SUBCHAPTER 06B – PROCUREMENT REQUESTS
section .0100 - REQUISITIONING
09 NCAC 06B .0101 agency requests for authorization
(a) The purchasing agency shall request authorization for procurement
action exceeding its delegated authority from the State CIO by means of
electronic or written requests, except in cases where a purchase is allowed by
rule or other authority (e.g., emergency situations).
(b) Verbal requests from a purchasing agency for
authorization of procurement action exceeding delegated authority may be
accepted by ITS in emergency situations. Electronic or written confirmation
from the purchasing agency must follow any such request.
History Note: Authority G.S. 147-33.76(b1); 147-33.95(b);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .0102 VERBAL REQUESTS
History Note: Authority G.S. 147-33.76(b1);
147-33.95(b);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Repealed Eff. September 1, 2013.
09 NCAC 06B .0103 CONFIDENTIALITY of solicitation
documents
(a) In order to preserve fairness and encourage
competitiveness, all information and documentation in whatever form, (e.g.,
electronic, written, and verbal forms) relative to the development of a
solicitation for a proposed procurement shall be withheld from public
inspection until award from that solicitation, unless the purchasing agency
abandons or cancels the solicitation and indicates in its procurement records
that it does not intend to rebid the solicitation or continue the procurement
action.
(b) The purchasing agency may release such portions of the
material as it deems necessary in order to develop a solicitation under Rule
.0201 of this Subchapter or to debrief certain vendors as provided in Rule
.0405 of this Subchapter.
History Note: Authority G.S. 147-33.76(b1); 147-33.95(a);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
section .0200 - specifications
09 NCAC 06b .0201 development of it solicitation
documents and SPECIFICATIONS
(a) There shall be one or more types of IT solicitation
documents that include specifications established by the State CIO or any other
agency as statutorily authorized.
(b) The State CIO shall establish, develop, and maintain IT
solicitation documents and specifications that are current and intended for
general or repeated use and publish these forms on its website or other locations
available to the purchasing agency (also see 09 NCAC 06B .0302).
(c) Other types of solicitation specifications that manage
specific business needs may be originated by the purchasing agency and either
approved or modified as necessary by ITS to manage the State's information
technology effectively. A purchasing agency submitting other types of
specifications or solicitations must demonstrate how such specifications or
solicitations meets its respective business needs and whether other information
technologies are commercially available to satisfy those needs.
History Note: Authority G.S. 147-33.76(b1); 147-33.95(b);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .0202 NEED
The State CIO may inquire into the need for and level of
quality of goods or services requested by a purchasing agency in its
solicitation document. After consultation with the purchasing agency, the
State CIO may authorize or modify the level of specification to manage overall
direction of the State's information technology programs or services, or to
comply with 09 NCAC 06B .0301, Procurement Procedures, or other rules.
History Note: Authority G.S. 147-33.76(b1); 147-33.95(b);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .0203 DEVELOPMENT OF SPECIFICATIONS
History Note: Authority G.S. 147-33.95(b);
147-33.103(b);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Repealed Eff. September 1, 2013.
09 NCAC 06B .0204 ARTICLES FOR SPECIAL PURPOSES
Where articles are to be used:
(1) for educational or training purposes;
(2) by persons with disabilities;
(3) for test and evaluation or research purposes; or
(4) for any other special purpose deemed necessary by
the State CIO, consideration may be given to the suitability of such articles in
the preparation of procurement documents, including solicitation specifications,
evaluation of offers, requests for limited or waiver of competition, and the final
award of contracts. The State CIO shall consult with the purchasing agency
prior to making modification of any information or recommendation submitted by that
agency.
History Note: Authority G.S. 147-33.76(b1); 147-33.95(b);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .0205 SUBMISSION FOR ADOPTION
09 NCAC 06B .0206 COPIES OF SPECIFICATIONS
09 NCAC 06B .0207 CONFIDENTIALITY
History Note: Authority G.S. 147-33.95(b);
147-33.103(b);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Repealed Eff. September 1, 2013.
section .0300 – procurement authorization and procedures
09 ncac 06b .0301 PROCUREMENT PROCEDURES
(a) The procurement process of requesting or inviting an
offer(s) shall be managed by the purchasing agency, including use of standard
solicitation document language and terms and conditions established by the
State CIO. If an emergency situation or pressing need exists, the procurement
process requesting or inviting an offer(s) shall also be managed by the
purchasing agency, including the standard terms and conditions issued by the
State CIO, unless circumstances prohibit their use.
(b) All information technology purchases involving the
expenditure of state funds by the purchasing agency shall be competitively bid in
conformity with the "Best Value" information technology procurement
requirements in G.S. 143-135.9 and Rule .0302 of this Section. Exemptions may
be granted by the State CIO where limited competition, waiver of competition (See
Rule .0901 of this Subchapter), special delegation (see Rules .1303 and .1304
of this Section), exemption, or an emergency purchase is permitted by rule. Purchasing
agency procurements not included in a statewide term, convenience, enterprise
contract, or master agreement established by the State CIO shall comply with
the applicable general delegations and procedures (Rule .1304 of this Section):
(c) Agency Purchases: The agency head, or designee, shall
set forth in writing procedures for making purchases. For purchases where the
total requirements for goods and services involve an expenditure of state funds
that does not exceed the purchasing agency's general or special delegation
established by the State CIO, offers in conformity with G.S. 143-135.9 shall be
solicited as follows:
(1) The purchasing agency may advertise
solicitations for offers to provide small purchases through the State's
designated IT procurement website(s) or by an alternate method of advertising,
as may be approved by the State CIO in accordance with Rule .0314 of this Section;
(2) The purchasing agency shall award contracts
for purchases.
(d) For purchases governed by statute, where the total
requirements for goods and services involve an expenditure of State funds that exceeds
the purchasing agency's general or special delegation established by the State CIO,
offers in conformity with G.S. 143-135.9 shall be solicited as follows to
encourage competition:
(1) The purchasing agency shall issue documents
soliciting, requesting or inviting offers, as published by ITS;
(2) The purchasing agency shall include in
solicitation documents standard language, including general or standard terms
and conditions for technology purchases as published by ITS and in conformance
with Rule .0316 of this Section. If additional terms and conditions are used,
they shall not conflict with standard terms and conditions published pursuant
to 09 NCAC 06A .0101 unless prior written approval is obtained under Rule .0201
of this Subchapter; and
(3) The purchasing agency may also request from
the State CIO, known vendor sources amenable to competing for award of various
State procurements.
(4) For purchases exceeding an agency's general
or special delegation, the purchasing agency shall submit drafts of solicitation
documents to the State CIO for approval prior to proceeding with the procurement
process. The State CIO shall then engage in a review and approval process of
such solicitation documents to ensure that proposed and actual IT procurements
are advantageous to the State:
(A) After completing review and evaluation of offers
received, the purchasing agency may prepare and submit to the State CIO for
review a draft recommendation for award;
(B) After completing review and evaluation of offers
received, the purchasing agency shall submit to the State CIO a written, final
recommendation for award, including a copy of all offers received and all
supporting documentation with its recommendation;
(C) The State CIO shall then review and either approve
the recommendation or direct modification to the recommended procurement action
as deemed in the best interest of the State or as directed by the State CIO, (e.g.,
award, cancellation, rebid, negotiation with known sources of supply, etc.);
(D) The State CIO shall notify the purchasing agency of
any decision regarding that recommended procurement action; and
(E) Upon receipt of the State CIO notification, the
purchasing agency shall proceed with the respective procurement action as
directed.
(5) A contract term shall not be awarded for
more than three years including extensions and renewals, without the prior
approval of the State CIO, based on a determination that it is advantageous to
the State.
History Note: Authority G.S. 143-135.9; 147-33.76(b1); 147-33.91;
147-33.95;
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013.
09 NCAC 06B .0302 METHODS OF SOURCE SELECTION
Purchases governed by general delegation or statute shall be
solicited, and offers evaluated, in accordance with the following best value methods:
(1) The purchasing agency shall use the following steps
for best value procurements;
(a) The purchasing agency determines the
appropriate best value bidding method through development of one of the
solicitations set forth in Sub-item (1)(b) of this Rule;
(b) The following types of solicitations are
available from the State CIO or other types as may be approved by the State
CIO;
(i) Requests for Information (RFI), used for
gathering information to prepare a solicitation for offers;
(ii) Invitations for Bid (IFB), used when the
best value recommendation for award is based on the lowest priced or highest
qualified and technically acceptable selection method;
(iii) Requests for Quotation are used to contract
with a single vendor or a limited group of vendors for purchases of specific
goods and services or small purchases of goods, or pursuant to a waiver of competition
that satisfies Rule .0901 of this Subchapter;
(iv) Requests for Proposal (RFP), used for
purchases when the State needs to solicit solutions-based offers, where
negotiations with one or more vendors may be needed, or when the best value
recommendation for award is based on ranking all offers and will not be based
solely on the lowest priced-technically acceptable source;
(v) One-Step solicitation, used when both the
technical step one offer and price step two offer are submitted at the same
time;
(vi) Two-Step solicitation, used when the
technical step one offer and price step two offer are submitted and evaluated separately;
(c) The purchasing agency shall develop,
advertise, and publish its solicitation for offers in accordance with the rules
of this Subchapter;
(d) The purchasing agency shall hold any
scheduled conferences or site visits in accordance with published solicitation terms;
(e) The purchasing agency shall receive offers
in response to its solicitation and it shall then conduct a public bid opening and
prepare a tabulation of all offers received. For solicitations that allow for
negotiation after receipt of offers, only the names of offerors shall be
disclosed at the public bid opening or on the tabulation of offers received;
(f) The purchasing agency's evaluation
committee shall evaluate offers in accordance with the stated solicitation
selection method and evaluation criteria. For solicitations that include a
best value ranking process, the purchasing agency shall rank offers by using
any consistent rating or scoring methodology, which may include adjectival,
numerical, or ordinal rankings. The purchasing agency's evaluation shall
document relative strengths, deficiencies, weaknesses, and risks supporting its
award recommendation. Best-Value evaluation shall include evaluating quality factors
such as:
(i) State's total cost of ownership, meaning
summation of the State's total cost for acquiring, operating, maintaining, and
supporting a product or service over its projected lifetime to include
competitive price data; evaluation of the offeror's cost for actual and
anticipated components comprising its quotation, as applicable; and value-added
conditions or additional services included in the offer;
(ii) Technical merit of the offer including as
applicable, consideration for consistency and compatibility of the proposed
solution with the State's strategic program direction; maximum facilitation of
data exchange or systems integration; effectiveness of business solution and
approach to solicitation's specific purpose or objective; delivery and
implementation schedules; and guarantees, warranties, and return policies; and
(iii) Probability of the offeror performing the
work as stated in the solicitation on time, in a manner that accomplishes the
stated intent and business objectives, and that maintains compliance with
industry standards including, as applicable, consideration of the offeror's
financial stability; program or industry experience; past performance with the
State; expertise with similar projects, solutions, or technologies; its proven
development methodologies and tools, innovative use of technologies; or key
personnel and depth of additional resources, compared to scope and intent of
business need stated in the solicitation; etc.;
(g) The purchasing agency may communicate with
offerors after receipt of offers and in accordance with instructions,
procedures and terms set forth in the solicitation as well as those procedures appropriate
to the designated method of source selection. If negotiation is permitted in
the solicitation, the purchasing agency may also allow offerors to submit best
and final offers subsequent to negotiated changes in the initial offer or
previous offer;
(h) The purchasing agency evaluation committee
shall determine a final ranking of all offers under consideration using only
the criteria set forth in the solicitation. The purchasing agency evaluation
committee shall rank all responsive and responsible offerors from most
advantageous to least advantageous to the State, and document such in its final
award recommendation;
(i) Award must be made to the responsive and
responsible offeror whose offer is determined to be the most advantageous and
best value to the State, using all evaluation criteria set forth in the
solicitation (e.g., if the lowest price or highest qualified technically
acceptable method is designated in the solicitation, then award must be made to
the responsive and responsible offeror with the lowest price or highest
qualified technically accepted method.
