8A.311 - COMPETITIVE BIDDING -- PREFERENCES -- RECIPROCAL APPLICATION -- DIRECT PURCHASING.
8A.311 COMPETITIVE BIDDING -- PREFERENCES --
RECIPROCAL APPLICATION -- DIRECT PURCHASING.
The director shall adopt rules establishing competitive bidding
procedures.
1. a. All equipment, supplies, or services procured by the
department shall be purchased by a competitive bidding procedure as
established by rule. However, the director may exempt by rule
purchases of noncompetitive items and purchases in lots or quantities
too small to be effectively purchased by competitive bidding.
Preference shall be given to purchasing Iowa products and purchases
from Iowa-based businesses if the Iowa-based business bids submitted
are comparable in price to bids submitted by out-of-state businesses
and otherwise meet the required specifications. If the laws of
another state mandate a percentage preference for businesses or
products from that state and the effect of the preference is that
bids of Iowa businesses or products that are otherwise low and
responsive are not selected in the other state, the same percentage
preference shall be applied to Iowa businesses and products when
businesses or products from that other state are bid to supply Iowa
requirements.
b. The department and each state agency shall provide notice
in an electronic format available to the public of every competitive
bidding opportunity offered by the department or the state agency as
provided in section 73.2, subsection 2. The department may establish
by rule requirements relating to such notice. A competitive bidding
opportunity that is not preceded by a notice that satisfies the
requirements of this paragraph is void and shall be rebid. A request
for proposals for architectural or engineering services may be posted
electronically by a department or state agency.
2. Notwithstanding section 72.3, if the competitive bidding
procedure used by the department involves the use of a reverse
auction or similar competitive bidding procedure requiring the
disclosure of bid information submitted by vendors, the department
shall disclose the bid information as necessary and appropriate.
3. The director may also exempt the purchase of an item or
service from a competitive bidding procedure when the director
determines that the best interests of the state will be served by the
exemption which shall be based on one of the following:
a. An immediate or emergency need existing for the item or
service.
b. A need to protect the health, safety, or welfare of
persons occupying or visiting a public improvement or property
located adjacent to the public improvement.
4. a. The director may contract for the purchase of items or
services by the department. Contracts for the purchase of items or
services shall be awarded on the basis of the lowest competent bid.
Contracts not based on competitive bidding shall be awarded on the
basis of bidder competence and reasonable price.
b. Architectural and engineering services shall be procured
in a reasonable manner, as the director by rule may determine, on the
basis of competence and qualification for the type of services
required and for a fair and reasonable price.
5. The director may enter into a cooperative procurement
agreement with another governmental entity relating to the
procurement of goods or services, whether the goods or services are
for the use of the department or other governmental entities. The
cooperative procurement agreement shall clearly specify the purpose
of the agreement and the method by which that purpose will be
accomplished. Any power exercised under the agreement shall not
exceed the power granted to any party to the agreement.
6. The director may refuse all bids on any item or service and
request new bids.
7. The director shall establish by rule the amount of security,
if any, to accompany a bid or as a condition precedent to the
awarding of any contract and the circumstances under which a security
will be returned to the bidder or forfeited to the state.
8. The director shall adopt rules providing a method for the
various state agencies to file with the department a list of those
supplies, equipment, machines, and all items needed to properly
perform their governmental duties and functions.
9. The director shall furnish a list of specifications, prices,
and discounts of contract items to any governmental subdivision which
shall be responsible for payment to the vendor under the terms and
conditions outlined in the state contract.
10. a. The director shall adopt rules providing that any
state agency may, upon request, purchase directly from a vendor if
the direct purchasing is as economical or more economical than
purchasing through the department, or upon a showing that direct
purchasing by the state agency would be in the best interests of the
state due to an immediate or emergency need. The rules shall include
a provision permitting a state agency to purchase directly from a
vendor, on the agency's own authority, if the purchase will not
exceed ten thousand dollars and the purchase will contribute to the
agency complying with or exceeding the targeted small business
procurement goals under sections 73.15 through 73.21.
b. Any member of the executive council may bring before the
executive council for review a decision of the director granting a
state agency request for direct purchasing. The executive council
shall hear and review the director's decision in the same manner as
an appeal filed by an aggrieved bidder, except that the three-day
period for filing for review shall not apply.
