HF 866

as introduced - 88th Legislature (2013 - 2014) Posted on 02/25/2013 02:16pm

A bill for an act
relating to state government; changing provisions for procurement and solicitation
process; amending Minnesota Statutes 2012, sections 13.591, subdivision 3;
16C.02, subdivision 13; 16C.06, subdivision 2; 16C.08, subdivision 4; 16C.09;
16C.10, subdivision 6; 16C.33, subdivision 3; 16C.34, subdivision 1.

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

Section 1.

Minnesota Statutes 2012, section 13.591, subdivision 3, is amended to read:

Subd. 3.

Business as vendor.

(a) Data submitted by a business to a government
entity in response to a request for bids as defined in section 16C.02, subdivision 11, are
private or nonpublic until deleted text begin the bids are opened. Once the bids are opened, deleted text end new text begin the time and date
specified in the solicitation, at which time new text end the name of the bidder and the dollar amount
specified in the response deleted text begin are read and deleted text end become public. All other data in a bidder's response
to a bid are private or nonpublic data until completion of the selection process. For
purposes of this section, "completion of the selection process" means that the government
entity has completed its evaluation and has ranked the responses. After a government
entity has completed the selection process, all remaining data submitted by all bidders are
public with the exception of trade secret data as defined and classified in section 13.37.
A statement by a bidder that submitted data are copyrighted or otherwise protected does
not prevent public access to the data contained in the bid.

If all responses to a request for bids are rejected prior to completion of the selection
process, all data, other than deleted text begin that made public at the bid opening deleted text end new text begin the name of the bidder
and the dollar amount specified in the response new text end , remain private or nonpublic until a
resolicitation of bids results in completion of the selection process or a determination is
made to abandon the purchase. If the rejection occurs after the completion of the selection
process, the data remain public. If a resolicitation of bids does not occur within one year
of the bid opening date, the remaining data become public.

(b) Data submitted by a business to a government entity in response to a request
for proposal, as defined in section 16C.02, subdivision 12, are private or nonpublic until
deleted text begin the responses are opened. Once the responses are opened, deleted text end new text begin the time and date specified in
the solicitation, at which time new text end the name of the responder deleted text begin is read and deleted text end becomes public. All
other data in a responder's response to a request for proposal are private or nonpublic data
until completion of the evaluation process. For purposes of this section, "completion of
the evaluation process" means that the government entity has completed negotiating the
contract with the selected vendor. After a government entity has completed the evaluation
process, all remaining data submitted by all responders are public with the exception of
trade secret data as defined and classified in section 13.37. A statement by a responder that
submitted data are copyrighted or otherwise protected does not prevent public access to
the data contained in the response.

If all responses to a request for proposal are rejected prior to completion of the
evaluation process, all data deleted text begin , other than that made public at the response opening, deleted text end remain
private or nonpublic until a resolicitation of the requests for proposal results in completion
of the evaluation process or a determination is made to abandon the purchase. If the
rejection occurs after the completion of the evaluation process, the data remain public.
If a resolicitation of proposals does not occur within one year of the proposal opening
date, the remaining data become public.

Sec. 2.

Minnesota Statutes 2012, section 16C.02, subdivision 13, is amended to read:

Subd. 13.

Resident vendor.

"Resident vendor" means a person, firm, or corporation
new text begin that:
new text end

new text begin (1) is new text end authorized to conduct business in the state of Minnesota on the date a
solicitation for a contract is first advertised or announced. It includes a foreign corporation
duly authorized to engage in business in Minnesota deleted text begin . deleted text end new text begin ;
new text end

new text begin (2) has paid unemployment taxes or income taxes in this state during the 12 calendar
months immediately preceding submission of the bid or proposal for which any preference
is sought;
new text end

new text begin (3) has a business address in the state; and
new text end

new text begin (4) has affirmatively claimed that status in the bid or proposal submission.
new text end

Sec. 3.

Minnesota Statutes 2012, section 16C.06, subdivision 2, is amended to read:

Subd. 2.

Solicitation process.

(a) A formal solicitation must be used to acquire all
goods, service contracts, and utilities estimated at or more than $50,000, or in the case of
a Department of Transportation solicitation, at or more than $100,000, unless otherwise
provided for. All formal responses must be sealed when they are received and must be
deleted text begin opened in public at the hour stated in the solicitation deleted text end new text begin made publicly available as required
by section 13.591 new text end . Formal responses must be authenticated by the responder in a manner
specified by the commissioner.

