Purchasing: State - PROCEDURES FOR AWARDING CONTRACTS - Requirements for contract for services of independent contractor; competitive selection; request for proposals; effective date.

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[Rev. 11/21/2013 4:05:17 PM--2013]

[NAC-333 Revised Date: 4-12]

CHAPTER 333 - PURCHASING: STATE

GENERAL PROVISIONS

333.010            Definitions.

333.020            “Administrator” defined.

333.030            “Division” defined.

333.040            “Using agency” defined.

333.050            Methods for obtaining contract.

ACQUISITION AND DISPOSAL OF PERSONAL PROPERTY

333.100            Methods of acquiring equipment by using agency.

333.110            Determination by Division of most cost-effective method of acquiring equipment by using agency; duty of using agency to assist Division in obtaining certain information.

333.112            Monetary limitations for items not scheduled for quantity purchasing; written authorization for local purchases.

333.114            Authorization for emergency purchases.

333.116            Acceptance of goods by using agency; location of delivery; refusal of delivery.

333.120            Disposal of personal property.

PROCEDURES FOR AWARDING CONTRACTS

333.150            Requirements for contract for services of independent contractor; competitive selection; request for proposals; effective date.

333.155            Communication with contact person.

333.160            Evaluation criteria for award of contract.

333.162            Committees to evaluate proposals: Evaluations of proposals; members.

333.165            Discussion of submitted proposals; submission of revised proposals; fair and equal treatment.

333.170            Procedures for award or withdrawal of contract.

333.175            Award of contract on multistate basis.

333.180            Limitation of vendors from participation in multiple-step projects.

333.185            Review or reproduction of bid or proposal deemed public record.

APPEAL FROM UNSUCCESSFUL BID OR PROPOSAL

333.190            Forms of security.

333.195            Written notice of claim against bond or other security; return of bond or other security if no claim made.

DECLARATORY ORDERS AND ADVISORY OPINIONS

333.200            Petition for declaratory order or advisory opinion.

 

GENERAL PROVISIONS

      NAC 333.010  Definitions. (NRS 333.130, 333.150, 333.155, 333.160)  As used in this chapter, unless the context otherwise requires, the words and terms defined in NAC 333.020, 333.030 and 333.040 have the meanings ascribed to them in those sections.

     (Added to NAC by Chief of Purchasing Div. by R179-97, eff. 3-5-98)

      NAC 333.020  “Administrator” defined. (NRS 333.130, 333.150, 333.155, 333.160)  “Administrator” means the Administrator of the Division.

     (Added to NAC by Chief of Purchasing Div. by R179-97, eff. 3-5-98)

      NAC 333.030  “Division” defined. (NRS 333.130, 333.150, 333.155, 333.160)  “Division” means the Purchasing Division of the Department of Administration.

     (Added to NAC by Chief of Purchasing Div. by R179-97, eff. 3-5-98)

      NAC 333.040  “Using agency” defined. (NRS 333.130, 333.150, 333.155, 333.160)  “Using agency” has the meaning ascribed to it in NRS 333.020.

     (Added to NAC by Chief of Purchasing Div. by R179-97, eff. 3-5-98)

      NAC 333.050  Methods for obtaining contract. (NRS 333.130, 333.162)  In addition to the methods of obtaining a contract set forth in NRS 333.162, the Administrator may use price agreements and purchases on the spot market.

     (Added to NAC by Chief of Purchasing Div. by R078-01, eff. 12-17-2001)

ACQUISITION AND DISPOSAL OF PERSONAL PROPERTY

      NAC 333.100  Methods of acquiring equipment by using agency. (NRS 333.130, 333.150, 333.155, 333.160)  A using agency may acquire an item of equipment through the Division by means of:

     1.  A direct purchase;

     2.  A rental agreement;

     3.  A lease; or

     4.  A lease with an option to purchase.

     (Added to NAC by Chief of Purchasing Div. by R179-97, eff. 3-5-98)

      NAC 333.110  Determination by Division of most cost-effective method of acquiring equipment by using agency; duty of using agency to assist Division in obtaining certain information. (NRS 333.130, 333.150, 333.155, 333.160)

     1.  Before a using agency may acquire through the Division an item of equipment that is needed by the using agency for a fixed period and for which the cost is not included in the executive budget, the using agency must obtain from the Division a determination of which method of acquiring the item of equipment is the most cost-effective and in the best interest of this state.

