North Carolina § 143-52 - Competitive bidding procedure; consolidation of estimates by Secretary; bids; awarding of contracts; cost plus percentage of cost contracts strictly prohibited.

§ 143-52. Competitive bidding procedure; consolidation of estimates by Secretary; bids; awarding of contracts; cost plus percentage of cost contracts strictly prohibited.

The Secretary of Administration shall compile and consolidate all estimates of goods and services needed and required by State departments, institutions and agencies to determine the total requirements of any given commodity. Where the total requirements will involve an expenditure in excess of the expenditure benchmark established under the provisions of G.S. 143-53.1 and where the competitive bidding procedure is employed as hereinafter provided, sealed bids shall be solicited by advertisement in a newspaper widely distributed in this State or through electronic means, or both, as determined by the Secretary to be most advantageous, at least once and at least 10 days prior to the date designated for opening. Except as otherwise provided under this Article, contracts for the purchase of goods and services shall be based on competitive bids and suitable means authorized by the Secretary as provided in G.S. 143-49. The acceptance of bid(s) most advantageous to the State shall be determined upon consideration of the following criteria: prices offered; best value, as the term is defined in G.S. 143-135.9(a)(1); the quality of the articles offered; the general reputation and performance capabilities of the bidders; the substantial conformity with the specifications and other conditions set forth in the request for bids; the suitability of the articles for the intended use; the personal or related services needed; the transportation charges; the date or dates of delivery and performance; and such other factor(s) deemed pertinent or peculiar to the purchase in question, which if controlling shall be made a matter of record. Competitive bids on contracts shall be received in accordance with rules and regulations to be adopted by the Secretary of Administration, which rules and regulations shall prescribe for the manner, time and place for proper advertisement for such bids, the time and place when bids will be received, the articles for which such bids are to be submitted and the specifications prescribed for the articles, the number of the articles desired or the duration of the proposed contract, and the amount, if any, of bonds or certified checks to accompany the bids. Bids shall be publicly opened. Any and all bids received may be rejected. Each and every bid conforming to the terms of the invitation, together with the name of the bidder, shall be tabulated and that tabulation shall become public record in accordance with the rules adopted by the Secretary. All contract information shall be made a matter of public record after the award of contract. Provided, that trade secrets, test data and similar proprietary information may remain confidential. A bond for the faithful performance of any contract may be required of the successful bidder at bidder's expense and in the discretion of the Secretary of Administration. When the dollar value of a contract for the purchase, lease, or lease/purchase of goods exceeds the benchmark established by G.S. 143-53.1, the contract shall be reviewed by the State Purchasing Officer pursuant to G.S. 143-52.1 prior to the contract being awarded. After contracts have been awarded, the Secretary of Administration shall certify to the departments, institutions and agencies of the State government the sources of supply and the contract price of the goods so contracted for. Expired June 30, 2012, pursuant to S.L. 2009-475, s. 16. Neither the Department of Administration nor any department, agency, or institution of the State may award a cost plus percentage of cost contract for any purpose, except as provided in G.S. 18C-150. History (1931, c. 261, s. 5; 1933, c. 441, s. 1; 1957, c. 269, s. 3; 1971, c. 587, s. 1; 1975, c. 879, s. 46; 1981, c. 602, ss. 2, 3; 1983, c. 717, s. 61; 1985 (Reg. Sess., 1986), c. 955, ss. 83-86; 1989 (Reg. Sess., 1990), c. 936, s. 3(a); 1997-412, s. 2; 1999-434, s. 12; 2006-203, s. 83; 2009-475, s. 1; 2010-194, s. 22; 2011-338, s. 3; 2013-234, s. 8.) Cross References. - As to purchasing flexibility, see G.S. 115D-58.14 . Editor's Note. - Session Laws 1993, c. 321, s. 169.2(g) provides that any law that contains "Joint Legislative Highway Oversight Committee" shall be deemed to refer to the "Joint Legislative Transportation Oversight Committee." Session Laws 1997-443, s. 32.11, provides that the Department of Transportation may enter into a design-build-warrant contract to develop, with Federal Highway Administration participation, a Congestion Avoidance and Reduction for Autos and Trucks (CARAT) system of traffic management in the Charlotte-Mecklenburg urban areas. Notwithstanding any other provision of law, contractors, their employees, and Department of Transportation employees involved in this project only do not have to be licensed by occupational licensing boards, and for the purpose of entering into contracts, the Department of Transportation is exempted from the provisions of G.S. 136-28.1 , 143-52, 143-53, 143-58, 143-128, and 143-129; these exemptions are limited and available only to the extent necessary to comply with federal rules, regulations, and policies for completion of this project. The Department shall report quarterly to the Joint Legislative Transportation Oversight Committee on the project. Session Laws from 1991, 1993 and 1995 contained similar provisions. Session Laws 1997-443, s. 35.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 1997-99 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 1997-99 fiscal biennium." Session Laws 2006-203, s. 126, provides, in part: "Prosecutions for offenses committed before the effective date of this act [July 1, 2007] are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions." Session Laws 2008-201, s. 1, provides: "The North Carolina Department of Administration, Division of Purchase and Contract, is directed to make the following changes to its Request for Proposal criteria for a statewide tire retread contract: "(1) Require that the bids remain closed until a designated and advertised bid-opening day in which the bids are opened, announced, and recorded in public. The bids shall then be shown and made available to the public. "(2) Require that the cost of the tire retread include spot repairs and that there no longer be a separate charge for a spot repair. "(3) Include in the contract that all casings receive a state-of-the-art inspection with the use of shearography, ultrasound, electrostatic discharge, high pressure testing, or other industry standard testing methodology. "(4) Include a threshold for the number of times a casing may be retreaded. "(5) Include a threshold for the age of a casing that may be retreaded. "(6) Include the number of nail hole repairs that are permissible for a casing to be retreaded. "(7) Provide assurance that a particular fleet will receive its own casings back after retread completed. "(8) Set minimum tread depths per category or application of the retread tire. "(9) Consider a multiaward contract structure that includes several vendors; the Office of Purchase and Contract will take into account geographic location, proximity of vendor to customer, and the needs of the users when creating a multiaward contract. "(10) Provide for any method of tire retreading to be bid separately." Session Laws 2009-475, s. 1, which designated the previously existing provisions of this section as subsection (a), added the last sentence in subsection (a), and added subsection (b), dealing with contracts using funds from the ARRA, expired on June 30, 2012. 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." Effect of Amendments. - Session Laws 2010-194, s. 22, effective October 1, 2010, and applicable to all contracts proposed or awarded on or after that date, in the section catchline, added "cost plus percentage of cost contracts strictly prohibited"; and added subsection (c). Session Laws 2011-338, s. 3, effective July 1, 2011, in subsection (a), in the first sentence, deleted "As feasible" from the beginning, substituted "shall compile" for "will compile" and "goods and services" for "supplies, materials, printing, equipment and contractual services," subdivided and rewrote the former third sentence, in the next-to-last sentence, substituted "goods" for "equipment, materials, and supplies," and in the last sentence, substituted "goods" for "supplies, materials and equipment." Session Laws 2013-234, s. 8, effective July 3, 2013, in subsection (a), deleted "such" preceding "estimates of goods" in the first sentence, and preceding "contracts shall be" in the fifth sentence, substituted "the" for "such" preceding "total requirements" in the second sentence, and preceding "articles, the number" in the fifth sentence, and substituted "State Purchasing Officer" for "Board of Awards" in the twelfth sentence.