Revision: March 27, 2014, midnight
SB 399 – AS INTRODUCED
2014 SESSION
05/08
SENATE BILL 399
COMMITTEE: Executive Departments and Administration
This bill regulates competitive bidding and procurement by state agencies. This bill also establishes a procurement commission to identify best practices and any further legislative or regulatory changes necessary to implement the act.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
14-2833
05/08
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Fourteen
AN ACT relative to competitive bidding and procurement by state agencies.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Chapter; State Procurement and Competitive Bidding. Amend RSA by inserting after chapter 21-U the following new chapter:
CHAPTER 21-V
STATE PROCURMENT AND COMPETITIVE BIDDING
21-V:1 Definitions. In this chapter:
I. “Architectural and engineering services” means:
(a) Professional services of an architectural or engineering nature, which are required to be performed or approved by a person licensed, registered, or certified to provide such services;
(b) Professional services of an architectural or engineering nature performed by contract that are associated with research, planning, development, design, construction, alteration, or repair of real property; and
(c) Such other professional services of an architectural or engineering nature, or incidental services, which members of the architectural and engineering professions, and individuals in their employ, may logically or justifiably perform, including: studies, investigations, surveying, mapping, tests, evaluations, consultations, comprehensive planning, program management, conceptual designs, plans and specifications, value engineering, construction phase services, soils engineering, drawing reviews, preparation of operating and maintenance manuals, and other related services.
II. “Blind trust” means an independently managed trust in which the employee-beneficiary has no management rights and in which the employee-beneficiary is not given notice of alterations in, or other dispositions of, the property subject to the trust.
III. “Business” means any corporation, partnership, individual, sole proprietorship, joint stock company, joint venture, or any other private legal entity.
IV. “Change order” means a written order signed by the agency head, directing the contractor to make changes which the changes clause of the contract authorizes the agency head to order without the consent of the contractor.
V. “Agency head” means the commissioner of any department.
VI. “Commissioner” means the commissioner of the department of administrative services.
VII. “Confidential information” means any information which is available to an employee only because of the employee’s status as an employee of the purchasing agency and is not a matter of public knowledge or available to the public on request.
VIII. “Conspicuously” means written in such special or distinctive format, print, or manner that a reasonable person against whom it is to operate ought to have noticed it.
IX. “Construction” means the process of building, altering, repairing, improving, or demolishing any public infrastructure facility, including any structure, building, or other improvements of any kind to real property. It does not include the routine operation, routine repair, or routine maintenance of any existing public infrastructure facility, including structures, buildings, or real property.
X. “Contract” means all types of purchasing agency agreements, regardless of what they may be called, for the procurement or disposal of supplies, services, or construction.
XI. “Contract modification” means any written alteration in specifications, delivery point, rate of delivery, period of performance, price, quantity, or other provisions of any contract accomplished by mutual action of the parties to the contract.
XII. “Contractor” means any person having a contract with a governmental body.
XIII. “Cooperative purchasing” means procurement conducted by, or on behalf of, one or more agencies, as defined in this chapter.
XIV. “Cost-reimbursement contract” means a contract under which a contractor is reimbursed for costs which are allowable and allocable in accordance with the contract terms and the provisions of this chapter, and a fee, if any.
XV. “Data” means recorded information, regardless of form or characteristic.
XVI. “Design-bid-build” and, where authorized by rule, “construction management at-risk” means a project delivery method in which the purchasing agency sequentially awards separate contracts, the first for architectural and engineering services to design the project and the second for construction of the project according to the design in which the purchasing agency enters into a single contract for design and construction of an infrastructure facility.
XVII. “Design-build-finance-operate-maintain” means a project delivery method in which the purchasing agency enters into a single contract for design, construction, finance, maintenance, and operation of an infrastructure facility over a contractually defined period. No purchasing agency funds are appropriated to pay for any part of the services provided by the contractor during the contract period.
XVIII. “Design-build-operate-maintain” means a project delivery method in which the purchasing agency enters into a single contract for design, construction, maintenance, and operation of an infrastructure facility over a contractually defined period. All or a portion of the funds required to pay for the services provided by the contractor during the contract period are either appropriated to the purchasing agency prior to award of the contract or secured by the purchasing agency through fare, toll, or user charges.
XIX.(a) “Design requirements” means the written description of the infrastructure facility or service to be procured under this chapter, including:
(1) Required features, functions, characteristics, qualities, and properties that are required by the purchasing agency;
(2) The anticipated schedule, including start, duration, and completion; and
(3) Estimated budgets, as applicable to the specific procurement, for design, construction, operation and maintenance.
(b) The design requirements may, but need not, include drawings and other documents illustrating the scale and relationship of the features, functions, and characteristics of the project.
XX. “Designee” means a duly authorized representative of a person holding a superior position.
XXI. “Direct or indirect participation” means involvement through decision, approval, disapproval, recommendation, preparation of any part of a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity.
XXII. “Electronic” means electrical, digital, magnetic, optical, electromagnetic, or any other similar technology.
XXIII. “Employee” means an individual drawing a salary from a governmental body, whether elected or not, and any noncompensated individual performing personal-services for any governmental body.
XXIV. “Established catalogue price” means the price included in a catalogue, price list, schedule, or other form that:
(a) Is regularly maintained by a manufacturer or contractor;
(b) Is either published or otherwise available for inspection by customers; and
(c) States prices at which sales are currently or were last made to a significant number of any category of buyers or buyers constituting the general buying public for the supplies or services involved.
XXV. “External procurement activity” means any buying-organization not located in this state which, if located in this state, would qualify as a public procurement unit. Agencies of the United States and of any other state in the United States of America are external procurement activities.
XXVI. “Financial interest” means:
(a) Ownership of any interest or involvement in any relationship from which, or as a result of which, a person within the past year has received, or is presently or in the future entitled to receive, more than $1,000 per year, or its equivalent;
(b) Ownership of such interest in any property or any business; or
(c) Holding a position in a business such as an officer, director, trustee, partner, employee, or the like, or holding any position of management.
XXVII. “Governmental body” means any department, commission, council, board, bureau, committee, institution, legislative body, agency, government corporation, or other establishment or official of the executive, legislative, or judicial branch of this state.
XXVIII. “Grant” means the furnishing by the state of assistance, whether financial or otherwise, to any person to support a program authorized by law. It does not include an award whose primary purpose is to procure an end product, whether in the form of supplies, services, or construction; a contract resulting from such an award is not a grant but a procurement contract.
XXIX. “Gratuity” means a payment, loan, subscription, advance, deposit of money, services, or anything of more than nominal value, present or promised, unless consideration of substantially equal or greater value is received.
XXX. “Immediate family” means a spouse, children, parents, brothers, and sisters.
XXXI. “Infrastructure facility” means a building; structure; or networks of buildings, structures, pipes, controls, and equipment that provide transportation, utilities, public education, or public safety services. Included are government office buildings; public schools; courthouses; jails; prisons; water treatment plants, distribution systems, and pumping stations; wastewater treatment plants, collection systems, and pumping stations; solid waste disposal plants, incinerators, landfills, and related facilities; public roads and streets; highways; public parking facilities; public transportation systems, terminals, and rolling stock; rail, air, and water port structures, terminals, and equipment.
XXXII. “Invitation for bids” means all documents, whether attached or incorporated by reference, utilized for soliciting bids.
XXXIII. “Local public procurement unit” means any county, city, town, and any other subdivision of the state or public agency of any such subdivision, public authority, educational, health, or other institution, and to the extent provided by law, any other entity, which expends public funds for the procurement of supplies, services, and construction, and any nonprofit corporation operating a charitable hospital.
