Date of Adoption: July 17, 1999.

Purpose: To amend rules which are outdated and/or which require streamlining to facilitate additional flexibility to public procurement procedures and to enable OSP to improve our business.

Citation of Existing Rules Affected by this Order: Amending WAC 236-48-003, 236-48-011, 236-48-012, 236-48-013, 236-48-021, 236-48-024, 236-48-025, 236-48-035, 236-48-036, 236-48-071, 236-48-079, 236-48-083, 236-48-085, 236-48-094, 236-48-096, 236-48-098, 236-48-099, 236-48-111, 236-48-121, 236-48-122, 236-48-123, 236-48-124, 236-48-132, 236-48-141, 236-48-142, 236-48-143, 236-48-153, 236-48-165, 236-48-166, 236-48-167, 236-48-190, 236-48-230, 236-48-250, 236-48-251, 236-48-252, 236-48-253, 236-49-001, 236-49-010, 236-49-020, 236-49-055, and 236-49-060.

Statutory Authority for Adoption: Chapter 43.19 RCW.

Adopted under notice filed as WSR 99-10-069 on May 4, 1999.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 41, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 41, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0. Effective Date of Rule: Thirty-one days after filing.

July 17, 1999

Pat Kohler

Assistant Director

OTS-3137.2

AMENDATORY SECTION(Amending WSR 91-09-035, filed 4/12/91, effective 5/13/91)

WAC 236-48-003
Definitions.

As used in this chapter the following terms shall have the following meanings; additional terms shall have meanings as outlined under WAC 236-49-010:

(1) Agency.  Shall include state of Washington institutions, ((colleges, community colleges and universities,)) the offices of the elective state officers, the supreme court, the court of appeals, the administrative and other departments of state government, and the offices of all appointive officers of the state.  "Agency" does not include the legislature but does include colleges, community colleges and universities who choose to participate in state contract(s).

(2) All or nothing award. A method of award resulting from a competitive solicitation by which the purchaser will award all items to a single bidder.

(3) Alternate.  A substitute offer of goods and services which ((are)) is not at least a functional equal in features, performance ((or)) and use ((of the brand, model or specification designated as the standard)) and which materially deviates from one or more of the specifications in a competitive solicitation.

(((3))) (4) Bid.  A written offer to perform a contract to purchase or supply goods or services in response to an invitation for bid.

(((4))) (5) Bidder.  A supplier who submits a bid ((or)), quotation or proposal.

(((5))) (6) Bidder's bond.  As used in RCW 43.19.1915 shall mean either a bid guarantee or performance guarantee as addressed herein and as further outlined in WAC 236-48-035 through 236-48-036.

(((6) Buyer.  An employee of the office of state procurement designated as a buyer, contract administrator, or similar designation by the director, including, where appropriate, the director and other management personnel.  Also, authorized employee(s) of a purchasing activity.))

(7) Brand. A specification identifying a manufacturer of the goods described in a competitive solicitation to identify a standard of quality against which other products will be evaluated.

(8) Confidential information.  Any information meeting the criteria in RCW 42.17.310 or any information designated as confidential pursuant to state law.

(((8))) (9) Contractor.  Individual, company, corporation, firm, or combination thereof with whom purchaser develops a contract for the procurement of goods and services.

(((9))) (10) Delegated authority.  Authority to purchase goods and/or services delegated to an agency by office of state procurement pursuant to RCW 43.19.190(4) and which is delegated in ((three)) one of the following forms:

(a) General.  Those purchases delegated ((annually)) by the office of state procurement which are common to multiple state agencies.

(b) Specific.  Those purchases delegated ((annually)) to specific agencies for continuing individual commodity requirements.

(c) Limited.  Those purchases delegated to a specific agency for one-time commodity requirements.

(((10))) (11) Direct buy limit.  Dollar amount ((established by the supply management advisory board)) pursuant to RCW 43.19.1906(2) below which ((competitive acquisition)) competition is not required.

(((11))) (12) Director.  Except where otherwise specifically noted shall mean the state purchasing and material control director, who is the assistant director, office of state procurement.

(((12))) (13) Emergency purchase.  A purchase made pursuant to RCW 43.19.200 in which the normal competitive purchasing procedures have been waived by a declaration of emergency issued by the agency director as defined in RCW 43.19.200.

(((13))) (14) Equal.  An offer of goods and/or services which meets or exceeds the quality, performance and use of the ((brand, model, or)) specifications identified in ((the invitation for bid or request for quotation)) a competitive solicitation.

(((14))) (15) Fair market price.  The price determined by the purchasing activity to be consistent with current market value for the goods or services being purchased from community rehabilitation programs and eligible programs of the department of social and health services which has been determined pursuant to RCW 43.19.530.

(((15))) (16) Formal sealed bid procedure.  Procedure by which the ((buyer)) purchasing activity solicits written competitive bids or proposals from a sufficient number of prospective bidders ((drawn from established supplier lists and from any other source)) thought to be of advantage to the state to assure adequate price and product competition by means of a written invitation for bid (IFB) or request for proposal (RFP) or other solicitation method setting forth specifications and all material and objectively measurable criteria for the intended purchase.  Unless exception(s) are authorized in the solicitation document for electronic bid procedures, all bids are to be submitted in sealed envelopes to the location indicated in the bid documents and must be received by the time indicated therein.  No disclosure of bids or bid information is made prior to the public bid opening.  After the ((public)) bid opening, all bid information shall be referred to the ((buyer)) purchasing activity and treated as confidential working papers until after award at which time all bids become public information.  The award is to be made in accordance with RCW 43.19.1911.

(((16))) (17) Goods and/or services.  Material, supplies, services, and equipment offered for sale by a supplier(s) and required by an agency to accomplish continuing and necessary functions and not otherwise statutorily exempted from chapter 43.19 RCW ((as a personal service under RCW 39.29.006(8); an architectural and engineering service under RCW 39.80.020(5); or data information systems and telecommunications equipment, software, and services under chapter 43.105 RCW)).

(((17))) (18) Informality.  An immaterial variation from the exact requirements of the ((invitation for bids)) competitive solicitation, having no effect or merely a minor or negligible effect on quality, quantity, or delivery of the supplies or performance of the services being procured, and the correction or waiver of which would not affect the relative standing of, or be otherwise prejudicial to bidders.

(((18))) (19) Invitation for bid.   The form utilized to solicit bids in the formal, sealed bid procedure and any amendments thereto issued in writing by the ((buyer)) purchasing activity. Factors impacting cost and conditions of responsiveness and responsibility are normally evaluated. Noncost factors may be evaluated and all factors may be weighted if considered appropriate.

(((19))) (20) Office of state procurement.  The division of purchasing of the department of general administration in RCW 43.19.180 et seq.  Whenever a purchase or sale is made by the office of state procurement on behalf of another agency, the office of state procurement is acting in the capacity of agent for such agency.

(((20))) (21) Prompt payment discount. A discount offered by the bidder to encourage timely payment by purchaser within the stated term identified by bidder.

(22) Proposal. An offer to perform a contract to supply goods or services in response to a request for proposal.

(23) Public agency. Shall include all agencies outlined under RCW 39.34.020.

(24) Purchase.  Shall include purchase, lease, renting or lease-purchase of goods and services.

(((21))) (25) Purchasing activity.  The office of state procurement or an agency authorized by state statute to conduct acquisition of goods and services or delegated that authority by the office of state procurement.