11. a. When the estimated total cost of construction,
erection, demolition, alteration, or repair of a public improvement
exceeds the competitive bid threshold in section 26.3, or as
established in section 314.1B, the department shall comply with
chapter 26.
b. In awarding a contract under this subsection, the
department shall let the work to the lowest responsible bidder
submitting a sealed proposal. However, if the department considers
the bids received not to be acceptable, all bids may be rejected and
new bids requested. A bid shall be accompanied by a certified or
cashier's check or bid bond in an amount designated in the
advertisement for bids as security that the bidder will enter into a
contract for the work requested. The department shall establish the
bid security in an amount equal to at least five percent, but not
more than ten percent of the estimated total cost of the work. The
certified or cashier's checks or bid bonds of unsuccessful bidders
shall be returned as soon as the successful bidder is determined.
The certified or cashier's check or bid bond of the successful bidder
shall be returned upon execution of the contract. This subsection
does not apply to the construction, erection, demolition, alteration,
or repair of a public improvement when the contracting procedure for
the work requested is otherwise provided for in law.
12. The state and its political subdivisions shall give
preference to purchasing Iowa products and purchasing from Iowa-based
businesses if the bids submitted are comparable in price to those
submitted by other bidders and meet the required specifications.
13. The director shall adopt rules which require that each bid
received for the purchase of items purchased by the department
includes a product content statement which provides the percentage of
the content of the item which is reclaimed material.
14. The director shall review and, where necessary, revise
specifications used by state agencies to procure products in order to
ensure all of the following:
a. The procurement of products containing recovered
materials, including but not limited to lubricating oils, retread
tires, building insulation materials, and recovered materials from
waste tires. The specifications shall be revised if they restrict
the use of alternative materials, exclude recovered materials, or
require performance standards which exclude products containing
recovered materials unless the agency seeking the product can
document that the use of recovered materials will hamper the intended
use of the product.
b. The procurement by state agencies of bio-based hydraulic
fluids, greases, and other industrial lubricants manufactured from
soybeans in accordance with the requirements of section 8A.316.
c. The procurement of designated biobased products in
accordance with the requirements of section 8A.317.
15. a. A bidder awarded a state construction contract shall
disclose the names of all subcontractors, who will work on the
project being bid, within forty-eight hours after the award of the
contract.
b. If a subcontractor named by a bidder awarded a state
construction contract is replaced, or if the cost of work to be done
by a subcontractor is reduced, the bidder shall disclose the name of
the new subcontractor or the amount of the reduced cost.
16. A state agency shall make every effort to purchase those
products produced for sale by sheltered workshops, work activity
centers, and other special programs funded in whole or in part by
public moneys that employ persons with mental retardation or other
developmental disabilities or mental illness if the products meet the
required specifications.
17. A state agency shall make every effort to purchase products
produced for sale by employers of persons in supported employment.
18. The department shall not award a contract to a bidder for a
construction, reconstruction, demolition, or repair project or
improvement with an estimated cost that exceeds twenty-five thousand
dollars in which the bid requires the use of inmate labor supplied by
the department of corrections, but not employed by private industry
pursuant to section 904.809, to perform the project or improvement.