XXXIV. “Official responsibility” means direct administrative or operating authority, whether intermediate or final, either exercisable alone or with others, either personally or through subordinates, to approve, disapprove, or otherwise direct purchasing agency action.
XXXV. “Operations and maintenance” means a project delivery method whereby the purchasing agency enters into a single contract for the routine operation, routine repair, and routine maintenance of an infrastructure facility.
XXXVI. “Person” means any business, individual, union, committee, club, other organization, or group of individuals.
XXXVII. “Procurement” means buying, purchasing, renting, leasing, or otherwise acquiring any supplies, services or construction. It also includes all functions that pertain to the obtaining of any supply, service, or construction, including description of requirements, selection and solicitation of sources, preparation and award of contract, and all phases of contract administration.
XXXVIII. “Proposal development documents” means drawings and other design related documents that are sufficient to fix and describe the size and character of an infrastructure facility as to architectural, structural, mechanical and electrical systems, materials, and such other elements as may be appropriate to the applicable project delivery method.
XXXIX. “Public notice” means the distribution or dissemination of information to interested parties using methods that are reasonably available. Such methods will often include publication in newspapers of general circulation, electronic or paper mailing lists, and website(s) designated by the purchasing agency and maintained for that purpose.
XL. “Public procurement unit” means any one of the following:
(a) A local public procurement unit.
(b) An external procurement activity.
(c) A state public procurement unit.
(d) Any not-for-profit entity comprised of more than one unit or activity listed in subparagraphs (a), (b), or (c).
XLI. “Purchase description” means the words used in a solicitation to describe the supplies, services, or construction to be purchased, and includes specifications attached to, or made a part of the solicitation.
XLII. “Purchase request” means that document whereby a using agency requests that a contract be entered into for a specified need, and may include, but is not limited to, the technical description of the requested item, delivery schedule, transportation, criteria for evaluation, suggested sources of supply, and information supplied for the making of any written determination required by this chapter.
XLIII. “Purchasing agency” means any governmental body which is authorized by this chapter or its implementing operational procedures, or by way of delegation from the agency head to enter into contracts.
XLIV. “Request for proposals” means all documents, whether attached or incorporated by reference, utilized for soliciting proposals.
XLV. “Responsible bidder or offeror” means a person who has the capability in all respects to perform fully the contract requirements, and the integrity and reliability which will assure good faith performance.
XLVI. “Responsive bidder” means a person who has submitted a bid which conforms in all material respects to the invitation for bids.
XLVII. “Services” means the furnishing of labor, time, or effort by a contractor, not involving the delivery of a specific end product other than reports which are merely incidental to the required performance. This term shall not include employment agreements or collective bargaining agreements.
XLVIII. “Signature” means a manual or electronic identifier, or the electronic result of an authentication technique attached to or logically associated with a record that is intended by the person using it to have the same force and effect as a manual signature.
L. “Specification” means any description of the physical or functional characteristics, or of the nature of a supply, service, or construction item for an infrastructure facility. It may include a description of any requirement for inspecting, testing, or preparing a supply, service, or construction item for delivery.
LI. “Supplies” means all property, including but not limited to equipment, materials, printing, insurance, and leases of real property, excluding land or a permanent interest in land.
LII. “Using agency” means any governmental body of the state of New Hampshire which utilizes any supplies, services, or construction procured under this chapter.
LIII. “Written or in writing” means the product of any method of forming characters on paper, other materials, or viewable screens, which can be read, retrieved, and reproduced, including information that is electronically transmitted and stored.
21-V:2 Procurement Contracts. All contracts shall be awarded by one of the following methods:
I. Competitive sealed bidding.
II. Competitive sealed proposals.
III. Small purchases.
IV. Sole source procurement.
V. Emergency procurements.
VI. Special procurements.
21-V:3 Competitive Sealed Bidding. Contracts shall be awarded by competitive sealed bidding except as otherwise stated.
I. An invitation for bids shall be issued and shall include a purchase description and any and all maintenance costs, and all contractual terms and conditions applicable to the procurement.
II. Adequate public notice of the invitation for bids shall be given a reasonable time prior to the date set forth therein for the opening of bids, in accordance with rules adopted by the commissioner under RSA 541-A.
III. Bids shall be opened publicly in the presence of one or more witnesses at the time and place designated in the invitation for bids. The amount of each bid, and such other relevant information as may be specified by rule, together with the name of each bidder shall be recorded; the record and each bid shall be open to public inspection.
IV. Bids shall be unconditionally accepted without alteration or correction, except as authorized in this chapter. Bids shall be evaluated based on the requirements set forth in the invitation for bids, which may include criteria to determine acceptability such as inspection, testing, quality, workmanship, delivery, and suitability for a particular purpose. Those criteria that will affect the bid price and be considered in evaluation for award shall be objectively measurable, such as discounts, transportation costs, and total or life cycle costs.
V. Correction or withdrawal of inadvertently erroneous bids before or after award, or cancellation of awards or contracts based on such bid mistakes, shall be permitted in accordance with rules adopted by the commissioner under RSA 541-A. After bid opening, no changes in bid prices or other provisions of bids prejudicial to the interest of the purchasing agency or fair competition shall be permitted. Except as otherwise provided by rules adopted by the commissioner under RSA 541-A, all decisions to permit the correction or withdrawal of bids, or to cancel awards or contracts based on bid mistakes, shall be supported by a written determination made by the head of a purchasing agency.
VI. The contract shall be awarded with reasonable promptness by written notice to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the invitation for bids. In the event all bids for a construction project exceed available funds as certified by the appropriate fiscal officer, and the low responsive and responsible bid does not exceed such funds by more than 5 percent, the head of a purchasing agency, is authorized in situations where time or economic considerations preclude resolicitation of work of a reduced scope to negotiate an adjustment of the bid price, including changes in the bid requirements, with the low responsive and responsible bidder, in order to bring the bid within the amount of available funds.
VII. When it is considered impractical to initially prepare a purchase description to support an award based on price, an invitation for bids may be issued requesting the submission of unpriced offers to be followed by an invitation for bids limited to those bidders whose offers have been qualified under the criteria set forth in the first solicitation.
21-V:4 Competitive Sealed Proposals.
I.(a) A contract may be entered into by competitive sealed proposals when the head of a purchasing agency, or a designee determines in writing, pursuant to rules, that the use of competitive sealed bidding is either not practicable or not advantageous to the purchasing agency.
(b) Rules adopted by the commissioner under RSA 541-A may provide that it is either not practicable or not advantageous to the purchasing agency to procure specified types of supplies, services, or construction by competitive sealed bidding.
(c) Contracts for the design-build, design-build-operate-maintain, or design-build-finance-operate-maintain project delivery methods shall be entered into by competitive sealed proposals, except as otherwise provided in RSA 21-V:10.
II. Each request for proposals for design-build, design-build-operate-maintain, and design-build-finance operate-maintain:
(a) Shall include design requirements;
(b) Shall solicit proposal development documents; and
(c) May, when the purchasing agency determines that the cost of preparing proposals is high in view of the size, estimated price, and complexity of the procurement:
(1) Prequalify offerors by issuing a request for qualifications in advance of the request for proposals; and
(2) Select a short list of responsible offerors prior to discussions and evaluations, provided that the number of proposals that will be short-listed is stated in the request for proposals and prompt public notice is given to all offerors as to which proposals have been short-listed; or
(3) Pay stipends to unsuccessful offerors, provided that the amount of such stipends and the terms under which stipends will be paid are stated in the request for proposals.
III. Adequate public notice of the request for proposals shall be given in the same manner as provided in RSA 21-V:3, II.