(2) A trade off method of source selection may be
utilized when it is in the best interest of the State to award a contract using
a comparative evaluation of technical merit and costs. For a solicitation that
designates the trade-off source selection method, the following shall apply:
(a) All factors that will affect the contract
award recommendation and the relative importance of each shall be stated as
evaluation criteria in the published solicitation;
(b) The solicitation shall state the importance
or numerical weight of all evaluation criteria including consideration of price
and total cost of ownership;
(c) Offers shall be ranked according to the
evaluation criteria stated in the solicitation. The relative overall ranking
of any offer may be adjusted up or down when considered with, or traded-off
against, other non-price factors. For example, an offer with the lowest price
when compared to other offers would receive the best ranking in the price
evaluation category. However, if other non-price evaluation factors received
low rankings, the overall ranking of the offer would be reduced;
(d) Clarifications are permitted;
(e) If permitted in the solicitation terms, the
purchasing agency may also use negotiations, or other communications, after
receipt of an offer.
(3) The lowest priced or highest qualified technically
acceptable source selection method may be used when best value is expected to
result from selection of the highest qualified or technically acceptable offer
with the lowest evaluated price. When this method is designated in a
solicitation, the following shall apply:
(a) The factors that establish the requirements for
technical acceptability shall be set forth in the solicitation's evaluation
criteria. Evaluation criteria shall specify that the award will be made on the
basis of the lowest evaluated price or most highly qualified technically
acceptable of those offers that meet or exceed the acceptability requirements
for non-price factors;
(b) Trade-offs between price and non-price
factors are not permitted;
(c) Proposals are evaluated for acceptability
but are not ranked using the non-price factors.
(d) Clarifications are permitted;
(e) Negotiations are permitted with this
selection method for purchases over the purchasing agency's general delegation,
when so specified in the published solicitation. The purchasing agency may
negotiate with a potential vendor(s) in an effort to acquire the quality of
good or service needed at the best possible price, delivery, or terms and
conditions.
(4) Other competitive best value source selection
methodologies may be used if they are determined to be advantageous to the
state and are approved for use by the State CIO.
History Note: Authority G.S. 143-135.9; 147-33.76(b1); 147-33.91;
147-33.95; 147-33.101;
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013.
09 NCAC 06B .0303 Electronic OFFERS
The purchasing agency may accept offers submitted
electronically in response to solicitation documents if such offers comply with
these Rules and applicable laws. The purchasing agency's use of digital or
electronic signatures must be consistent with applicable statutes and rules.
The purchasing agency must authorize but may limit the use of electronic
methods of conducting a procurement based on the State's best interests, as
determined by the purchasing agency and approved by the State CIO if such
methods comply with these Rules and information technology security policies
established pursuant to G.S. 147-33.110 et seq.
History Note: Authority G.S. 66-58.5; 66-325;
147-33.95;
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .0304 RECALL OF OFFERS
An offeror may recall its offer by delivering a written
request to withdraw prior to acceptance of any offer related to that
procurement.
History Note: Authority G.S. 147-33.76(b1);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .0305 PUBLIC OPENING
(a) The purchasing agency shall publicly open and tabulate
all offers at the time, date and place identified in the solicitation. The
tabulation shall be made public at the time it is created unless otherwise
provided by these Rules.
(b) At the time of opening, only the names of offerors and
the goods or services offered shall be tabulated when negotiation after receipt
of offers is authorized by the solicitation terms, unless otherwise provided by
these Rules. The price offer(s) shall become available for public inspection
at the time of the award.
(c) There shall be at least two purchasing agency employees
present at the opening when "sealed offers" are required, and at
least one purchasing agency employee present when electronic offers are
required.
History Note: Authority G.S. 147-33.76(b1);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .0306 LATE offers
Offers not received by the due date and time as specified in
the solicitation shall not be considered.
History Note: Authority G.S. 147-33.76(b1);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .0307 clerical errors and clarifications
When the purchasing agency determines that an offer appears
to contain an obvious error or where a clerical error is suspected, the purchasing
agency may investigate or act upon the circumstances. Any action taken shall
not prejudice the rights of the public or other offerors. Where offers are
submitted substantially in accordance with the solicitation terms but are not
clear as to intent or some particular fact or where there are other
ambiguities, the purchasing agency may seek and accept clarifications or may
open communications as permitted by Rule .0302 of this Subchapter.
Clarifications shall not be utilized to cure material deficiencies or to
negotiate.
History Note: Authority G.S. 147-33.76(b1);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .0308 EXTENSION OF offer validity
When the purchasing agency determines it is in the State's
best interest, the purchasing agency may request that offerors extend the date through
which the offers are valid. Requests by the State for time extensions of offer
validity will not result in change to the prices as stated in the original
offer unless so specified in the request to extend or subsequently agreed to by
the purchasing agency in writing.
History Note: Authority G.S. 147-33.76(b1);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .0309 EVALUATION
(a) In determining the award of contracts, the purchasing agency
shall consider and evaluate responsive and responsible offers as provided by
statute and applicable rules.
(b) Only persons in the purchasing agency who are assigned
to evaluate the offers and accompanying information, or who are otherwise
assigned to participate in the procurement process, or others whose
participation may be determined necessary on the basis of subject matter
expertise by the purchasing agency or State CIO in the procurement process shall
possess offers, including any information submitted with the offers or any
information related to evaluation of offers, for the purpose of concluding the award
process.
(c) Clarification of offers or negotiation(s) with
offerors, if desired, shall be requested by the purchasing agency in writing. An
offeror's further participation in the evaluation process is not permitted
except as approved by the State CIO for the purpose of concluding the
evaluation or the award process.
(d) After award of the contract or when the need for the good
or service is canceled, the complete procurement file (see Rule .1402 of this
Subchapter) shall be available for public inspection except as set forth in
Rule .1001 of this Subchapter and except as provided by law; provided however,
that when a solicitation document is canceled and the purchasing agency intends
to reissue the solicitation, information that is confidential under Rule .0103
of this Subchapter and offers received prior to cancellation shall be withheld
from public inspection until the re-issued solicitation results in a contract
or termination of the procurement.
History Note: Authority G.S. 147-33.76(b1); 147-33.95(a);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .0310 NOTIFICATION OF AWARD
09 NCAC 06B .0311 LACK OF COMPETITION
09 NCAC 06B .0312 SOLICITATION DOCUMENTS
History Note: Authority G.S. 147-33.100; 147-33.103(b);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Repealed Eff. September 1, 2013.
09 NCAC 06B .0313 DIVISION OF commodities and service
needs
Commodities or service needs shall not be divided to keep
the expenditure under the purchasing agency's delegation to avoid following the
appropriate procurement processes and applicable rules. In the case of similar
and related items and groups of items, the dollar limits of delegated authority
apply to the total cost of ownership rather than the cost of any single item.
History Note: Authority G.S. 147-135.9; 147-33.76(b1); 147-33.101;
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .0314 ADVERTISEMENT and notice
(a) Requirement to Advertise, Publish and Notify:
(1) Solicitations: To maintain transparency
and encourage competition for award of business, the purchasing agency shall
advertise and publish solicitations for purchases exceeding the general
delegation as established by the State CIO for no less than 10 calendar days,
unless the State CIO waives the requirement for advertising;
(2) Addenda or Changes: Any changes or addenda
to a solicitation must be advertised and published with enough time to allow
for reasonable consideration and possible incorporation of any changes into
potentially competing vendors' response offers. Any changes or addenda to a
solicitation must be advertised and published for no less than two business
days from the scheduled offer due and opening date, unless the State CIO waives
the requirement to advertise and publish changes or addenda to a solicitation;
(3) Notices of Award: To maintain transparency
and promote future competitiveness, the notice of award shall be advertised for
no less than 30 calendar days, unless the State CIO waives the requirement to
advertise, publish, and issue a notice of award;
(4) Waiver of requirement to advertise and
notify must fall under one of the following conditions in order for the State
CIO to waive the requirement:
(A) Acquisition of commodities or services that are
subject to rapid price fluctuations or immediate acceptance;
(B) Emergency situations or pressing needs;
(C) Acquisition of goods or services needed for any
ongoing job, task, or project;
(D) Acquisition of goods or services where performance
or price competition is not available;
(E) Any determination that no useful purpose would be
served by requiring such; or
(F) Exceptions identified under Rule .1303 of this
Subchapter.
(b) Required method for Advertising, Publishing, and
Notifying: To maintain transparency and promote competitiveness:
(1) Solicitations:
(A) The purchasing agency shall electronically advertise
and continually publish solicitations via posting to the State's designated IT
procurement website, unless a waiver of advertisement method is granted by the
State CIO pursuant to waiver of competition under Rule .0901 of this Subchapter,
for cooperative agreements under Rule .1006 of this Subchapter, or direct
negotiation with vendors as permitted by Rule .0316 of this Subchapter;
(B) This Rule does not preclude a purchasing agency from
soliciting offers by additional direct mailings or additional advertisement;
(C) Required advertisement and publication data shall
include all relevant information pertaining to contacts and due dates, and the
complete solicitation document and any attachments (i.e., specifications;
requirements; terms and conditions; price model; etc.);
(D) If a purchasing agency head (or his/her designee)
determines that it is not feasible to electronically transmit (due to file
size, etc.) a particular solicitation document or attachment(s) through
the required method (e.g., a procurement library, architecture reference
documents, price model forms, etc.), then the purchasing agency must
still electronically transmit a summary notice or advertisement through the
designated IT procurement website. In such instance, the advertisement shall
include the required information with the addition of a brief explanation for
why the entire solicitation is not included, and shall instruct anyone
inquiring about the solicitation to contact the purchasing agency for a copy of
the actual solicitation document and any respective attachments.
(2) The required advertisement information
shall include:
(A) Purchasing agency name and website reference, and
designated IT procurement website reference;
(B) Assigned purchasing agency contact's name, telephone
number, and electronic mail address;
(C) Location address for delivery/receipt of offers;
(D) Solicitation identification number or reference;
(E) Title (i.e., scope or short description of
the good or service solicited);
(F) Due date and time for solicitation clarifications
or questions;
(G) Date, time, and location for opening of offers received;
(H) In addition to the specifications, offer terms and
conditions, award terms and conditions, etc., the solicitation document
must furnish the due date and time; method of request, e.g., regular
mail, or electronically via e-mail or facsimile, etc.; and an address
for receipt of requests for solicitation clarifications or questions; and
(I) Conference or site visit date, time and location;
assigned meeting contact person and that contact person's telephone number and
electronic mail address; and other relevant information relating to
attendance. If no conference or site visit is scheduled, then this shall be stated
in the advertisement and the solicitation document.
(3) Addenda or Changes: The same advertisement
method that is approved and followed for publishing a solicitation document
must also be followed for publishing any respective addenda or changes to the
solicitation and resulting notice of award, unless an exception is permitted Subparagraph
(5) of this Paragraph.
(4) Notices of Award:
(A) To the extent practicable, the purchasing agency
shall simultaneously issue an individual notice of award to all offerors
responding to the respective solicitation and shall publish the notice of award
via the approved method of advertisement for that solicitation and addendum Paragraph
(a) of this Rule;
(B) Notice of Award shall summarize the resulting
contract award information including identification of the advertised solicitation;
the awardee name and location; scope, start and end dates; authorized value
through original end date; and renewal options.