(((22))) (26) Quotation.  An offer to perform a contract to supply goods and/or services in response to a request for quotation.

(((23))) (27) Recovered material.  Goods containing recovered materials as defined in RCW 43.19.537 et seq. and federal, regional, or state guidelines approved by the director.

(((24))) (28) Request for quotation.   The form used ((when purchases are solicited)) to solicit written quotations in accordance with RCW 43.19.1906(2).  The request and the quote in response may be either written or oral as specified by the ((buyer)) purchasing activity. Factors impacting cost and conditions of responsiveness and responsibility are normally evaluated. Noncost factors may be evaluated and all factors may be weighted if considered appropriate.

(((25))) (29) Request for proposal. The form utilized to solicit written proposals from potential suppliers. Both cost and noncost factors are evaluated in addition to conditions of responsiveness and responsibility to achieve best value. A weighted point assignment method of evaluation may be used if considered appropriate.

(30) Requisition.  A standard state form which serves as a procurement request and which requests the office of state procurement to purchase stated requirements.

(((26))) (31) Sealed bid limit.  That dollar amount established by RCW 43.19.1906(2) or ((pursuant thereto)) subsequently amended by the office of financial management due to inflationary trends above which the formal sealed bid procedure will be used.  ((Said amount may be lowered by the director to maintain full disclosure or competitive procurement or otherwise achieve overall state efficiency and economy.

(27))) (32) Single source purchase.  A purchase of goods or services which is clearly and legitimately limited to a single source of supply.

(((28))) (33) Solicitation. The process of notifying prospective bidders or offerors that the purchasing activity desires to receive competitive bids, quotes or proposals for furnishing goods or services. Also includes reference to the actual document used in that process.

(34) Specifications.   The explicit requirements furnished with ((an invitation for bid or request for quotation)) a competitive solicitation upon which a purchase order or contract is to be based.  Specifications set forth the characteristics of the goods and/or services to be purchased or sold so as to enable the bidder or supplier to determine and understand ((that which is to be supplied or sold.  This information)) requirements of the purchaser. Specifications may be in the form of a description of the physical or performance characteristics, a reference brand ((name)) or both.  It may include a description of any requirement for inspecting, testing, or preparing a material, equipment, supplies, or service for delivery.

(((29))) (35) State contract.  Contracts for goods and/or services administered by the office of state procurement on behalf of agencies which normally include quantity and fixed term.  The contract document will identify the conditions under which usage by agencies is required.

(((30))) (36) State procurement officer. An employee of the office of state procurement designated as a state procurement officer, contract administrator, or similar designation by the director, including, where appropriate, the director and other management personnel.

(37) Supplier.  A vendor of purchased goods and services.

(((31))) (38) Supplier list.  List of potential bidders maintained by the office of state procurement or purchasing activity from which names may be drawn for solicitation of ((bids/quotes)) bids, quotes or proposals.

(((32))) (39) Used equipment.  Goods offered for sale to the state which do not have a full factory warranty and which are not being rented, leased, or otherwise in the actual possession of the state agency considering the purchase at the time of the purchase transaction.

[Statutory Authority: Chapter 43.19 RCW.  91-09-035, § 236-48-003, filed 4/12/91, effective 5/13/91.  Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-48-003, filed 8/22/89, effective 9/22/89; Order 77-2, § 236-48-003, filed 1/28/77.]

A listing or copy of all purchases being made through formal sealed bid by or through the office of state procurement shall be posted in the foyer of the office of state procurement((, Room 216, General Administration Building, Olympia, Washington 98504)) and/or posted via internet website or made available via other electronic means.  Purchases made by ((colleges or universities)) agencies shall be posted or otherwise publicized by ((the purchasing office of that college or university)) that purchasing activity in accordance with policy established by that agency.

[Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-48-011, filed 8/22/89, effective 9/22/89.  Statutory Authority: Chapter 43.19 RCW.  83-18-004 (Order 83-03), § 236-48-011, filed 8/26/83; Order 77-2, § 236-48-011, filed 1/28/77.]

The ((bidding or quoting)) date and time selected for opening of bids, quotes or proposals shall be ((as)) determined by the ((buyer involved)) purchasing activity.  ((All invitations for bid shall provide)) Bidders shall be provided sufficient time ((to allow bidders an opportunity)) to prepare and submit their bid, quote or proposal.  The ((buyer)) purchasing activity shall have the discretion to lengthen or shorten bid ((or)), quote ((times)) or proposal dates, should special circumstances or needs dictate a shorter or longer time frame.  When extending or shortening the time allowed to submit a bid ((or)), quote, or proposal, the ((buyer is to)) purchasing activity shall issue an addendum notifying bidders of the revised opening/due date.  If it is determined that ((regular mail)) this information will not reach bidders in time to respond, the ((buyer)) purchasing activity shall attempt to notify each prospective bidder by telephone or other available means of communication.  All bids must be received in the office of the purchasing activity by the date and time specified ((for bid opening)) in the document or addenda.  No deviations will be allowed.  Late bids or proposals will be returned unopened unless retention is deemed by the ((director)) purchasing activity to be in the best interests of the ((state)) agency. Late bids or proposals may be opened only by authorized personnel for identification purposes.  Quotations must be received by close of the normal business day on the date indicated.  Late quotations will not be considered or returned to bidders.  Time of receipt will be determined by the official time stamp located at the purchasing activity or in the case of electronic bids, time of receipt shall be as identified in the solicitation document issued by the purchasing activity.

[Statutory Authority: Chapter 43.19 RCW.  91-09-035, § 236-48-012, filed 4/12/91, effective 5/13/91.  Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-48-012, filed 8/22/89, effective 9/22/89.  Statutory Authority: Chapter 43.19 RCW.  83-18-004 (Order 83-03), § 236-48-012, filed 8/26/83; Order 77-2, § 236-48-012, filed 1/28/77.]

An invitation for bid, request for quotation or request for proposal may be changed or amended by the ((buyer involved)) purchasing activity, provided the change is issued ((in writing)) prior to the ((bid)) opening date and time specified.  Any material information provided a prospective bidder ((with regard to an invitation for bid,)) shall be furnished ((in writing)) by the ((buyer)) purchasing activity to all bidders receiving a copy of the original ((invitation)) solicitation.  Oral interpretations of contract terms and conditions shall not be binding ((on the state unless confirmed in writing by the buyer)).

[Statutory Authority: Chapter 43.19 RCW.  91-09-035, § 236-48-013, filed 4/12/91, effective 5/13/91.  Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-48-013, filed 8/22/89, effective 9/22/89; Order 77-2, § 236-48-013, filed 1/28/77.]

Supplier lists ((are categorized according to specific categories of purchased goods and services and are maintained and updated by the office of state procurement.  Such lists are used by buyers to determine suppliers from which to solicit bids.  Due to cost considerations not all suppliers are solicited for each bid invitation.  In order to be considered for inclusion on a supplier list, suppliers must apply to the office of state procurement.  A purchasing activity may deny issuance of a bid to a prospective supplier until such supplier registers on a supplier list when requested.  The office of state procurement may deny or limit placement on supplier list(s) for reason(s) outlined under WAC 236-48-024)) may be maintained by the office of state procurement. Opportunities for doing business with the office of state procurement include:

(1) Register on supplier list; or

(2) Review website maintained by the office of state procurement; or

(3) Contact office of state procurement staff for information about current opportunities.