IV. Proposals shall be opened to avoid disclosure of contents to competing offerors during the process of negotiation. A register of proposals shall be prepared in accordance with rules adopted by the commissioner under RSA 541-A, and shall be open for public inspection after contract award.
V.(a) The request for proposals shall state the relative importance of price and other factors and subfactors, if any.
(b) Each request for proposals for design-build, design-build-operate-maintain, and design-build-finance-operate-maintain:
(1) Shall state the relative importance of:
(A) Demonstrated compliance with the design requirements;
(B) Offeror qualifications;
(C) Financial capacity;
(D) Project schedule;
(E) Price, or life-cycle price for design- build-operate-maintain and design-build-finance-operate-maintain procurement; and
(F) Other factors, if any; and
(2) Shall require each offeror, when the contract price is estimated to exceed $10,000,000, when the contract period of operations and maintenance is 10 years or longer, or in circumstances established by rules adopted by the commissioner under RSA 541-A, to identify an independent peer reviewer whose competence and qualifications to provide such services shall be an additional evaluation factor in the award of the contract.
VI. As provided in the request for proposals, and under rules adopted by the commissioner under RSA 541-A discussions may be conducted with responsible offerors who submit proposals determined to be reasonably susceptible of being selected for award for the purpose of clarification to assure full understanding of, and responsiveness to, the solicitation requirements. Offerors shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals, and such revisions may be permitted after submissions and prior to award for the purpose of obtaining best and final offers. In conducting discussions, there shall be no disclosure of any information derived from proposals submitted by competing offerors.
VII. Awards shall be made to the responsible offeror whose proposal conforms to the solicitation and is determined in writing to be the most advantageous to the purchasing agency taking into consideration price and the evaluation factors set forth in the request for proposals. No other factors or criteria shall be used in the evaluation. The contract file shall contain the basis on which the award is made. Written notice of the award of a contract to the successful offeror shall be promptly given to all offerors.
VIII. The agency head is authorized to provide debriefings that furnish the basis for the source selection decision and contract award.
21-V:5 Small Purchases. Any procurement not exceeding the amount established by rules adopted by the commissioner under RSA 541-A may be made in accordance with small purchase procedures; provided, however, that procurement requirements shall not be artificially divided so as to constitute a small purchase.
21-V:6 Sole Source Procurement. A contract may be awarded for a supply, service, or construction item without competition when, pursuant to rules adopted by the commissioner under RSA 541-A, the head of a purchasing agency, or designee, that determines in writing that there is only one source for the required supply, service, or construction item.
21-V:7 Emergency Procurements. Notwithstanding any other provision of this chapter, the head of a purchasing agency, or designee, may make or authorize others to make emergency procurements when there exists a threat to public health, welfare, or safety under emergency conditions as defined in rules adopted by the commissioner under RSA 541-A; provided that such emergency procurements shall be made with such competition as is practicable under the circumstances. A written determination of the basis for the emergency and for the selection of the particular contractor shall be included in the contract file.
21-V:8 Special Procurements; Brand Name Specification.
I. Where a brand name or equal specification is used in a solicitation, the solicitation shall contain explanatory language that the use of a brand name is for the purpose of describing the standard of quality, performance, and characteristics desired and is not intended to limit or restrict competition.
II. Since use of a brand name specification is restrictive of product competition, it may be used only when the head of the purchasing agency makes a written determination that only the identified brand name item or items will satisfy the purchasing agency’s needs.
III. The purchasing agent shall seek to identify sources from which the designated brand name item or items can be obtained and shall solicit such sources to achieve whatever degree of price competition is practicable. If only one source can supply the requirement, the procurement shall be made under sole source procurement.
Contracting for Infrastructure Facilities and Services
21-V:9 Project Delivery Methods Authorized
I. The following project delivery methods are authorized for procurements relating to the design, construction, routine operation, routine repair, and routine maintenance of infrastructure facilities and services in this section.
(a) Design-bid-build, including construction management at-risk;
(b) Operations and maintenance;
(c) Design-build;
(d) Design-build-operate-maintain; and
(e) Design-build-finance-operate-maintain.
II. Participation in a report or study that is subsequently used in the preparation of design requirements for a project shall not disqualify a firm from participating as a member of a proposing team in a design-build, design-build-operate-maintain, or design-build-finance-operate-maintain unless such participation would provide the firm with a substantial competitive advantage.
21-V:10 Source Selection Methods Assigned to Project Delivery Methods. The following source selection methods applicable to procurements for the project delivery methods identified in RSA 21-V:9 are authorized, except as provided in RSA 21-V:5 through RSA 21-V:8:
I. The qualifications based selection process set forth in RSA 21-V:4, V shall be used to procure architectural and engineering services in design-bid-build procurements.
II. Competitive sealed bidding shall be used to procure construction in design-bid-build procurements, except the use of competitive sealed proposals, as set forth in RSA 21-V:4, is authorized to procure construction management at-risk services.
III. Contracts for operations and maintenance shall be procured as provided in this chapter.
IV. Contracts for design-build shall be procured by competitive sealed proposals, as set forth in RSA 21-V:4, except that the rules may describe the circumstances under which particular design-build procurements will not require the submission of proposal development documents.
V. Contracts for design-build-operate-maintain shall be procured by competitive sealed proposals, as set forth in RSA 21-V:4.
VI. Contracts for design-build-finance-operate-maintain shall be procured by competitive sealed proposals, as set forth in RSA 21-V:4.
21-V:11 Choice of Project Delivery Methods.
I. The commissioner shall adopt rules under RSA 541-A describing the project delivery methods listed in RSA 21-V:9. These rules shall:
(a) Set forth criteria to be used in determining which project delivery method is to be used for a particular project;
(b) Grant to the head of the purchasing agency responsible for carrying out the project, the discretion to select an appropriate project delivery method for a particular project;
(c) Describe the bond, insurance, and other security provisions that apply to each project;
(d) Describe the appropriate contract clauses and fiscal responsibility requirements contained that apply to each project; and
(e) Require the head of the purchasing agency and include in the contract file a written statement setting forth the facts which led to the selection of a particular project delivery method for each project.
Bonds, Insurance, Guarantees
21-V:12 Bid Security.
I. Bid security shall be required for all competitive sealed bidding for construction contracts in a design-bid-build procurement when the price is estimated by the agency head to exceed $100,000. Bid security shall be a bond provided by a surety company authorized to do business in this state, or the equivalent in cash, or otherwise supplied in a form satisfactory to the purchasing agency. Nothing in this section shall prevent the requirement of such bonds on such contracts under $100,000 when the circumstances warrant.
II. Bid security shall be in an amount equal to at least 5 percent of the amount of the bid.
III. When the invitation for bids requires security, noncompliance requires that the bid be rejected unless, pursuant to rules adopted by the commissioner under RSA 541-A, it is determined that the bid fails to comply in a non-substantial manner with the security requirements.
IV. After bids are opened, they shall be irrevocable for the period specified in the invitation for bids. If a bidder is permitted to withdraw its bid or proposal before award, or is excluded from the competition before award, no action shall be had against the bidder or the bid security.
21-V:13 Contract Performance and Payment Bonds.
I. When a construction, design-build, design-build-operate-maintain, or design-build-finance-operate-maintain contract is awarded in excess of $25,000, the following bonds or security shall be delivered to the purchasing agency and shall become binding on the parties upon the execution of the contract:
(a) A performance bond satisfactory to the purchasing agency, executed by a surety company authorized to do business in this state or otherwise secured in a manner satisfactory to the purchasing agency, in an amount equal to 100 percent of the portion of the contract price that does not include the cost of operation, maintenance, and finance; and
(b) A payment bond satisfactory to the purchasing agency, executed by a surety company authorized to do business in this state or otherwise secured in a manner satisfactory to the purchasing agency, for the protection of all persons supplying labor and material to the contractor or its subcontractors for the performance of the construction work provided for in the contract. The bond shall be in an amount equal to 100 percent of the portion of the contract price that does not include the cost of operation, maintenance, and finance.