(5) Exceptions to Required Method:
(A) When the purchasing agency (or its designee) deems
there is a valid reason not to publish via the State's designated IT
procurement website, the purchasing agency may request from ITS a waiver of the
required method for advertising, publishing, and notifying;
(B) Valid reasons to request a waiver to the required
method include computer failure and networking difficulties;
(C) The purchasing agency's request for waiver of
required method shall include the rationale for requesting, a description of a
proposed alternate method, length of time proposed for advertising, and
explanation if the solicitation document and any attachments or addenda will
not be included or published with the advertisement;
(D) The purchasing agency's proposed alternate method to
the State's designated IT procurement website must be via other medium widely
distributed or commonly available to the public, such as publishing in a
newspaper, etc.;
(E) The rationale for requesting waiver of required
advertising method, requested alternate method, and respective ITS approval,
shall be documented and become part of the procurement file, open for public
inspection after award.
History Note: Authority G.S. 147-33.76(b1);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013.
09 NCAC 06B .0315 MANDATORY CONFERENCES/SITE VISITS
(a) When a solicitation requires potential offerors to
attend a mandatory conference or site visit, then the date, time, location, and
other details relating to attendance shall be given in the solicitation
document and in the advertisement.
(b) If only one potential offeror attends the mandatory
conference or mandatory site visit, the conference or site visit may be
conducted, but the purchasing agency shall investigate, as much as is
practicable, why only one potential offeror attended, and endeavor to ascertain
whether there is any competition available. If it is determined that
competition is available, time permitting, the purchasing agency may schedule
another conference or site visit, if deemed to be to the advantage of the State.
If it is determined that there is no competition available, then the
procurement may be handled as a waiver as permitted by Rule .0901 of this
Subchapter.
(c) The purchasing agency shall document details of the
conference or site visit as part of the official records required in Rule .1402
of this Subchapter.
(d) Any and all questions or clarifications by a potential
offeror regarding a solicitation document shall be addressed to the purchasing
agency contact so designated in the solicitation. Any and all revisions to the
solicitation document shall be made only by published addendum from the purchasing
agency. Verbal communications from whatever source are of no force or effect.
History Note: Authority G.S. 147-33.76(b1);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013.
09 NCAC 06B .0316 negotiation
(a) The purchasing agency shall conduct negotiations under
its general delegation. Negotiations may also be conducted to establish
contracts exceeding the purchasing agency's delegation, if the purchasing
agency receives prior approval to negotiate from the State CIO as permitted by
these Rules. Prior approval may be granted upon finding that the capabilities
and subject matter knowledge of the agency, availability of knowledgeable
personnel within the agency or ITS, use of non-state personnel, and costs of
engaging additional resources demonstrate that the agency's negotiation will be
more responsive, efficient, and cost-effective consistent with the requirements
of best value procurement.
(b) If a purchasing agency deems negotiations to be
advantageous to the State after receiving offers and then determines that
soliciting offers again would serve no purpose, the purchasing agency may then
conduct negotiations with sources of supply that appear to be capable of
satisfying the purchasing agency's business needs. The purchasing agency's negotiation
documentation shall include identification of issues or subjects of
negotiation, the agency's risk assessment therefor, trade off principles as
permitted by G.S. 143-135.9, and other matters directly arising from the
solicitation or offer. Negotiations shall be finalized in writing and shall
include standard language and terms and conditions issued by ITS, or such terms
as may be established pursuant to Paragraphs (c) or (d) of this Rule. If the
purchasing agency's negotiations are conducted with only one offeror, or if
only one offeror responds to a request to negotiate, then the purchasing agency
shall document the reasons for the lack of competition as part of the
procurement record under Rule .1402 of this Subchapter.
(c) Purchasing agency negotiations may be conducted under
Section .0900 of this Subchapter when conditions merit a limited or waiver of
competition or in other situations that are advantageous to the State as
determined by the State CIO.
(d) Modifications, waivers, or any other changes or
amendments to a solicitation, including language and terms and conditions
issued by the State CIO, made in the course of negotiations must be accompanied
by:
(1) Approval of the negotiating agency;
(2) Requested approval from ITS;
(3) Appropriate evaluation documentation
reflecting trade-offs between price and non-price factors; and
(4) Such other documentation as the State CIO may
require to conform with Rule .1402 of this Subchapter.
(e) Negotiations shall not materially alter the intent or
scope of the original solicitation document.
History Note: Authority G.S. 147-33.76(b1);
Eff. September 1, 2013.
section .0400 – rejection of offers
09 NCAC 06B .0401 REJECTION of offers
(a) Bases for rejection of an offer shall include, late
offers; the purchasing agency's determination that the offer is unsatisfactory
as to quantity, quality, delivery, price or service offered; the offeror's
failure to comply with the intent or conditions of the solicitation document;
the lack of competitiveness due to collusion or due to the knowledge that reasonably
available competition was not received; error(s) in specifications or
indication that revision(s) would be to the State's advantage; cancellation of,
or changes in, the intended project or other determination that the commodity
or service is no longer needed; limitation or lack of available funds;
circumstances that prevent determination of the lowest priced or highest
qualified technically acceptable offer or the best value offer; or any
determination that rejection would be in the best interest of the State.
(b) Unsigned offers shall be rejected by the purchasing
agency.
(c) The purchasing agency shall reject late offers and
shall not consider modification of offers or withdrawals of offers unless these
would have been timely except for the action or inaction of the agency
personnel serving the procurement process.
History Note: Authority G.S. 147-33.76(b1);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .0402 PUBLIC RECORD
09 NCAC 06B .0403 NEGOTIATION
History Note: Authority G.S. 147-33.103(b);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Repealed Eff. September 1, 2013.
09 NCAC 06B .0404 notice of rejection
(a) The purchasing agency shall not be required to provide
notice of rejection of offers prior to approval and award of a contract.
(b) When a competitive range is established by the
purchasing agency's evaluation committee, and offers are not included in such
range, the purchasing agency may provide notice to an offeror that its offer is
excluded, consistent with this Rule and as established in the solicitation.
(c) The purchasing agency may grant requests for debriefings
as provided herein, consistent with this Rule and as may be established in
solicitation documents.
History Note: Authority G.S. 147-33.76(b1);
Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .0405 debriefing offerors
(a) Pre- or post-award-debriefings of successful and
unsuccessful offerors may be completed by personal meeting or by written or
electronic communication (e.g., telephone, email, etc.).
(b) Debriefing shall not include point-by-point comparisons
of the debriefed offeror's proposal with those of other offerors. Moreover,
debriefing shall not reveal any information not then available for public inspection
or properly designated as confidential in accordance with Rule .1001 of this
Subchapter, the N.C. Public Records Law, or any other applicable laws.
(c) If debriefing is authorized by terms of the
solicitation:
(1) The purchasing agency shall implement the
debriefing process as follows;
(A) Include an official summary of the debriefing in the
record, per Rule .1402 of this Subchapter, by the protest-period due-date;
(B) To the maximum extent practicable, schedule a
debriefing within five business days after receipt of an offeror's written
request for a debriefing;
(C) If requested, grant at its discretion, rejected
offeror(s) a delayed debriefing for any good cause shown;
(2) Accommodation of a competing offeror
request for delayed debriefing does not extend the due dates for filing
protests.
(3) All competing offerors may request a
debriefing by submission of a written request to the purchasing agency not more
than three business days from notice of award date.
(4) Offeror may, if notified that it is not
included in the competitive range:
(A) Request a pre-award debriefing by delivering such
request to the purchasing agency not more than three business days after the
notice of rejection date; or
(B) Request a post-award debriefing by delivering a request
for such not more than three business days after the later of the notice of
rejection date or notice of the award date.
(5) Debriefing shall include review of the
committee's evaluation of vendor's proposal/offer per terms of the
solicitation, including:
(A) Any weaknesses, deficiencies, or risks to the
purchasing agency, identified in evaluation of the offeror's proposal;
(B) Evaluated cost or price (including unit prices) and
the State's total cost of ownership;
(C) Evaluated vendor responsibility to proposal,
including past performance information, etc., as applicable;
(D) Evaluated vendor responsiveness and the technical
merit of its proposal;
(E) Responses to relevant questions from the vendor
about whether source selection procedures, applicable regulations, or other
applicable authorities, were followed.
(6) If debriefing is post-award, the
information must include the items listed in Subparagraph (c)(4) of this Rule and
may also include:
(A) Overall ranking of all offerors; and
(B) A summary of the evaluation and rationale for award
to the successful offeror.
History Note: Authority G.S. 147-33.76(b1);
Eff. September 1, 2013.
section .0500 – inspection and testing
09 NCAC 06B .0501 RESPONSIBILITY
The purchasing agency shall inspect all materials, supplies,
and equipment upon delivery to verify compliance with the contract requirements
and specifications. The purchasing agency shall also be responsible for
verifying that services as provided comply with the terms of the contract.
History Note: Authority G.S. 147-33.76(b1);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .0502 inspection
The State CIO may inspect any items, or deliverables or
monitor performance to ensure that contractor compliance with contract specifications
and terms are met. The purchasing agency must ensure that goods or services
purchased comply with applicable codes, statutes, local ordinances, policies and
safety requirements.
History Note: Authority G.S. 147-33.76(b1);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .0503 SAMPLES
When samples are required in response to a solicitation
document, the purchasing agency may test those samples or have them tested at
other state or private sector testing facilities. Samples shall not be sent to
laboratories outside an agency unless it is determined by an agency that these
facilities have the capability, time, and expertise needed.
History Note: Authority G.S. 147-33.76(b1);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .0504 modifications to contract SPECIFICATIONS
When the purchasing agency determines it to be in the State's
best interest, it may authorize revisions to a contract specification,
including any cost adjustment associated with any such revision, as part of
contract administration. If an increase in cost results in the total contract
value being more than the purchasing agency's delegation, then the purchasing agency
shall obtain prior written approval for a special delegation from ITS pursuant
to Rule 06B .1304, regardless of what agency initially awarded the contract.
History Note: Authority G.S. 147-33.76(b1);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .0505 REPORT OF DISCREPANCY
Where delivered goods or services fail to meet the
specifications or contract requirements, the discrepancy shall be resolved by
the purchasing agency.
History Note: Authority G.S. 147-33.76(b1);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
section .0600 – Guarantees and warranties
09 NCAC 06B .0601 ENFORCEMENT
The purchasing agency shall enforce the contractual
guarantee or warranty applying to the goods or services purchased.
History Note: Authority G.S. 147-33.76(b1);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .0602 REPORT TO ITS
The purchasing agency shall report to the State CIO any
difficulties in obtaining satisfactory performance including service as
provided in a guarantee or warranty.
History Note: Authority G.S. 147-33.76(b1);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .0603 RESPONSIBILITY OF purchasing AGENCY
The purchasing agency must notify the vendor when latent or
other defects are discovered. In the event the vendor fails to remedy the
condition reported, the purchasing agency shall report the matter to ITS.
History Note: Authority G.S. 147-33.76(b1);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
SECTION .0700 - CONTRACTS
09 NCAC 06B .0701 contracts established by ITS
(a) In determining whether a good or service will be
included in an agency specific contract, the agency and the State CIO shall
consider available statewide term and convenience contracts and such factors as
volume, whether the good or service is necessary for an IT project, nature of
the good or service, repetitiveness of use, relative stability of prices, and delivery
or transportation costs.