[Statutory Authority: Chapter 43.19 RCW.  91-09-035, § 236-48-021, filed 4/12/91, effective 5/13/91.  Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-48-021, filed 8/22/89, effective 9/22/89; Order 77-2 § 236-48-021, filed 1/28/77.]

The director, or designee, may remove or suspend a supplier from any supplier list(s) maintained by the office of state procurement for cause.  Impacted state agencies will be notified of such action(s). Agencies may continue to do business with such supplier if they choose to do so or they may sever that relationship at their discretion. Examples of reasons for removal or suspension include but are not limited to the following:

(1) Illegal act(s);

(2) Repetitive failure to respond to invitations to bid;

(3) Unreasonable number of "no bid" responses;

(4) Any material failure to perform, e.g., delivery, quality;

(5) Any significant detrimental change in supplier status, e.g., financial condition, lines carried, service ability;

(6) Unauthorized product substitution, or representation of an alternate as an equal; or

(7) Discriminatory practices.

Any supplier so removed or suspended shall be notified in writing of the reason(s) therefore, the conditions of any removal or suspension, and/or corrective action required for reinstatement.

[Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-48-024, filed 8/22/89, effective 9/22/89.  Statutory Authority: Chapter 43.19 RCW.  83-18-004 (Order 83-03), § 236-48-024, filed 8/26/83; Order 77-2, § 236-48-024, filed 1/28/77.]

Any supplier removed from a supplier list maintained by the office of state procurement or who is not placed upon such list after request, may appeal the decision to the director or designee.  If such an appeal is made, it must be submitted in writing within ten days of notification of the action taken.

If a supplier's application to be placed on a supplier list has been refused, or if a supplier has been removed or suspended from such list, that supplier may reapply to be placed on such list, or apply for reinstatement when the conditions for reinstatement have been met.

[Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-48-025, filed 8/22/89, effective 9/22/89; Order 77-2, § 236-48-025, filed 1/28/77.]

When required in the ((invitation for bid)) competitive solicitation, all bidders shall provide with their bid a bid guarantee unilaterally payable to the purchasing activity.  The amount of the bid guarantee shall be identified in the ((invitation for bid)) competitive solicitation document in dollars and shall be sufficient to ((redress)) cover damages to the ((state)) purchasing activity in the event ((of)) that bidder ((withdrawal as determined by the buyer)) fails to accept a contract award with the purchasing activity. Failure of bidder to accept an award will result in forfeiture of the bid guarantee and such funds made payable to the Washington state treasury as liquidated damages.

Bid guarantees may be in the form of a certified check, cashier's check, escrow agreement, or irrevocable letter of credit drawn on a separate account in a banking or savings and loan institution regulated by the state of Washington or federal government, cash or a surety bond with a surety company.  Surety bonds or escrow agreements must be on a form approved by the purchasing activity.  Personal or company checks are not acceptable.  Failure to submit a bid guarantee in the specified form will be a cause for rejection.  Bid guarantees shall be returned to bidders after award of contract.  Interest will not be paid on funds deposited directly with the state.  ((Bidders who regularly conduct business with the purchasing activity shall be permitted to file an annual bid guarantee in lieu of bid guarantees for individual contracts in an amount determined by the purchasing activity.  When a bid guarantee is submitted, the bidder covenants that he/she will accept a contract award.  Violation of this covenant will result in forfeiture of the bid guarantee and payment of the same into the Washington state treasury as and for liquidated damages.))

[Statutory Authority: Chapter 43.19 RCW.  91-09-035, § 236-48-035, filed 4/12/91, effective 5/13/91.  Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-48-035, filed 8/22/89, effective 9/22/89; Order 77-2, § 236-48-035, filed 1/28/77.]

When required in the ((invitation for bid)) competitive solicitation, the successful bidder shall post a performance guarantee unilaterally payable to the purchasing activity ((after notice of award)).  The amount of the performance guarantee shall be identified in the ((invitation for bid)) competitive solicitation in dollars and/or a percentage of contract worth sufficient to redress damages to the ((state)) purchasing activity in the event of breach by the contractor(s).  The required performance guarantee shall be in the form of a certified check, cashier's check, escrow agreement, ((or)) irrevocable letter of credit drawn on a separate account in a banking or savings and loan institution regulated by the state or federal government, cash, or surety bond with a surety company.  Surety bonds or escrow agreements must be on a form approved by the purchasing activity.  Personal or company checks are not acceptable.  The performance guarantee shall be held by the ((state)) purchasing activity or deposited to the ((state)) purchasing activity's account until contract terms have been fully executed to the satisfaction of the state.  Interest will not be paid on funds deposited directly with the ((state)) purchasing activity.  Failure to submit a performance ((bond)) guarantee as required ((in the invitation for bid)) shall be grounds for contract termination.

[Statutory Authority: Chapter 43.19 RCW.  91-09-035, § 236-48-036, filed 4/12/91, effective 5/13/91.  Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-48-036, filed 8/22/89, effective 9/22/89.]

To receive consideration, bids ((and)), quotes, and proposals must be legible and shall be made on the form provided by the purchasing activity, or on a letter containing the information.  If a letter is used it must meet the satisfaction of the ((buyer)) purchasing activity, be properly headed and signed, properly marked on the outside of the envelope, received by the date and time specified, and be accompanied by a signed and completed ((bid)) solicitation form provided by the purchasing activity. Unless otherwise authorized, bids, quotes and proposals must be filled out in ink or with ((typewriter)) electronic printer or other similar office equipment and properly signed by an authorized representative of the bidder.  All changes and/or erasures shall be initialed in ink.  ((The buyer may declare that a quotation (not a bid) prepared in pencil is an informality and may accept and consider a clear pencil quotation.)) Unsigned bids will be rejected on opening.  However, the ((buyer)) purchasing activity may accept such bids if it is determined that satisfactory evidence was submitted prior to ((bid)) opening date and time which clearly indicates the bidder's desire to be bound by his/her bid such as a signed cover letter ((or bid bond)).

In lieu of the requirement for an original signature as outlined above, the purchasing activity may implement a policy which authorizes the use of digital signature(s) or electronic submission of bid, quote or proposals provided that such policy provides adequate safeguards to ensure the integrity of the sealed bid process.

[Statutory Authority: Chapter 43.19 RCW.  91-09-035, § 236-48-071, filed 4/12/91, effective 5/13/91.  Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-48-071, filed 8/22/89, effective 9/22/89.  Statutory Authority: Chapter 43.19 RCW.  83-18-004 (Order 83-03), § 236-48-071, filed 8/26/83; Order 77-2, § 236-48-071, filed 1/28/77.]

Specifications contained in the ((invitation for bid)) competitive solicitation will, ((where practical)) to the maximum extent feasible, be nonrestrictive so as to provide an equal basis for competition and participation by an optimum number of qualified bidders.  ((Unless otherwise specifically provided in the invitation for bid, reference to any equipment, material or supplies by trade name, make, or catalog number, shall be regarded as establishing a standard of quality and shall not be construed as limiting competition.)) The purchasing activity may specify a brand name or equal provided that the intent in doing so is to establish a standard of quality against which other brands will be evaluated. When doing so, the purchasing activity should not substitute the word "equivalent" for "equal" in the competitive solicitation document.  All bids, quotes or proposals which offer a different trade name, make, or catalog number must state whether the item offered is an equal or an alternate, and literature which describes the item offered must be provided ((when available)).  The final decision as to whether an item is an equal or an alternate shall rest with the purchasing activity.  ((In the absence of a bidder's statement of a bid being an "alternate" it shall be evaluated as an "equal.")) In the event of discrepancies in specifications, or doubts as to meaning, the bidder shall immediately request clarification from the purchasing activity. To facilitate consistent responses and to ensure all bidders receive the same information, all such questions shall be directed only to that person directly assigned by the purchasing activity or otherwise identified in the bid, quote or proposal document.