(b) An informal solicitation may be used to acquire all goods, service contracts,
and utilities that are estimated at less than $50,000, or in the case of a Department of
Transportation solicitation, at or less than $100,000. The number of vendors required to
receive solicitations may be determined by the commissioner. Informal responses must be
authenticated by the responder in a manner specified by the commissioner.

Sec. 4.

Minnesota Statutes 2012, section 16C.08, subdivision 4, is amended to read:

Subd. 4.

Reports.

deleted text begin (a) The commissioner shall submit to the governor, the chairs and
ranking minority members of the house of representatives Ways and Means and senate
Finance Committees, and the Legislative Reference Library a yearly listing of all contracts
for professional or technical services executed. The report must identify the contractor,
contract amount, duration, and services to be provided. The commissioner shall also issue
yearly reports summarizing the contract review activities of the department by fiscal year.
deleted text end

deleted text begin (b) The fiscal year report must be submitted by September 1 of each year and must:
deleted text end

deleted text begin (1) be sorted by agency and by contractor;
deleted text end

deleted text begin (2) show the aggregate value of contracts issued by each agency and issued to each
contractor;
deleted text end

deleted text begin (3) distinguish between contracts that are being issued for the first time and contracts
that are being extended;
deleted text end

deleted text begin (4) state the termination date of each contract;
deleted text end

deleted text begin (5) identify services by commodity code, including topics such as contracts for
training, contracts for research and opinions, and contracts for computer systems; and
deleted text end

deleted text begin (6) identify which contracts were awarded without following the solicitation process
in this chapter because it was determined that there was only a single source for the services.
deleted text end

deleted text begin (c) deleted text end Within 30 days of final completion of a contract over $25,000 covered by this
subdivision, the head of the agency entering into the contract must submit a report to the
commissioner who must make the report publicly available online and submit a copy to
the Legislative Reference Library. The report must:

(1) summarize the purpose of the contract, including why it was necessary to enter
into a contract;

(2) state the amount spent on the contract;

(3) if the contract was awarded without following the solicitation process in this
chapter because it was determined that there was only a single source for the services,
explain why the agency determined there was only a single source for the services; and

(4) include a written performance evaluation of the work done under the contract.
The evaluation must include an appraisal of the contractor's timeliness, quality, cost, and
overall performance in meeting the terms and objectives of the contract. Contractors may
request copies of evaluations prepared under this subdivision and may respond in writing.
Contractor responses must be maintained with the contract file.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following certification
by the commissioner of management and budget that a new statewide accounting and
procurement system has been implemented.
new text end

Sec. 5.

Minnesota Statutes 2012, section 16C.09, is amended to read:

16C.09 PROCEDURE FOR SERVICE CONTRACTS.

(a) Before entering into or approving a service contract new text begin valued in excess of $5,000 new text end ,
the commissioner must determine, at least, that:

(1) no current state employee is able and available to perform the services called
for by the contract;

(2) the work to be performed under the contract is necessary to the agency's
achievement of its statutory responsibilities and there is statutory authority to enter into
the contract;

(3) the contract will not establish an employment relationship between the state or
the agency and any persons performing under the contract;

(4) the contractor and agents are not employees of the state;

(5) the contracting agency has specified a satisfactory method of evaluating and
using the results of the work to be performed; and

(6) the combined contract and amendments will not exceed five years without
specific, written approval by the commissioner according to established policy, procedures,
and standards, or unless otherwise provided for by law. The term of the original contract
must not exceed two years, unless the commissioner determines that a longer duration is
in the best interest of the state.

(b) For purposes of paragraph (a), clause (1), employees are available if qualified and:

(1) are already doing the work in question; or

(2) are on layoff status in classes that can do the work in question.

An employee is not available if the employee is doing other work, is retired, or has decided
not to do the work in question.

(c) This section does not apply to an agency's use of inmates pursuant to sections
241.20 to 241.23 or to an agency's use of persons required by a court to provide:

(1) community service; or

(2) conservation or maintenance services on lands under the jurisdiction and control
of the state.

Sec. 6.

Minnesota Statutes 2012, section 16C.10, subdivision 6, is amended to read:

Subd. 6.

Expenditures under specified amounts.

The solicitation process
described in this chapter is not required for:

(1) acquisition of goods or services, other than professional or technical services,
in an amount of deleted text begin $2,500 deleted text end new text begin $5,000 new text end or less; or

(2) acquisition of professional or technical services in an amount of $5,000 or less,
provided the requirements of section 16C.08, subdivisions 3 to 6, are met.

