North Carolina § 143-49 - Powers and duties of Secretary.

§ 143-49. Powers and duties of Secretary.

The Secretary of Administration has the power and authority, and it is the Secretary's duty, subject to the provisions of this Article: To canvass sources of supply, including sources of goods with recycled content, and to purchase or to contract for the purchase, lease and lease-purchase of all goods required by the State government, or any of its departments, institutions or agencies under competitive bidding or other suitable means authorized by the Secretary including, without limitation, negotiations, reverse auctions, a best value procurement method such as that defined in G.S. 143-135.9(a)(1), and the solicitation, offer, and acceptance of electronic bids. For purposes of this Article, the term "goods" includes, without limitation, all commodities, supplies, materials, equipment, and other tangible personal property. To establish and enforce specifications which shall apply to all goods and services to be purchased or leased for the use of the State government or any of its departments, institutions or agencies. To purchase or to contract for, by sealed, competitive bidding or other suitable means authorized by the Secretary including, without limitation, negotiations, reverse auctions, a best value procurement method such as that defined in G.S. 143-135.9(a)(1), and the solicitation, offer, and acceptance of electronic bids, all services of the State government, or any of its departments, institutions, or agencies; or to authorize any department, institution or agency to purchase or contract for such services. To notify the Attorney General of pending contracts for contractual services exceeding a cost of five million dollars ($5,000,000) and that are not otherwise excepted by this subdivision. Upon notification, the Attorney General shall assign a representative from within the office of the Attorney General, the Contract Management Section of the Division of Purchase and Contract, Department of Administration, or other qualified counsel to assist in negotiation for the award of the contract. It is the duty of the representative to assist and advise in obtaining the most favorable contract for the State, to evaluate all proposals available from prospective contractors for that purpose, to interpret proposed contract terms and to advise the Secretary or his representatives of the liabilities of the State and validity of the contract to be awarded. An attorney from within the office of the Attorney General shall review all contracts and drafts of contracts, and the office shall retain copies for a period of three years following the termination of the contracts. The term "contractual services" as used in this subsection and G.S. 143-52.2 means work performed by an independent contractor requiring specialized knowledge, experience, expertise or similar capabilities wherein the service rendered does not consist primarily of acquisition by this State of equipment or materials and the rental of equipment, materials and supplies. This subdivision does not apply to contracts entered into or to be entered into as a result of a competitive bidding process. In order to be valid, any contract for services reviewed pursuant to this subdivision must include the signature and title of the attorney designated from within the office of the Attorney General to review the contract. If the contract commences without the required signature, the State has the right to terminate the contract, and the other party or parties to the contract shall only be entitled to the value of all services provided to the State prior to the termination. The Secretary is not required to notify the Attorney General for the appointment of a representative for any contracts for contractual services to be entered into by the constituent institutions of The University of North Carolina pursuant to G.S. 114-8.3(b), or for contracts to be entered into by the Department of Treasurer pursuant to G.S. 114-8.3(b1), unless requested to do so by the General Counsel of The University of North Carolina or the General Counsel of the Department of State Treasurer, respectively. To have general supervision of all storerooms and stores operated by the State government, or any of its departments, institutions or agencies and to have supervision of inventories of all tangible personal property belonging to the State government, or any of its departments, institutions or agencies. The duties imposed by this subdivision shall not relieve any department, institution or agency of the State government from accountability for equipment, materials, supplies and tangible personal property under its control. To make provision for or to contract for all State printing, including all printing, binding, paper stock, recycled paper stock, supplies, and supplies with recycled content, or materials in connection with the same. To make available to nonprofit corporations operating charitable hospitals, to local nonprofit community sheltered workshops or centers that meet standards established