intended to replace or supersede master
contracts as defined in this chapter.
Sec. 7 RCW 39.26.090 and 2012 c 224 s 10 are each amended to read
as follows:
The director shall:
(1) Establish overall state policies, standards, and procedures
regarding the procurement of goods and services by all state agencies;
(2) ((Develop policies and standards for the use of credit cards or
similar methods to make purchases;)) Establish procurement processes for information technology
goods and services, using technology standards and policies established
by the office of the chief information officer under chapter 43.41A
RCW;
(3)
(((4))) (3) Enter into contracts or delegate the authority to enter
into contracts on behalf of the state to facilitate the purchase,
lease, rent, or otherwise acquire all goods and services and equipment
needed for the support, maintenance, and use of all state agencies,
except as provided in RCW 39.26.100;
(((5))) (4) Have authority to delegate to agencies authorization to
purchase goods and services. The authorization must specify
restrictions as to dollar amount or to specific types of goods and
services, based on a risk assessment process developed by the
department. Acceptance of the purchasing authorization by an agency
does not relieve the agency from conformance with this chapter or from
policies established by the director. Also, the director may not
delegate to a state agency the authorization to purchase goods and
services if the agency is not in substantial compliance with overall
procurement policies as established by the director;
(((6))) (5) Develop procurement policies and procedures, such as
unbundled contracting and subcontracting, that encourage and facilitate
the purchase of goods and services from Washington small businesses,
microbusinesses, and minibusinesses, and minority and women-owned
businesses to the maximum extent practicable and consistent with
international trade agreement commitments;
(((7))) (6) Develop and implement an enterprise system for
electronic procurement;
(((8))) (7) Provide for a commodity classification system and
provide for the adoption of goods and services commodity standards;
(((9))) (8) Establish overall state policy for compliance by all
agencies regarding:
(a) Food procurement procedures and materials that encourage and
facilitate the purchase of Washington grown food by state agencies and
institutions to the maximum extent practicable and consistent with
international trade agreement commitments; and
(b) Policies requiring all food contracts to include a plan to
maximize to the extent practicable and consistent with international
trade agreement commitments the availability of Washington grown food
purchased through the contract;
(((10))) (9) Develop guidelines and criteria for the purchase of
vehicles, high gas mileage vehicles, and alternate vehicle fuels and
systems, equipment, and materials, that reduce overall energy-related
costs and energy use by the state, including investigations into all
opportunities to aggregate the purchasing of clean technologies by
state and local governments, and including the requirement that new
passenger vehicles purchased by the state meet the minimum standards
for passenger automobile fuel economy established by the United States
secretary of transportation pursuant to the energy policy and
conservation act (15 U.S.C. Sec. 2002); and
(((11))) (10) Develop and enact rules to implement the provisions
of this chapter.
Sec. 8 RCW 39.26.235 and 2012 c 229 s 584 are each amended to
read as follows:
(1) State agencies that are purchasing wireless devices or services
must make such purchases through the state master contract, unless the
state agency provides to the office of the chief information officer
evidence that the state agency is securing its wireless devices or
services from another source for a lower cost than through
participation in the state master contract. The state agency must also
provide to the director a copy of the information provided to the chief
information officer, including the name of the vendor, the goods and
services to be purchased, and the price.
(2) For the purposes of this section, "state agency" means any
office, department, board, commission, or other unit of state
government, but does not include a unit of state government headed by
a statewide elected official, an institution of higher education as
defined in RCW 28B.10.016, the student achievement council, the state
board for community and technical colleges, or agencies of the
legislative or judicial branches of state government.
Sec. 9 RCW 39.26.251 and 2012 c 220 s 1 are each amended to read
as follows:
(1) State agencies, the legislature, and departments shall purchase
for their use all goods and services required by the legislature,
agencies, or departments that are produced or provided in whole or in
part from class II inmate work programs operated by the department of
corrections through state contract. These goods and services shall not
be purchased from any other source unless, upon application by the
department or agency: (a) The department finds that the articles or
products do not meet the reasonable requirements of the agency or
department, (b) are not of equal or better quality, or (c) the price of
the product or service is higher than that produced by the private
sector. However, the criteria contained in (a), (b), and (c) of this
subsection for purchasing goods and services from sources other than
correctional industries do not apply to goods and services produced by
correctional industries that primarily replace goods manufactured or
services obtained from outside the state. The department of
corrections and department shall adopt administrative rules that
implement this section.