[Statutory Authority: Chapter 43.19 RCW.  91-09-035, § 236-48-079, filed 4/12/91, effective 5/13/91.  Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-48-079, filed 8/22/89, effective 9/22/89.  Statutory Authority: Chapter 43.19 RCW.  83-18-004 (Order 83-03), § 236-48-079, filed 8/26/83; Order 77-2, § 236-48-079, filed 1/28/77.]

The ((buyer shall be under no obligation whatever to)) purchasing activity need not accept alternate bids ((or)), quotes or proposals but shall have the discretion to ((accept a bid or quote)) do so if it substantially conforms to the bid specifications.  Unless their bid, quotation or proposal is clearly identified as an alternate, bidders warrant the goods and/or services ((bid)) offered to be at least equal to specifications ((on the invitation for bid or request for quotation)) indicated by purchaser and shall submit with their bid ((or)), quotation or proposal complete documentation ((sufficient to so establish)) to enable the purchasing activity to evaluate.  Bids, quotations or proposals without sufficient documentation may be rejected.  If a bidder misrepresents ((their)) goods and/or services bid as being an equal when it is an alternate, their bid, quotation or proposal may be rejected and bidder will be liable for damages caused by the misrepresentation.

Where required by the purchasing activity, the bidder shall, at bidder's expense, provide product samples and/or descriptive literature with returned bid, quote or proposal. If not received within the required time period or as otherwise required, the purchasing activity may reject the bid, quote or proposal as nonresponsive. If not destroyed in testing or if sample is not required by the purchasing activity to be retained for demonstration purposes, bidders may request return of samples at their expense. Samples not claimed within ten days after notification may be disposed of as deemed necessary without cost to the purchasing activity.

If necessary, the purchasing activity may require competitive demonstrations at bidder's expense to ensure that the proposed product satisfactorily meets the purchaser's needs.

[Statutory Authority: Chapter 43.19 RCW.  91-09-035, § 236-48-083, filed 4/12/91, effective 5/13/91.  Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-48-083, filed 8/22/89, effective 9/22/89; Order 77-2, § 236-48-083, filed 1/28/77.]

((In accordance with the Laws of 1983 and chapter 43.19 RCW, the director of general administration)) The office of state procurement shall compile a list of each state, relating to state purchasing practices, ((which)) whose statutes or regulations ((the director believes)) grant a preference to suppliers located within that state or ((to)) goods manufactured within that state.  This list shall be updated on an annual basis and shall include only those states with currently active in-state preference clauses for procuring goods and services and the list shall contain the percentage of preference allowed.  States with only reciprocity legislation will not be included on the list.  The office of state procurement ((will be responsible for the official compilation of)) shall compile the list and ((notification to)) notify impacted state agency, college and university purchasing offices.  ((The notification shall be made by office of state procurement circular letter.

For the purposes of)) In determining whether to assess a percentage ((penalty)) increase against a ((supplier's bid)) bidder, and the amount of that ((penalty)) increase, the ((buyer in charge of the bid)) purchasing activity will consider only the business address from which the bid or proposal was submitted.  ((It is recognized that under certain circumstances this will adversely affect bidders with in-state operations whose bids are prepared centrally in an out-of-state office.

Buyers)) The purchasing activity will add the appropriate percentage ((penalty)) increase to each bid or proposal bearing the address from a state with in-state preference rather than subtracting a like amount from Washington state bidders.

This action will be used only ((for bid analysis and)) when evaluating bids or proposals for award.  In no instance shall the increase be paid to a supplier whose bid is accepted.

This WAC section applies only to formal invitations for bid and requests for proposals solicited in accordance with chapter 43.19 RCW.

[Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-48-085, filed 8/22/89, effective 9/22/89.  Statutory Authority: Chapter 43.19 RCW.  83-18-004 (Order 83-03), § 236-48-085, filed 8/26/83.]

((A buyer)) The purchasing activity shall have the discretion to award on an "all or nothing" basis as outlined in the competitive solicitation document or to accept any portion of the items bid, excluding others unless the bidder stipulates all or nothing ((on)) in their bid.

[Statutory Authority: Chapter 43.19 RCW.  91-09-035, § 236-48-094, filed 4/12/91, effective 5/13/91; Order 77-2, § 236-48-094, filed 1/28/77.]

In conducting purchases of goods and/or services, preference shall be given to the extent allowed by statute:

(1) Under RCW ((43.19.536)) 43.19.534, to those goods and services produced in whole or in part by Class II inmate programs operated by the department of corrections as described in WAC 236-49-055.  ((These goods and services shall be purchased from correctional industries through state contracts administered by the department of general administration, unless upon application by a state agency, the legislature or departments, the director of the department of general administration, or his or her representative, finds that:

(a) The correctional industries products or services do not meet the reasonable requirements of the applicant/agency, legislature or department;

(b) The correctional industries products or services are not of equal or better quality; or

(c) The correctional industries price for the product or service is higher than that available in the private sector.

However, goods or services produced by Class II correctional industries programs which primarily replace goods manufactured or services obtained from outside the state of Washington are not subject to the criteria contained in subsection (1) of this section, and shall be purchased solely from correctional industries.

(2) To bids responsive to invitations for bid with minority and women's business enterprises (MWBE) goals pursuant to chapter 39.19 RCW and chapter 236-40 WAC.

(3))) (2) To goods containing recovered material as outlined under RCW 43.19.538 provided that the ((buyer)) purchasing activity sets forth in the ((invitation for bid)) competitive solicitation a minimum percent content of recovered material that must be certified by ((the bidder and)) the producer of the goods to qualify for the preference.  Bids for goods so certified shall be given a preference of ten percent of the amount of the bid in determining the lowest responsive bid for any item or grouping of items to be awarded to a single bidder.  This preference shall be separate from and applied after any other preferences allowed by statute.  The minimum content of recovered material shall be not less than fifteen percent provided that for those goods for which the Environmental Protection Agency has adopted procurement guidelines under the Resource Conservation and Recovery Act of 1976 (Public Law 94-580, 42 U.S.C. § 6901 et seq.), as amended, the minimum content of recovered material shall not be less than specified in the most current adopted issue of those guidelines.  ((Bidders)) The producer of the goods shall certify the post consumer and recovered or waste material content at the time of submitting bid.  To qualify for the preference, the goods shall otherwise be at least functionally equal to all other ((invitation for bid)) specifications and use requirements.  The preference shall be used for bid evaluation purposes only and the actual dollars bid shall be the contracted amount.  In the event of a tie for lowest responsive bid between products otherwise meeting all bid specifications, the ((buyer)) purchasing activity shall consider the larger post consumer material content as a factor in determining the award.  Should the ((buyer)) purchasing activity determine that the use of this preference does not encourage the use of more recovered material for reasons including inadequate competition, economics, environmental constraints, quality or availability, the ((buyer)) purchasing activity shall issue, consider and award bids without the preference.  For the purpose of meeting Resource Conservation and Recovery Act requirements for state agency purchase of goods complying with Environmental Protection Agency recovered or waste guidelines, the office of state procurement may adopt specifications requiring that only goods meeting these guidelines are responsive and may consider bids for such goods though the cost exceeds ten percent of goods not meeting such guidelines.