by the Division of Vocational Rehabilitation of the Department of Health and Human Services, to private nonprofit agencies licensed or approved by the Department of Health and Human Services as child placing agencies, residential child-care facilities, private nonprofit rural, community, and migrant health centers designated by the Office of Rural Health and Resource Development, to private higher education institutions that are described as nonprofit postsecondary educational institutions in G.S. 116-280 and to counties, cities, towns, local school administrative units, governmental entities and other subdivisions of the State and public agencies thereof in the expenditure of public funds, the services of the Department of Administration in the purchase of goods and services under such rules, regulations and procedures as the Secretary of Administration may adopt. In adopting rules and regulations any or all provisions of this Article may be made applicable to such purchases and contracts made through the Department of Administration, and in addition the rules and regulations shall contain a requirement that payment for all such purchases be made in accordance with the terms of the contract. To evaluate the nonprofit qualifications and capabilities of qualified work centers to manufacture commodities or perform services. To establish and maintain a procurement card program for use by State agencies, community colleges, and nonexempted constituent institutions of The University of North Carolina. The Secretary of Administration may adopt temporary rules for the implementation and operation of the program in accordance with the payment policies of the State Controller, after consultation with the Department of Information Technology. These rules would include the establishment of appropriate order limits that leverage the cost savings and efficiencies of the procurement card program in conjunction with the fullest possible use of the North Carolina E-Procurement Service. Prior to implementing the program, the Secretary shall consult with the State Controller, the UNC System Office, the Community Colleges System Office, the State Auditor, the Department of Public Instruction, a representative chosen by the local school administrative units, and the Department of Information Technology. The Secretary may periodically adjust the order limit authorized in this section after consulting with the State Controller, the UNC System Office, the Community Colleges System Office, the Department of Public Instruction, and the Department of Information Technology. To include a standard clause in all contracts awarded by the State and departments, agencies, and institutions of the State, providing that the State Auditor and internal auditors of the affected department, agency, or institution may audit the records of the contractor during and after the term of the contract to verify accounts and data affecting fees or performance. To monitor and enforce the terms and conditions of statewide term contracts. The Secretary of Administration shall not delegate the power and authority granted under this subdivision to any other department, agency, or institution of the State. To develop rules, regulations, and procedures specifying the manner in which departments, agencies, and institutions of the State shall monitor and enforce agency term and non-term contracts. To consult with the Attorney General or the Attorney General's designee in developing rules, regulations, and procedures providing for the orderly and efficient submission of proposed contracts to the Attorney General for review as provided in G.S. 114-8.3 and G.S. 143-52.2. Repealed by Session Laws 2013-234, s. 2, effective October 1, 2013, and applicable to contracts entered into on or after that date. To work in conjunction with the Office of State Human Resources to create a Contracting Specialist career path to provide for the designation of one or more employees within each department, agency, or institution of the State to serve as the Contracting Specialist for the department, agency, or institution. Employees on the Contracting Specialist career path shall receive training and guidance as to the provisions of this Article. To work in conjunction with the Office of State Human Resources, the Division of Purchase and Contract, and the University of North Carolina School of Government to develop a rigorous contract management training and certification program for State employees. Certification in the contract management training program is mandatory for all State employees who are responsible for awarding contracts or monitoring contract compliance. The program shall be administered by the Office of State Human Resources. To work in conjunction with the University of North Carolina School of Government to study and recommend improvements to State procurement laws, including the feasibility of adopting the provisions of the American Bar Association Model Procurement Code. The recommendations shall be reported by the Secretary to the Joint Legislative Commission on Governmental