19. Life cycle cost and energy efficiency shall be included in
the criteria used by the department, institutions under the control
of the state board of regents, the state department of
transportation, the department for the blind, and other state
agencies in developing standards and specifications for purchasing
energy-consuming products. For purposes of this subsection, the life
cycle costs of American motor vehicles shall be reduced by five
percent in order to determine if the motor vehicle is comparable to
foreign-made motor vehicles. "American motor vehicles" includes
those vehicles manufactured in this state and those vehicles in which
at least seventy percent of the value of the motor vehicle was
manufactured in the United States or Canada and at least fifty
percent of the motor vehicle sales of the manufacturer are in the
United States or Canada. In determining the life cycle costs of a
motor vehicle, the costs shall be determined on the basis of the bid
price, the resale value, and the operating costs based upon a useable
life of five years or seventy-five thousand miles, whichever occurs
first.
20. Preference shall be given to purchasing American-made
products and purchases from American-based businesses if the life
cycle costs are comparable to those products of foreign businesses
and which most adequately fulfill the department's need.
21. a. The director may authorize the procurement of goods
and services in which a contractual limitation of vendor liability is
provided for and set forth in the documents initiating the
procurement. The director, in consultation with the department of
management, shall adopt rules setting forth the circumstances in
which such procurement will be permitted and what types of
contractual limitations of liability are permitted. Rules adopted by
the director shall establish criteria to be considered in making a
determination of whether to permit a contractual limitation of vendor
liability with regard to any procurement of goods and services. The
criteria, at a minimum, shall include all of the following:
(1) Whether authorizing a contractual limitation of vendor
liability is necessary to prevent harm to the state from a failure to
obtain the goods or services sought, or from obtaining the goods or
services at a higher price if the state refuses to allow a
contractual limitation of vendor liability.
(2) Whether the contractual limitation of vendor liability is
commercially reasonable when taking into account any risk to the
state created by the goods or services to be procured and the purpose
for which they will be used.
b. Notwithstanding paragraph "a", a contractual
limitation of vendor liability shall not include any limitation on
the liability of any vendor for intentional torts, criminal acts, or
fraudulent conduct.
c. The rules shall provide for the negotiation of a
contractual limitation of vendor liability consistent with the
requirements of this section and any other requirements of the
department as provided in any related documents associated with a
procurement of goods and services.
22. a. The state, through the department, shall give a
preference to purchasing equipment, supplies, or services from or
awarding public improvement contracts pursuant to subsection 11 to an
Iowa-based business as provided under paragraph "b", as
appropriate, if the bid submitted is comparable in price to those
submitted by other bidders and meets the required specifications.
However, before giving the preference, the department shall confirm
with the Iowa employer support of the guard and reserve committee
that the requirements of paragraph "b" have been met by the
Iowa-based business.
b. To receive a preference as provided by this subsection,
the Iowa-based business employer shall have adopted policies beyond
those otherwise required by law to support employees who are officers
or enlisted persons in the national guard and organized reserves of
the armed forces of the United States consistent with standards
adopted by the Iowa employer support of the guard and reserve
committee. To be eligible for such preference, an employer shall
submit to the committee a copy of the applicable policies adopted by
the employer and shall sign and submit to the committee a statement
of support of persons in the employ of the employer who serve in the
national guard and the reserves, recognizing the vital role of the
national guard and the reserves, and pledging all of the following:
(1) To neither deny employment nor limit or reduce job
opportunities because of an employee's service in the national guard
or organized reserves of the armed forces of the United States.
(2) To grant leaves of absence during a period of military duty
or training.
(3) To ensure that all employees are aware of the employer's
policies and the requirements of section 29A.43. Section History: Recent Form
2003 Acts, ch 145, §30; 2004 Acts, ch 1101, §5; 2005 Acts, ch 52,
§3; 2005 Acts, ch 100, §1; 2006 Acts, ch 1017, §16, 42; 2006 Acts, ch
1072, §3; 2007 Acts, ch 115, §6, 18; 2007 Acts, ch 207, §1, 18; 2007
Acts, ch 215, §79; 2008 Acts, ch 1032, §201; 2008 Acts, ch 1104, §1
Referred to in § 8A.317, 8A.321, 216B.3, 262.9, 303.9, 307.21,
459.505
Preferences; see also chapter 73, §73A.21