     2.  If a using agency is subject to the provisions of subsection 1, the using agency shall assist the Division in obtaining the following information:

     (a) The estimated period for which the item of equipment is needed by the using agency.

     (b) The estimated cost of purchasing the item of equipment, including, without limitation:

          (1) The price per unit;

          (2) The associated cost of administration;

          (3) The cost of transportation;

          (4) The cost of installation;

          (5) The cost of maintenance;

          (6) The estimated life of the item of equipment;

          (7) The salvage value of the item of equipment at the expiration of its estimated life; and

          (8) Any other information that may materially affect the cost of purchasing the item of equipment.

     (c) The estimated cost of renting or leasing the item of equipment, including, without limitation:

          (1) The amount of the required initial payment;

          (2) The amount of each required monthly payment;

          (3) The associated cost of administration;

          (4) The cost of transportation;

          (5) The cost of installation;

          (6) The cost of maintenance;

          (7) The cost of returning the item of equipment;

          (8) The cost of wear and tear caused to the item of equipment;

          (9) The estimated resale value of the item of equipment at the expiration of the term of the rental agreement or lease; and

          (10) Any other information that may materially affect the cost of renting or leasing the item of equipment.

     3.  Not later than 5 working days after obtaining the information set forth in subsection 2, the Division will:

     (a) Consider the information;

     (b) Make a determination of which method of acquiring an item of equipment is most cost-effective and in the best interest of this state; and

     (c) Address the option of acquiring an item of equipment through the Division by means of a lease with an option to purchase if the using agency requests the Division to do so and the using agency submits to the Division:

          (1) The information set forth in paragraphs (b) and (c) of subsection 2 as that information applies to a lease with an option to purchase;

          (2) The actual amount of each payment attributable to the purchase of the item of equipment;

          (3) The cost of financing the lease with an option to purchase; and

          (4) Any other information that may materially affect the acquisition of the item of equipment by means of a lease with an option to purchase.

     (Added to NAC by Chief of Purchasing Div. by R179-97, eff. 3-5-98)

      NAC 333.112  Monetary limitations for items not scheduled for quantity purchasing; written authorization for local purchases. (NRS 333.130, 333.380)

     1.  The monetary limitations set forth in NRS 333.390 for items not scheduled for quantity purchasing:

     (a) Apply to the total amount of items purchased in an individual order; and

     (b) Do not apply to each item in an individual order.

     2.  If the Administrator authorizes local purchasing by using agencies pursuant to NRS 333.390, he or she will provide the using agency with written authorization that complies with the provisions of subsection 3 of NRS 333.390.

     (Added to NAC by Chief of Purchasing Div. by R078-01, eff. 12-17-2001)

      NAC 333.114  Authorization for emergency purchases. (NRS 333.130, 333.180)

     1.  The Administrator will authorize an emergency purchase if an emergency, as that term is defined in NRS 414.0345, or any other situation that the Administrator identifies as a threat to the health, safety or welfare of the persons in this state occurs and he or she determines that the emergency purchase is in the best interests of the State.

     2.  The Administrator may authorize an emergency purchase for any amount.

     3.  If the Administrator authorizes an emergency purchase, he or she will provide the using agency with written authorization for the emergency purchase, including, without limitation, a description of the justification for authorizing the emergency purchase. The Administrator will provide a separate written authorization for each order relating to the emergency purchase.

     (Added to NAC by Chief of Purchasing Div. by R078-01, eff. 12-17-2001)

      NAC 333.116  Acceptance of goods by using agency; location of delivery; refusal of delivery. (NRS 333.130)

     1.  A using agency shall inspect and count any goods it acquires pursuant to the provisions of this chapter and chapter 333 of NRS within 8 business days after the using agency receives the goods.