II. Pursuant to rules adopted by the commissioner under RSA 541-A, the head of a purchasing agency may reduce the amount of performance and payment bonds to 50 percent of the amounts established in paragraph I.
III. Nothing in this section shall be construed to limit the authority of the purchasing agency to require a performance bond or other security in addition to such bonds, or in circumstances other than specified in paragraph I.
IV. Every person who has furnished labor or material to the contractor or its subcontractors for the work provided in the contract, in respect of which a payment bond is furnished under this section, and who has not been paid in full therefor before the expiration of a period of 90 days after the day on which the last of the labor was done or performed by such person or material was furnished or supplied by such person for which such claim is made, shall have the right to sue on the payment bond for the amount, or the balance thereof, unpaid at the time of institution of such suit and to prosecute said action for the sum or sums justly due such person; provided, however, that any person having a direct contractual relationship with a subcontractor of the contractor, but no contractual relationship express or implied with the contractor furnishing said payment bond, shall have a right of action upon the payment bond upon giving written notice to the contractor within 90 days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material upon which such claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed. Such notice shall be personally served or served by other form of receipted transmittal that confirms actual delivery to the contractor at any place the contractor maintains an office or conducts its business.
V. Every suit instituted upon a payment bond shall be brought in a court of competent jurisdiction for the county or district in which the construction contract was to be performed, but no such suit shall be commenced after the expiration of one year after the day on which the last of the labor was performed or material was supplied by the person bringing suit. The obligee named in the bond need not be joined as a party in any such suit.
21-V:14 Bond Forms and Copies.
I. The commissioner shall adopt rules under RSA 541-A relative to the form of the bonds required by this subdivision.
II. Any person may request and obtain from the purchasing agency a certified copy of a bond upon payment of the cost of reproduction of the bond and postage, if any. A certified copy of a bond shall be prima facie evidence of the contents, execution, and delivery of the original.
21-V:15 Errors and Omissions Insurance. The commissioner shall adopt rules under RSA 541-A relative to when the head of a purchasing agency shall require offerors to provide appropriate errors and omissions insurance to cover architectural and engineering services under the project delivery methods set forth in 21-V:9, I.
21-V:16 Other Forms of Security. The commissioner shall adopt rules under RSA 541-A relative to authorizing the head of a purchasing agency to require a request for proposals to include one or more of the following forms of security to assure the timely, faithful, and uninterrupted provision of operations and maintenance services procured separately, or as one element of design-build-operate-maintain or design-build-finance-operate-maintain services:
I. Operations period surety bonds that secure the performance of the contractor’s operations and maintenance obligations under the project delivery methods set forth in RSA 21-V:9, I;
II. Letters of credit in an amount appropriate to cover the cost to the purchasing agency of preventing infrastructure service interruptions for a period up to 12 months under the project delivery methods set forth in RSA 21-V:9, I(b), (d) and (e); and
III. Appropriate written guarantees from the contractor, or depending upon the circumstances, from parent corporations, to secure the recovery of reprocurement costs to the purchasing agency in the event of a default in performance by the contractor.
21-V:17 Report to the Legislature. Beginning November 1, 2014, and annually thereafter, each agency head shall report on the number and type of contracts awarded by the agency in the prior fiscal year. The report shall be submitted to the governor, executive council, speaker of the house of representatives, and the senate president.
Cancellation of Invitations for Bids or Requests for Proposals
21-V:18 Cancellation of Invitations for Bids or Requests for Proposals. An invitation for bids, a request for proposals, or other solicitation may be canceled, or any or all bids or proposals may be rejected in whole or in part as may be specified in the solicitation, when it is in the best interests of the purchasing agency in accordance with rules adopted by the commissioner under RSA 541-A. The reasons therefor shall be made part of the contract file.
Qualifications and Duties
21-V:19 Responsibility of Bidders and Offerors.
I. A written determination of nonresponsibility of a bidder or offeror shall be made in accordance with rules adopted by the commissioner under RSA 541-A. The unreasonable failure of a bidder or offeror to promptly supply information in connection with an inquiry with respect to responsibility may be grounds for a determination of non-responsibility with respect to such bidder or offeror.
II. Confidential information furnished by a bidder or offeror pursuant to this section shall not be disclosed outside of the purchasing agency without prior written consent by the bidder or offeror.
21-V:20 Prequalification of Suppliers. Prospective suppliers may be prequalified for particular types of supplies, services, and construction. The method of submitting prequalification information and the information required in order to be prequalified shall be determined by the agency head.
21-V:21 Substantiation of Offered Prices. The agency head may request factual information reasonably available to the bidder or offeror to substantiate that the price or cost offered, or some portion of it, is reasonable, if:
I. The price is not:
(a) Based on adequate price competition;
(b) Based on established catalogue or market prices; or
(c) Set by law or rule; and
II. The price or cost exceeds an amount established in the rules adopted by the commissioner under RSA 541-A.
Types of Contracts
21-V:22 Types of Contracts. Subject to the limitations of this section, any type of contract which will promote the best interests of the purchasing agency may be used; provided that the use of a cost-plus-a-percentage-of-cost contract is prohibited. A cost-reimbursement contract may be used only when a determination is made in writing that such contract is likely to be less costly to the purchasing agency than any other type or that it is impracticable to obtain the supplies, services, or construction required except under such a contract.
21-V:23 Approval of Accounting System. Pursuant to rules adopted by the commission under RSA 541-A, contractors shall submit appropriate documentation prior to the award of contracts in which the purchasing agency agrees to reimburse costs, confirming that:
I. The proposed contractor’s accounting system will permit timely development of all necessary cost data in the form required by the specific contract type contemplated; and
II. The proposed contractor’s accounting system is adequate to allocate costs in accordance with generally accepted accounting principles.
21-V:24 Multi-Year Contracts.
I. Unless otherwise provided by law, a contract for supplies or services may be entered into for any period of time deemed to be in the best interests of the purchasing agency provided the term of the contract and conditions of renewal or extension, if any, are included in the solicitation and funds are available for the first fiscal period at the time of contracting. Payment and performance obligations for succeeding fiscal periods shall be subject to the availability and appropriation of funds therefor.
II. A multi-year contract is authorized where:
(a) Estimated requirements cover the period of the contract and are reasonably firm and continuing; and
(b) Such a contract will serve the best interests of the purchasing agency by encouraging effective competition or otherwise promoting economies in purchasing agency procurement.
III. When funds are not appropriated or otherwise made available to support continuation of performance in a subsequent fiscal period, the contract shall be cancelled and the contractor shall be reimbursed for the reasonable value of any non-recurring costs incurred but not amortized in the price of the supplies or services delivered under the contract. The cost of cancellation may be paid from any appropriations available for such purposes.
Inspection of Plant and Audit of Records
21-V:25 Right to Inspect Plant. The purchasing agency may, at reasonable times, inspect the part of the plant or place of business of a contractor or any subcontractor which is related to the performance of any contract awarded or to be awarded by the purchasing agency.
21-V:26 Right to Audit Records.
I. The purchasing agency may, at reasonable times and places, audit the books and records of any person who has submitted data in substantiation of offered prices pursuant to RSA 21-V:18 to the extent that such books and records relate to that data. Any person who receives a contract, change order, or contract modification for which such data is required, shall maintain such books and records that relate to such cost or pricing data for 3 years from the date of final payment under the contract, unless a shorter period is otherwise authorized in writing.
