North Carolina § 143-53 - Rules.

§ 143-53. Rules.

The Secretary of Administration may adopt rules governing the following: Prescribing the routine and procedures to be followed in canvassing bids and awarding contracts, and for reviewing decisions made pursuant thereto, and the decision of the reviewing body shall be the final administrative review. The Division of Purchase and Contract shall review and decide a protest on a contract valued at an amount that exceeds the benchmark established under G.S. 143-53.1. The Secretary shall adopt rules or criteria governing the review of and decision on a protest on a contract valued at or below the benchmark established under G.S. 143-53.1 by the agency that awarded the contract. (See Editor's note) Prescribing the routine, including consistent contract language, for securing bids on items that do not exceed the bid value benchmark established under the provisions of G.S. 143-53.1, 115D-58.14, or 116-31.10. The bid value benchmark for securing offers for each State department, institution, and agency established under the provisions of G.S. 143-53.1 shall be determined by the Director of the Division of Purchase and Contract following the Director's consultation with the State Budget Officer and the State Auditor. The Director for the Division of Purchase and Contract may set or lower the benchmark, or raise the benchmark upon written request by the agency, after consideration of their overall capabilities, including staff resources, purchasing compliance reviews, and audit reports of the individual agency. The routine prescribed by the Secretary shall include contract award protest procedures and consistent requirements for advertising of solicitations for securing offers issued by State departments, institutions, universities (including the special responsibility constituent institutions of The University of North Carolina), agencies, community colleges, and the public school administrative units. Repealed by Session Laws 2011-338, s. 4, effective July 1, 2011. Prescribing items and quantities, and conditions and procedures, governing the acquisition of goods and services which may be delegated to departments, institutions and agencies, notwithstanding any other provisions of this Article. Prescribing conditions under which purchases and contracts for the purchase, installment or lease-purchase, rental or lease of goods and services may be entered into by means other than competitive bidding, including, but not limited to, negotiation, reverse auctions, and acceptance of electronic bids. Notwithstanding the provisions of subsections (a) and (b) of this section, any waiver of competition for the purchase, rental, or lease of goods and services is subject to prior review by the Secretary, if the expenditure exceeds the benchmark established under G.S. 143-53.1. The Division may levy a fee, not to exceed one dollar ($1.00), for review of each waiver application. Prescribing conditions under which partial, progressive and multiple awards may be made. Prescribing conditions and procedures governing the purchase of used goods. Providing conditions under which bids may be rejected in whole or in part. Prescribing conditions under which information submitted by bidders or suppliers may be considered proprietary or confidential. Prescribing procedures for making purchases under programs involving participation by two or more levels or agencies of government, or otherwise with funds other than State-appropriated. Prescribing procedures to encourage the purchase of North Carolina farm products, and products of North Carolina manufacturing enterprises. Repealed by Session Laws 1987, c. 827, s. 216. In adopting the rules authorized by subsection (a) of this section, the Secretary shall include special provisions for the purchase of goods and services, which provisions are necessary to meet the documented training, work, or independent living needs of persons with disabilities according to the requirements of the Rehabilitation Act of 1973, as amended, and the Americans with Disabilities Act, as amended. The Secretary may consult with other agencies having expertise in meeting the needs of individuals with disabilities in developing these provisions. These special provisions shall establish purchasing procedures that: Provide for the involvement of the individual in the choice of particular goods, service providers, and in the methods used to provide the goods and services; Provide the flexibility necessary to meet those