Operations and the Program Evaluation Division by June 30, 2014. To establish procedures to permit State government, or any of its departments, institutions, or agencies, to join with any federal, State, or local government agency, entity, or subdivision, or any nonprofit organization in cooperative purchasing plans, projects, arrangements, or agreements if the interest of the State would be served thereby. History (1931, c. 261, s. 2; 1951, c. 3, s. 1; c. 1127, s. 1; 1957, c. 269, s. 3; 1961, c. 310; 1971, c. 587, s. 1; 1975, c. 580; c. 879, s. 46; 1977, c. 733; 1979, c. 759, s. 1; 1983, c. 717, ss. 60, 62; 1985 (Reg. Sess., 1986), c. 955, ss. 79-82; 1989, c. 408; 1991, c. 358, s. 1; 1993, c. 256, s. 1; 1995, c. 265, ss. 1, 5; 1996, 2nd Ex. Sess., c. 18, s. 24.17; 1997-443, s. 11A.118(a); 1999-20, s. 1; 2000-67, s. 10.9(a); 2001-424, s. 15.6(a); 2001-424, s. 15.6(d); 2001-513, s. 28(b); 2003-147, s. 8; 2004-203, s. 72(b); 2005-213, s. 2; 2006-203, s. 82; 2010-194, s. 21; 2011-145, s. 9.18(h); 2011-326, s. 15(w); 2011-338, s. 1; 2013-234, s. 2; 2013-382, s. 9.1(c); 2015-241, s. 7A.4(p); 2017-102, s. 42.1; 2018-5, s. 31.1(a); 2018-12, s. 16.) Cross References. - As to settlement of affairs of inoperative boards and agencies, see G.S. 143-267 et seq. Editor's Note. - Section 143-52.2, referred to in subdivision (3a), was repealed by Session Laws 2014-115, s. 11.1, effective August 11, 2014. Session Laws 2001-424, s. 15.6(a), effective September 26, 2001, repeals Session Laws 1998-212, s. 20.3, as amended by Session Laws 1999-237, s. 24(a), (b), and Session Laws 2000-67, s. 21.3, which had provided that except as provided by this section, no State agency, community college, constituent institution of The University of North Carolina, or local school administrative unit could use procurement cards for the purchase of equipment or supplies before August 1, 2001, and had provided for a pilot program on the purchase of supplies and equipment by procurement card. Session Laws 2001-424, s. 15.6(c), provides: "The Board of Governors of The University of North Carolina shall take appropriate action to encourage the effective utilization of the North Carolina Electronic Procurement Service by the constituent institutions. By April 1, 2002, and annually thereafter, the Department of Administration and the Office of Information Technology Services, in conjunction with the UNC General Administration, shall review the effect of the exemptions granted under subsection (b) of this section [s. 15.6(c) of Session Laws 2001-424] upon the North Carolina Electronic Procurement Service and shall report their findings to the Joint Select Committee on Information Technology and the Joint Legislative Commission on Governmental Operations." Session Laws 2001-424, s. 31.11(b), provides that "In the event that G.S. 116-40.22 as enacted by this section and Section 15.6 of this act [ss. 31.62 and 15.6 of Session Laws 2001-424] conflict, then the provisions of section 15.6 control." Session Laws 2001-424, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2001'." Session Laws 2001-424, s. 36.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2001-2003 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2001-2003 fiscal biennium." Session Laws 2001-424, s. 36.5, is a severability clause. Session Laws 2013-234, s. 13, made the amendment to this section by Session Laws 2013-234, s. 2, applicable to contracts entered into on or after October 1, 2013. Session Laws 2013-234, s. 11, provides: "The Department of Administration shall provide an individualized notice to the following State entities to ensure that the entities are aware of how the statutory amendments made in S.L. 2010-194, Section 15 of S.L. 2011-326, and this act apply to them: "(1) The North Carolina State Lottery Commission, which is subject to G.S. 18C-150 . "(2) The Commissioner of Banks, who is subject to G.S. 53-320(d) , 53-326(d), 53-391, and 53-401. "(3) The Commissioner of Insurance, who is subject to G.S. 53-401 , 58-33-30(e)(4) and (5), 58-33-125(e), 58-33-130(a), and 58-71-40(d). "(4) The Global TransPark Authority, which is subject to G.S. 63A-24 . The Secretary of Transportation shall be copied on the notice sent to the Global TransPark Authority. "(5) The North Carolina State Bar Council, which is subject to G.S. 84-23(d) . "(6) The North Carolina Board for Licensing of Geologists, which is subject to G.S. 89E-5(e) . "(7) The North Carolina Board for Licensing of Soil Scientists, which is subject to G.S. 89F-5(d) . "(8) The constituent institutions of The University of North Carolina, which are subject to G.S. 114-8.3(b) . For notification under this subdivision, the Department of Administration may provide The University of North Carolina system a notification to distribute to all of its constituent institutions. If the Department of Administration does so, The University of North Carolina system shall distribute those notifications to the system's constituent institutions. "(9) The North Carolina Center for Applied Textile Technology, which is subject to G.S. 115D-67.4 . "(10) The North