II. The purchasing agency shall be entitled to audit the books and records of a contractor or any subcontractor under any negotiated contract or subcontract other than a firm fixed-price contract to the extent that such books and records relate to the performance of such contract or subcontract. Such books and records shall be maintained by the contractor for a period of 3 years from the date of final payment under the prime contract and by the subcontractor for a period of 3 years from the date of final payment under the subcontract, unless a shorter period is otherwise authorized in writing.
Determinations and Reports
21-V:27 Finality of Determinations. The determinations required under this chapter are final and conclusive unless they are clearly erroneous, arbitrary, capricious, or contrary to law.
21-V:28 Reporting of Anticompetitive Practices. When for any reason collusion or other anticompetitive practices are suspected among any bidders or offerors, a notice of the relevant facts shall be transmitted to the attorney general.
21-V:29 Retention of Procurement Records. All procurement records shall be retained and disposed of in accordance with records retention guidelines and schedules approved by the attorney general. All retained documents shall be made available to the attorney general or designee upon request and proper receipt therefor.
21-V:30 Record of Procurement Actions Taken Relative to Sole Source Procurement, Emergency Procurements, and Special Procurements.
I. The agency head shall maintain a record listing all sole source procurement, emergency procurement, and special procurement contracts for a minimum of 5 years. The record shall contain:
(a) Each contractor’s name;
(b) The amount and type of each contract; and
(c) A listing of the supplies, services, or construction procured under each contract.
II. Annually, on or before June 30, a copy of the record required by paragraph I shall be submitted to the senate president, the speaker of the house of representatives and the joint legislative fiscal committee. The record shall be available for public inspection.
Specifications
21-V:31 Maximum Practicable Competition. All specifications shall seek to promote overall economy for the purposes intended and encourage competition in satisfying the purchasing agency’s needs, and shall not be unduly restrictive.
21-V:32 Duties of the Agency Head. The agency head shall monitor the use of specifications for supplies, services, and construction required by the purchasing agency.
21-V:33 Relationship With Using Agencies. The agency head shall obtain expert advice and assistance from personnel of using agencies in the development of specifications and may delegate in writing to a using agency the authority to prepare and utilize its own specifications.
21-V:34 Specifications Prepared by Other Than Purchasing Agency Personnel. The requirements of this chapter regarding the purposes and non-restrictiveness of specifications shall apply to all specifications prepared other than by purchasing agency personnel, including, but not limited to, those prepared by architects, engineers, and, when the design-build, design-build-operate-maintain, or design-build-finance-operate-maintain project delivery method are used, those persons preparing specifications for the project.
21-V:35 Brand Name or Equal Specification.
I. Brand name or equal specifications may be used when the agency head or designee determines in writing that:
(a) No other design or performance specification or qualified products list is available;
(b) Time does not permit the preparation of another form of purchase description, not including a brand name specification;
(c) The nature of the product or the nature of the purchasing agency’s requirements makes use of a brand name or equal specification suitable for the procurement; or
(d) Use of a brand name or equal specification is in the purchasing agency’s best interests.
II. Brand name or equal specifications shall seek to designate three, or as many different brands as are practicable, as “or equal” references and shall further state that substantially equivalent products to those designated will be considered for award.
III. Unless the purchasing agent determines in writing that the essential characteristics of the brand names included in the specifications are commonly known in the industry or trade, brand name or equal specifications shall include a description of the particular design, functional, or performance characteristics which are required.
IV. Where a brand name or equal specification is used in a solicitation, the solicitation shall contain explanatory language that the use of a brand name is for the purpose of describing the standard of quality, performance, and characteristics desired and is not intended to limit or restrict competition.
21-V:36 Brand Name Specification.
I. Since use of a brand name specification is restrictive of product competition, it may be used only when the agency head makes a written determination that only the identified brand name item or items will satisfy the purchasing agency’s needs.
II. The purchasing agent shall seek to identify sources from which the designated brand name item or items can be obtained and shall solicit such sources to achieve whatever degree of price competition is practicable. If only one source can supply the requirement, the procurement shall be made under RSA 21-V:6.
Contract Clauses and Fiscal Responsibility
21-V:37 Contract Clauses and Their Administration.
I. Pursuant to rules adopted by the commissioner under RSA 541-A, purchasing agency contracts issued under this chapter shall include clauses providing for adjustments in prices, time of performance, or other contract provisions, as appropriate, and covering the following subjects:
(a) The unilateral right of the purchasing agency to order in writing:
(1) Changes in the work within the scope of the contract; and
(2) Changes in the time of performance of the contract that do not alter the scope of the contract work;
(b) Variations occurring between estimated quantities of work in a contract and actual quantities;
(c) Suspension of work ordered by the purchasing agency; and
(d) Site conditions differing from those indicated in the contract, or ordinarily encountered, except that differing site conditions clauses promulgated by the agency head need not be included in a contract:
(1) When the contract is negotiated;
(2) When the contractor provides the site or the design; or
(3) When the parties have otherwise agreed with respect to the risk of differing site conditions.
II.(a) Adjustments in price pursuant to clauses promulgated under paragraph I shall be computed in one or more of the following ways:
(1) By agreement on a fixed price adjustment before commencement of the pertinent performance or as soon thereafter as practicable;
(2) By unit prices specified in the contract or subsequently agreed upon;
(3) By the costs attributable to the events or situations under such clauses with adjustment of profit or fee, all as specified in the contract or subsequently agreed upon;
(4) In such other manner as the contracting parties may mutually agree; or
(5) In the absence of agreement by the parties, by a unilateral determination by the agency head of the costs attributable to the events or situations under such clauses with adjustment of profit or fee, all as computed by the agency head in accordance with applicable rules adopted by the commissioner under RSA 541-A.
(b) A contractor shall be required to submit cost or pricing data if any adjustment in contract price is subject to the provisions of RSA 21-V:21.
III. Pursuant to rules adopted by the commissioner under RSA 541-A, purchasing agency contracts shall include clauses providing for appropriate remedies and covering the following subjects:
(a) Liquidated damages as appropriate;
(b) Specified excuses for delay or nonperformance;
(c) Termination of the contract for default; and
(d) Termination of the contract in whole or in part for the convenience of the purchasing agency.
IV. Pursuant to rules adopted by the commissioner under RSA 541-A, the head of a purchasing agency may vary the clauses required under paragraph I and paragraph III in a particular purchasing agency contract, provided that any variations are supported by a written determination that states the circumstances justifying such variations, and provided that notice of any such material variation be stated in the invitation for bids or request for proposals.
21-V:38 Fiscal Responsibility. Every contract modification, change order, or contract price adjustment under a contract with the purchasing agency in excess of $25,000 shall be subject to prior written certification by the fiscal officer of the entity responsible for funding the project or the contract, or other official responsible for monitoring and reporting upon the status of the costs of the total project budget or contract budget, as to the effect of the contract modification, change order, or adjustment in contract price on the total project budget or the total contract budget. In the event that the certification of the fiscal officer or other responsible official discloses a resulting increase in the total project budget and/or the total contract budget, the agency head shall not execute or make such contract modification, change order, or adjustment in contract price unless sufficient funds are available therefor, or the scope of the project or contract is adjusted so as to permit the degree of completion that is feasible within the total project budget and/or total contract budget as it existed prior to the contract modification, change order, or adjustment in contract price under consideration; provided, however, that with respect to the validity, as to the contractor, of any executed contract modification, change order, or adjustment in contract price which the contractor has reasonably relied upon, it shall be presumed that there has been compliance with the provisions of this section.