(b) Term Contracts
(1) A "term contract" is a binding
agreement between the purchaser and seller to buy and sell IT goods or services
for a specific period of time at prices established by contract;
(2) A statewide term contract consolidates
normal, anticipated requirements of all State purchasing agencies into one
agreement and shall be awarded by the State CIO. No purchasing agency may
purchase IT goods or services included in a statewide term contract from any
other source unless authorized by the State CIO;
(3) If an agency documents to the State CIO a
need to establish an agency specific contract in lieu of a statewide term
contract or an expenditure not covered by a statewide term contract for which
the expenditure during the life of the contract exceeds the agency's general
delegation the purchasing agency, with the State CIO's approval, may issue a
solicitation document for the purpose of awarding an agency specific contract
for use by the purchasing agency in accordance with the determining factors set
forth in this Rule.
(c) Convenience Contracts
(1) A statewide IT "convenience contract"
is an agreement awarded by the State CIO for an indefinite quantity of goods or
services that may be used by a State purchasing agency. Convenience contracts
are not mandatory-use agreements;
(2) If an agency elects not to purchase the
goods or services it requires from an established convenience contract, then
that agency must comply with Rule .0301 of this Subchapter.
(d) A "master IT agreement" is an agreement
between a vendor and the State characterized by one or more of the following:
(1) Goods or services are, or may be, procured
from resellers, value added resellers (VARs), original equipment manufacturers
(OEMs), or others who represent the master agreement vendor;
(2) Goods or services are proprietary
intellectual property of the master agreement vendor; and
(3) Master agreements are established without
competitive bidding.
(e) Master agreements may result in agency or statewide
term or convenience contracts.
(f) Solicitations and vendor offers may modify terms of a
master agreement if the State's best interests are served and if such is
allowed via the terms of the solicitation.
(g) Master agreement terms and conditions may be negotiated
pursuant to Rule .0316 of this Subchapter.
History Note: Authority G.S. 147-33.76(b1);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013.
09 NCAC 06B .0702 DETERMINING FACTORS
History Note: Authority G.S. 147-33.76(b1);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Repealed Eff. September 1, 2013.
09 NCAC 06B .0703 EXTENSION OF CONTRACT TERMINATION
DATES
When in the best interest of the State, offerors may be
requested to extend the scheduled termination dates of contracts. Such
extensions shall not result in a change in the prices stated in the original
contract unless agreed to by the agency in writing. Extensions that result in
a cumulative contract value exceeding an agency's delegation must be submitted
to ITS for special delegation approval pursuant to Rule .1303 of this
Subchapter.
History Note: Authority G.S. 147-33.76(b1);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without substantive
public interest Eff. April 25, 2015.
SECTION .0800 - PARTIAL AND MULTIPLE AWARDS
09 ncac 06b .0801 USE
(a) Partial, progressive or multiple awards may be made when
it is advantageous to the State.
(b) Notwithstanding the necessity for awards to more than
one supplier, such awards shall be limited to the number of suppliers deemed
necessary to satisfy the intended requirements. Quantities shall not be
divided among offerors on definite quantity requirements unless and except as
provided in the solicitation and unless such division is determined to be in
the best interest of the State.
History Note: Authority G.S. 147-33.76(b1);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
SECTION 0900 – WAIVER OF COMPETITION
09 NCAC 06B .0901 CONDITIONS FOR LIMITED OR WAIVED
COMPETITION
(a) Under conditions listed in this Rule, and otherwise if
deemed to be in the public interest by the State CIO, competition may be limited
or waived where a factual basis demonstrates support of one or more of the
conditions set forth in Paragraph (b) of this Rule. If the procurement is within
a purchasing agency's general delegation, then the purchasing agency may waive
competition in conformance with this Rule. If the procurement is greater than
the agency's delegation, requests for limited or waived competition shall be
submitted to the State CIO for approval.
(b) Competition may be limited or waived under the
following conditions:
(1) competition is not available;
(2) a needed product or service is available
from only one source of supply;
(3) emergency action is indicated;
(4) competition has been solicited but no responsive
offers have been received;
(5) standardization or compatibility is the
overriding consideration;
(6) a donation stipulates the source of supply;
(7) personal or particular professional
services are required;
(8) a product or service is needed for a person
with disabilities and there are overriding considerations for its use;
(9) additional products or services are needed
to complete an ongoing job or task;
(10) a particular product or service is desired
for educational, training, experimental, developmental or research work;
(11) equipment is already installed, connected
and in service, and it is determined advantageous to purchase it;
(12) items are subject to rapid price fluctuation
or immediate acceptance;
(13) there is evidence of resale price
maintenance or other control of prices or collusion on the part of persons or
entities that thwarts normal competitive procedures unless otherwise prohibited
by law;
(14) a purchase is being made and a price is
available from a previous contract;
(15) the requirement is for an authorized
cooperative project with another governmental unit(s) or a charitable
non-profit organization(s); or
(16) a used item is available on short notice and
subject to prior sale.
History Note: Authority G.S. 147-33.76(b1);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013.
09 NCAC 06B .0902 APPROVAL AND DOCUMENTATION
Although competition may be limited or waived pursuant to
Rule .0901 of this Subchapter, the use of competition is required wherever an exception
is not approved. After a limitation or waiver of competition is approved as
provided in Rule .0901(a) of this Subchapter, negotiations with a potential
vendor(s) in an effort to acquire the quality of good or service needed at the
best possible price, delivery, terms and conditions, may be conducted.
History Note: Authority G.S. 147-33.76(b1);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
section .1000 – miscellaneous provisions
09 NCAC 06B .1001 CONFIDENTIALITY
(a) The offeror may designate information as a trade secret
pursuant to G.S. 132-1.2 and may otherwise designate information as
confidential as provided by law, citing the applicable statute on which the
claim of confidentiality is made (e.g., offers and supporting documents
meeting the criteria of North Carolina's Trade Secrets Protection Act requirements,
etc.). Offerors shall identify each page containing confidential
information in boldface at the top and bottom; e.g.,
"CONFIDENTIAL". Price(s) presented in response to a solicitation shall
not be deemed confidential.
(b) To promote maximum competition and to protect the
public competitive procedure from being used to obtain information that would
normally not be available otherwise, the purchasing agency shall maintain the
confidentiality of those portions of an offer properly designated as
confidential.
History Note: Authority G.S. 132-1.2; 147-33.76(b1); 147-33.95(a);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1002 PAYMENT PLANS
Purchase contracts may provide for payment over a period of
time. Such instances shall be justified in the procurement record, kept to a
minimum and shall include approval from the agency head for payment provisions
when payments will be made over a period of time. Agency heads and governing boards
of an agency shall ensure that the agency complies with statutory and State
fiscal requirements.
History Note: Authority G.S. 147-33.76(b1);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1003 CHANGE IN CORPORATE STRUCTURE OR
ASSIGNMENT
A vendor shall not assign a state contract without prior
written approval from the purchasing agency. In cases where the vendor seeks to
assign its contract prior to the State's written approval of an assignment, the
vendor assignor shall affirm in writing to the State that the assignee is fully
capable of performing all obligations of the vendor under the contract. In
cases where vendors who have been awarded contracts are involved in corporate
consolidations, acquisitions, or mergers, the purchasing agency may negotiate
agreements for the transfer of contractual obligations and the continuance of
contracts within the framework of the new corporate structures.
History Note: Authority G.S. 147-33.76(b1);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1004 PURCHASING FROM OR THROUGH AGENCY
EMPLOYEES
Written approval of the State CIO is required before an
agency purchases goods or services from or through an agency employee. In
deciding whether to grant approval, the State CIO shall consider the type of
item or service needed, the prevailing market conditions, whether competition
is available, the cost involved, and the effects of doing business with the
employee.
History Note: Authority G.S. 147-33.76(b1);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1005 Anticompetitive, deceptive, and
fraudulent practices
(a) A purchasing agency shall act to prevent the
continuance of anticompetitive, deceptive, or fraudulent practices.
Anticompetitive practices include actions involving offerors that restrain
trade or commerce or eliminate competition.
(b) Anticompetitive, deceptive, or fraudulent practices may
be evidenced by one or more of the following:
(1) Conspiracy (in restraint of trade or
commerce);
(2) Combination bidding (in restraint of trade
or commerce);
(3) Price fixing (which may include reliance
upon an industry price list);
(4) Collusion;
(5) Identical bidding;
(6) Agreements to:
(A) Rotate offers;
(B) Share the profits with an offeror who is not the low
offeror;
(C) Sublet work in advance of bidding as a means of
preventing competition;
(D) Refrain from bidding;
(E) Submit prearranged offers;
(F) Submit complementary offers;
(G) Set up territories to restrict competition;
(H) Alternate bidding; or
(I) Any other unlawful act in restraint of trade or
commerce.
(c) Agency actions to discourage or prevent the continuance
of anticompetitive, deceptive, or fraudulent practices may include the
following:
(1) Rejecting the offending offeror's offer;
(2) Awarding a bid to an offeror with a cost or
technical proposal that is evaluated lower than the offending offeror's
proposal; and
(3) Recommending that the State CIO suspend an
offeror from doing business with the State;
(d) The purchasing agency shall report evidence of
anticompetitive, deceptive or fraudulent practices to the Attorney General's
office and any other appropriate law enforcement authority.
History Note: Authority G.S. 75-1, et seq.; 133-24, et
seq.; 147-33.76(b1);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1006 COOPERATIVE PURCHASING
When an agency participates in a cooperative project with
another governmental entity or with a non-profit organization, goods and
services necessary for the project shall be procured according to the Rules in
this Chapter. If the interest of the State would be better served by one of
the following procurement methods, the State CIO may authorize procurement by:
(1) Making or authorizing acquisition on behalf
of such governmental entity or non-profit organization;
(2) Authorizing acquisition on the State's
behalf under the provisions of another state or another governmental entity,
provided due consideration is given by the State CIO to the differences in
purchasing rules, regulations, and procedures of the contracting entity; or
(3) Authorizing acquisition on the State's
behalf under provisions of the U.S. General Services Administration Supply
Schedule 70 and Consolidated Schedule for Information Technology purchases.
History Note: Authority G.S. 147-33.76(b1);
147-33.95(b)(2)(a);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1007 RESERVED FOR FUTURE CODIFICATION
09 NCAC 06B .1008 BOARD OF AWARDS
History Note: Authority G.S. 143-52.1; 147-33.76(b1); 147-33.95;
147-33.101;
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. March 1, 2001;
Repealed Eff. September 1, 2013. (See Rule 06A .0103).
09 NCAC 06B .1009-.1029 REserved for future
codification
09 NCAC 06B .1030 DEFAULT PROCEEDINGS; DEBARMENT
(a) The agency that issued the solicitation document
resulting in the contract may find a contractor in default of contract for
failing to perform in accordance with the contract requirements, terms and
conditions. If a contractor is found in default of contract, the agency that
issued the solicitation document resulting in the contract may take action,
immediate if necessary, to purchase the needed goods or services on the open
market and charge any additional cost for the goods or services and expense for
doing so to the defaulting contractor. If an agency finds a contractor in
default, such action and the circumstances shall be reported by the agency to
ITS in writing. This does not limit any other remedies that may be available to
the state or agency.
(b) ITS may remove the contractor from any distribution
lists that may be utilized and debar the contractor from doing IT procurements
with the state for a period a period of one year. ITS shall notify any
contractor of debarment action in writing.
History Note: Authority G.S. 147-33.103(b);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1031 FAITHFUL PERFORMANCE
(a) A bond, or other means of ensuring faithful
performance, may be required of the contractor at the contractor's expense.
(b) Liquidated damages may be provided for in the contract,
as a means of ensuring faithful performance from the contractor.
(c) The agency may hold as a retainage a percentage of the
contract value to be remitted upon final acceptance by the agency.
