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10.0231 Methods of source selection.

Cite as [A.S.A.C. § 10.0231]

(a) It is the policy of the government to conduct all purchases and procurement actions in a manner that provides maximum open and free competition.

(b) Unless otherwise authorized by law, all government contracts shall be executed by competitive sealed bidding, in accordance with Subsection 10.0231, except as provided in:

(1) Subsection 10.0231 (c) for small purchases;

(2) Subsection 10.0231 (e) for negotiation; or

(3) Subsection 10.0231 (f) for emergency procurements.

(c) Small purchases. Any procurement not exceeding $10,000 including purchases made using impress funds shall be made using simplified small purchase procedures promulgated by the chief procurement officer. Procurement requirements may not be artificially divided so as to constitute a small purchase under this subsection and circumvent other source selection rules required under this section.

(d) Competitive sealed bidding.

(1) Conditions for use. Contracts shall be awarded by competitive sealed bidding except as provided in 10.0231(b).For this method to be used, the following conditions shall be present.

(a) A clear, complete, accurate, and realistic purchase description or specification for the good or service to be procured is available;

(b) The purchase description or specification does not contain unnecessarily restrictive requirements or features which may unduly limit the number of bidders;

(c) Two or more responsible bidders are willing and able to submit bids for the procurement; and

(d) The procurement requirements can be defined with sufficient accuracy so that a firm-fixed price contract can be executed, and selection of the successful bidder can be made principally on the basis of price.

(2) Invitation for Bids.An invitation for bids shall be issued and shall include:

(a) Request for Proposals number.

(b Date of issuance.

(c) Name, address, and location of issuing office including room and building where bids must b e submitted.

(d) Date, hour, and place of bid opening.

(e) A purchase description and/or specification for the goods or services to be procured in sufficient detail to permit full and open competition and allow bidders to properly respond to the invitation.Description and specifications shall conform to the requirements in Section 10.0243.

(f) Quantity of goods or services to be furnished.

(g) Time, place, and method of delivery or performance requirements.

(h) All requirements bidders must fulfill and other factors (if any) to be used in evaluation bids.

(i) Clauses required by Subsection 10. 0260 (d) of Section 10.0260.

(j) Bonding requirements for construction as required by subsection 10.0250 (b).

(k) Local preference evaluation factors when required by subsection 10.0272.

(l) Optional form (OF) 17, sealed bid label.

(3) Public notice. Public notice of the Request for Proposals shall be made at least one week prior to issuance date of the invitation. Such notice shall be furnished to all suppliers of the goods or services being procured who have requested to be included in bidders mailing lists; shall be published in a newspaper of general circulation in American Samoa, and foreign newspaper if required; and displayed at the office of the chief procurement officer, the U.S. Post Office, and at other appropriate public places. The notice shall contain:

(a) Request for Proposals number.

(b) Adequate description of the types and quantities of goods and services to be furnished.

(c) Information on how to obtain copies of the Request for Proposals, including any charges as required by subsection 10.0250(a).

(4) Bidding time. A reasonable time for prospective bidders to prepare and submit bids shall be allowed in all invitations, consistent with the needs of the government. A bidding time of 30 calendar days shall be provided, unless the chief procurement officer determines a shorter period is reasonable and necessary.

(5) Bidders mailing list. A list of potential bidders and suppliers requesting copies of invitations for bids in response to public notices shall be compiled and maintained by the chief procurement officer.

(6) Bid receipt. Bids, where received at the location specified in the Request for

Proposals, prior to the time set for opening, shall be kept unopened and secure in a locked receptacle. Bids which are opened by mistake shall be resealed in the envelope and the person who opened the bid shall write his signature and title on the envelope and deliver it to the chief procurement officer. No information contained in the bid shall be disclosed prior to bid opening.

(7) Bid opening. The bid opening official designated by the chief procurement officer shall determine when the time established for bid opening in the Request for Proposals has arrived and shall so declare to those present including at least one or more witnesses from government. All bids received prior to the time set for bid opening shall then be publicly opened, read aloud to the persons present, and recorded as to the name of the bidder and the amount of each bid.