varying needs of individuals that are related to their disabilities; Allow for purchase outside of certified sources of supply and competitive bidding when a single source can provide multiple pieces of equipment, including adaptive equipment, that are more compatible with each other than they would be if they were purchased from multiple vendors; Permit priority consideration for vendors who have the expertise to provide appropriate and necessary training for the users of the equipment and who will guarantee prompt service, ongoing support, and maintenance of this equipment; Permit agencies to give priority consideration to suppliers offering the earliest possible delivery date of goods or services especially when a time factor is crucial to the individual's ability to secure a job, meet the probationary training periods of employment, continue to meet job requirements, or avoid residential placement in an institutional setting; and Allow consideration of the convenience of the provider's location for the individual with the disability. The purpose of rules promulgated hereunder shall be to promote sound purchasing management. Notwithstanding the provisions of this section or any rule adopted pursuant to this Article, The University of North Carolina may solicit bids for service contracts with a term of 10 years or less, including extensions and renewals, without the prior approval of the State Purchasing Officer. Expired June 30, 2012, pursuant to S.L. 2009-475, s. 16. In developing these purchasing provisions, the Secretary shall also consider the following criteria: (i) cost-effectiveness, (ii) quality, (iii) the provider's general reputation and performance capabilities, (iv) substantial conformity with specifications and other conditions set forth for these purchases, (v) the suitability of the goods or services for the intended use, (vi) the personal or other related services needed, (vii) transportation charges, and (viii) any other factors the Secretary considers pertinent to the purchases in question. 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, s. 4; 1983, c. 717, ss. 63-64.1; 1985 (Reg. Sess., 1986), c. 955, ss. 87, 88; 1987, c. 827, s. 216; 1989 (Reg. Sess., 1990), c. 936, s. 3(b); 1995, c. 256, s. 1; 1997-412, s. 3; 1998-217, s. 15; 1999-400, ss. 1, 2; 2002-107, s. 2; 2003-147, s. 9; 2004-203, s. 72(b); 2005-125, s. 1; 2006-203, s. 84; 2009-475, s. 2; 2011-338, s. 4; 2013-289, s. 7; 2020-78, s. 13.1(b); 2020-90, s. 1.2.) Certification as E-Procurement Compliant. - Session Laws 2003-147, s. 10(a) through (e) contains provisions encouraging local school administrative units to use the NC E-procurement Service for their purchasing requirements. Editor's Note. - As to exemption of the Department of Transportation from the provisions of this section for the purpose of entering into contracts with respect to the development of a "Congestion Avoidance and Reduction for Autos and Truck (CARAT)" system of traffic management for the greater Charlotte-Mecklenburg urban areas, see Session Laws 1991 (Reg. Sess., 1992), c. 900, s. 94, Session Laws 1993, c. 321, s. 162, Session Laws 1995, c. 324, s. 18.14, and Session Laws 1997-443, s. 32.11. Session Laws 1999-400, which amended subdivisions (a)(1) and (a)(5), provided that the act would not apply to an agency, board, department, institution, or commission that is exempt from Article 3 of Chapter 143 of the General Statutes or from the provisions of that Article that require certain contracts to be awarded by the Department of Administration. Session Laws 1999-405, s. 7.1, provided that if Senate Bill 968 became law, the amendments made by Senate Bill 968, which added the last two sentences to subdivision (a)(1) and the last two sentences to subdivision (a)(5), do not apply to Special Responsibility Constituent Institutions as designated by the Board of Governors of The University of North Carolina pursuant to G.S. 116-30.1 . Senate Bill 968 was enacted as Session Laws 1999-400, effective September 1, 1999. Session Laws 2002-107, s. 3, provides: "Notwithstanding any other provision of law to the contrary, the Secretary may conduct a pilot program for reverse auctions. The reverse auctions shall be utilized only for the purchase or exchange of those supplies, equipment, and materials as provided in G.S. 115C-522 , for use by the public school systems. The Secretary shall report the results of the pilot program to the Joint Select Committee on Information Technology, upon the convening of the 