[Statutory Authority: RCW 43.19.534.  94-21-017, § 236-48-096, filed 10/6/94, effective 11/6/94.  Statutory Authority: Chapter 43.19 RCW.  91-09-035, § 236-48-096, filed 4/12/91, effective 5/13/91.  Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-48-096, filed 8/22/89, effective 9/22/89.  Statutory Authority: Chapter 43.19 RCW.  83-18-004 (Order 83-03), § 236-48-096, filed 8/26/83; Order 77-2, § 236-48-096, filed 1/28/77.]

No rejection notice will be sent to unsuccessful bidders ((submitting)) whose net pricing (or scoring) after evaluation is higher ((bid/quote pricing)) than awarded.  Bidders whose bids are ((lower than the lowest responsive bidder)) nonresponsive will be rejected ((as nonresponsive)) and will be notified of the reasons for such rejection.

[Statutory Authority: Chapter 43.19 RCW.  91-09-035, § 236-48-098, filed 4/12/91, effective 5/13/91.  Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-48-098, filed 8/22/89, effective 9/22/89.  Statutory Authority: Chapter 43.19 RCW.  83-18-004 (Order 83-03), § 236-48-098, filed 8/26/83; Order 77-2, § 236-48-098, filed 1/28/77.]

Acceptance of bids ((or)), quotes, or proposals shall be expressly limited to the terms and conditions of the ((invitation for bid or request for quotation)) solicitation document issued by the purchasing activity.  All material alterations, additional or different terms proposed by the bidder shall be ((and are)) rejected unless otherwise provided for in ((writing by the director or their designee)) the solicitation document issued by the purchasing activity.

[Statutory Authority: Chapter 43.19 RCW.  91-09-035, § 236-48-099, filed 4/12/91, effective 5/13/91.  Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-48-099, filed 8/22/89, effective 9/22/89.  Statutory Authority: Chapter 43.19 RCW.  83-18-004 (Order 83-03), § 236-48-099, filed 8/26/83; Order 77-2, § 236-48-099, filed 1/28/77.]

The ((person designated as)) purchasing activity's official bid supervisor shall decide when the time set for bid opening has arrived and shall so declare to those present.  The bid supervisor shall then personally and publicly open all bids and read pertinent information as determined by the ((office of state procurement)) purchasing activity for recording.  The ((bid)) solicitation form may not be completed, signed, or amended ((or clarified)) by bidders after official opening time.  The bid supervisor will, on request, read the documents in detail provided that sufficient time is available.  ((Bids)) All bids become the property of the purchasing activity when received and must remain under the control of the bid supervisor or staff.

[Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-48-111, filed 8/22/89, effective 9/22/89; Order 77-2, § 236-48-111, filed 1/28/77.]

Mistakes in bids or proposals detected prior to ((bid)) opening may be corrected by the bidder by withdrawing the original bid or proposal and submitting a corrected bid or proposal to the purchasing activity before the ((bid)) time specified for opening.  If there is not sufficient time prior to ((bid)) the time specified for opening to withdraw the original bid or proposal and submit a corrected bid or proposal, the bidder, or an authorized representative, may correct the mistake on the face of the original bid or proposal: Provided, That the corrected bid or proposal is time stamped by the purchasing activity upon resubmission prior to the time designated ((in the invitation for bid)) for opening.

[Statutory Authority: Chapter 43.19 RCW.  91-09-035, § 236-48-121, filed 4/12/91, effective 5/13/91.  Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-48-121, filed 8/22/89, effective 9/22/89; Order 77-2, § 236-48-121, filed 1/28/77.]

Bidder mistakes in a bid or proposal detected during or after bid opening may not be corrected.  If the bidder submits evidence in writing satisfactory to the ((director or designee)) purchasing activity that a mistake has been made by the bidder in the calculation of its bid or proposal, the ((director or designee)) purchasing activity may allow the bid or proposal to be withdrawn: Provided, That the claim of mistake and the evidence in support thereof must be made and provided within three business days after the bid or proposal has been opened.  Compliance with this section within the specified time limit, shall relieve the bidder of forfeiture of its bid ((bond)) guarantee. If the purchasing activity subsequently reissues the solicitation, the bidder having made the mistake may not participate in that bid or proposal.

[Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-48-122, filed 8/22/89, effective 9/22/89; Order 77-2, § 236-48-122, filed 1/28/77.]

After bids, quotes or proposals have been received, all such information becomes the property of the purchasing activity and shall not be released or otherwise distributed until after the evaluation has been completed and final award(s) announced. Evaluation team members shall maintain confidentiality of information to ensure the integrity of the process. After award and distribution of award information or posting of such information electronically for public review, the bids ((and)), quotes, and proposals of all bidders shall be open to public inspection at the offices of the purchasing activity during normal office hours.  Copies of documents subject to public disclosure will be made available upon request in accordance with purchasing activity policy.  ((Bidders must provide a self addressed stamped envelope to obtain invitation for bid or request for quotation results.  A copy of awarded purchase order or contract will be provided.  Unless noted to the contrary in this invitation for bid or request for quotation,)) The purchasing activity assumes no responsibility for the confidentiality of bids, quotes or proposals after award.

Any document(s) or information which the bidder believes is exempt from public disclosure per RCW 42.17.310 shall be clearly identified by bidder and placed in a separate envelope marked with bid number, bidder's name, and the words "proprietary data" along with a statement of the basis for such claim of exemption. The state's sole responsibility shall be limited to maintaining the above data in a secure area and to notify bidder of any request(s) for disclosure within a period of five years from date of award. Failure to so label such materials or failure to provide a timely response after notice of request for public disclosure has been given shall be deemed a waiver by the bidder of any claim that such materials are, in fact, so exempt.

[Statutory Authority: Chapter 43.19 RCW.  91-09-035, § 236-48-123, filed 4/12/91, effective 5/13/91.  Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-48-123, filed 8/22/89, effective 9/22/89.  Statutory Authority: Chapter 43.19 RCW.  83-18-004 (Order 83-03), § 236-48-123, filed 8/26/83; Order 77-2, § 236-48-123, filed 1/28/77.]

The purchasing activity reserves the right to waive ((minor)) informalities ((or irregularities as defined in WAC 236-48-003)) in bids, quotes or proposals.

[Statutory Authority: Chapter 43.19 RCW.  91-09-035, § 236-48-124, filed 4/12/91, effective 5/13/91.  Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-48-124, filed 8/22/89, effective 9/22/89.  Statutory Authority: Chapter 43.19 RCW.  83-18-004 (Order 83-03), § 236-48-124, filed 8/26/83.]

In the event of a cancellation of ((an invitation for bid or a request for quotation,)) a competitive solicitation or ((in the event)) if all bids are rejected, all bidders will be notified by mail, facsimile or electronic means by the purchasing activity.

[Statutory Authority: Chapter 43.19 RCW.  91-09-035, § 236-48-132, filed 4/12/91, effective 5/13/91; Order 77-2, § 236-48-132, filed 1/28/77.]