(8) Recording of bids. The Request for Proposals number, bid opening date, names and addresses of bidders, prices bid, and evaluation as may be required by subsection 10.272 shall be entered in an abstract or record and shall be open to public inspection by interested persons. The record shall be completed as soon as practicable after the bid opening and the bid opening official shall certify the accuracy of the record.

(9) Bid Acceptance and evaluation. Bids shall be unconditionally accepted without alteration or correction except as authorized under paragraph (10) or (11). Bids shall be evaluated based on the requirements set forth in the Request for Proposals, which may include criteria as is necessary to reasonably permit a determination as to the acceptability of the bid. No criteria may be used in bid evaluation that are not set forth in the Request for Proposals.

(10) Bid rejection. A bid may be rejected for any of the following reasons, as determined in writing by the chief procurement officer:

(a) Failure to conform to essential requirements of the Request for Proposals such as specifications or time of delivery.

(b) Imposition of conditions or restrictions in the bid which modify requirements of the invitation or limit the bidders liability to the government. For example, bids shall be rejected in which the bidder:

(I) Protects against future changes in conditions. Such as increased costs;

(II) Fails to state a price and indicates that price shall be the price in effect at time of delivery;

(III) States a price but qualifies it as subject to price in effect at time of delivery;

(IV) Limits the rights of the government under any Request for Proposals provisions. A low bidder may be requested to delete objectionable limitations from a bid provided such conditions do not affect price, quantity, quality, or delivery of the goods or services offered.

(c) Unreasonableness as to price.

(d) A low bid from a nonresponsible bidder as determined in accordance with section 10.0233.

(e) Failure to furnish a bid guarantee as required by subsection 10.0250(b).

(11) Correction or withdrawal of bids; cancellation of awards. Correction or withdrawal of inadvertently erroneous bids, before or after award, or cancellation of awards or contracts based on such bid mistakes must be supported by a written determination made by the chief procurement officer and approved by the Attorney General or designee. After bid opening, no changes in bid price or other provisions of bids prejudicial to the interest of the government or fair competition shall be permitted. A suspected bid mistake requires the government to request confirmation of the bid. Where there is an appearance of an obvious mistake, the bidder shall be requested to reconfirm the bid prior to award. In such an instance, if the bidder alleges an error the government shall only permit correction of the bid or withdrawal of the bid in accordance with subparagraph (A) or (B) below.

(a) Correction of bids. Correction of bid shall only be permitted when:

(1) An obvious clerical mistake is clearly evident from examining the bid document. Example of such mistakes are: obvious misplacement of a decimal point; errors in extension of unit prices; errors in addition; and obvious mistakes in designation of a unit or

(II) The otherwise low bidder alleges a mistake and the intended bid is evident from the bid document or is otherwise supported by clear and convincing evidence in the form of bid worksheets or other information which supports the bid intended and the bid, as corrected, remains the low bid. A low bid may not be permitted to correct a bid mistake resulting from an error in judgment.

(b) Withdrawal of bids. Withdrawal of a bid shall only be permitted where the otherwise low bidder alleges a mistake and there is clear and convincing evidence as to the existence of a mistake but not as to the bid intended.

(c) Cancellation of awards. Cancellation of awards or contracts shall only be permitted when:

(1) Evidence as to the existence of the mistake is not discovered until after award;

(II) There exists no clear and convincing evidence to support the bid intended; and

(III) Performance of the contract at the award price would be unconscionable.

(l2) Award. A contract shall be awarded with reasonable promptness by written notice to the lowest reasonable, responsive, responsible bidder whose bid fully meets the requirements of the Request for Proposals and the rules set forth in this chapter. Unsuccessful bidders shall be promptly notified.

(13) Negotiation after opening of bids. After the opening of bids, if all bids exceed available funds as certified under section 10.0221, and the bid of the lowest responsive and responsible bidder does not exceed those funds by more that 5%, and time and economic considerations preclude re-solicitation of the work at a reduced scope, the chief procurement officer is authorized to negotiate an adjustment of the bid price, including changes in Request for Proposals requirements, with the lowest responsive and responsible bidder in order to bring the bid price within the amount of the available funds. The negotiation of the price and changes in bid requirements shall be documented in written determination made by the chief procurement officer and included in the contract file.

(e) Negotiation.

