Section .0100 - Requisitioning

Link to law: http://reports.oah.state.nc.us/ncac/title 09 - governor and lt. governor/chapter 06 - office of information and technology services/subchapter b/subchapter b rules.html
Published: 2015

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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Repealed Eff.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.