(2) ((During the 2009-2011 and 2011-2013 fiscal biennia, and in
conformance with section 223(11), chapter 470, Laws of 2009 and section
221(2), chapter 367, Laws of 2011, this section does not apply to the
purchase of uniforms by the Washington state ferries.)) Effective July 1, 2012, this section does not apply to the
purchase of uniforms for correctional officers employed with the
Washington state department of corrections.
(3)
Sec. 10 RCW 39.26.255 and 2011 1st sp.s. c 43 s 228 are each
amended to read as follows:
(1) The director shall develop specifications and adopt rules for
the purchase of products which will provide for preferential purchase
of products containing recycled material by:
(a) The use of a weighting factor determined by the amount of
recycled material in a product, where appropriate and known in advance
to potential bidders, to determine the lowest responsible bidder. The
actual dollars bid shall be the contracted amount. If the department
determines, according to criteria established by rule that the use of
this weighting factor does not encourage the use of more recycled
material, the department shall consider and award bids without regard
to the weighting factor. In making this determination, the department
shall consider but not be limited to such factors as adequate
competition, economics or environmental constraints, quality, and
availability.
(b) Requiring a written statement of the percentage range of
recycled content from the bidder providing products containing recycled
(([material])) material. The range may be stated in five percent
increments.
(2) The director shall develop a directory of businesses that have
a master contract with the department that supply products containing
significant quantities of recycled materials. This directory may be
combined with and made accessible through the database of recycled
content products to be developed under RCW 43.19A.060.
(3) The director shall encourage all parties using the state
purchasing office to purchase products containing recycled materials.
(4) The rules, specifications, and bid evaluation shall be
consistent with recycled content standards adopted under RCW
43.19A.020.
Sec. 11 RCW 39.26.271 and 2011 1st sp.s. c 43 s 241 are each
amended to read as follows:
The director shall adopt and apply rules designed to provide for
some reciprocity in bidding between Washington and those states having
statutes or regulations on the list under RCW ((43.19.702)) 39.26.270.
The director shall have broad discretionary power in developing these
rules and the rules shall provide for reciprocity only to the extent
and in those instances where the director considers it appropriate.
For the purpose of determining the lowest responsible bidder pursuant
to RCW ((43.19.1911)) 39.26.160, such rules shall (1) require the
director to impose a reciprocity increase on bids when appropriate
under the rules and (2) establish methods for determining the amount of
the increase. In no instance shall such increase, if any, be paid to
a vendor whose bid is accepted.
Sec. 12 RCW 39.35C.050 and 1996 c 186 s 409 are each amended to
read as follows:
In addition to any other authorities conferred by law:
(1) The department, with the consent of the state agency or school
district responsible for a facility, a state or regional university
acting independently, and any other state agency acting through the
department ((of general administration)) or as otherwise authorized by
law, may:
(a) Develop and finance conservation at public facilities in
accordance with express provisions of this chapter;
(b) Contract for energy services, including performance-based
contracts;
(c) Contract to sell energy savings from a conservation project at
public facilities to local utilities or the Bonneville power
administration.
(2) A state or regional university acting independently, and any
other state agency acting through the department ((of general
administration)) or as otherwise authorized by law, may undertake
procurements for third-party development of conservation at its
facilities.
(3) A school district may:
(a) Develop and finance conservation at school district facilities;
(b) Contract for energy services, including performance-based
contracts at school district facilities; and
(c) Contract to sell energy savings from energy conservation
projects at school district facilities to local utilities or the
Bonneville power administration directly or to local utilities or the
Bonneville power administration through third parties.
(4) In exercising the authority granted by subsections (1), (2),
and (3) of this section, a school district or state agency must comply
with the provisions of RCW 39.35C.040.
Sec. 13 RCW 39.35C.090 and 1996 c 186 s 413 are each amended to
read as follows:
In addition to any other authorities conferred by law:
(1) The department, with the consent of the state agency
responsible for a facility, a state or regional university acting
independently, and any other state agency acting through the department
((of general administration)) or as otherwise authorized by law, may:
(a) Contract to sell electric energy generated at state facilities
to a utility; and
(b) Contract to sell thermal energy produced at state facilities to
a utility.