(d) The agency may withhold final payment contingent on
acceptance of the final deliverable.
History Note: Authority G.S. 147-33.103(b);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
SECTION .1100 - BID PROTEST, CONTESTED CASE PROCEDURE
09 NCAC 06B .1101 RIGHT TO HEARING
Whenever ITS or the State CIO acts in such a way as to
affect the rights, duties, or privileges of a party, that party may request a
hearing in accordance with this Section and G.S. 150B, Article 3A.
History Note: Authority G.S. 150B-38;
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. March 1, 2001;
Recodified from 09 NCAC 06B .1010 Eff. March 19, 2008;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1102 PROTEST PROCEDURES for award of
contracts
(a) To ensure fairness to all offerors and to promote open
competition, the purchasing agency shall respond to an offeror's protest over IT
contract awards.
(b) This Rule applies to IT contracts with an estimated
value of twenty-five thousand dollars ($25,000) or more. The purchasing agency shall
establish procedures to address protests by offerors where the award value is less
than twenty-five thousand dollars ($25,000).
(c) When an offeror protests a contract awarded by an
agency of twenty-five thousand dollars ($25,000) or more in value, the agency
and the offeror shall comply with the following:
(1) The offeror shall deliver a written request
for a protest meeting to the agency head or his designee within 15 calendar
days from the date of contract award. The agency head shall furnish a copy of
the written request to the State CIO within 10 calendar days of receipt. The offeror's
request shall contain specific reasons and any supporting documentation
regarding why there is a concern with the award. If the request does not
contain this information or the agency head determines that a meeting would
serve no purpose, then the agency head, within 10 calendar days from the date
of receipt, may respond in writing to the offeror and refuse the protest
meeting request. A copy of the agency head's letter shall be forwarded to the State
CIO.
(2) If the protest meeting is granted, the agency
head shall give written notice to the State CIO and any awarded vendor of the
date and time of the protest meeting. The agency shall give notice to the
awarded vendor and the State CIO stating whether any purchase order or
performance has been suspended or terminated. The agency head shall schedule
the meeting within 30 calendar days after receipt of the letter, unless a later
date is accepted by the protesting party and the agency. Within 10 calendar
days from the date of the protest meeting, the agency head shall respond to the
offeror in writing with an agency decision. A copy of the agency head's letter
shall be forwarded to the State CIO.
(3) If a protest is determined to be valid by
the State CIO then the following outcomes may occur:
(A) The award and issued purchase order shall be
canceled and the solicitation for offers to contract is not re-bid;
(B) The award and issued purchase order shall be
canceled and the solicitation for offers to contract is re-bid;
(C) The award and issued purchase order shall be
canceled and the contract shall be awarded to the next lowest priced,
technically competent, qualified offeror, if that offeror agrees to still honor
its submitted bid.
(d) When an offeror protests a contract awarded by the State
CIO that is twenty-five thousand dollars ($25,000) or more in value, the State
CIO and the offeror shall comply with the following:
(1) The offeror shall deliver a written request
for a protest meeting to the State CIO within 15 calendar days from the date of
contract award. The offeror's request shall contain specific reasons and any supporting
documentation regarding the offeror's concern with the award. If the request
does not contain this information or the State CIO determines that a meeting
would serve no purpose, then the State CIO, within 10 calendar days from the
date of receipt of the offeror's protest, may respond in writing to the offeror
and refuse the protest meeting request. A copy of the State CIO's letter shall
be forwarded to the designated hearing officer.
(2) If the protest meeting is granted, the State
CIO shall attempt to schedule the meeting within 30 calendar days after receipt
of the offeror's protest unless a later date is accepted by the protesting
party and the State CIO. Within 10 calendar days from the date of the protest
meeting, the State CIO shall respond to the offeror in writing with a decision.
A copy of the decision shall be forwarded to the designated hearing officer.
(e) When an offeror protests a statewide term or convenience
contract or master agreement established by the State CIO, the State CIO and
the offeror shall comply with the following:
(1) The offeror shall deliver a written request
for a protest meeting to the State CIO within 15 calendar days from the date of
the contract award. The offeror's request shall contain specific reasons and
any supporting documentation regarding the offeror's concern with the award.
If the request does not contain this information or the State CIO determines
that a meeting would serve no purpose, the State CIO, within 10 calendar days
from the date of receipt of the offeror's request shall respond in writing to
the offeror and refuse the protest meeting request. A copy of the State CIO's
letter shall be forwarded to the designated hearing officer.
(2) If the protest meeting is granted, the
State CIO shall give written notice to the designated hearing officer and any
awarded vendor of the date and time of the protest meeting. Notice shall be
given to the awarded vendor and the designated hearing officer stating whether
any purchase order or performance has been suspended or terminated. The State
CIO shall schedule the meeting within 30 calendar days after receipt of the
offeror's protest unless a later date is accepted by the protesting party and the
State CIO. Within 10 calendar days from the date of the protest meeting, the
State CIO shall respond to the protesting offeror in writing with a decision. A
copy of the decision shall be forwarded to the designated hearing officer.
(f) If a party desires further administrative review after
receiving a decision under Paragraph (c), (d), or (e) of this Rule, the
protesting party may, within 60 days from the date such decision is received,
request a hearing and final decision by the State CIO in accordance with these
Rules and Article 3A of G.S. 150B. When further administrative review involves
a contract awarded by an agency that is twenty-five thousand dollars ($25,000) or
more in value, the agency shall be a party in any further review processes.
(g) The signature of an attorney or party on a protest
constitutes a certification by the signer that the signer has read such
document; that to the best of the signer's knowledge, information, and belief
formed after reasonable inquiry, it is well grounded in fact and is warranted
by existing law; and that it is not interposed for any improper purpose such as
to harass, cause unnecessary delay or a needless increase in the cost of the
procurement or of the litigation. If a protest is determined to be frivolous
or to have been filed without any substantial basis or reasonable expectation
to believe that the protest was meritorious, the State CIO, upon motion or upon
his own initiative, may impose any sanction available under the N.C. Rules of
Civil Procedure. Notification to the affected party shall be in writing.
History Note: Authority G.S. 147-33.76(b1); 150B-38;
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. March 1, 2001;
Recodified from 09 NCAC 06B .1009 Eff. March 19, 2008;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1103 REQUEST FOR HEARING
(a) A request for an administrative hearing under Rule .1101
of this Section must be in writing and shall contain the following information:
(1) name and address of the person requesting
the hearing;
(2) a concise statement of the departmental
action being challenged;
(3) a concise statement of the manner in which
the petitioner is aggrieved; and
(4) a clear and specific demand for a public
hearing.
(b) A request for hearing shall be delivered to the State
CIO, or ITS hearing officer, by U.S. Postal Service, commercial or private
courier. A request for hearing shall be addressed to the attention of the
State CIO or Hearing Officer, N.C. Office of Information Technology Services, P.O.
Box 17209, Raleigh, North Carolina 27619-7209; or N.C. Office of Information
Technology Services, 3700 Wake Forest Road, Raleigh, North Carolina, 27609.
History Note: Authority G.S. 147-33.76(b1); 150B-38(a);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. March 1, 2001;
Recodified from 09 NCAC 06B .1011 Eff. March 19, 2008;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1104 DEFINITIONS
The definitions contained in G.S. 150B-2 are incorporated in
this Section by reference. In addition to those definitions, the following definitions
apply to this Section:
(1) "File or filing" means to place or the
placing of the paper or item to be filed into the care and custody of the
hearing officer. All documents filed with the hearing officer, except
exhibits, shall be in duplicate in letter size 8 1/2" by 11".
(2) "Hearing officer" shall be the State CIO
or appointee under G.S. 150B-40 as the presiding officer, or an administrative
law judge assigned under G.S. 150B-40. The phrase "a majority of the
agency," or "an agency" as specified in G.S. 150B-40 shall be
interpreted in these Rules to mean the State CIO. The phrase "an agency
member" or "member of an agency," if not applicable by its terms
to the State CIO, shall not be applicable in these Rules.
(3) "Service or serve" means, unless
otherwise provided by law or Rule 4 of the North Carolina Rules of Civil
Procedure, delivery by first class United States Postal Service mail or a
licensed overnight express mail service, postage prepaid and addressed to the
person required to be served at his or her last known address. A certificate of
service by the person making the service shall be appended to every document
requiring service under this Section. Service by mail or licensed overnight
express mail is complete upon placing the item to be served, enclosed in a
wrapper addressed to the person to be served, in an official depository of the
United States Postal Service; or postage prepaid and wrapped in a wrapper
addressed to the person to be served, to an agent of the overnight express mail
service.
History Note: Authority G.S. 147-33.76(b1); 150B-40;
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. March 1, 2001;
Recodified from 09 NCAC 06B .1012 Eff. March 19, 2008;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1105 GENERAL PROVISIONS
The following general provisions apply to this Section:
(1) The Rules of Civil Procedure as contained in G.S.
1A-1 and the General Rules of Practice for the Superior and District Courts as
authorized by G.S. 7A-34 and found in the Rules Volume of the North Carolina
General Statutes apply in matters before the hearing officer unless another
specific statute or rule provides otherwise.
(2) ITS may supply, at the cost for copies, forms for
use in contested cases.
(3) Every document filed with the hearing officer shall
be signed by the author of the document, and shall contain his name, address,
telephone number, and North Carolina State Bar number if the author is an
attorney. An original and one copy of each document shall be filed. In any
proceeding referred to the Office of Administrative Hearings (OAH) pursuant to
G.S. 150B-40, parties shall deliver a copy of each document filed with the OAH
to the State CIO.
(4) Hearings shall be conducted, as nearly as
practical, in accordance with the practice in the Trial Division of the General
Court of Justice.
(5) This Section and copies of all matters adopted by
reference in this Section are available from ITS at cost.
(6) The rules of statutory construction contained in
Chapter 12 of the General Statutes apply in the construction of this Section.
The rules contained in this Section govern the conduct of contested case
hearings under Article 3A of Chapter 150B of the General Statutes.
(7) Unless otherwise provided in a specific statute,
time computations in contested cases under this Section are governed by G.S. 1A-1,
Rule 6.
(8) If the State CIO determines that a hearing would
assist him or her in reaching a decision, he or she may schedule a hearing,
notwithstanding the fact that no request for a hearing has been received. In
such cases the State CIO's written documentation shall be treated as a request
for hearing.
(9) The hearing officer may designate legal counsel as
an advisor on matters of law for the benefit of the hearing officer during the
proceedings.
History Note: Authority G.S. 147-33.76(b1); 150B-38(h);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. March 1, 2001;
Recodified from 09 NCAC 06B .1013 Eff. March 19, 2008;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1106 ORDER FOR PREHEARING STATEMENTS
The hearing officer may serve all parties with an order for
prehearing statements together with, or after service of, the notice of hearing.
Every party thus served shall, within 30 days after service, file the requested
statements setting out the party's present position on the following:
(1) The nature of the proceeding and the issues to be
resolved;
(2) A brief statement of the facts and reasons
supporting the party's position on each matter in dispute;
(3) A list of proposed witnesses with a brief
description of their proposed testimony;
(4) A description of the discovery, if any, the party
will seek to conduct prior to the contested case hearing and an estimate of the
time needed to complete discovery;
(5) Venue considerations;
(6) Estimation of length of the hearing;
(7) The name, address, and telephone number of the
party's attorney, if any; and
(8) Other matters permitted under Article 3A of Chapter
150B.
The prehearing statement shall not be used to amend the
original protest or to establish jurisdiction not previously established by the
protest or request for hearing.