2003 General Assembly." Session Laws 2003-147, s. 11, provides: "Nothing in this act [giving local boards of education additional purchasing flexibility and encouraging them to use the NC E-Procurement Service] shall be construed to limit the authority of the Department of Administration to develop, implement, and monitor a pilot program for reverse auctions for public school systems as provided in Section 3 of Chapter 107 of the 2002 Session Laws." Session Laws 2003-147, s. 12, as amended by Session Laws 2004-203, s. 72(b), provides: "Sections 1 through 9 of this act become effective for a local school administrative unit when the unit is certified by the Department of Public Instruction as being E-Procurement compliant, as provided in Section 10 of this act, or April 1, 2004, whichever occurs first." 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 2009-475, s. 2, which added subsection (e), dealing with rules for contracts using funds from the AARA, expired on June 30, 2012. Session Laws 2020-78, s. 13.1(e), made the amendment of subdivisions (a)(1) and (a)(5) of this section by Session Laws 2020-78, s. 13.1(b), effective July 1, 2020, and applicable to contracts entered into on or after that date. Session Laws 2020-78, s. 22.1, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2019-2021 fiscal biennium, the textual provisions of this act apply only to the 2019-2021 fiscal biennium." Session Laws 2020-78, s. 22.3, is a severability clause. Session Laws 2020-90, s. 1.6, made the amendment of subdivisions (a)(1) and (a)(5) of this section by Session Laws 2020-90, s. 1.2, effective July 2, 2020, and applicable to contracts entered into on or after that date. Effect of Amendments. - Session Laws 2005-125, s. 1, effective June 29, 2005, added subsection (d). Session Laws 2011-338, s. 4, effective July 1, 2011, deleted subdivision (a)(3), which read: "Defining contractual services for the purposes of G.S. 143-49(3) and G.S. 143-49(5) "; in subdivision (a)(5), in the first and second sentences, substituted "goods and services" for "equipment, materials, supplies or services," and deleted the former second sentence, which read: "Reverse auctions may only be utilized for the purchase or exchange of supplies, equipment, and materials as provided in G.S. 115C-522 "; and in subdivision (a)(7), substituted "goods" for "equipment, materials and supplies." Session Laws 2013-289, s. 7, effective July 18, 2013, in subdivision (a)(2), substituted "G.S. 143-53.1, 115D-58.14, or 116-31.10" for "G.S. 143-53.1 or G.S. 116-31.10 " in the first sentence, in the second sentence, substituted "The bid value benchmark for securing offers for each State department, institution, and agency established under the provisions of G.S. 143-53.1 shall be determined by the Director of the Division of Purchase and Contract following" for "The purchasing delegation for securing offers (excluding the special responsibility constituent institutions of The University of North Carolina) for each State department, institution, agency, or community college shall be determined by the Director of the Division of purchase and Contract. For the State agencies this shall be done following," and, in the present third sentence, substituted "benchmark" for "delegation" twice. Session Laws 2020-78, s. 13.1(b), in subdivision (a)(1), substituted "an amount that exceeds the benchmark established under G.S. 143-53.1 " for "twenty-five thousand dollars ($25,000) or more" in the second sentence, and substituted "valued at or below the benchmark established under G.S. 143-53.1 " for "of less than twenty-five thousand dollars ($25,000)" in the last sentence; and substituted "the benchmark established under G.S. 143-53.1" for "ten thousand dollars ($10,000)" in the second sentence of subdivision (a)(5). For effective date and applicability, see editor's note. Session Laws 2020-90, s. 1.2, in subdivision (a)(1), substituted "an amount that exceeds the benchmark established under G.S. 143-53.1 " for "twenty-five thousand dollars ($25,000) or more" in the second sentence and substituted "valued at or below the benchmark established under G.S. 143-53.1 " for "of less than twenty-five thousand dollars ($25,000)" in the last sentence; and substituted "the benchmark established under G.S. 143-53.1" for "ten thousand dollars ($10,000)" in the second sentence of subdivision (a)(5). For effective date and applicability, see editor's note. Legal Periodicals. - For 1997 legislative survey, see 20 Campbell L. Rev. 437.