     2.  If, after performing the inspection required pursuant to subsection 1, a using agency determines that the quantity, condition or specifications of goods received does not comply with the purchase order for the goods, the using agency shall notify the Division and the vendor of the goods within 8 business days after the using agency receives the goods. If the using agency fails to notify the Division and the vendor of the goods of such an error within 8 business days after the using agency receives the goods, the order shall be deemed accepted by the using agency and the using agency shall comply with the provisions of NRS 333.460 for the payment of the vendor. If the using agency fails to comply with the provisions of NRS 333.460, the Division is not liable for any late fees assessed by the vendor, and the using agency is responsible for pursuing any legal remedies or defenses relating to the payment of the vendor.

     3.  If a using agency wishes to change the location at which goods are to be delivered, the using agency must notify the Division in writing before the date on which the vendor ships the goods. If the Division cannot change the location before the delivery of the goods, the using agency must receive the goods at the original location. If the using agency can change the location, the using agency must pay any additional fees charged by the vendor for changing the location of the delivery.

     4.  If a using agency refuses delivery of goods that were shipped in accordance with the using agency’s written instructions, the using agency must pay the costs of shipping the goods to and from the location of the using agency and any fees assessed by the vendor for restocking.

     5.  If a using agency requests that goods be delivered to an additional location, the using agency must pay any costs in addition to the original delivery.

     6.  If a using agency has several organizational units at one location, the using agency is responsible for ensuring that the proper organizational unit receives the goods delivered to that location.

     (Added to NAC by Chief of Purchasing Div. by R078-01, eff. 12-17-2001)

      NAC 333.120  Disposal of personal property. (NRS 333.130, 333.220)

     1.  Except as otherwise provided in subsection 4, if the Administrator has transferred or sold personal property, including forfeited personal property, pursuant to subsection 3 of NRS 333.220 or NRS 334.040 to a governmental agency within this state or to an entity that is eligible to acquire federal donable surplus property, and that agency or entity determines that the personal property is of no further use to it, the agency or entity may only dispose of the personal property by:

     (a) Transferring the personal property to another governmental agency within this state or to another entity that is eligible to acquire federal donable surplus property;

     (b) Returning the personal property to the Division for sale on consignment; or

     (c) Selling the personal property pursuant to the provisions of chapters 332, 333 and 334 of NRS.

     2.  If an agency or entity disposes of personal property pursuant to subsection 1, any money realized therefrom that exceeds the amount originally paid for the personal property by the agency or entity must be deposited in the State Purchasing Fund.

     3.  The provisions of subsection 2 apply to an agency or entity that acquires personal property in the manner described in subsection 1 regardless of the number of times the agency or entity transfers the personal property.

     4.  The provisions of subsection 1 do not apply to an agency or entity that acquires personal property in the manner described in that subsection after the agency or entity has retained the personal property for a period of at least 2 years.

     (Added to NAC by Chief of Purchasing Div. by R099-99, eff. 12-13-99)

PROCEDURES FOR AWARDING CONTRACTS

      NAC 333.150  Requirements for contract for services of independent contractor; competitive selection; request for proposals; effective date. (NRS 333.130, 333.135)

     1.  Except as otherwise provided by specific statute, a contract entered into pursuant to NRS 333.700 for the services of an independent contractor must:

     (a) Be awarded pursuant to the provisions of this chapter and chapter 333 of NRS;

     (b) Conform to the form, terms and conditions prescribed by the Attorney General; and

     (c) Include any provisions related to insurance that the State Risk Manager determines are required.

     2.  Such a contract which by its nature is not adapted to be awarded by competitive selection, including, without limitation, a contract for:

     (a) Services which may only be contracted from a sole source as determined by the Administrator;

     (b) Professional services, including, without limitation, a contract for the services of:

          (1) An expert witness;

          (2) A professional engineer;

          (3) A registered architect;

          (4) An attorney;

          (5) An accountant; or

          (6) Any other professional, if the services of that professional are not adapted to competitive selection as determined by the Administrator; or

     (c) Services necessitated by an emergency affecting the national defense or an emergency caused by an act of God or any other unforeseeable circumstances, as determined by the Administrator,

Ê is not subject to the requirements of this chapter and chapter 333 of NRS for competitive selection.