Appeals and Remedies
21-V:39 Authority to Resolve Protested Solicitations and Awards.
I. Any actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation or award of a contract pursuant to this chapter may protest to the head of a purchasing agency. The protest shall be submitted in writing within 14 days after such aggrieved person knows or should have known of the facts giving rise thereto.
II. The head of a purchasing agency, or a designee, shall have the authority, prior to the commencement of an action in court concerning the controversy, to settle and resolve a protest of an aggrieved bidder, offeror, or contractor, actual or prospective, concerning the solicitation or award of a contract. This authority shall be exercised in accordance with rules adopted by the commissioner under RSA 541-A.
III. If the protest is not resolved by mutual agreement, the agency head, or designee, shall promptly issue a decision in writing. The decision shall:
(a) State the reasons for the action taken; and
(b) Inform the protestant of its right to judicial review as provided in this subdivision.
IV. A copy of the decision under paragraph III shall be mailed or otherwise furnished immediately to the protestant and any other party intervening.
V. A decision under paragraph III shall be final and conclusive, unless fraudulent, or any person adversely affected by the decision commences an action in court in accordance with RSA 21-V:45.
VI. In the event of a timely protest under paragraph I, or under RSA 21-V:45, the agency head shall not proceed further with the solicitation or with the award of the contract until the head of a purchasing agency makes a written determination that the award of the contract without delay is necessary to protect substantial interests of the purchasing agency.
VII. In addition to any other relief, when a protest is sustained and the protesting bidder or offeror should have been awarded the contract under the solicitation but is not, then the protesting bidder or offeror shall be entitled to the reasonable costs incurred in connection with the solicitation, including bid preparation costs other than attorney’s fees.
21-V:40 Authority to Debar or Suspend.
I. After reasonable notice to the person involved and reasonable opportunity for that person to be heard, the agency head, after consultation with the attorney general, shall have authority to debar a person for cause from consideration for award of contracts. The debarment shall not be for a period of more than 3 years. The same officer, after consultation with the attorney general, shall have authority to suspend a person from consideration for award of contracts if there is probable cause for debarment. The suspension shall not be for a period exceeding 3 months. The authority to debar or suspend shall be exercised in accordance with rules adopted by the commissioner under RSA 541-A.
II. The causes for debarment or suspension include the following:
(a) Conviction for commission of a criminal offense as an incident to obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract;
(b) Conviction under state or federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, or any other offense indicating a lack of business integrity or business honesty which currently, seriously, and directly affects responsibility as a purchasing agency contractor;
(c) Conviction under state or federal antitrust statutes arising out of the submission of bids or proposals;
(d) Violation of contract provisions, as set forth below, of a character which is regarded by the agency head to be so serious as to justify debarment action:
(1) Deliberate failure without good cause to perform in accordance with the specifications or within the time limit provided in the contract; or
(2) A recent record of failure to perform or of unsatisfactory performance in accordance with the terms of one or more contracts; provided that failure to perform or unsatisfactory performance caused by acts beyond the control of the contractor shall not be considered to be a basis for debarment;
(e) Any other cause the agency head determines to be so serious and compelling as to affect responsibility as a purchasing agency contractor, including debarment by another governmental entity for any cause listed in rules adopted by the commissioner under RSA 541-A; and
(f) For violation of the ethical standards set forth in RSA 21-V:50 through RSA 21-V:61.
III. The head of a purchasing agency shall issue a written decision to debar or suspend. The decision shall:
(a) State the reasons for the action taken; and
(b) Inform the debarred or suspended person involved of its rights to judicial review as provided in this subdivision.
IV. A copy of the decision under paragraph III shall be mailed or otherwise furnished immediately to the debarred or suspended person and any other party intervening.
V. A decision under paragraph III shall be final and conclusive, unless fraudulent, or the debarred or suspended person commences an action in court in accordance with RSA 21-V:45.
21-V:41 Authority to Resolve Contract and Breach of Contract Controversies.
I. This section applies to controversies between the purchasing agency and a contractor and which arise under, or by virtue of, a contract between them. This includes without limitation controversies based upon breach of contract, mistake, misrepresentation, or other cause for contract modification or rescission.
II. The head of a purchasing agency, or designee, is authorized, prior to commencement of an action in a court concerning the controversy, to settle and resolve a controversy described in paragraph I. This authority shall be exercised in accordance with rules adopted by the commissioner under RSA 541-A.
III. If such a controversy is not resolved by mutual agreement, the head of a purchasing agency, or designee, shall promptly issue a decision in writing. The decision shall:
(a) State the reasons for the action taken; and
(b) Inform the contractor of its right to judicial review as provided in this subdivision.
IV. A copy of the decision under paragraph III shall be mailed or otherwise furnished immediately to the contractor.
V. The decision under paragraph III shall be final and conclusive, unless fraudulent, or the contractor commences an action in court in accordance with RSA 21-V:45.
VI. If the head of a purchasing agency, or designee, does not issue the written decision required under paragraph III within 120 days after written request for a final decision, or within such longer period as may be agreed upon by the parties, then the contractor may proceed as if an adverse decision had been received.
21-V:42 Remedies Prior to an Award for Solicitations or Awards in Violation of Law. If prior to award it is determined, administratively or upon administrative or judicial review, that a solicitation or proposed award of a contract is in violation of law, then the solicitation or proposed award shall be cancelled or revised to comply with the law.
21-V:43 Remedies After an Award for Solicitations or Awards in Violation of Law. If after an award it is determined, administratively or upon administrative or judicial review, that a solicitation or award of a contract is in violation of law, then:
I. If the person awarded the contract has not acted fraudulently or in bad faith:
(a) The contract may be ratified and affirmed, provided it is determined that doing so is in the best interests of the purchasing agency; or
(b) The contract may be terminated and the person awarded the contract shall be compensated for the actual expenses reasonably incurred under the contract, plus a reasonable profit, prior to the termination.
II. If the person awarded the contract has acted fraudulently or in bad faith:
(a) The contract may be declared null and void; or
(b) The contract may be ratified and affirmed if such action is in the best interests of the purchasing agency, without prejudice to the purchasing agency’s rights to such damages as may be appropriate.
21-V:44 Interest. Interest on amounts ultimately determined to be due to a contractor or the purchasing agency shall be payable at the statutory rate applicable to judgments from the date the claim arose through the date of decision or judgment, whichever is later.
21-V:45 Access to Courts.
I. The superior court shall have jurisdiction over an action between the purchasing agency and a bidder, offeror, or contractor, prospective or actual, to determine whether a solicitation or award of a contract is in accordance with the Constitution, statutes, rules, and the terms and conditions of the solicitation. The superior court shall have such jurisdiction, whether the actions are at law or in equity, and whether the actions are for monetary damages or for declaratory, injunctive, or other equitable relief.
II. The superior court shall have jurisdiction over an action between the purchasing agency and a person who is subject to a suspension or debarment proceeding, to determine whether the debarment or suspension is in accordance with the Constitution, statutes, and rules. The superior court shall have such jurisdiction, whether the actions are at law or in equity, and whether the actions are for declaratory, injunctive, or other equitable relief.
III. The superior court shall have jurisdiction over an action between the purchasing agency and a contractor, for any cause of action which arises under, or by virtue of, the contract, whether the action is at law or in equity, whether the action is on the contract or for a breach of the contract, and whether the action is for monetary damages or declaratory, injunctive, or other equitable relief.
IV. In any judicial action under this section, factual or legal determinations by employees, agents, or other persons appointed by the purchasing agency shall have no finality and shall not be conclusive, notwithstanding any contract provision, rule, or law to the contrary, except to the extent provided in RSA 21-V:27, relative to finality of determinations.