History Note: Authority G.S. 147-33.76(b1); 150B-38(h);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Recodified from 09 NCAC 06B .1014 Eff. March 19, 2008;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1107 DUTIES OF THE HEARING OFFICER
(a) In conjunction with the powers in this Section, in Article
3D of Chapter 147 of the General Statutes and in G.S. 150B, Article 3A the
hearing officer shall perform the following duties, consistent with law and as
recommendations to the State CIO, if the hearing officer is not the State CIO:
(1) Hear and rule on motions;
(2) Grant or deny continuances;
(3) Issue orders regarding prehearing matters,
including directing the appearance of the parties at a prehearing conference;
(4) Examine witnesses when deemed to be
necessary to make a complete record and to aid in the full development of
material facts in the case;
(5) Make preliminary, interlocutory, or other
orders as deemed to be appropriate;
(6) Recommend a summary disposition of the case
or any part thereof when there is no genuine issue as to any material fact or
recommend dismissal when the case or any part thereof has become moot or for
other reasons; and
(7) Apply sanctions in accordance with Rule .1114
of this Section.
(b) Recommended final agency decision. If an appointed
hearing officer presides over any hearing, the hearing officer shall issue a
written recommended final agency decision. The appointed hearing officer shall
serve a copy of the recommended final agency decision upon all parties and the
State CIO. Upon review of the recommended decision issued by the appointed
hearing officer, the State CIO may adopt, modify or vacate the recommended
decision and notify the parties. The State CIO shall make the final agency
decision.
(c) Hearing conducted by the State CIO. In lieu of
assigning a hearing officer to preside over any hearing, the State CIO may
conduct the hearing. After the time for the filing of proposed findings of
fact and conclusions of law by the parties expires, the State CIO shall issue a
final agency decision.
(d) The recommended decision of the hearing officer, if
any, and the decision of the State CIO shall be in writing and shall include
findings of fact and conclusions of law. The report, decision or determination
of the State CIO upon review shall be final unless further appeal is made to
the courts under the provisions of Chapter 150B of the General Statutes.
History Note: Authority G.S. 147-33.76(b1); 150B-38(h);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. March 1, 2001;
Recodified from 09 NCAC 06B .1015 Eff. March 19, 2008;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1108 CONSENT ORDER; SETTLEMENT; STIPULATION
Informal disposition may be made of a contested case or an
issue in a contested case by stipulation, agreement, or consent order at any
time during the proceedings. Parties may enter into such agreements on their
own or may ask for a settlement conference with the hearing officer to promote
consensual disposition of the case. Any such disposition must be approved in
writing by the State CIO.
History Note: Authority G.S. 147-33.76(b1); 150B-38(h);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Recodified from 09 NCAC 06B .1016 Eff. March 19, 2008;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1109 SETTLEMENT CONFERENCE
(a) A settlement conference is for the primary purpose of
assisting the parties in resolving disputes and for the secondary purpose of
narrowing the issues and preparing for hearing. Notice of the conference may
be included in the pre-hearing conference notice or in a separate written
order. The purpose of a settlement conference is to:
(1) Explore any grounds upon which a contested
case may be resolved without the need for a hearing; and
(2) Pursue any other matters which will reduce
the cost, save time, simplify the issues to be heard, or otherwise aid in the
expeditious disposition of the matters to be addressed by the hearing.
(b) Unless the parties and the hearing officer agree, a
unilateral request for a settlement conference does not constitute good cause
for a continuance. The conference shall be conducted at a time and place
agreeable to all parties and the hearing officer. It shall be conducted by
telephone if any party would be required to travel more than 50 miles to
attend, unless that party agrees to travel to the location set for the
conference. If a telephone conference is scheduled, the parties must be
available by telephone at the time of the conference.
(c) All parties shall attend or be represented at a
settlement conference. Parties or their representatives shall be prepared to
participate in settlement discussions.
(d) The parties shall discuss the possibility of settlement
before a settlement conference if they believe that a reasonable basis for
settlement exists.
(e) At the settlement conference, the parties shall be
prepared to provide information and to discuss all matters required in Rule .1106
of this Section.
(f) If, following a settlement conference, a settlement has
not been reached but the parties have reached an agreement on any facts or
other issues, the hearing officer presiding over the settlement conference
shall issue an order confirming and approving, if necessary, those matters
agreed upon. The order is binding on the parties and on the hearing officer who
is assigned to hear the case and subject to final approval by the State CIO if
the hearing officer is not the State CIO.
History Note: Authority G.S. 147-33.76(b1); 150B-38(h);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. March 1, 2001;
Recodified from 09 NCAC 06B .1017 Eff. March 19, 2008;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1110 PREHEARING CONFERENCE
(a) The purpose of the prehearing conference is:
(1) to simplify the issues to be determined;
(2) to obtain stipulations in regard to
foundations for testimony or exhibits;
(3) to obtain stipulations or other agreements
as to the facts or the application of particular laws;
(4) to consider the proposed witnesses for each
party;
(5) to identify and exchange documentary
evidence intended to be introduced at the hearing;
(6) to determine dates or schedules for the
completion of any discovery;
(7) to establish hearing dates and locations if
not previously set;
(8) to consider such other matters that may be
necessary or advisable; and, if possible,
(9) to reach a settlement without the necessity
for further hearing. Any final settlement shall be set forth in a settlement
agreement or consent order and made a part of the record.
(b) Upon the request of any party or upon the hearing
officer's own motion, the hearing officer may hold a prehearing conference
before a contested case hearing. The hearing officer may require the parties
to file prehearing statements in accordance with Rule .1106 of this Section. A
prehearing conference on the simplification of issues, amendments,
stipulations, or other matters may be entered on the record and may be made the
subject of an order by the hearing officer. Venue for purposes of a prehearing
conference shall be determined in accordance with G.S. 150B-38(e).
History Note: Authority G.S. 147-33.76(b1); 150B-38(h);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Recodified from 09 NCAC 06B .1018 Eff. March 19, 2008;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1111 DISCOVERY
(a) Discovery methods are means designed to assist parties
in preparing to meet their responsibilities and protect their rights during
hearings without unduly delaying, burdening, or complicating the hearings
process and with due regard to the rights and responsibilities of other parties
and persons affected. Accordingly, parties shall exhaust all less formal
opportunities to obtain discoverable material before utilizing this Rule.
(b) Any means of discovery available pursuant to the North
Carolina Rules of Civil Procedure, G.S. 1A-1, is allowed. If the party from
whom discovery is sought objects to the discovery, the party seeking the
discovery may file a motion with the hearing officer to obtain an order
compelling discovery. In the disposition of the motion, the party seeking
discovery shall have the burden of showing that the discovery is needed for the
proper presentation of the party's case, is not for purposes of delay, and that
the issues in controversy warrant the discovery. In ruling on a motion for
discovery, the hearing officer shall recognize all privileges recognized at
law.
(c) When a party serves another party with a request for
discovery, that request need not be filed with the hearing officer but shall be
served upon all parties.
(d) The parties shall immediately commence to exchange
information voluntarily, to seek access as provided by law to public documents,
and to exhaust other informal means of obtaining discoverable material.
(e) Unless otherwise ordered, all discovery shall be
completed no later than the first day of the hearing. The hearing officer may
shorten or lengthen the period for discovery and adjust hearing dates accordingly
and, where necessary for a fair and impartial hearing, allow discovery during
the pendency of the hearing.
(f) Unless otherwise ordered, no later than 15 days after
receipt of a notice requesting discovery, the receiving party shall:
(1) Move for relief from the request;
(2) Provide the requested information, material
or access; or
(3) Offer a schedule for reasonable compliance
with the request.
(g) Sanctions for failure of a party to comply with an
order of the hearing officer made pursuant to this Rule shall be as provided
for by G.S. 1A-1(37), to the extent that a hearing officer may impose such
sanctions, and Rule .1114 of this Section.
History Note: Authority G.S. 147-33.76(b1); 150B-38(h);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Recodified from 09 NCAC 06B .1020 Eff. March 19, 2008;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1112 CONSOLIDATION OF CASES
(a) The hearing officer may order a joint hearing of any
matters at issue in contested cases involving common questions of law or fact
or multiple hearings involving the same or related parties, or may order the
cases consolidated or make other orders to reduce costs or delay in the hearings.
(b) A party requesting consolidation shall serve a motion for
consolidation on all parties to the cases to be consolidated and shall file the
original with the hearing officer. Any party objecting to the motion shall
serve and file its objections within five days after service of the petition
for consolidation.
(c) Upon determining whether cases shall be consolidated,
the hearing officer shall serve a written order on all parties that contains a
description of the cases for consolidation and the reasons for the decision.
(d) Nothing contained in this Rule prohibits the parties
from stipulating and agreeing to a consolidation, which shall be granted upon
submittal of a written stipulation, signed by every party, to the hearing
officer.
(e) Following receipt of a notice of or order for
consolidation, any party may move for severance by serving a motion on all
other parties and filing it with the hearing officer at least seven days before
the first scheduled hearing date. If the hearing officer finds that the
consolidation will prejudice any party, he shall order the severance or other
relief that will prevent the prejudice from occurring.
History Note: Authority G.S. 147-33.76(b1); 150B-38(h);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Recodified from 09 NCAC 06B .1019 Eff. March 19, 2008;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1113 SUBPOENAS
The cost of service, fees, and expenses of any witnesses
subpoenaed shall be paid by the party at whose request the witness appears. A
party seeking an order imposing sanctions for failure to comply with any
subpoena issued under this Rule must prove proper service of the subpoena.
History Note: Authority G.S. 150B-38(h);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Recodified from 09 NCAC 06B .1021 Eff. March 19, 2008;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1114 SANCTIONS
(a) If a party fails to appear at a hearing or fails to
comply with an interlocutory order of the hearing officer, the hearing officer
may:
(1) Find that the allegations of or the issues
set out in the notice of hearing or other pleading may be taken as true or
deemed to be proved without further evidence;
(2) Dismiss or grant the motion or petition;
(3) Suppress a claim or defense; or
(4) Exclude evidence.
(b) In the event that any party, attorney at law, or other
representative of a party fails to comply with a subpoena, engages in behavior
that obstructs the orderly conduct of proceedings, or would constitute contempt
if done in the General Court of Justice, the hearing officer may enter a show
cause order returnable in Superior Court for contempt proceedings in accordance
with G.S. 150B-40(c)(6).
(c) If a witness fails to comply with a subpoena, the
hearing officer may enter a show cause order returnable in Superior Court for
contempt proceedings in accordance with G.S. 150B-40(c)(6).
History Note: Authority G.S. 150B-38(h);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Recodified from 09 NCAC 06B .1022 Eff. March 19, 2008;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1115 MOTIONS
(a) Unless otherwise required or permitted by these Rules,
any party may file any motion which would be permitted under the Rules of Civil
Procedure as though the contested case was a matter pending in a civil trial
court. Motions practice in contested cases before the hearings officer
pursuant to G.S. 150B, Article 3A, shall be governed by Rule 6 of the Rules of
Civil Procedure and the General Rules of Practice for the Superior and District
Courts of North Carolina.
(b) The opposing party may file such response as is
permitted by the Rules of Civil Procedure to any such motion within the time
permitted by the Rules of Civil Procedure.
(c) The hearing officer shall rule on any correctly filed
motion. The hearing officer may rule on any motion with or without oral
argument. The hearing officer shall notify the parties of the location, date,
and time for oral argument if, in the hearing officer's discretion, oral
argument is necessary for a full and complete record. The notice shall indicate
whether the argument is to be conducted in person or by conference call.
