GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2011
SESSION LAW 2011-338
SENATE BILL 404
AN ACT to modernize procurement methods used by the secretary of administration and state departments, institutions, and agencies.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 143-49 reads as rewritten:
"§ 143-49. Powers and duties of Secretary.
The Secretary of Administration shall have power and authority, and it shall be his duty, subject to the provisions of this Article:
(1) To canvass
sources of supply, including sources of supply of materials and suppliesgoods
with recycled content, and to purchase or to contract for the purchase, lease
and lease-purchase of all supplies, materials, equipment and other tangible
personal property goods required by the State government, or any of
its departments, institutions or agencies under competitive bidding or otherwise
as hereinafter provided.other suitable means authorized by the Secretary
including, without limitation, negotiations, reverse auctions, a best value
procurement method such as that defined in G.S. 143-135.9(a)(1), and the
solicitation, offer, and acceptance of electronic bids. For purposes of this
Article, the term "goods" includes, without limitation, all
commodities, supplies, materials, equipment, and other tangible personal
property.
(2) To establish and
enforce specifications which shall apply to all supplies, materials and
equipment goods and services to be purchased or leased for the use
of the State government or any of its departments, institutions or agencies.
(3) To purchase or
to contract for, by sealed, competitive bidding or other suitable means, all
contractual services and needsmeans authorized by the Secretary
including, without limitation, negotiations, reverse auctions, a best value
procurement method such as that defined in G.S. 143-135.9(a)(1), and the
solicitation, offer, and acceptance of electronic bids, all services of the
State government, or any of its departments, institutions, or agencies; or to
authorize any department, institution or agency to purchase or contract for
such services.
(3a) When To
request, and the Attorney General shall assign a representative of the office
of the Attorney General to assist in negotiation for the award of any
contract for contractual services exceeding a cost of one hundred thousand
dollars ($100,000) that requires negotiation with prospective contractors,
the Secretary shall request and the Attorney General shall assign a representative
of the office of the Attorney General to assist in negotiation for the award of
the contract.contractors. It shall be the duty of such
representative to assist and advise in obtaining the most favorable contract
for the State, to evaluate all proposals available from prospective contractors
for that purpose, to interpret proposed contract terms and to advise the
Secretary or his representatives of the liabilities of the State and validity
of the contract to be awarded. All contracts and drafts of such contracts shall
be prepared by the office of the Attorney General and copies thereof shall be
retained by such office for a period of three years following the termination
of such contracts. The term "contractual services" as used in this
subsection and G.S. 143-52.2 shall mean work performed by an
independent contractor requiring specialized knowledge, experience, expertise
or similar capabilities wherein the service rendered does not consist primarily
of acquisition by this State of equipment or materials and the rental of
equipment, materials and supplies. The term "negotiation" as used herein
in this subdivision shall not be deemed to refer to contracts
entered into or to be entered into as a result of a competitive bidding
process.
…
(6) To make
available to nonprofit corporations operating charitable hospitals, to local
nonprofit community sheltered workshops or centers that meet standards
established by the Division of Vocational Rehabilitation of the Department of
Health and Human Services, to private nonprofit agencies licensed or approved
by the Department of Health and Human Services as child placing agencies,
residential child-care facilities, private nonprofit rural, community, and
migrant health centers designated by the Office of Rural Health and Resource
Development, to private higher education institutions that are defined as
"institutions" in G.S. 116-22(1), and to counties, cities,
towns, local school administrative units, governmental entities and other
subdivisions of the State and public agencies thereof in the expenditure of
public funds, the services of the Department of Administration in the purchase
of materials, supplies and equipmentgoods and services under such
rules, regulations and procedures as the Secretary of Administration may adopt.
In adopting rules and regulations any or all provisions of this Article may be
made applicable to such purchases and contracts made through the Department of
Administration, and in addition the rules and regulations shall contain a
requirement that payment for all such purchases be made in accordance with the
terms of the contract.
…
(17) To establish procedures to permit State government, or any of its departments, institutions, or agencies, to join with any federal, State, or local government agency, entity, or subdivision, or any nonprofit organization in cooperative purchasing plans, projects, arrangements, or agreements if the interest of the State would be served thereby."
SECTION 2. G.S. 143-51 reads as rewritten:
"§ 143-51.
Reports to Secretary required of all agencies as to needs. needs and
purchases.
(a) It shall
be the duty of all departments, institutions, or agencies of the State
government to furnish to the Secretary of Administration when requested, and on
forms to be prescribed by him, estimates of all supplies, materials,
contractual services and equipmentgoods and services needed and
required by such department, institution or agency for such periods in advance
as may be designated by the Secretary of Administration.
(b) In addition to the report required by subsection (a) of this section, all departments, institutions, or agencies of the State government shall furnish to the Secretary of Administration when requested, and on forms to be prescribed by him, actual expenditures for all goods and services needed and required by the department, institution, or agency for such periods after the expenditures have been made as may be designated by the Secretary of Administration."
SECTION 3. G.S. 143-52 reads as rewritten:
"§ 143-52. Competitive bidding procedure; consolidation of estimates by Secretary; bids; awarding of contracts; cost plus percentage of cost contracts strictly prohibited.