     3.  If such a contract is required to be awarded by competitive selection and the estimated value of the contract exceeds $25,000 per fiscal year, it must be solicited through a request for proposals. The request for proposals must conform to the form for a request for proposals prescribed by the Attorney General.

     4.  If an effective date is not set forth in a contract for the services of an independent contractor awarded pursuant to NRS 333.700, the contract is effective on the date on which it is approved by the State Board of Examiners.

     (Added to NAC by Chief of Purchasing Div. by R099-99, eff. 12-13-99; A by R078-01, 12-17-2001)

      NAC 333.155  Communication with contact person. (NRS 333.130, 333.135)

     1.  Before advertising a request for proposals, the Administrator or the using agency must designate a person to answer questions concerning the contract to be awarded by competitive selection pursuant to the request for proposals. Except as otherwise provided in NAC 333.165, that person must be the only contact person throughout the process of awarding the contract.

     2.  A person who wishes to submit a proposal or a representative of such a person shall not ask questions of or otherwise discuss the contents of a request for proposals with an employee or representative of a using agency identified in the request for proposals as the agency for which the purchase is to be made unless the employee or representative of the using agency is the person designated by the using agency as the contact person pursuant to subsection 1.

     3.  The Administrator of the Division or the chief of the using agency may disqualify a proposal submitted by a person who violates the provisions of subsection 2.

     4.  The provisions of this section do not prohibit discussions between a person who wishes to submit a proposal and an employee or representative of a using agency identified in a request for proposals as the agency for which the purchase is to be made if those discussions are unrelated to the contract to be awarded pursuant to the request for proposals.

     (Added to NAC by Chief of Purchasing Div. by R099-99, eff. 12-13-99)

      NAC 333.160  Evaluation criteria for award of contract. (NRS 333.130, 333.135)

     1.  In addition to the requirement set forth in subsection 1 of NAC 333.155, before advertising a request for proposals, the chief of the using agency, the Administrator, or the committee to evaluate proposals, if such a committee is established, must determine the evaluation criteria for awarding the contract.

     2.  In addition to the factors set forth in NRS 333.335, before making an award, the chief of the using agency, the Administrator or each member of the committee to evaluate proposals must review, consider and consistently score each responsive proposal in accordance with the evaluation criteria determined pursuant to subsection 1.

     (Added to NAC by Chief of Purchasing Div. by R099-99, eff. 12-13-99)

      NAC 333.162  Committees to evaluate proposals: Evaluations of proposals; members. (NRS 333.130, 333.135)

     1.  The Division shall prepare written instructions concerning the manner in which evaluations of proposals must be conducted by a committee to evaluate proposals established pursuant to NRS 333.335 and shall provide a copy of the instructions to each member of such a committee.

     2.  Each member of a committee to evaluate proposals shall:

     (a) Acknowledge that he or she has received, read and understands the written instructions provided pursuant to subsection 1. The acknowledgment must be on a form provided by the Division.

     (b) Comply with the written instructions prepared and provided by the Division pursuant to subsection 1.

     3.  The written instructions must include, without limitation, a requirement that each member of a committee to evaluate proposals evaluate and score each proposal in a consistent manner by:

     (a) Evaluating and scoring each section of the proposal assigned for his or her review using each criterion for evaluating the proposal; and

     (b) Scoring each criterion for evaluating a proposal within the relative weight assigned for that criterion.

     4.  Each member of a committee to evaluate proposals must provide a written explanation of the score he or she assigned to a proposal upon request of the Division.

     5.  Each committee to evaluate proposals must contain members that represent at least two using agencies.

     6.  The Administrator will not appoint a member to a committee to evaluate proposals who possesses direct supervisory authority over a majority of the other members of the committee.