History Note: Authority G.S. 150B-38(h);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Recodified from 09 NCAC 06B .1023 Eff. March 19, 2008;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1116 INTERVENTION
(a) Any person not named in the notice of hearing who
desires to intervene in a contested case as a party shall file a timely motion
to intervene and shall serve the motion upon all existing parties. Timeliness
shall be determined by the hearing officer in each case based on circumstances
at the time of filing. The motion shall show how the movant's rights, duties,
or privileges may be determined or affected by the contested case; shall show
how the movant may be directly affected by the outcome or show that the
movant's participation is authorized by statute, rule, or court decision; shall
set forth the grounds and purposes for which intervention is sought; and shall
indicate movant's statutory right to intervene if one exists.
(b) Any party may object to the motion for intervention by
filing a written notice of objections with the hearing officer within five days
after service of the motion if there is sufficient time before the hearing. The
notice of objection shall state the party's reasons for objection and shall be
served upon all parties. If there is insufficient time before the hearing for a
written objection, the objection may be made at the hearing.
(c) When the hearing officer deems it to be necessary to
develop a full record on the question of intervention, he may conduct a hearing
on the motion to determine specific standards that will apply to each
intervenor and to define the extent of allowed intervention.
(d) The hearing officer shall allow intervention upon a
proper showing under this Rule, unless he finds that the movant's interest is
adequately represented by one or more parties participating in the case or
unless intervention is mandated by statute, rule, or court decision. An order
allowing intervention shall specify the extent of participation permitted the
intervenor and shall state the hearing officer's reason. An intervenor may be
allowed to:
(1) File a written brief without acquiring the
status of a party;
(2) Intervene as a party with all the rights of
a party; or
(3) Intervene as a party with all the rights of
a party but limited to specific issues and to the means necessary to present
and develop those issues.
History Note: Authority G.S. 150B-38(h);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Recodified from 09 NCAC 06B .1024 Eff. March 19, 2008;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1117 CONTINUANCES
(a) A request for a continuance of a hearing shall be
granted upon a showing of good cause. Unless time does not permit, a request
for a continuance of a hearing shall be made in writing to the hearing officer
and shall be served upon all parties of record. In determining whether good
cause exists, due regard shall be given to the ability of the party requesting
a continuance to proceed effectively without a continuance. A request for a
continuance filed within five days before a hearing shall be denied unless the
reason for the request could not have been ascertained earlier.
(b) During a hearing, if it appears in the interest of
justice that further testimony should be received and sufficient time does not
remain to conclude the testimony, the hearing officer shall either order the
additional testimony taken by deposition or continue the hearing to a future
date for which oral notice on the record is sufficient.
(c) A continuance shall not be granted if granting it would
prevent the case from being concluded within any statutory or regulatory
deadline.
(d) As used in this Rule, "good cause" includes
death or incapacitating illness of a party, representative, or attorney of a party;
a court order requiring a continuance; lack of proper notice of the hearing; a
substitution of the representative or attorney of a party if the substitution
is shown to be required; a change in the parties or pleadings requiring
postponement; and agreement for a continuance by all parties if either more
time is necessary to complete mandatory preparation for the case, such as
authorized discovery, and the parties and the hearing officer have agreed to a
new hearing date or the parties have agreed to a settlement of the case that
had been or is likely to be approved by the hearing officer.
(e) As used in this Rule, "good cause" does not
include: intentional delay; unavailability of counsel or other representative
because of engagement in another judicial or administrative proceeding unless
all other members of the attorney's or representative's firm familiar with the
case are similarly engaged; unavailability of a witness if the witness'
testimony can be taken by deposition; or failure of the attorney or
representative to properly utilize the statutory notice period to prepare for
the hearing.
History Note: Authority G.S. 150B-38(h);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Recodified from 09 NCAC 06B .1025 Eff. March 19, 2008;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1118 RIGHTS AND RESPONSIBILITIES OF PARTIES
(a) A party has the right to present evidence, rebuttal
testimony, and argument with respect to issues of fact, law and policy; and to
cross-examine witnesses, including the author of a document prepared by, on
behalf of, or for use of the agency and offered in evidence.
(b) A party shall have all evidence to be presented, both
oral and written, available on the date for hearing. Requests for subpoenas,
depositions, or continuances shall be made within a reasonable time after their
needs become evident to the requesting party. In cases when the hearing time is
expected to exceed one day, the parties shall be prepared to present their
evidence at the date and time ordered by the hearing officer or agreed upon at
a prehearing conference.
(c) The hearing officer shall send copies of all orders or
decisions to all parties simultaneously. Any party sending a letter, exhibit,
brief, memorandum, or other document to the hearing officer shall
simultaneously send a copy to all other parties.
(d) All parties have the continuing responsibility to
notify the hearing officer of their current addresses and telephone numbers.
(e) If a party has notified other parties of that party's
representation by an attorney, all communications shall be directed to that
attorney.
(f) With the approval of the hearing officer, any person
may offer testimony or other evidence relevant to the case. Any nonparty
offering testimony or other evidence may be questioned by parties to the case
and by the hearing officer.
(g) Before issuing a recommended decision to the State CIO,
the hearing officer may order any party to submit proposed findings of fact and
written arguments. Before issuing a final decision in a contested case which
has been assigned by the State CIO to a person other than the State CIO as
described in G.S. 150B-40(e) and these Rules, the State CIO shall order parties
to submit proposed findings of fact and written arguments.
History Note: Authority G.S. 150B-38(h);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Recodified from 09 NCAC 06B .1026 Eff. March 19, 2008;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1119 WITNESSES
Any party may be a witness and may present witnesses on the
party's behalf at the hearing. All oral testimony at the hearing shall be
under oath or affirmation and shall be recorded. At the request of a party or
upon the hearing officer's own motion, the hearing officer may exclude
witnesses from the hearing room so that they cannot hear the testimony of other
witnesses.
History Note: Authority G.S. 150B-38(h);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Recodified from 09 NCAC 06B .1027 Eff. March 19, 2008;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1120 EVIDENCE
(a) The North Carolina Rules of Evidence as found in G.S.
Chapter 8C govern in all contested case proceedings, except as provided
otherwise in this Section and G.S. 150B-41.
(b) The hearing officer shall admit all evidence that has
probative value. Irrelevant, incompetent, immaterial, or unduly repetitious
evidence shall be excluded. The hearing officer may, in his discretion, exclude
any evidence if its probative value is substantially outweighed by the risk
that its admission will require undue consumption of time or create substantial
danger of undue prejudice or confusion.
(c) Contemporaneous objections by a party or a party's
attorney are not required in the course of a hearing to preserve the right to
object to the consideration of evidence by the hearing officer in reaching a
decision or by the court upon judicial review.
(d) All evidence to be considered in the case, including
all records and documents or true and accurate photocopies thereof, shall be
offered and made a part of the record in the case. Except as provided in
Paragraph (f) of this Rule, factual information or evidence that is not offered
shall not be considered in the determination of the case. Documentary evidence
incorporated by reference may be admitted only if the materials so incorporated
are available for examination by the parties.
(e) Documentary evidence in the form of copies or excerpts
may be received in the discretion of the hearing officer or upon agreement of
the parties. Copies of a document shall be received to the same extent as the
original document unless a question is raised about the accuracy or
authenticity of the copy or, under the circumstances, it would be unfair to
admit the copy instead of the original.
(f) The hearing officer shall take official notice of
standards and policies that have been established by ITS pursuant to Article 3D
of Chapter 147 of the General Statutes. The hearing officer may take official
notice of additional facts or documents as requested by a party or within the
specialized knowledge of the hearing officer by entering a statement of the
noticed fact or document and its source into the record.
(g) When the State CIO takes official notice of evidence
not in the record when making a final decision, the parties shall be afforded
notice and a hearing to present arguments against the consideration of such
evidence before a final decision is made.
History Note: Authority G.S. 150B-38(h);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Recodified from 09 NCAC 06B .1028 Eff. March 19, 2008;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1121 final agency decision; OFFICIAL RECORD
(a) A copy of any decision or order shall be served as in
the manner provided by G.S. 150B-42(a). The cost of the service, fees, and
expenses for any witnesses or documents subpoenaed shall be paid in accordance
with G.S. 150B-39(c) and G.S. 7A-314.
(b) The official record of a contested case is available
for public inspection during the agency's business hours except for those
portions, if any, that the hearing officer ordered sealed as consistent with
applicable law.
(c) The hearing officer may, consistent with law, order
part or all of an official record sealed.
(d) The official record shall be prepared in accordance
with G.S. 150B-42.
(e) Contested case hearings shall be recorded either by a
recording system or a court reporter using stenomask or stenotype.
(f) Costs for a court reporter's services including
transcript costs and other copying costs incurred shall be charged to or
apportioned equally among the party or parties requesting a transcript or
copies of other records.
(g) A 24-hour hearing cancellation notice is required in
all cases. The party or parties responsible for the cancellation shall be
liable for any cancellation fees.
(h) Transcripts of proceedings during which oral evidence
is presented shall be made only upon request of a party. Transcript costs shall
include the cost of an original. An attorney requesting a transcript on behalf
of a party is a guarantor of payment of the cost. Cost shall be determined
under supervision of the hearing officer who may require an advance security
deposit to cover the prospective cost. The security deposit shall be applied to
the actual cost and any excess shall be returned to the party that submitted
it.
(i) Copies of tapes or other transcript media used (e.g.,
CDs) are available upon written request at a cost of five dollars ($5.00) per tape
or CD.
(j) Copies of the hearing audio recordings, or non-ITS certified
transcripts from those audio recordings are not part of the official record.
History Note: Authority G.S. 150B-38(h);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. March 1, 2001;
Recodified from 09 NCAC 06B .1029 Eff. March 19, 2008;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
section .1200 – declaratory rulings; default proceedings;
disqualifications; and debarment
09 NCAC 06B .1201 declaratory rulings
(a) Any request for a determination regarding the application
of a relevant rule, statute or standard established by the State CIO to a
specific factual situation must be directed to the State CIO. The request for
a ruling will follow the Rules of this Section and applicable statutes. A
declaratory ruling proceeding may include written submissions, an oral hearing,
or other procedure as may be appropriate in the circumstances of the particular
request.
(b) Declaratory rulings pursuant to G.S. 150B-4 shall be
issued by the State CIO only on the validity of a relevant rule or standard or
on the applicability of a rule or order of the State CIO to stipulated facts.
A declaratory ruling shall not be issued on a matter requiring an evidentiary
proceeding.
(c) As used in this Section, "standard" shall
refer to and include such standards, policies and procedures adopted by the
State CIO pursuant to authority found in Article 3D of Chapter 147 of the N.C.
General Statutes.
(d) The petitioner must possess such an interest in the
question to be ruled on that the petitioner's need to have such a ruling in
order to comply with statutory requirements, ITS rules, or standards shall be
apparent from the petition and shall be explained therein.
History Note: Authority G.S. 147, Article 3D; 150B,
Article 4;
Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1202 requests for declaratory rulings
(a) Requests for a declaratory ruling shall be in writing,
dated and verified by the person submitting the same.
(b) The request shall contain:
(1) The petitioner's name, address and
telephone number;
(2) The rule or statute, or both, referred to;
(3) A statement of facts supporting the
petitioner's request for a declaratory ruling;
(4) The petitioner's option, a statement of any
legal authorities, in support of the interpretation given the statute or rule
by the petitioner;
(5) A concise statement of the manner in which
the petitioner is aggrieved by the rule, statute, or standard, or its potential
application to the petitioner;
(6) A statement of the practices or procedures
likely to be affected by the requested declaratory ruling and the persons
likely to be affected by the ruling.
(7) A draft of the declaratory ruling sought by
the petitioner, if a specified outcome is sought by the petitioner; and
(8) A statement of whether the petitioner
desires to present oral argument.