(a) As feasible,
theThe Secretary of Administration will shall compile
and consolidate all such estimates of supplies, materials, printing,
equipment and contractualgoods and services needed and required by
State departments, institutions and agencies to determine the total
requirements of any given commodity. Where such total requirements will involve
an expenditure in excess of the expenditure benchmark established under the
provisions of G.S. 143-53.1 and where the competitive bidding procedure is
employed as hereinafter provided, sealed bids shall be solicited by
advertisement in a newspaper widely distributed in this State or through
electronic means, or both, as determined by the Secretary to be most
advantageous, at least once and at least 10 days prior to the date designated
for opening. Except as otherwise provided under this Article, contracts for the
purchase of supplies, materials or equipment goods and services
shall be based on competitive bids and acceptance made of the lowest and
bestsuitable means authorized by the Secretary as provided in
G.S. 143-49. The acceptance of bid(s) most advantageous to the
State as shall be determined upon consideration of the following
criteria: prices offered; best value, as the term is defined in G.S. 143-135.9(a)(1);
the quality of the articles offered; the general reputation and performance
capabilities of the bidders; the substantial conformity with the specifications
and other conditions set forth in the request for bids; the suitability of the
articles for the intended use; the personal or related services needed; the
transportation charges; the date or dates of delivery and performance; and such
other factor(s) deemed pertinent or peculiar to the purchase in question, which
if controlling shall be made a matter of record. Competitive bids on such
contracts shall be received in accordance with rules and regulations to be
adopted by the Secretary of Administration, which rules and regulations shall
prescribe for the manner, time and place for proper advertisement for such
bids, the time and place when bids will be received, the articles for which
such bids are to be submitted and the specifications prescribed for such
articles, the number of the articles desired or the duration of the proposed
contract, and the amount, if any, of bonds or certified checks to accompany the
bids. Bids shall be publicly opened. Any and all bids received may be rejected.
Each and every bid conforming to the terms of the invitation, together with the
name of the bidder, shall be tabulated and that tabulation shall become public
record in accordance with the rules adopted by the Secretary. All contract
information shall be made a matter of public record after the award of
contract. Provided, that trade secrets, test data and similar proprietary
information may remain confidential. A bond for the faithful performance of any
contract may be required of the successful bidder at bidder's expense and in
the discretion of the Secretary of Administration. When the dollar value of a contract
for the purchase, lease, or lease/purchase of equipment, materials, and
suppliesgoods exceeds the benchmark established by G.S. 143-53.1,
the contract shall be reviewed by the Board of Awards pursuant to G.S. 143-52.1
prior to the contract being awarded. After contracts have been awarded, the
Secretary of Administration shall certify to the departments, institutions and
agencies of the State government the sources of supply and the contract price
of the supplies, materials and equipmentgoods so contracted for.
…."
SECTION 4. G.S. 143-53 reads as rewritten:
"§ 143-53. Rules.
(a) The Secretary of Administration may adopt rules governing the following:
…
(3) Defining
contractual services for the purposes of G.S. 143-49(3) and G.S. 143-49(5).
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(5) Prescribing
conditions under which purchases and contracts for the purchase, installment or
lease-purchase, rental or lease of equipment, materials, supplies or goods
and services may be entered into by means other than competitive bidding,
including, but not limited to, negotiation, reverse auctions, and acceptance of
electronic bids. Reverse auctions may only be utilized for the purchase or
exchange of supplies, equipment, and materials as provided in G.S. 115C-522.
Notwithstanding the provisions of subsections (a) and (b) of this section, any
waiver of competition for the purchase, rental, or lease of equipment,
materials, supplies, orgoods and services is subject to prior review
by the Secretary, if the expenditure exceeds ten thousand dollars ($10,000).
The Division may levy a fee, not to exceed one dollar ($1.00), for review of
each waiver application.
…
(7) Prescribing
conditions and procedures governing the purchase of used equipment,
materials and supplies.goods.
…."
SECTION 5. G.S. 143-55 reads as rewritten:
"§ 143-55.
Requisitioning for supplies by agencies; must purchase through sources
certified.
(a) Unless
otherwise provided by law, after where sources of supply have
been established by contract and certified by the Secretary of Administration
to the said departments, institutions and agencies as herein provided for, it
shall be the duty of all departments, institutions and agencies to make
requisition or issue orders on forms to be prescribed by the Secretary of Administration,
for all supplies, materials and equipmentpurchases required by
them upon the sources of supply so certified, and, except as herein otherwise
provided for, it shall be unlawful for them, or any of them, to purchase any
supplies, materials or equipment from other sources than those
certified by the Secretary of Administration. One copy of such requisition or
order shall be furnished to and when requested by the Secretary of
Administration.
…."
SECTION 6. This act becomes effective July 1, 2011.
In the General Assembly read three times and ratified this the 17th day of June, 2011.
s/ Walter H. Dalton
President of the Senate
s/ Thom Tillis
Speaker of the House of Representatives
s/ Beverly E. Perdue
Governor
Approved 11:43 a.m. this 27th day of June, 2011