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North Carolina Procurement Conference Raleigh – April 24-25, 2012

North Carolina Procurement Conference Raleigh – April 24-25, 2012. New Legislation of Interest. Sam Byassee, State Purchasing Officer. Powers and Duties of the Secretary G.S. §143-49. Two legislative changes: S.L. 2011-338 (Act to Modernize Procurement Methods)

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North Carolina Procurement Conference Raleigh – April 24-25, 2012

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  1. North Carolina Procurement ConferenceRaleigh – April 24-25, 2012 New Legislation of Interest Sam Byassee, State Purchasing Officer

  2. Powers and Duties of the SecretaryG.S. §143-49 Two legislative changes: • S.L. 2011-338 (Act to Modernize Procurement Methods) • S.L. 2010-194 (Act Increasing the Authority of the Secretary of DOA) Page 2

  3. S.L. 2011-338An Act to Modernize Procurement Methods Increases procurement flexibility by expressly authorizing: • Negotiation • Reverse Auctions • Electronic Bidding • Best Value Procurement • Use of Cooperative Purchasing Agreements Page 3

  4. S.L. 2011-338, continued Miscellaneous Provisions: • Combines “supplies, materials, equipment and personal property” into one term, “Goods” • Clarifies when AG must assist negotiation of a services contract greater than $100,000 • If contract involves “work performed by an independent contractor requiring specialized knowledge, experience, expertise or similar capabilities wherein the service rendered does not consist primarily of acquisition by this State of equipment or materials and the rental of equipment, materials and supplies.” • Contract is not the result of a competitive bidding process. Page 4

  5. S.L. 2011-338, Miscellaneous provisions continued • Requires DOA to determine, and utilize, aggregate demand for all State agencies in making purchasing decisions, when possible • Authorizes DOA to obtain “spend” reports from State agencies, departments and institutions, giving a more accurate picture of aggregate demand for commodities and enabling better strategic sourcing • Clarifies that purchase from “certified sources of supply” applies to term contract for both goods and services Page 5

  6. S.L. 2010-194 Act Increasing the Authority of the Secretary of DOA Omnibus legislation, but four provisions directly affect the procurement process: • Attorney General must review (term) contracts greater than $1 million • DOA assigned additional contract compliance-related duties • No State entity may award a “cost plus a percentage of cost” contract • Contracts must include standard clause allowing review of contractor records by State auditors Page 6

  7. Attorney General Review of Contracts • DOA (P&C) and all agencies, departments and institutions must submit all proposed contracts greater than $1 million to the “Attorney General or the Attorney General’s designee” for review • DOT has separate provision that exempts road construction-related purchases • UNC has separate provision requiring University General Counsel to review • Originally applied only to term contracts, but S.L. 2011-326 expanded to “all contracts for supplies, materials, printing, equipment and contractual services.” Page 7

  8. Attorney General Review of Contractscontinued Purpose of AG review is to ensure: • Contract is in proper legal form • Contains all clauses required by law • Is legally enforceable • Accomplishes its intended purpose • NOT an assessment or opinion of the “policy merit or lack thereof” Page 8

  9. DOA Contract Monitoring Responsibilities Added to G.S. §143-49 – Powers and Duties of the Secretary: • Monitor and enforce statewide term contracts (cannot delegate) • Develop rule, regulations and procedures for agency contract monitoring • With OSP, create Contracting Specialist career path (agency personnel) • With OSP and UNC-SoG, to develop a contract management training and certification program (administered by OSP) Page 9

  10. Additional DOA Duties (in S.L. 2010-194) • Implement a Quality Management System (to ensure better service) • With AG, develop rules, regulations and procedures for “orderly and efficient submission” of proposed contracts for review • Work with UNC-SoG to study and recommend improvements to State procurement laws (including feasibility of adopting ABA Model Procurement Code) Page 10

  11. S.L. 2011-360Multiple Award Schedule Contracts Intent. – The intent of multiple award schedule contracts is to evaluate vendors based upon a variety of factors, including discounts, total lifecycle costs, service, warranty, distribution channel, and past vendor performance. Multiple award schedule contracts allow multiple vendors to compete and be awarded a contract based upon the value of their products or services and result in competitive pricing, transparency, administrative savings, expedited procurement, and flexibility for State purchasers. Page 11

  12. Multiple Award Schedule Contractscontinued “Not later than August 31, 2011, the Department of Administration shall issue requests for proposals for multiple award schedule contracts” for all: • ground maintenance equipment (mowers, weeders, etc.) • construction equipment (dozers, graders, etc.) • communications equipment (communications systems, routers, switches, etc.) • forestry equipment (knuckleboom loaders, harvesters, etc.) Page 12

  13. Multiple Award Schedule ContractsCommunications equipment State CIO authority under Chapter 147: § 147‑33.95.  Procurement of information technology. (a)       Notwithstanding any other provision of law, the Office of Information Technology Services shall procure all information technology for State agencies. • § 147‑33.96.  Restriction on State agency contractual authority with regard to information technology; (a)       All State agencies covered by this Part shall use contracts for information technology acquired by the Office for any information technology required by the State agency that is provided by these contracts. Notwithstanding any other statute, the authority of State agencies to procure or obtain information technology shall be subject to compliance with the provisions of this Part. Page 13

  14. Multiple Award Schedule ContractsS.L. 2011-360 continued Limitation. – Any contract awarded under subsection (c) of this section [requiring RFPs] shall be in addition to any existing term contracts for ground maintenance equipment, construction equipment, communications equipment, and forestry equipment. Nothing in this section shall limit the ability of the Department of Administration to issue additional term contracts for the specific purchase of equipment otherwise available through a multiple award schedule contract. Page 14

  15. Statutory Provisions to ExpireJune 30, 2012 American Recovery and Reinvestment Act provisions: G.S. §143-52(b) – Use competitive bids to maximum extent practicable G.S. §143-53(e) – DOA and OERI to develop rules for ARRA- related solicitations G.S. §143-53.1 (b) – Benchmarks for Universities and Community Colleges apply to ARRA purchases G.S. §143-55 – Purchases with ARRA funds not required to use State term contracts Page 15

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