History Note: Authority G.S. 150B-104;
Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1203 response to a request for a
declaratory ruling
(a) The State CIO shall consider the request within 30 days
of receipt. The State CIO shall issue a ruling except:
(1) When the State CIO finds that the person
making the request is not a "person aggrieved," as defined in G.S.
150B-2(6);
(2) When the State CIO finds, in a request
concerning the validity of a rule, that the rulemaking record shows that the
agency considered all factors identified by the petitioner as specific or
relevant when the rule in question was adopted;
(3) When the State CIO finds that the person
requesting the ruling is not directly or indirectly affected substantially in
his person, property, or public office or employment by the rule, statute, or
order of the department which is the subject of the request;
(4) When the petition does not state with
enough specificity the factual situation involved, or the question is presented
in such a manner that the State CIO cannot determine what the question is, or
that the State CIO cannot respond with a specific ruling that will be binding
on all parties;
(5) When the State CIO has made a determination
in a similar contested case, or where the factual context being raised for a
declaratory ruling was specifically considered upon the adoption of the rule or
directive being questioned, as evidenced by the rulemaking record; or
(6) Where the subject matter of the request is
involved in pending litigation or contested case in any state or federal court
in North Carolina.
(b) The State CIO shall, not later than the 30th day after
receiving such a request, deposit in the United States mail, postage prepaid, a
written statement addressed to the person making the request and setting forth
the ruling on the merits of the request for a declaratory ruling, or setting
forth the reason the ruling was not made, as the case may be. The State CIO may
rule at any meeting convened to consider the request, or defer the ruling until
a later date, but not later than the 30th day after the request for a ruling is
received. The State CIO may gather additional information, may give notice to
other persons and may permit such other persons to submit information or
arguments under such conditions as are set forth in any notice given to the
requesting party.
(c) Whenever the State CIO believes for good cause that the
issuance of a declaratory ruling is undesirable, he may refuse to do so. When
good cause for refusing to issue a declaratory ruling is deemed to exist, the
State CIO shall notify the petitioner of his decision in writing, stating
reasons for the denial of a declaratory ruling.
(d) The State CIO shall consider a request to make a
declaratory ruling on the validity of a rule only when the petitioner shows
that circumstances are so changed since adoption of the rule that such a ruling
would be warranted, or that the rule-making record for the rule evidences a
failure by the agency to consider facts presented in the petition at the time
of adoption of the rule. The petitioner shall state in his request the
consequences of a failure to issue a ruling.
History Note: Authority G.S. 150B-4;
Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1204 effect of a declaratory ruling
For purposes of this Section, a declaratory ruling shall be
deemed to be in effect until:
(1) The statute or rule interpreted by the declaratory
ruling is amended or repealed;
(2) The State CIO changes the declaratory
ruling prospectively; or
(3) Any court sets aside the ruling.
History Note: Authority G.S. 150B-4;
Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1205 Record of Ruling
A record of all declaratory rule making proceedings shall be
maintained at the State CIO's office and shall be available for public
inspection during business hours.
History Note: Authority G.S. 150B-4;
Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1206 DEFAULT PROCEEDINGS; disqualification;
and DEBARMENT
(a) Disqualification: The purchasing agency may find a
vendor in default of contract for failing to perform in accordance with the
contract requirements, terms and conditions. If a vendor is found in default
of contract, the purchasing agency may take action, immediate if necessary, to
purchase the needed goods or services on the open market and charge any
additional cost for the goods or services and expense for doing so to the
defaulting vendor. If an agency other than ITS finds a vendor in default, such
action and the circumstances shall be reported by the agency to ITS in writing.
This does not limit any other remedies that may be available to the state or
agency.
(b) Causes for Debarment or Suspension: The causes for
debarment or suspension include the following:
(1) 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;
(2) 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 state vendor;
(3) conviction under State or federal antitrust
statutes arising out of the submission of bids or proposals;
(4) deliberate failure without good cause to
perform a contract in accordance with the specifications or within the time
limit provided in the contract: and
(5) for violation of the State Government
Ethics Act or the Lobbying laws set forth in G.S. 138A-1 et seq., and GS 120C-1
et seq. respectively.
(c) Effect of Debarment: Upon finding cause to debar a
vendor, The State CIO may remove the vendor from any distribution lists that
may be utilized and prohibit award of any contract to the debarred vendor for a
period not to exceed one year.
(d) Notice: The State CIO shall notify any vendor of the
disqualification or debarment in writing.
History Note: Authority G.S. 147-33.76(b1);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Recodified from 09 NCAC 06B .1030 Eff. March 19, 2008;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1207 PERFORMANCE assurance
A contract may include terms ensuring a vendor's performance
such as:
(1) A bond, or similar assurance, may be required of
the vendor at the vendor's expense;
(2) Liquidated damages;
(3) A percentage of the contract value held as a
retainage; and
(4) Withholding final payment contingent on acceptance
of the final deliverable.
History Note: Authority G.S. 147-33.72C; 147-33.76(b1);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Recodified from 09 NCAC 06B .1031 Eff. March 19, 2008;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
SECTION .1300 - EXEMPTIONS, EMERGENCIES, AND SPECIAL
DELEGATIONS
09 NCAC 06B .1301 EXEMPTIONS
(a) The following are exemptions to the State CIO review
and approval for purchases that exceed an agency's delegated authority.
(1) Services provided by individuals through
direct employment contracts with the state;
(2) Non-severable services that are merely
incidental to the purchase of supplies, materials, or equipment such as
installation services;
(3) Personal services provided by a
professional individual (person) on a temporary or occasional basis;
(4) Services provided directly by an agency of
the state, federal or local government, or their employees when performing the
service as part of their normal governmental function; and
(5) Information technology subscriptions for
printed materials or online technology information news services. Such
services do not include software, or software services, licensed by
subscription or delivered online.
(b) In addition to products and services noted in Paragraph
(a) of this Rule, the State CIO may exempt other products and services from
purchase through the State CIO provided that the State CIO determines no price
or quality advantage would be gained by handling a particular acquisition
through the State CIO.
(c) As used in this Rule, direct employment contract means
an agreement for services under Paragraph (a) made by the person and an agency
of the State.
History Note: Authority G.S. 147-33.95(f);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Recodified from 09 NCAC 06B .1101 Eff. March 19, 2008;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1302 emergency situations or pressing need
(a) An agency may make purchases of goods or services in
the open market in cases of emergency or pressing need.
(b) When emergency or pressing need action is necessary,
and the estimated expenditure is over the purchasing agency's delegation, prior
verbal approval shall be obtained from the State CIO unless the purchase must
be made outside of business hours, during holidays or when state offices are
otherwise closed. Subsequently, if the expenditure is over the purchasing
agency's delegation, an explanation of the emergency or pressing need purchase
shall be reported in writing to the State CIO. The State CIO shall report such
purchases of goods that exceed the benchmark in 09 NCAC 06A .0103 to the Board of
Awards as a matter of record.
History Note: Authority G.S. 143-52.1; 147-33.76(b1);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Recodified from 09 NCAC 06B .1102 Eff. March 19, 2008;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1303 SPECIAL DELEGATIONS
(a) The State CIO may approve an increase in an agency's
general delegation in accordance with Rule .1304 of this Section. The resulting
delegation shall be a special delegation. Every such delegation shall be in
writing and made a matter of record.
(b) The State CIO may require an award recommendation pursuant
to a special delegation to be sent to ITS for review of the purchasing agency's
determination of the successful vendor.
(c) ITS shall review special delegations annually to
ascertain whether such delegations remain suitable for the agency in accordance
with Rule .1304 of this Section.
History Note: Authority G.S. 147-33.95(f);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Recodified from 09 NCAC 06B .1103 Eff. March 19, 2008;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1304 GENERAL DELEGATIONS
(a) The general purchasing delegation for a purchasing
agency shall be twenty-five thousand dollars ($25,000) unless specific
authorization is given by the State CIO.
(b) The State CIO may suspend, rescind, lower or raise this
general delegation for a specific agency, up to the benchmark established under
Rule 09 NCAC 06A .0103 upon consideration of the agency's overall capabilities,
including staff resources, organizational structure, training, purchasing
compliance reviews, electronic communication capabilities, and audit reports.
(c) If an agency wishes to obtain an increase in its general
delegation, it shall submit a request in writing, outlining its overall
capabilities, to the State CIO for the State CIO's consideration.
History Note: Authority G.S. 147-33.76(b1);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Amended Eff. March 1, 2001;
Recodified from 09 NCAC 06B .1104 Eff. March 19, 2008;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1305 COMPLIANCE REVIEWS
(a) The State CIO may conduct compliance reviews on
purchasing practices at any purchasing agencies. The purpose of the compliance
review shall be for determining if an agency is complying with IT purchasing statutes
and rules. A copy of the compliance report shall be provided to the agency
head, the State Auditor, and the State Budget Officer.
(b) Staff designated by the State CIO may request the purchasing
agency's purchasing records for the purpose of the compliance review. The purchasing
agency shall cooperate with such staff, providing them with all requested
records, adequate office space for conducting the review if performed at the
agency's location and agency purchasing staff for discussion of purchase
transactions. The State CIO shall not require of the agency any more than is
needed to complete the review.
(c) The State CIO shall provide to each agency, upon
request, ITS' assistance in educational training for the agency's staff to
better acquaint them with State purchasing statutes and rules.
History Note: Authority G.S. 147-33.76(b1);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Recodified from 09 NCAC 06B .1105 Eff. March 19, 2008;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
section .1400 - records
09 NCAC 06B .1401 RECORD MAINTENANCE
Except where state law provides to the contrary, after the
award of a contract, the purchasing records of an agency are public documents,
and these documents shall be maintained for a period of five years after the
expiration date of the contract. Record retention shall be in accordance with
G.S. 121-5.
History Note: Authority G.S. 147-33.76(b1);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Recodified from 09 NCAC 06B .1201 Eff. March 19, 2008;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
09 NCAC 06B .1402 procurement file RECORDS
(a) The purchasing agency shall identify each paper or
electronic contract record individually so it can be located and referenced.
(b) The purchasing agency shall document all purchase
transactions. As applicable, each paper or electronic procurement file shall include
the following records:
(1) Requisition;
(2) Approval to proceed with acquisition;
(3) Each original executed offer if in writing,
or written documentation of verbal offer received;
(4) Documentation supporting whether each
offeror is responsive and responsible to terms of the solicitation, the use of
a competitive range selection and rejection of offerors for negotiations, best
and final offers (BAFO), award, or cancellation or other disposition of the
solicitation as may be applicable;
(5) Worksheets/evaluations of individual
offers;
(6) Vendor distribution list or proof of
fulfilling advertisement requirements, and any conditions and approval for
waiver to advertise, publish, and notify any part of a procurement action;
(7) Written justification for limitation or waiver
of competition, or emergency purchase, or waiver of any rule during the
solicitation process;
(8) Tabulation of offers received;
(9) State CIO approval of award recommendation;
(10) Purchase order or other payment
verification;
(11) Reason(s) for receiving only one offer in
response to a solicitation;
(12) Summary of vendor debriefing, if any;
(13) Signed contracts or agency acceptance of
offer(s);
(14) Board of Awards' decision records; and
(15) Protest documents.
(c) After award of contract, all material in the procurement
file, except non-public information, shall be made available for inspection in
accordance with the Public Records Law, G.S. 132-1 et seq.
History Note: Authority G.S. 147-33.95(f);
Temporary Adoption Eff. January 1, 2000;
Eff. August 1, 2000;
Recodified from 09 NCAC 06B .1202 Eff. March 19, 2008;
Amended Eff. September 1, 2013;
Pursuant to G.S. 150B-21.3A, rule is necessary without
substantive public interest Eff. April 25, 2015.
