CHAPTER 355
SB 491 – FINAL VERSION
12May2010… 1452h
06/02/10 2188CofC
2010 SESSION
05/04
SENATE BILL 491
AN ACT relative to in-state preferences on state vendor contracts and criteria for debarment of vendors.
SPONSORS: Sen. Cilley, Dist 6; Sen. DeVries, Dist 18; Sen. Carson, Dist 14; Rep. Nord, Rock 1; Rep. Perry, Straf 3; Rep. Keans, Straf 1; Rep. Weed, Ches 3
COMMITTEE: Executive Departments and Administration
This bill establishes a legal preference for in-state vendors on bids, proposals, and quotes solicited by the department of administrative services, division of plant and property management. The bill also establishes criteria for debarment of vendors on such contracts.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
12May2010… 1452h
06/02/10 2188CofC
10-2738
05/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Ten
AN ACT relative to in-state preferences on state vendor contracts and criteria for debarment of vendors.
Be it Enacted by the Senate and House of Representatives in General Court convened:
355:1 New Sections; In-State Vendors; Debarment of Vendors. Amend RSA 21-I by inserting after section 11-a the following new sections:
21-I:11-b Identical Qualified Lowest Bids, Proposals, or Quotations.
I. The purpose of this section is to promote procurement practices and procedures which the general court believes will improve the state’s procurement process while at the same time establishing a vendor selection procedure which, among other things, is specifically geared toward reducing unemployment and stimulating economic growth in this state.
II. To promote business in this state, when qualified lowest bids, proposals, or quotations are received by the division of plant and property management at the same price, the division’s selection or recommendation for selection shall, if the process is not cancelled by the state, be made by drawing lots, provided, however, that if only one of the vendors offering that price has a principal place of business in New Hampshire, that vendor shall, if the process is not cancelled by the state, be selected or recommended for selection. When qualified lowest bids, proposals, or quotations are received at the same price from more than one vendor which has a principal place of business in New Hampshire, selection or recommendation for selection shall, if the process is not cancelled by the state, be made by drawing lots from among the vendors with a principal place of business in New Hampshire.
III. This section shall not apply to bids, quotations, or proposals which may be issued, received, or reviewed by the department of transportation on behalf of the division of plant and property management, bureau of public works design and construction. In such cases, the procedures of the department of transportation shall apply.
21-I:11-c Debarment of Vendors.
I.(a) No individual or business entity shall make a bid, proposal, or quotation in response to a request for bid, proposal, or quotation issued by the division of plant and property management if that individual or entity, or any of its subsidiaries, affiliates, or principal officers:
(1) Has, within the past 2 years, been convicted of, or pleaded guilty to, a violation of RSA 356:2, RSA 356:4, or any state or federal law or county or municipal ordinance prohibiting specified bidding practices, or involving antitrust violations, which has not been annulled;
(2) Has been prohibited, either permanently or temporarily, from participating in any public works project pursuant to RSA 638:20;
(3) Has previously provided false, deceptive, or fraudulent information on a vendor code number application form, or any other document submitted to the state of New Hampshire, which information was not corrected as of the time of the filing a bid, proposal, or quotation;
(4) Is currently debarred from performing work on any project of the federal government or the government of any state;
(5) Has, within the past 2 years, failed to cure a default on any contract with the federal government or the government of any state;
(6) Is presently subject to any order of the department of labor, the department of employment security, or any other state department, agency, board, or commission, finding that the applicant is not in compliance with the requirements of the laws or rules that the department, agency, board, or commission is charged with implementing;
(7) Is presently subject to any sanction or penalty finally issued by the department of labor, the department of employment security, or any other state department, agency, board, or commission, which sanction or penalty has not been fully discharged or fulfilled;
(8) Is currently serving a sentence or is subject to a continuing or unfulfilled penalty for any crime or violation noted in this section;
(9) Has failed or neglected to advise the division of any conviction, plea of guilty, or finding relative to any crime or violation noted in this section, or of any debarment, within 30 days of such conviction, plea, finding, or debarment;
(10) Has been placed on the debarred parties list specified in paragraph II within the past year.
(b) All individuals or business entities submitting a bid, proposal, or quotation in response to a request for a bid, proposal, or quotation issued by the division of plant and property management shall, as part of their response, provide an affidavit signed under oath before a duly authorized notary public that all conditions listed in subparagraphs (a)(1)-(10) have been met. Failure to submit such an affidavit or, should the affidavit be false or signed by an unauthorized person, the bid, proposal, or quotation shall be automatically rejected and the resulting contract, if any, shall be deemed to be in breach. The commissioner of the department of administrative services shall adopt rules under RSA 541-A relative to the affidavit required under this subparagraph.
II. The division of plant and property management shall maintain a list of individuals or entities which it believes to be precluded from submitting bids, proposals, or quotations, under paragraph I, which it shall post on its public website. Such individuals or entities shall be debarred from submitting bids, quotations, or proposals to the division. Prior to posting the name of an individual or entity on the public website, the division shall, by way of certified or registered mail to the last known address of the individual or entity, notify the vendor of its intention to post. This requirement of notification shall not apply in the case of potential vendors whose names are posted by the division because those vendors’ names appear on a federal or state debarred parties list. The individual or entity to whom a notification has been forwarded may request a hearing by certified or registered mail received by the division within 30 days of the date of the letter of notification. The division may post the vendor’s name on its website if no request for a hearing is received in that period.
III. The director of the division of plant and property management may preclude an individual who has been forwarded a notification under paragraph II from bidding or submitting a response to a request for quotation or proposal whenever he or she concludes that to do so is necessary to protect the public interest. If such immediate debarment is ordered, the director shall notify the individual or entity in the notification forwarded under paragraph II. Such debarment shall be effective regardless of whether or not a hearing is pending and regardless of whether or not a posting has been made under paragraph II.
IV. A notification forwarded by the division under paragraph II shall contain at least:
(a) The name of the individual or entity whose name is proposed for posting;
(b) The reason for the division’s decision;
(c) A statement that after 30 days from the date of the notification, the person or entity’s name will be posted on the division’s website and that the individual may request a hearing in accordance with paragraph II;
(d) The actual calendar date by which any request for a hearing must be received by the division;
(e) Notification that individuals or entities appearing on the list specified in paragraph II shall be debarred from submitting bids, quotations, or proposals to the division;
(f) If the individual or entity is immediately debarred from making bids or other submissions to the division, a statement to that effect; and
(g) A general specification of the period of time that the individual or entity’s name will appear on the debarred parties list.
V. Individuals or entities placed on the debarred parties list shall generally be debarred from making bids, quotations, or proposals to the division for as long as they are disqualified under paragraph I or for a period of one year after placement on the list by the division, whichever is longer. The director of the division of plant and property management may earlier terminate the debarment if he or she determines that the reason for debarment no longer exists, or that the debarred vendor has successfully completed the terms of a sentence or penalty, including probation responsibilities, and that earlier termination will not, in the opinion of the director, adversely affect the public interest.
VI. Debarment shall in no way affect the obligation of a vendor to provide products or services already under contract. In its discretion, however, the state may deem the submission of a bid, proposal, or quotation contrary to paragraph I a breach of contract.
VII. This section shall not apply to bids, quotations, or proposals which may be issued, received, or reviewed by the department of transportation on behalf of the division of plant and property management, bureau of public works design and construction. In such cases, the procedures of the department of transportation shall apply.
355:2 Effective Date. This act shall take effect 60 days after its passage.
Approved: July 20, 2010
Effective Date: September 18, 2010