     (Added to NAC by Chief of Purchasing Div. by R078-01, eff. 12-17-2001)

      NAC 333.165  Discussion of submitted proposals; submission of revised proposals; fair and equal treatment. (NRS 333.130, 333.135)

     1.  The chief of the using agency, the Administrator, or the committee to evaluate proposals may discuss the proposals submitted with those persons who submitted proposals and who are reasonably likely to be selected for an award to clarify the requirements and specifications of the contract to be awarded.

     2.  To obtain the best offers, the chief of the using agency, the Administrator, or the committee to evaluate proposals may permit revised proposals to be submitted after the date proposals are required to be submitted and before the contract is awarded.

     3.  The Administrator will, and the chief of the using agency and each member of the committee to evaluate proposals shall:

     (a) Treat the persons who submit proposals fairly and equally with regard to giving them an opportunity to:

          (1) Discuss the proposals as described in subsection 1; and

          (2) Submit revised proposals.

     (b) Not discuss with a person who submitted a proposal any information that was derived from a competing proposal.

     (Added to NAC by Chief of Purchasing Div. by R099-99, eff. 12-13-99)

      NAC 333.170  Procedures for award or withdrawal of contract. (NRS 333.130, 333.135)

     1.  If the chief of the using agency, the Administrator, or the committee to evaluate proposals selects a proposal for the award of the contract, the person designated by the Administrator or the using agency as the contact person pursuant to NAC 333.155 shall provide to each person who submitted a proposal a written notice of intent to award the contract. The notice of intent to award the contract must:

     (a) Identify the proposal selected for the award of the contract; and

     (b) State that the award of the contract is contingent upon the successful negotiation of the final terms of the contract with the person selected for the award of the contract.

     2.  After the contract has been awarded on a contingency basis, the negotiations of the final terms of the contract are confidential and must not be disclosed to any other person who has submitted a proposal until a final contract is agreed upon.

     3.  If a final contract is not agreed upon:

     (a) The person designated by the Administrator or the using agency as the contact person pursuant to NAC 333.155 shall:

          (1) Provide written notice to each person who submitted a proposal; and

          (2) Issue a written withdrawal of the award to the person whose proposal was selected for the award of the contract and with whom the chief of the using agency, the Administrator, or the committee to evaluate proposals was unable to agree upon a final contract.

     (b) The Administrator will, and the chief of the using agency and the committee to evaluate proposals shall:

          (1) Negotiate, in a manner consistent with the provisions of subsection 2, the final terms of the contract with the person who submitted the proposal that received the next highest score; or

          (2) Withdraw the request for proposals.

     4.  The Administrator will, and the chief of the using agency and the committee to evaluate proposals shall, repeat the procedure set forth in this section until a final contract is agreed upon or the request for proposals is withdrawn.

     5.  After the contract has been executed by all the appropriate parties, the person designated by the Administrator or the using agency as the contact person pursuant to NAC 333.155 shall provide to each person who submitted a proposal a written notice of the award of the contract. The notice of the award of the contract must:

     (a) Identify the proposal pursuant to which the contract will be awarded provided that, if applicable, the contract is approved by the State Board of Examiners;

     (b) State that the 10-day period after which a person who makes an unsuccessful proposal may file a notice of appeal as set forth in subsection 1 of NRS 333.370 has commenced; and

     (c) State that a person who made an unsuccessful proposal may file a notice of appeal pursuant to NRS 333.370.

     (Added to NAC by Chief of Purchasing Div. by R099-99, eff. 12-13-99; A by R078-01, 12-17-2001)

 

      NAC 333.175  Award of contract on multistate basis. (NRS 333.130, 333.135)

     1.  A using agency may participate in the award of a contract on a multistate basis if:

     (a) The contract is awarded by competitive selection pursuant to:

          (1) The applicable provisions of chapter 332 or 333 of NRS; or

          (2) The law of another state or federal law in a manner that substantially complies with chapter 332 or 333 of NRS.