21-V:46 Time Limitations on Actions.
I. Any action under RSA 21-V:45 shall be initiated as follows:
(a) Within 30 days after the aggrieved person knows or should have known of the facts giving rise to the action; or
(b) Within 14 days after receipt of a final administrative decision pursuant to RSA 21-V:39.
II. Any action under RSA 21-V:45 shall be commenced within 6 months after receipt of the decision of the agency head under RSA 21-V:40, or the decision of the ethics commission under RSA?21-V:58, II(c), whichever is applicable.
III. The statutory limitations on an action between private persons on a contract or for breach of contract shall apply to any action commenced pursuant to RSA 21-V:45.
21-V:47 Compliance with Federal Requirements. If the procurement involves the expenditure of federal assistance or contract funds, the agency head shall comply with such federal law and authorized regulations which are mandatorily applicable and which are not presently reflected in this chapter.
Ethics in Public Contracting
21-V:48 Statement of Policy.
I. Public employment is a public trust. It is the policy of the state of New Hampshire to promote and balance the objective of protecting government integrity and the objective of facilitating the recruitment and retention of personnel needed by the purchasing agency. Such policy is implemented by prescribing essential standards of ethical conduct without creating unnecessary obstacles to entering public service.
II. Public employees must discharge their duties impartially so as to assure fair competitive access to governmental procurement by responsible contractors. Moreover, they should conduct themselves in such a manner as to foster public confidence in the integrity of the purchasing agency procurement organization.
III. To achieve the purpose of this chapter, it is essential that those doing business with the purchasing agency also observe the ethical standards prescribed in this subdivision and in rules adopted under RSA 541-A by the executive branch ethics committee, established in RSA 21-G:29.
21-V:49 General Standards of Ethical Conduct.
I. Any attempt to realize personal gain through public employment by conduct inconsistent with the proper discharge of the employee’s duties is a breach of a public trust. In order to fulfill this general prescribed standard, employees shall also meet the specific standards set forth in RSA 21-V:51 through RSA 21-V:57.
II. Any effort to influence any public employee to breach the standards of ethical conduct set forth in this section and in RSA 21-V:51 through RSA 21-V:57 is also a breach of ethical standards.
21-V:50 Criminal Sanctions. To the extent that violations of the ethical standards of conduct set forth in this subdivision constitute violations of the state criminal code, they shall be punishable as provided therein. Such sanctions shall be in addition to the civil remedies provided in this subdivision.
21-V:51 Employee Conflict of Interest.
I. It shall be a breach of ethical standards for any employee to participate directly or indirectly in a procurement when the employee knows that:
(a) The employee or any member of the employee’s immediate family has a financial interest pertaining to the procurement;
(b) A business or organization in which the employee, or any member of the employee’s immediate family, has a financial interest pertaining to the procurement; or
(c) Any other person, business, or organization with whom the employee or any member of the employee’s immediate family is negotiating or has an arrangement concerning prospective employment is involved in the procurement.
II. Where an employee or any member of the employee’s immediate family holds a financial interest in a blind trust, the employee shall not be deemed to have a conflict of interest with regard to matters pertaining to that financial interest, provided that disclosure of the existence of the blind trust has been made to the executive branch ethics committee.
III. Upon discovery of an actual or potential conflict of interest, an employee shall promptly file a written statement of disqualification and shall withdraw from further participation in the transaction involved. The employee may, at the same time, apply to the executive branch ethics committee in accordance with RSA 21-V:60, II for an advisory opinion as to what further participation, if any, the employee may have in the transaction.
IV. Notice of this prohibition shall be provided in accordance with rules adopted under RSA?541-A by the executive branch ethics committee.
21-V:52 Employee Disclosure Requirements.
I. Any employee who has, or obtains any benefit from, any purchasing agency contract with a business in which the employee has a financial interest shall report such benefit to the executive branch ethics committee; provided, however, this section shall not apply to a contract with a business where the employee’s interest in the business has been placed in a disclosed blind trust.
II. Any employee who knows or should have known of such benefit, and fails to report such benefit to the executive branch ethics committee, is in breach of the ethical standards of this section.
III. Notice of this requirement shall be provided in accordance with rules adopted under RSA?541-A by the executive branch ethics committee.
21-V:53 Gratuities and Kickbacks.
I. It shall be a breach of ethical standards for any person to offer, give, or agree to give any employee or former employee, or for any employee or former employee to solicit, demand, accept, or agree to accept from another person, a gratuity or an offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to any program requirement or a contract or subcontract, or to any solicitation or proposal therefor.
II. It shall be a breach of ethical standards for any payment, gratuity, or offer of employment to be made by or on behalf of a subcontractor under a contract to the prime contractor or higher tier subcontractor or any person associated therewith, as an inducement for the award of a subcontract or order.
III. The prohibition against gratuities and kickbacks prescribed in this section shall be conspicuously set forth in every contract and solicitation therefor.
21-V:54 Prohibition Against Contingent Fees.
I. It shall be a breach of ethical standards for a person to be retained, or to retain a person, to solicit or secure a purchasing agency contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, except for retention of bona fide employees or bona fide established commercial selling agencies for the purpose of securing business.
II. Every person, before being awarded a purchasing agency contract, shall represent, in writing, that such person has not retained anyone in violation of paragraph I. Failure to do so constitutes a breach of ethical standards.
III. The representation prescribed in paragraph II shall be conspicuously set forth in every contract and solicitation therefor.
21-V:55 Restrictions on Employment of Present and Former Employees.
I. Except as may be permitted by rules adopted by the executive branch ethics committee under RSA 541-A, it shall be a breach of ethical standards for any employee who is participating directly or indirectly in the procurement process to become or be, while such an employee, the employee of any person contracting with the governmental body by whom the employee is employed. Notice of this provision shall be provided in accordance with rules adopted under RSA 541-Aby the executive branch ethics committee.
II.(a) Permanent disqualification of former employee personally involved in a particular matter. It shall be a breach of ethical standards for any former employee knowingly to act as a principal, or as an agent for anyone other than the purchasing agency, in connection with any:
(1) Judicial or other proceeding, application, request other determination;
(2) Contract;
(3) Claim; or
(4) Charge or controversy, in which the employee participated personally and substantially through decision, approval, disapproval, recommendation, rendering of advice, investigation, or otherwise while an employee, where the purchasing agency is a party or has a direct and substantial interest.
(b) One year representation restriction regarding matters for which a former employee was officially responsible. It shall be a breach of ethical standards for any former employee, within one year after cessation of the former employee’s official responsibility, knowingly to act as a principal, or as an agent for anyone other than the purchasing agency, in connection with any:
(1) Judicial or other proceeding, application, request for a ruling, or other determination;
(2) Contract;
(3) Claim; or
(4) Charge or controversy, in matters which were within the former employee’s official responsibility, where the purchasing agency is a party or has a direct or substantial interest.
III. It shall be a breach of ethical standards for a business in which an employee has a financial interest knowingly to act as a principal, or as an agent for anyone other than the purchasing agency, in connection with any:
(a) Judicial or other proceeding, application, request for a ruling, or other determination;
(b) Contract;
(c) Claim; or
(d) Charge or controversy, in which the employee either participates personally and substantially through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise, or which is the subject of the employee’s official responsibility, where the purchasing agency is a party or has a direct and substantial interest.
IV. Selling to the purchasing agency after termination of employment is prohibited. It shall be a breach of ethical standards for any former employee, unless the former employee’s last annual salary did not exceed the amount specified by the executive branch ethics committee to engage in selling or attempting to sell supplies, services, or construction to the purchasing agency for one year following the date employment ceased.