(2) A state or regional university acting independently, and any
other state agency acting through the department ((of general
administration)) or as otherwise authorized by law, may:
(a) Acquire, install, permit, construct, own, operate, and maintain
cogeneration and facility heating and cooling measures or equipment, or
both, at its facilities;
(b) Lease state property for the installation and operation of
cogeneration and facility heating and cooling equipment at its
facilities;
(c) Contract to purchase all or part of the electric or thermal
output of cogeneration plants at its facilities;
(d) Contract to purchase or otherwise acquire fuel or other energy
sources needed to operate cogeneration plants at its facilities; and
(e) Undertake procurements for third-party development of
cogeneration projects at its facilities, with successful bidders to be
selected based on the responsible bid, including nonprice elements
listed in RCW ((43.19.1911)) 39.26.160, that offers the greatest net
achievable benefits to the state and its agencies.
(3) After July 28, 1991, a state agency shall consult with the
department prior to exercising any authority granted by this section.
(4) In exercising the authority granted by subsections (1) and (2)
of this section, a state agency must comply with the provisions of RCW
39.35C.080.
Sec. 14 RCW 43.19.1919 and 2013 c 291 s 5 are each amended to
read as follows:
(1) The department shall sell or exchange personal property
belonging to the state for which the agency, office, department, or
educational institution having custody thereof has no further use, at
public or private sale, and cause the moneys realized from the sale of
any such property to be paid into the fund from which such property was
purchased or, if such fund no longer exists, into the state general
fund. This requirement is subject to the following exceptions and
limitations:
(a) This section does not apply to property under RCW 27.53.045,
28A.335.180, or 43.19.1920;
(b) Sales of capital assets may be made by the department and a
credit established for future purchases of capital items as provided
for in chapter 39.26 RCW ((43.19.190 through 43.19.1939));
(c) Personal property, excess to a state agency, including
educational institutions, shall not be sold or disposed of prior to
reasonable efforts by the department to determine if other state
agencies have a requirement for such personal property. Such
determination shall follow sufficient notice to all state agencies to
allow adequate time for them to make their needs known. Surplus items
may be disposed of without prior notification to state agencies if it
is determined by the director to be in the best interest of the state.
The department shall maintain a record of disposed surplus property,
including date and method of disposal, identity of any recipient, and
approximate value of the property;
(d) This section does not apply to personal property acquired by a
state organization under federal grants and contracts if in conflict
with special title provisions contained in such grants or contracts;
(e) A state agency having a surplus personal property asset with a
fair market value of less than five hundred dollars may transfer the
asset to another state agency without charging fair market value. A
state agency conducting this action must maintain adequate records to
comply with agency inventory procedures and state audit requirements.
(2)(a) Prior to transferring ownership of a department-owned
vessel, the department shall conduct a thorough review of the physical
condition of the vessel, the vessel's operating capability, and any
containers and other materials that are not fixed to the vessel.
(b) If the department determines that the vessel is in a state of
advanced deterioration or poses a reasonably imminent threat to human
health or safety, including a threat of environmental contamination,
the department may: (i) Not transfer the vessel until the conditions
identified under this subsection have been corrected; or (ii)
permanently dispose of the vessel by landfill, deconstruction, or other
related method.
NEW SECTION. Sec. 15 The following acts or parts of acts are
each repealed:
(1) RCW 43.19.520 (Purchase of products and services from entities
serving or providing opportunities for disadvantaged or disabled
persons -- Intent) and 2005 c 204 s 1, 2003 c 136 s 1, & 1974 ex.s. c 40
s 1;
(2) RCW 43.19.525 (Purchases from entities serving or providing
opportunities for disadvantaged or disabled persons -- Definitions) and
2003 c 136 s 2 & 1974 ex.s. c 40 s 2; and
(3) RCW 43.19.533 (Purchases from entities serving or providing
opportunities for disadvantaged or disabled persons -- Existing contracts
not impaired -- Solicitation of vendors in good standing) and 2005 c 204
s 4 & 2003 c 136 s 5.