Purchasing activities shall make available to bidders upon request a copy of their policy which outlines how the protest review process will be administered within their agency. All protests and appeals must be in writing ((and)), signed by the protestant or appellant or an authorized agent and delivered within the time frame(s) outlined by the protest policy. Protests must be addressed to that individual within the purchasing activity assigned review responsibilities.  Such writing must state all facts and arguments on which the protestant or appellant is relying as the basis for its action.  Such protestant or appellant shall also attach, or supply on demand by the ((director)) purchasing activity, any relevant exhibits related, or referred to in the ((writing)) protest.  Copies of all protests, appeals, and exhibits shall be mailed, faxed or delivered by the protestant or appellant to the bidder or bidders against whom the protest is made at the same time such protest, appeal, and exhibits are submitted to the purchasing activity.

[Statutory Authority: Chapter 43.19 RCW.  91-09-035, § 236-48-141, filed 4/12/91, effective 5/13/91.  Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-48-141, filed 8/22/89, effective 9/22/89; Order 77-2, § 236-48-141, filed 1/28/77.]

((After a bid opening, and)) Prior to award, a bidder desiring to protest the bid of another bidder, the specifications or the manner in which the solicitation process has been conducted must ((send or deliver its protest to)) notify the ((buyer)) state procurement officer in charge of the ((bid)) solicitation of his/her intent to file a protest as soon as possible after ((it)) he/she becomes aware of the reason(s) for the protest.  ((If the protest is mailed the protestant shall immediately notify the buyer in charge of the bid by telephone, or some other means of instant communication, that a protest is being made.)) Such protest(s) must be received not later than five business days after notification has been given to the state procurement officer of bidder's intent to protest. Should the protest not be received within that time frame, the state procurement officer may proceed with the award.

The ((buyer)) state procurement officer shall consider all of the facts available and issue a decision in writing within ten business days after receipt of the protest, unless more time is needed.  The protestant and, where applicable, the bidder(s) against whom the protest is made will be notified if ((longer)) additional time is necessary.  If the protesting bidder or the bidder against whom the protest is made is not satisfied with the decision of the ((buyer)) state procurement officer, he/she shall have the right to appeal to the director, office of state procurement.  Such appeal must be received by the director within five business days after notification of the ((buyer's)) state procurement officer's decision.  The director shall consider all of the facts available and issue a decision in writing within ten business days after receipt of the appeal, unless more time is needed.  The appealing bidder will be notified if ((longer)) additional time is necessary.

Unless an emergency exists as determined by the director, award of the contract, if one is to be made, will be postponed until after the director has issued a decision. Unless the director subsequently considers it necessary to pursue further clarification(s), the decision of the director on the protest is final.

[Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-48-142, filed 8/22/89, effective 9/22/89; Order 77-2, § 236-48-142, filed 1/28/77.]

Protests after award will not be considered unless the protest concerns a matter which arises after the award or could not reasonably have been known or discovered prior to award.  Such protests shall be received by the director, office of state procurement not later than five business days after ((mailing)) distribution of the award information by the office of state procurement.  If the protest is mailed the protestant shall immediately notify by telephone, or some other means of instant communication, the ((buyer)) state procurement officer in charge of the bid and the bidder that has received the award that a protest is being made.  The director shall consider all of the facts available and issue a decision on the protest within ten business days after receipt thereof, unless more time is needed.  In such event, the protestant and the bidder that has received the award shall be notified of any delay. If the director upholds the award, the decision of the director is final, unless the director subsequently considers it necessary to pursue further clarifications.

If the director finds that the award should not have been made he/she shall notify the bidder which received the award of his/her intent to cancel the award and the reasons ((therefor)) therefore.  ((Such)) The bidder that has received the award shall then have five business days after receipt of notification in which to appeal the decision to cancel the award to the director of general administration.  The director of general administration shall consider all of the facts available and issue a decision within ten business days after receipt of the appeal, unless more time is needed.  If more time is needed, the appellant and the protestant shall be so notified.

If the director of general administration agrees that the award should be canceled he/she shall order the director of the office of state procurement to cancel the award ((within ten business days after the decision is delivered to the bidder to whom the contract had been awarded.  All bids shall then be rejected and new bids solicited)). Unless the director of general administration subsequently considers it necessary to pursue further clarifications, the decision of the director of general administration shall be final.

If an award is cancelled, the director, office of state procurement, after consideration of all pertinent factors, may decide to reject all bids, quotes or proposals and solicit new bids, quotes or proposals. Barring such a decision, an award shall be made to the next lowest responsive and responsible bidder.

[Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-48-143, filed 8/22/89, effective 9/22/89; Order 77-2, § 236-48-143, filed 1/28/77.]

Whenever a specific delivery date has been ((stated)) stipulated by the purchasing activity in a solicitation document, that date shall be an essential condition of ((the)) any contract subsequently entered into by the parties.  If a contractor is unable to meet the delivery date, he/she shall notify the ((buyer)) purchasing activity at the earliest possible time.  The contractor shall include in such notification the ((projected)) proposed revised delivery date.  The purchaser shall then have the option to accept such revised dates, or cancel and purchase elsewhere. The purchasing activity shall have the option of pursuing liquidated damage provisions or other legal remedies outlined in the solicitation document, statute or regulation.

[Statutory Authority: Chapter 43.19 RCW.  91-09-035, § 236-48-153, filed 4/12/91, effective 5/13/91.  Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-48-153, filed 8/22/89, effective 9/22/89; Order 77-2, § 236-48-153, filed 1/28/77.]

((A bidder or)) After award, a contractor shall not be allowed to substitute goods ((and)) or services from that offered: Provided, however, If the goods or services offered are no longer available to the ((bidder or)) contractor for reasons beyond its control or if the short term needs of an agency are more fully met by the proposed substitute goods or services, the purchasing activity may consider a request by the bidder or contractor for substitution.  All such requests must be in writing, must set forth the reasons the product or service is no longer available, and/or must be accompanied by samples, record of performance, certified copies of tests by impartial and recognized laboratories, ((and)) or such additional data as the purchaser may request.  Samples and data shall be furnished sufficiently in advance to allow for investigation before a decision is made.  The bidder or contractor shall warrant that the ((contracted)) substitute article is equal or better than the specified article.  If the change results in any cost savings to the bidder or contractor, the cost savings shall be reflected in full in a reduction in price to the ((using agency)) purchasing activity.  State contracts may only be ((so)) amended by the office of state procurement.

[Statutory Authority: Chapter 43.19 RCW.  91-09-035, § 236-48-165, filed 4/12/91, effective 5/13/91.  Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-48-165, filed 8/22/89, effective 9/22/89; Order 77-2, § 236-48-165, filed 1/28/77.]

If contract provisions allow, a contractor and the purchasing activity may ((covenant and)) mutually agree ((that the)) to extend a contract ((in question may be extended)) for predetermined periods ((by the purchasing activity under the same terms and conditions as comprise)) pursuant to the terms and conditions included in the original contract.

((The buyer shall have discretion to extend a contract with the)) Justification for extension ((being)) must be fully documented in the contract file. The decision to pursue a contract extension shall include a review of price competitiveness, changes in the marketplace for such commodity or service, and/or other relevant factors.  The contractor shall be notified in writing of the ((intent to extend)) purchasing activities desire to pursue a contract extension prior to the ((termination)) expiration date of the ((existing or extended)) contract.  ((If the contractor does not wish to have the contract extended, he/she shall so notify the purchasing activity in writing.))  Extensions, to be effective, must be in writing and signed by authorized representatives of both the contractor and purchasing activity.

