§ 41-4-133 — Competitive Sealed Proposals

(a)(1) A contract may be entered into by competitive sealed proposals when the Chief Procurement Officer or the head of a purchasing agency, in accordance with rules, determines that the use of competitive sealed bidding is either not practicable or not advantageous to the state. Unless determined otherwise by the Chief Procurement Officer, professional services shall be procured by competitive sealed proposals.
(2) The Chief Procurement Officer may determine by rule when it is either not practicable or advantageous to the state to procure specified types of supplies or services by competitive sealed bidding.
(b) Proposals shall be solicited through a request for proposals.
(c) Adequate public notice of the request for proposals shall be given in the same manner as provided in subsection (c) of Section 41-4-132.
(d) Proposals shall be opened so as to avoid disclosure of contents to competing offerors prior to contract award. A register of proposals shall be prepared in accordance with rules and shall be open for public inspection after award of the contract.
(e) A request for proposals shall state the relative importance of price and other factors and subfactors, if any.
(f) Discussions may be conducted with responsible offerors who submit proposals determined by the Chief Procurement Officer or purchasing agency to be reasonably competitive for award to assure full understanding of, and responsiveness to, the solicitation requirements. The determination of the Chief Procurement Officer or purchasing agency is not subject to review. Offerors shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals. Revisions of proposals may be permitted after submissions and prior to award for the purpose of obtaining best and final offers. In conducting discussions, there may not be disclosure of any information derived from proposals submitted by competing offerors.
(g) Contracts shall be awarded to the responsible offeror whose proposal conforms to the solicitation and is determined in writing to be the most advantageous to the state, 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. Public notice of the award of a contract shall be promptly given.
(h) The Chief Procurement Officer may provide debriefings that furnish the basis for the source selection decision and contract award.
(i)(1) Before soliciting proposals, the Chief Procurement Officer may authorize issuance of a request for qualifications from prospective offerors. The request shall contain, at a minimum, a description of the scope of work to be solicited by the request for proposals, the deadline for submission of information, and how prospective offerors may apply for consideration. The request shall require information concerning the prospective offeror’s product specifications, qualifications, experience, and ability to perform the requirements of the contract. Adequate public notice of the request for qualifications shall be given in the same manner as provided in subsection (c) of Section 41-4-132.
(2) After receipt of the responses to the request for qualifications from prospective offerors, all qualified offerors, as determined by the Chief Procurement Officer, shall have an opportunity to submit proposals. The determination regarding which offerors are qualified is not subject to review.
(3) If a professional service provider is prohibited by law or policy from submitting proposals in response to a request for proposals, the Chief Procurement Officer or purchasing agency
shall
utilize the request for qualifications process to determine the awardee.
(j)(1) In addition to the requirements of Section 34-11-35.1(d)
or any rule adopted thereunder,
the professional services of architects, landscape architects, engineers, land surveyors, and geoscientists shall be procured in accordance with competitive, qualification-based selection policies and procedures. Selection shall be based on factors to be developed by the procuring state entity which may include, among others, the following:
a. Specialized expertise, capabilities, and technical competence, as demonstrated by the proposed approach and methodology to meet project requirements.
b. Resources available to perform the work, including any specialized services within the specified time limits for the project.
c. Record of past performance, quality of work, ability to meet schedules, cost control, and contract administration.
d. Availability to and familiarity with the project locale.
e. Proposed project management techniques.
f. Ability and proven history in handling special project contracts.
(2) Notice of a need for professional services shall be widely disseminated to the respective professional community in a full and open manner. Procuring state entities shall evaluate professionals that respond to the notice of need based on the state entity’s qualification-based selection process criteria. The procuring state entity shall then make a good faith effort to negotiate a contract for professional services from the selected professional after first discussing and refining the scope of services for the project with the professional.
(3) For those governmental bodies subject to the requirements of this article, where the Division of Construction Management of the Department of Finance has set a fee schedule for the professional services sought, the fees shall not exceed the schedule without approval of the Director of the Division of Construction Management and the Governor.

Legislative History

(Act 2021-296, §2; Act 2022-357, §1; Act 2023-547, §1.)