Carolina State Health Plan for Teachers and State Employees, which is subject to G.S. 135-48.33(b) . "(11) The Department of Transportation, which is subject to G.S. 136-28.1(h) and G.S. 143-134(b) . "(12) The North Carolina Turnpike Authority, which is subject to G.S. 136-89.194(g)(1) . The Secretary of Transportation shall be copied on the notice sent to the Turnpike Authority. "(13) The Department of Health and Human Services, which is subject to G.S. 143-48.1(c) . "(14) The Division of Adult Correction of the Department of Public Safety, which is subject to G.S. 143-134(b) . The Secretary of Public Safety shall be copied on the notice sent to the Division of Adult Correction. "(15) The North Carolina Code Officials Qualification Board, which is subject to G.S. 143-151.16(d) . The Commissioner of Insurance shall be copied on the notice sent to the Code Officials Qualification Board. "(16) The Roanoke Island Commission, which is subject to G.S. 143B-131.2(b)(15). The Secretary of Cultural Resources shall be copied on the notice sent to the Roanoke Island Commission. "(17) Any other State entity subject to contract review under G.S. 114-8.3 . "The Department of Administration, as part of its notice, shall provide a means by which an entity may acknowledge receipt and understanding of the notice. If the Department of Administration has not received an acknowledgement from a State entity within 30 days of sending the notice, the Department of Administration shall send a second notice. If the Department of Administration has not received an acknowledgement from a State entity within 30 days of sending the second notice, the Department of Administration shall notify (i) the Joint Legislative Program Evaluation Oversight Committee and (ii) the House Appropriations Subcommittee on General Government and the Senate Appropriations Committee on General Government and Information Technology." Session Laws 2013-382, s. 9.1(b), provides: "The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act: "(1) The State Personnel Commission is renamed the 'North Carolina Human Resources Commission.' "(2) The Office of State Personnel is renamed the 'North Carolina Office of State Human Resources.' "(3) The State Personnel Director is renamed the 'Director of the North Carolina Office of State Human Resources.'" Session Laws 2013-382, s. 9.1(c), provides: "Modification of References. - The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary." Session Laws 2013-382, s. 9.2, provides: "No action or proceeding pending on the effective date of this section, brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies." Session Laws 2013-382, s. 9.3, provides: "Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office." Session Laws 2018-5, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2018.'" Session Laws 2018-5, s. 39.7, is a severability clause. Effect of Amendments. - Session Laws 2005-213, s. 2, effective January 1, 2006, added subdivision (9). Session Laws 2010-194, s. 21, effective October 1, 2010, and applicable to all contracts proposed or awarded on or after that date, added subdivisions (9) through (16). Session Laws 2011-145, s. 9.18(h), effective July 1, 2012, substituted "described as nonprofit postsecondary educational institutions in G.S. 116-280 " for "defined as 'institutions' in G.S. 116-22(1) " in the middle of subdivision (6). Session Laws 2011-326, s. 15(w), effective June 27, 2011, inserted "and after" in subdivision (9); and deleted "statewide term, agency term, and non-term" following "proposed" in subdivision (12). Session Laws 2011-338, s. 1, effective July 1, 2011, rewrote subdivision (1); in subdivision (2), substituted "goods and services" for "supplies, materials and equipment"; rewrote the first paragraph of subdivision (3), and redesignated and rewrote the former second paragraph of subdivision (3) as subdivision (3a); in subdivision (6), substituted "goods and services" for "materials, supplies and equipment" near the end of the first sentence; and added subdivision (17). Session Laws 2013-234, s. 2, effective October 1, 2013, in the introductory paragraph, substituted "has the" for "shall have" and "is the Secretary's" for "shall be his"; rewrote subdivision (3a); deleted subdivision (13); and added the second sentence in subdivision (16). For applicability, see editor's note. Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted "Office of State Human Resources" for "Office of State Personnel" in subdivision (14) and twice in subdivision (15). Session Laws 2015-241, s. 7A.4(p), effective September 18, 2015, substituted "Department of Information Technology" for "Office of Information Technology Services" throughout subdivision (8). Session Laws 2017-102, s. 42.1, effective July 12, 2017, substituted "contractor" for "contactor" in subdivision (9). Session Laws 2018-5, s. 31.1, effective July 1, 2018, added the second sentence in subdivision (15). Session Laws 2018-12, s. 16, effective July 1, 2018, substituted "System Office" for "General Administration" twice in the last sentence of subdivision (8).