     (b) The document used to solicit proposals for the contract is advertised in accordance with the provisions of NRS 333.310.

     (c) Participation in the award of the contract on a multistate basis is in the best interest of the State of Nevada as determined by the Administrator.

     2.  As used in this section, “public agency” has the meaning ascribed to it in subsection 1 of NRS 277.100.

     (Added to NAC by Chief of Purchasing Div. by R099-99, eff. 12-13-99; A by R078-01, 12-17-2001)

      NAC 333.180  Limitation of vendors from participation in multiple-step projects. (NRS 333.130, 333.135)  If the Division or a using agency undertakes a project that requires:

     1.  More than one request for proposals or invitation for bids; and

     2.  An initial contract for the design of the project,

Ê the person who is awarded the initial contract for the design of the project or any subcontractor who performs work pursuant to the initial contract may not bid upon or assist another person in bidding upon or submitting a proposal or otherwise materially participate in any subsequent contract related to that project, unless his or her participation in the subsequent contract is within the scope of the initial contract.

     (Added to NAC by Chief of Purchasing Div. by R078-01, eff. 12-17-2001)

      NAC 333.185  Review or reproduction of bid or proposal deemed public record. (NRS 333.130)

     1.  Except as otherwise provided in NRS 333.333, the information contained in a bid or proposal submitted to the Division or a using agency becomes a public record on the date of award as entered on the bid record or the date the notice of award is posted in at least three public buildings, whichever is later.

     2.  Any person may:

     (a) Review a bid or proposal that is a public record pursuant to subsection 1 at the offices of the Division at no charge.

     (b) Request from the Division a copy of a bid or proposal that is a public record pursuant to subsection 1.

     3.  The Division may, as it determines is in the best interest of the State, prepare a copy of a bid or proposal that is requested pursuant to subsection 2 by:

     (a) Preparing the copy using the equipment and personnel of the Division and charging a fee that does not exceed the actual cost to the Division of preparing the copy; or

     (b) Forwarding the bid or proposal to a private entity for preparation and delivery of a copy to the requester.

     (Added to NAC by Chief of Purchasing Div. by R078-01, eff. 12-17-2001)

APPEAL FROM UNSUCCESSFUL BID OR PROPOSAL

      NAC 333.190  Forms of security. (NRS 333.130, 333.372)  The forms of security that may be submitted with a notice of appeal filed pursuant to NRS 333.370 are a certified check or a cashier’s check.

     (Added to NAC by Chief of Purchasing Div. by R099-99, eff. 12-13-99)

      NAC 333.195  Written notice of claim against bond or other security; return of bond or other security if no claim made. (NRS 333.130, 333.372)

     1.  Written notice of a claim against a bond or other security pursuant to subsection 10 of NRS 333.370 must be made to the Hearings Division of the Department of Administration within 10 days after the hearing officer has rejected the appeal for which the bond or other security was posted.

     2.  If a claim is not made against a bond or other security pursuant to subsection 10 of NRS 333.370 within the time set forth in subsection 1, the Division shall return the entire bond or other security to the person who posted the bond or other security and no other claims may be filed by the Division or a using agency regarding that bond or security.

     (Added to NAC by Chief of Purchasing Div. by R078-01, eff. 12-17-2001)

DECLARATORY ORDERS AND ADVISORY OPINIONS

      NAC 333.200  Petition for declaratory order or advisory opinion. (NRS 233B.120, 333.130)

     1.  A person may petition the Administrator to issue a declaratory order or an advisory opinion if the person has a direct or tangible interest in the applicability of a statutory provision, regulation of the Administrator or decision of the Administrator or Division.

     2.  A petition must be:

     (a) Submitted to the Administrator in writing; and

     (b) Signed by the petitioner.

     3.  If the Administrator receives a petition filed pursuant to this section, he or she will issue a declaratory order or an advisory opinion not more than 30 days after receiving the petition. A copy of the order or opinion must be mailed to the petitioner.

     (Added to NAC by Chief of Purchasing Div. by R179-97, eff. 3-5-98)