[Statutory Authority: Chapter 43.19 RCW.  91-09-035, § 236-48-166, filed 4/12/91, effective 5/13/91.  Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-48-166, filed 8/22/89, effective 9/22/89.  Statutory Authority: Chapter 43.19 RCW.  83-18-004 (Order 83-03), § 236-48-166, filed 8/26/83; Order 77-2, § 236-48-166, filed 1/28/77.]

((Within reason)) Where consistent with statutory and contract provisions, the office of state procurement may increase or decrease the items, quantities, ((or)) delivery locations or agencies specified in a state contract or purchase order. Contract provisions shall specify the extent to which this option may be exercised. Where consistent with statute and contract provisions, purchasing activities may do likewise for purchases which they administer.

[Statutory Authority: Chapter 43.19 RCW.  91-09-035, § 236-48-167, filed 4/12/91, effective 5/13/91.  Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-48-167, filed 8/22/89, effective 9/22/89.  Statutory Authority: Chapter 43.19 RCW.  83-18-004 (Order 83-03), § 236-48-167, filed 8/26/83; Order 77-2, § 236-48-167, filed 1/28/77.]

Excess and/or surplus property will be offered for sale, transfer, or donation as designated below and according to the following priorities:

(1) Sale or transfer to state agencies (including state universities and colleges);

(2) Sale or transfer to other tax-supported educational agencies;

(3) Sale or transfer to tax-supported agencies, municipalities or political subdivisions within the state of Washington;

(4) Sale or transfer to ((tax-exempt nonprofits)) public benefit nonprofit corporations;

(5) Donation of surplus, tangible personal property to qualified shelters as described in and in accordance with RCW 43.19.1920.

(6) Sale to the general public including by auction, sealed bid and negotiation; and

(7) Other action as needed, such as destruction where it has been determined that the item has no sale value.

[Statutory Authority: RCW 43.19.1919.  94-22-056, § 236-48-190, filed 11/1/94, effective 12/2/94.  Statutory Authority: RCW 43.19.1919 and HB 2106.  92-09-016, § 236-48-190, filed 4/3/92, effective 5/4/92; Order 77-2, § 236-48-190, filed 1/28/77.]

((If a purchasing activity leases without option to purchase goods or services, the state standard form lease developed by office of state procurement shall be used.  Any deviations therefrom must be approved as to form by the office of state procurement and the attorney general's office.))  For goods to be leased with an option to purchase or lease-purchased, agencies are responsible for coordinating the finance agreement where applicable with the office of state treasurer prior to the purchasing activity conducting the purchase.

[Statutory Authority: Chapter 43.19 RCW.  91-09-035, § 236-48-230, filed 4/12/91, effective 5/13/91.  Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-48-230, filed 8/22/89, effective 9/22/89; Order 77-2, § 236-48-230, filed 1/28/77.]

All credit((/)), charge cards or purchasing cards, other than those for gasoline, vehicle rental, travel, and telephone, shall be ordered by the director of an agency or designee.  It shall not be mandatory upon an agency to obtain credit ((or)), charge cards or purchasing cards.

[Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-48-250, filed 8/22/89, effective 9/22/89.  Statutory Authority: Chapter 43.19 RCW.  83-18-004 (Order 83-03), § 236-48-250, filed 8/26/83.]

Agency heads (or their designees) shall institute a system for responsibility, control and distribution of credit((/)), charge or purchasing cards within each agency.  Control shall be so structured that, upon request of the office of state procurement, each agency will be able to report the number of cards used, the type of cards used, the amount of purchases made by card within a stated time together with any problems they have encountered.

[Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-48-251, filed 8/22/89, effective 9/22/89.  Statutory Authority: Chapter 43.19 RCW.  83-18-004 (Order 83-03), § 236-48-251, filed 8/26/83.]

When an agency determines that the use of credit((/)), charge or purchasing cards will be to its advantage, the source will be the existing state contract.  The ((director)) office of state procurement will establish an aggregate credit limit for each agency.  Each agency director will then establish a credit limit for each card ordered within that aggregate limit.  Any requests for exception to the agency aggregate monetary limit must be made in writing by the agency head to the director, office of state procurement, who will approve or deny.  Dollar limitations shall not apply to travel related expenditures such as food, lodging, airfare, and vehicle rental.

[Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-48-252, filed 8/22/89, effective 9/22/89.  Statutory Authority: Chapter 43.19 RCW.  83-18-004 (Order 83-03), § 236-48-252, filed 8/26/83.]

Statements received from the financial institution or firm issuing credit or purchasing cards shall be handled in the same manner as an invoice bearing a prompt payment discount.  Payments shall be made in full each month to avoid late payment penalties or interest charges imposed by credit card issuers.

[Statutory Authority: Chapter 43.19 RCW.  83-18-004 (Order 83-03), § 236-48-253, filed 8/26/83.]

OTS-3138.1

AMENDATORY SECTION(Amending Order 89-02, filed 8/22/89, effective 9/22/89)

WAC 236-49-001
Purpose.

The purpose of this chapter is to ((set forth rules and regulations governing the relationship and procedures between the office of state procurement and state agencies)) outline the purchasing structure within the state of Washington and to identify the responsibilities of, and relationships between, those purchasing activities. The requirements by which state agencies shall conduct their acquisitions are outlined in general authorities delegated by the office of state procurement and/or via policy outlined by higher educational facilities.

[Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-49-001, filed 8/22/89, effective 9/22/89; Order 77-2, § 236-49-001, filed 1/28/77.]

As used in this chapter the following terms shall have the following meanings; additional terms shall have meanings as outlined under WAC 236-48-003:

(1) ((Agency.  Shall include state of Washington institutions, colleges, community colleges and universities, the offices of the elective state officers, the supreme court, the court of appeals, the administrative and other departments of state government, and the offices of all appointive officers of the state.  Agency does not include the legislature.

(2) Alternate.  Goods and services which are not at least a functional equal in features, performance or use of the brand, model, or specification designated as the standard.

(3) Delegated authority.  Authority to purchase goods and services delegated to an agency by office of state procurement pursuant to RCW 43.19.190(4) and which is delegated in three forms:

(a) General.  Those purchases delegated annually by the office of state procurement which are common to multiple state agencies.

(b) Specific.  Those purchases delegated annually to specific agencies for continuing individual commodity requirements.

(c) Limited.  Those purchases delegated to a specific agency for one-time commodity requirements.

(4) Director.  Except where otherwise specifically noted shall mean the state purchasing and material control director, who is the assistant director of the office of state procurement.

(5) Equal.  Goods and services which meet or exceed the quality, performance and use of the brand, model, or specifications in the invitation for bid or request for quotation.

(6) Field order.  A standard state form used to make withdrawals from existing state contracts established by the office of state procurement or where an agency has received delegated authority for direct purchase.

(7) Goods and/or services.  Material, supplies, services, and equipment offered for sale by a supplier(s) and required by a state agency to accomplish continuing and necessary functions and not otherwise statutorily exempted from chapter 43.19 RCW as a personal service under RCW 39.29.006(8); an architectural and engineering service under RCW 39.80.020(5); or data information systems and telecommunications equipment, software, and services under chapter 43.105 RCW.

(8))) Materials management center.  That activity managed by the department of general administration office of state procurement whose function is to provide for the:

(a) Centralized storage and distribution of commonly used supplies and equipment to ensure administrative efficiency and economy in such purchases by state agencies;

(b) Centralized ((salvage, maintenance, repair, and servicing of equipment, furniture, or furnishings used by state agencies)) storage of agency goods, backhaul of agency goods from remote locations to Olympia and management of the administration and distribution of the emergency food assistance program (TEFAP) funding and food commodities in accordance with federal regulations.