V. The term “sell” as used in this section means signing a bid, proposal, or contract; negotiating a contract; contacting any employee for the purpose of obtaining, negotiating, or discussing changes in specifications, price, cost allowances, or other terms of a contract; settling disputes concerning performance of a contract; or any other liaison activity with a view toward the ultimate consummation of a sale although the actual contract therefor is subsequently negotiated by another person; provided, however, that this section is not intended to preclude a former employee from accepting employment with private industry solely because the former employee’s employer is a contractor with this purchasing agency, nor shall a former employee be precluded from serving as a consultant to this purchasing agency.
21-V:56 Use of Confidential Information. It shall be a breach of ethical standards for any employee or former employee knowingly to use confidential information for actual or anticipated personal gain, or for the actual or anticipated personal gain of any other person.
21-V:57 Civil and Administrative Remedies Against Employees Who Breach Ethical Standards.
I. Civil and administrative remedies against employees which are in existence on the effective date of this chapter shall not be impaired.
II. In addition to existing remedies for breach of the ethical standards of this subdivision or rules adopted by the executive branch ethics committee under RSA 541-A, the committee may impose any one or more of the following:
(a) Oral or written warnings or reprimands;
(b) Recommend suspension with or without pay for specified periods of time; and
(c) Recommend termination of employment.
III. The value of anything received by an employee in breach of the ethical standards of this subdivision or rules adopted by the committee under RSA 541-A shall be recoverable by the purchasing agency as provided in RSA 21-V:59.
IV. All procedures under this section shall be in accordance with due process requirements and existing law. In addition, notice and an opportunity for a hearing shall be provided prior to imposition of any suspension or termination of employment.
21-V:58 Civil and Administrative Remedies Against Non-Employees Who Breach Ethical Standards.
I. Civil and administrative remedies against non-employees which are in existence on the effective date of this chapter shall not be impaired.
II. In addition to existing remedies for breach of the ethical standards of this subdivision or rules adopted by the executive branch ethics committee under RSA 541-A, the committee may impose any one or more of the following:
(a) Written warnings or reprimands;
(b) Termination of transactions; and
(c) Debarment or suspension from being a contractor or subcontractor under purchasing agency contracts.
III. The value of anything transferred in breach of the ethical standards of this subdivision or rules adopted by the committee under RSA 541-A by a non-employee shall be recoverable by the purchasing agency as provided in RSA 21-V:59.
IV. Debarment or suspension may be imposed by the executive branch ethics committee in accordance with the procedures set forth in RSA 21-V:40 for breach of the ethical standards of this subdivision, provided that such action may not be taken without the concurrence of the attorney general.
V. All procedures under this section shall be in accordance with due process requirements, including, but not limited to, a right to notice and an opportunity for a hearing prior to imposition of any termination, debarment, or suspension from being a contractor or subcontractor under a purchasing agency contract.
21-V:59 Recovery of Value Transferred or Received in Breach of Ethical Standards.
I. The value of anything transferred or received in breach of the ethical standards of this subdivision or rules adopted by the executive branch ethics committee under RSA 541-A by an employee or a non-employee may be recovered from both the employee and non-employee.
II. Upon a showing that a subcontractor made a kickback to a prime contractor or a higher tier subcontractor in connection with the award of a subcontract or order thereunder, it shall be conclusively presumed that the amount thereof was included in the price of the subcontract or order and ultimately borne by the purchasing agency and will be recoverable hereunder from the recipient. In addition, said value may also be recovered from the subcontractor making such kickbacks. Recovery from one offending party shall not preclude recovery from other offending parties.
21-V:60 Oversight and Enforcement by the Executive Branch Ethics Committee.
I. The executive branch ethics committee, established in RSA 21-G:28, shall adopt rules under RSA 541-A relative to implementation of this subdivision.
II. On written request of employees or contractors, the executive branch ethics committee may render written advisory opinions regarding the appropriateness of the course of conduct to be followed in proposed transactions. Such requests and advisory opinions shall be duly published in the manner in which interpretive rulings and advisory opinions of the committee are published. Compliance with requirements of a duly promulgated advisory opinion of the executive branch ethics committee shall be deemed to constitute compliance with the ethical standards of this subdivision.
III. On written request of an employee, the executive branch ethics committee may grant an employee a written waiver from the application of RSA 21-V:51 and grant permission to proceed with the transaction to such extent and upon such terms and conditions as may be specified. Such waiver and permission may be granted when the interests of the purchasing agency so require or when the ethical conflict is insubstantial or remote.
21-V:61 Appeal of Decisions of the Executive Branch Ethics Committee.
I. Except as provided under paragraph II, a decision of the executive branch ethics committee under RSA 21-V:57 or RSA 21-V:58 shall be subject to rehearing and appeal in accordance with the RSA 541.
II. A decision of the executive branch ethics committee regarding debarment or suspension under RSA 21-V:58, II(c) shall be reviewable as provided in RSA 21-V:46.
21-V:62 State Procurement Commission.
I. There is established a state procurement commission, the purpose of which shall be to review RSA 21-V and other state laws, rules, policies, and practices regarding competitive bidding and procurement.
II. The commission consist of the following members:
(a) The commissioner of the department of administrative services, or designee.
(b) The commissioner of the department of resources and economic development, or designee.
(c) The attorney general, or designee.
(d) The commissioner of the department of transportation, or designee.
(e) The commissioner of the department of labor, or designee.
(f) The commissioner of the department of environmental services, or designee.
(g) The commissioner of the department of health and human services, or designee.
(h) Three members of the house of representatives, appointed by the speaker of the house of representatives.
(i) Two members of the senate, appointed by the senate president.
III. Members of the commission shall serve without compensation; except that legislative members of the commission shall receive mileage at the legislative rate when attending to the duties of the commission.
IV. The members of the commission shall elect a chairperson from among the members. The first meeting of the commission shall be called by the first-named senate member and shall be held within 45 days of the effective date of this section. Six members of the commission shall constitute a quorum.
V. The commission shall:
(a) Review state laws, rules, policies, and procedures regarding competitive bidding and procurement, including but not limited to RSA 21-V, RSA 21-I, RSA 228, and RSA 481.
(b) Examine procurement policies and procedures from other states and the federal government and develop a model of best practices for the state of New Hampshire.
(c) Determine if further statutory amendments are necessary to fully implement this chapter and the model of best practices developed by the commission.
VI. On or before November 1, 2014, the commission shall submit an interim report of its findings and any recommendations for legislation to the senate president, the speaker of the house of representatives, the governor, and the state library. The commission shall submit its final report on or before November 1, 2015.
2 Executive Branch Ethics Committee. Amend RSA 21-G:29, II to read as follows:
II. The jurisdiction of the committee shall consist of matters arising under the executive branch code of ethics, RSA 21-G:21-27, RSA 15-A, RSA 15-B, and rules or guidelines adopted thereunder, as applied to executive branch officials who are not classified employees. The committee also shall have jurisdiction over matters arising under RSA 21-V:48 through RSA 21-V:61, relative to ethics in public contracting.
3 New Paragraph; Duties of the Executive Branch Ethics Committee. Amend RSA 21-G:30 by inserting after paragraph I the following new paragraph:
I-a. The committee shall adopt rules under RSA 541-A relative to administration and enforcement of RSA 21-V:48 through RSA 21-G:61, regarding ethics in public contracting.
4 Repeal. RSA 21-V:62, relative to the state procurement commission, is repealed.
5 Effective Date.
I. RSA 21-V:62, as inserted by section 1 of this act, shall take effect upon its passage.
II. Section 4 of the act shall take effect November 1, 2015.
III. The remainder of this act shall take effect 60 days after its passage.