(1) Competitive

(a) Conditions for use. Contracts may be awarded by competitive negotiation when the chief procurement officer determines in writing that the use of competitive sealed bidding under subsection 12.0231(d) is not practicable because of the nature of the goods or services to be procured.

(b) Requests for proposals. A request for proposals shall be issued and shall include:

(I) Request for proposal number.

(II) Date of Issuance

(III) Name, address, and location of issuing office including address for submission of proposals.

(IV) Date for submission of proposals.

(V) Description of the required goods or services to be procured.

(VI) Evaluation criteria to be used by the government in evaluating proposals on a technical and cost basis.The relative importance of the evaluation criteria shall be stated so all offerors clearly understands the basis of award.

(VII) Instructions for offerors to use in submitting technical and cost proposals, including number of copies required.

(VIII) Quantity of goods or services to be furnished.

(IX) Time, place, and method of delivery or performance requirements

(X) Clauses required by section 10.0260

(c) Public Notice. Public notice shall be made in accordance with paragraph 10.0231(d) (3).

(d) Proposal times. Proposal times shall conform to the requirements in paragraph 10.0231(d) (4).

(e) Offerors mailing list. A list of prospective offerors shall be prepared in accordance with the requirements of paragraph 10.0231(d) (5).

(f) Receipt of proposals. Proposals shall be opened and used only by government personnel authorized to participate in evaluation. No information contained in a proposal shall be disclosed to the public until after contract award. Proposals shall be protected so as to avoid disclosure of contents to competing offerors.

(g) Evaluation. Proposals shall be evaluated by the government in accordance with the evaluation criteria contained in the request for proposals. No other criteria may be used. The results of the evaluation shall be documented and a determination shall be made by the Chief procurement officer of those responsible offerors whose proposals are reasonably susceptible of being selected for award. The determination shall be included in the contract file.

(h) Discussions. Discussions shall be conducted with those responsible offerors whose proposals are determined by the chief procurement officer to have a reasonably susceptible chance of being selected for award. These discussions shall be conducted for the purpose of obtaining clarification from the offeror on its proposal to ensure full understanding of, and responsiveness to the request for proposal requirements.Discussions shall be conducted individually with each offeror and care shall be exercised to ensure that no information derived from competing offerors proposal is disclosed. All offerors with whom discussions are conducted shall be afforded the same time period to revise their proposals and submit a best and final offer to the government based on the discussions.

(i) Final offers. Best and final offers received from offerors shall be evaluated by the government using the evaluation criteria contained in the request for proposals and the results shall be documented and included in the contract file.

(j) Award. Award shall be made to the responsible offeror whose proposal is determined in writing by the chief procurement officer to be most advantageous to the government considering price and the evaluation criteria contained in the request for proposal. Unsuccessful offerors shall be promptly notified.

(2) Noncompetitive.

(a) Conditions for use. Contracts may be awarded without competition when the chief procurement officer determines in writing that award of a contract is infeasible under small purchase, competitive sealed bidding, or competitive negotiation procedures and that there is only one source available to furnish the required construction, goods, or services. The written determination shall be prepared by the requisition initiator and shall contain the following information:

(I) The unique capabilities of the source that are required why they are required, and the degree of consideration given to other sources.

(II) The facilities or equipment of the source that are required, why they are required and if they are unavailable from other sources.

(III) Whether the work is a continuation of contract work previously performed by the source and the additional time, expense, or duplication of effort required to bring another source up to that level.

(IV) Whether drawings or specification suitable for competitive negotiation are available. If unavailable, explain why and the time and expense required to develop them.

(V) Other sources given consideration and specific reasons why they lack the qualifications required for the procurement.

(f) Emergency Procurement.

(1) Conditions for use. Notwithstanding any other provision of this chapter, the governor may make or authorize a governmental body to make an emergency procurement where there exists a threat to public health, welfare, or safety under emergency conditions as defined under Section 26.0105(d) ASCA. An emergency procurement must be as competitive as practicable under the circumstances.

(2) Documentation. A written determination describing the basis for the emergency, the extent of competition obtained, and the basis for selection of a particular contractor shall be prepared, reviewed by the Attorney General, and approved by the Governor, before contract award. The determination shall be included in the contract file.

History: Rule 5-84, eff 11 Jul 84, (part).