(((9) Office of state procurement.  The division of purchasing of the department of general administration in RCW 43.19.180 et seq.  Whenever a purchase or sale is made by the office of state procurement on behalf of another agency the office of state procurement is acting in the capacity of agent for such agency.

(10))) (2) Political subdivision.  Any agency, political subdivision, or unit of local government of Washington state including, but not limited to, municipal corporations, quasi-municipal corporations, special purpose districts, and local service districts; any agency of Washington state government; any agency of the United States; any Indian tribe recognized as such by the federal government; and any political subdivision of another state of the United States.

(((11) Purchase.  Shall include purchase, lease, renting or lease-purchase of goods and services.

(12))) (3) Public benefit nonprofit corporation. An entity registered with the office of secretary of state as outlined by RCW 39.34.055 which maintains a tax exempt status under 26 U.S.C. Sec. 501 (c)(3) with the Internal Revenue Service and which is receiving local, state or federal funds either directly or through a political subdivision.

(4) Purchase order.  A standard state form used by the office of state procurement and institutions of higher education and signed by an authorized ((buyer)) official of the ((office of state procurement)) purchasing activity which notifies the contractor to provide the stated material, equipment, supplies, or services under the terms and conditions set forth thereon or as outlined in the contract.

(((13) Purchasing activity.  The office of state procurement or an agency authorized by state statute to conduct acquisition of goods and services or delegated that authority by the office of state procurement.

(14) Requisition.  A standard state form which serves as a procurement request and which requests the office of state procurement to purchase stated requirements.))

[Statutory Authority: Chapter 43.19 RCW.  91-09-034, § 236-49-010, filed 4/12/91, effective 5/13/91.  Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-49-010, filed 8/22/89, effective 9/22/89; Order 77-2, § 236-49-010, filed 1/28/77.]

The office of state procurement has been charged by the legislature with the responsibility to purchase all goods and/or services needed for the support, maintenance and use of all state institutions, colleges, community colleges and universities, the offices of the elective state officers, the supreme court, the court of appeals, the administrative and other departments of state government, and the offices of all appointive officers of the state.  ((Primary authority for the purchase of specialized equipment, instructional and research material for their own use rests with the)) Colleges, community colleges and universities((.  Primary authority for the purchase of goods and/or services for resale to other than public agencies rests with the state agency concerned)) have statutory authority for conducting their own acquisitions but shall implement policies and procedures which adhere to statutory provisions and legislative intent outlined under applicable sections of chapter 43.19 RCW.  The legislature has the responsibility of making purchases necessary for the operation of the legislature.

The office of state procurement has authority to delegate to state agencies ((authorization to purchase or sell, which authorization shall specify types of goods and/or services: Provided, That acceptance of the purchasing authorization by a state agency does not relieve such agency from conformance with RCW 43.19.190 through 43.19.1939, as now or hereafter amended, from chapter 236-48 WAC, or from policies established by the director after consultation with the state supply management advisory board.  The delegation of such authorization to a state agency, including an educational institution, to purchase or sell material, equipment, services, and supplies shall not be granted, or otherwise continued under a previous authorization, if such agency is not in substantial compliance with overall state purchasing and material control policies, chapter 236-48 WAC or RCW 43.19.190 through 43.19.1939)) other than institutions of higher education authorization to purchase or sell goods or services required by that agency which agencies may purchase and shall identify guidelines by which those agencies shall conduct their acquisitions. Agencies receiving delegation of authority must remain in substantial compliance with procurement statutes, regulations and requirements outlined by the office of state procurement to obtain continued delegation of authority.

[Statutory Authority: Chapter 43.19 RCW.  91-09-034, § 236-49-020, filed 4/12/91, effective 5/13/91.  Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-49-020, filed 8/22/89, effective 9/22/89; Order 77-2, § 236-49-020, filed 1/28/77.]

The following provisions ((indicate how the department of corrections and the department of general administration will implement a purchasing program)) outline purchase requirements for correctional industries, Class II goods and services:

(1) Correctional industries will identify the goods and services available for purchase through the office of state procurement and confirm the same in writing to the director of the department of general administration at least one hundred twenty days before the expiration of any existing contract(s).  The writing from correctional industries will include a request that the office of state procurement tender to correctional industries a mandatory use contract to sell these goods and services to state agencies, the legislature and departments in accordance with RCW 43.19.534.  A mandatory use contract as defined in the procurement document will be executed between the office of state procurement and correctional industries that complies with state law and covers all specified Class II goods and services that are produced in whole, or in part, by correctional industries.

(2) All goods and services covered by the general administration mandatory use contract are to be purchased from correctional industries.  General administration will administer these contracts.

(3) Any state agency, branch of the legislature or department may apply for an exemption from the correctional industries purchase preference by using the form developed by general administration.  ((The exemption request shall be in the form of a written application presented to the director of general administration.  For an exemption to issue, there shall first be a contract executed between correctional industries and the department of general administration, and the following elements must be proven to the satisfaction of the director of general administration:

(a) The goods or services provided by correctional industries do not meet the reasonable requirements of the applicant/agency, legislature or department;

(b) The goods or services provided by correctional industries are not of equal or better quality than comparable goods or services available from the private marketplace; or

(c) The correctional industries price for the goods or services is higher than that produced by the private sector.)) If the request for exemption is approved, that approval shall apply for the specified product or product line for a period of one year from the date of approval of the exemption. The approval shall apply to all customers of that agency requesting that product or product line.

(4) However, goods or services produced by Class II correctional industries programs which primarily replace goods manufactured or services obtained from outside the state of Washington are not subject to the criteria contained in subsection (3) of this section, and shall be purchased solely from correctional industries.

(5) Correctional industries, Class II purchasing requirements supersede the second proviso of RCW 43.19.190(2), where correctional industries offers the goods or services through state contract and the goods are manufactured and/or services are obtained from outside the state of Washington.

[Statutory Authority: RCW 43.19.534.  94-21-017, § 236-49-055, filed 10/6/94, effective 11/6/94.]

((Under the authority of chapter 39.34 RCW, political subdivisions may enter into an interlocal cooperative purchasing agreement with the office of state procurement.  Participation is voluntary--A political subdivision may use state contracts and purchase orders when the office of state procurement provides therefore.)) The office of state procurement may establish a state purchasing cooperative composed of state agencies, political subdivisions and authorized private nonprofit entities. The office of state procurement may also enter into agreements with other purchasing cooperatives outside the state as it deems appropriate. Authorized entities desiring to purchase goods or services from contracts or purchases administered by the office of state procurement shall first ensure current membership in the state purchasing cooperative. Participants may utilize state contracts, participate in procurement training activities sponsored by the office of state procurement and benefit from staff expertise and/or assistance in administering their own procurement programs. The office of state procurement shall fully recover costs of administering this program from members.

[Statutory Authority: RCW 43.19.180 - 43.19.1932 and 43.19.520 - 43.19.538.  89-17-094 (Order 89-02), § 236-49-060, filed 8/22/89, effective 9/22/89.  Statutory Authority: Chapter 43.19 RCW.  83-18-004 (Order 83-03), § 236-49-060, filed 8/26/83.]

© Washington State Code Reviser's Office