Sec. 7.

Minnesota Statutes 2012, section 16C.33, subdivision 3, is amended to read:

Subd. 3.

Solicitation of qualifications or proposals.

(a) Every user agency, except
the Capitol Area Architectural and Planning Board, shall submit a written request for a
design-builder for its project to the commissioner who shall forward the request to the
board, consistent with section 16B.33, subdivision 3, paragraph (a). The University of
Minnesota shall follow the process in subdivision 4 to select design-builders for projects
that are subject to section 16B.33. The written request must include a description of the
project, the total project cost, a description of any special requirements or unique features
of the proposed project, and other information requested by the board which will assist the
board in carrying out its duties and responsibilities set forth in this section.

(b) A request for qualifications or proposals soliciting design-builders shall be
prepared for each design-build contract pursuant to subdivision 5 or 7. The request for
qualifications or proposals shall contain, at a minimum, the following elements:

(1) the identity of the agency for which the project will be built and that will award
the design-build contract;

(2) procedures for submitting qualifications or proposals, the criteria for evaluation
of qualifications or proposals and the relative weight for each criterion and subcriterion,
and the procedures for making awards according to the stated criteria and subcriteria,
including a reference to the requirements of this section;

(3) the proposed terms and conditions for the contract;

(4) the desired qualifications of the design-builder and the desired or permitted
areas of construction to be performed by named members of the design-build team, if
applicable. The primary designer shall be a named member of the design-build team;

(5) the schedule for commencement and completion of the project;

(6) any applicable budget limits for the project;

(7) the requirements for insurance and statutorily required performance and payment
bonds;

(8) the identification and location of any other information in the possession or
control of the agency that the user agency determines is material, which may include
surveys, soils reports, drawings or models of existing structures, environmental studies,
photographs, or references to public records;

(9) for a design-build design and price-based selection process, the request shall
also include the design criteria package, including the performance and technical
requirements for the project, and the functional and operational elements for the delivery
of the completed project. The request shall also contain a description of the drawings,
specifications, or other submittals to be included with the proposal, with guidance as to
the form and level of completeness of the drawings, specifications or submittals that will
be acceptable, and the stipend to be paid to the design-builders selected to submit the
above described information; and

(10) the criteria shall not impose unnecessary conditions beyond reasonable
requirements to ensure maximum participation of qualified design-builders. The criteria
shall not consider the collective bargaining status of the design-builder.

(c) Notice of requests for qualifications or proposals must be advertised in deleted text begin the State
Register deleted text end new text begin a manner designated by the commissioner new text end .

Sec. 8.

Minnesota Statutes 2012, section 16C.34, subdivision 1, is amended to read:

Subdivision 1.

Solicitation of qualifications.

(a) Every user agency, except
the Capitol Area Architectural and Planning Board, shall submit a written request for
proposals for a construction manager at risk for its project to the commissioner. The
written request for proposals must include a description of the project, the estimated cost
of completing the project, a description of any special requirements or unique features of
the proposed project, and other information which will assist the commissioner in carrying
out its duties and responsibilities set forth in this section.

(b) The commissioner may include in the request for qualifications criteria a
requirement that the proposer include the overhead and fee that the construction manager
at risk proposes to charge for its services.

(c) A request for qualifications shall be prepared for each construction manager at
risk contract as provided in this section. The request for qualifications shall contain, at a
minimum, the following elements:

(1) the identity of the agency for which the project will be built and that will award
the construction manager at risk contract;

(2) procedures for submitting qualifications, the criteria and subcriteria for evaluation
of qualifications and the relative weight for each criteria and subcriteria, and the procedures
for making awards in an open, competitive, and objective manner, and according to the
stated criteria and subcriteria, including a reference to the requirements of this section;

(3) the terms and conditions for the contract;

(4) the qualifications that the construction manager at risk shall be desired to have;

(5) a schedule for commencement and completion of the project;

(6) any applicable budget limits for the project;

(7) requirements for insurance, statutorily required performance and payment bonds;

(8) identification and location of any other information in the possession or control
of the agency that the user agency determines is material, which may include surveys, soils
reports, drawings or models of existing structures, environmental studies, photographs, or
references to public records; and

(9) criteria shall not impose unnecessary conditions beyond reasonable requirements
to ensure maximum participation of construction managers at risk. The criteria shall not
consider the collective bargaining status of the construction manager at risk.

(d) Notice of requests for qualifications must be advertised in deleted text begin the State Register deleted text end new text begin a
manner designated by the commissioner new text end .