Amends TCA Title 4, Chapter 56, Part 1; Title 10, Chapter 7, Part 5 and Title 12, Chapter 3.

This bill changes provisions under the present law pertaining to competitive solicitations for public contracts and purchases. Present law provides that, upon issuance of an intent to award, all data relating to the procurement must be made available for inspection to each respondent of the solicitation, upon request. This bill provides, instead, that the "procurement file" must be made available, which, under this bill, includes the following records:<br /> <br /> (1) All evaluated technical proposals, cost proposals, and evaluation sheets;<br /> <br /> (2) The solicitation and all amendments to the solicitation;<br /> <br /> (3) All approved rule exception requests related to the solicitation;<br /> <br /> (4) All conflict of interest disclosure documentation;<br /> <br /> (5) Evaluator attestations;<br /> <br /> (6) A list of all suppliers solicited to participate in the procurement;<br /> <br /> (7) All correspondence between respondents and this state regarding clarifications or negotiations;<br /> <br /> (8) All subject matter expert reports;<br /> <br /> (9) All decisions to bypass a response as nonresponsive or nonresponsible;<br /> <br /> (10) All pre-proposal conference and site visit sign-in sheets;<br /> <br /> (11) All cost proposal scoring guides, bid abstracts, and bid analyses; and<br /> <br /> (12) The protest procedures and the exact dollar amount of the protest bond required by the protest procedures for aggrieved respondents.<br /> <br /> INFORMAL SOLICITATION RULES<br /> <br /> Under present law, the procurement commission may grant the chief procurement officer authority to establish informal solicitation rules, regulations, policies and procedures for procurements. If all of the members of the procurement commission agree, then the maximum amount of a procurement must be up to $50,000 or less. This bill raises that maximum amount threshold to be up to $100,000 or less instead.<br /> <br /> SMALL PURCHASE RULES<br /> <br /> Present law authorizes the procurement commission to grant the chief procurement officer authority to establish small purchase rules, regulations, policies and procedures for procurements. If all of the members of the procurement commission agree, then the maximum amount of a procurement must be up to $10,000 or less. This bill raises that maximum amount threshold to be up to $25,000 or less instead.<br /> <br /> RECORDS OF PURCHASES OPEN TO PUBLIC<br /> <br /> Present law provides that all procurement records of the department and all records of the procurement commission must be open and accessible to the public during the regular office hours of the central procurement office or state agency when such inspections do not interfere with the orderly operation of the central procurement office or state agency. However, this requirement does not interfere with the requirement that the central office publicly advertise copies of a solicitation, as well must file notice upon approval of a rejection, and other such requirements under the present law. This bill provides, instead, that the requirement that the procurement and procurement department records be open and accessible to the public does not interfere with the present law provisions authorizing the procurement commission to establish informal and small purchase rules, nor the present law provision regarding single source procurement and noncompetitive negotiation.<br /> <br /> PROTESTS BY AGGRIEVED RESPONDENTS<br /> <br /> Present law requires that a party who submits a protest to the chief procurement officer, or who submits an appeal of a protest decision to the protest committee, must contemporaneously submit a protest bond. The protest bond must be acceptable and surrendered to the state after (i) the protesting party has had an opportunity to oppose the payment of the protest bond and (ii) after a finding of certain criteria by the protest committee. This bill provides that the findings under this provision can be effectuated by either the chief procurement officer or the protest committee.<br /> <br /> Further, present law provides that, for any other reason approved by the protest committee, the protest bond must be in form and substance acceptable and surrendered to the state after the protesting party has had an opportunity to oppose the payment of the protest bond and once the protest committee has rendered its findings. This bill adds that both the chief procurement officer and protest committee may approve findings for any other reason under this provision.<br /> <br /> REQUEST FOR CONSIDERATION<br /> <br /> Under present law, the chief procurement officer has 60 days to resolve a protest after the protest is filed. If the chief procurement officer fails to resolve the protest within 60 calendar days, then the protest party may request that the protest committee meet to consider the protest. This bill adds that the protest committee must resolve a request for consideration within 60 calendar days of receipt of the request for consideration.<br /> <br /> PROTESTS APPEALED TO CHANCERY COURT<br /> <br /> Under present law, protests appealed to the chancery court from the protest committee must be by common law writ of certiorari. The scope of review in the proceedings must be limited to the record made before the protest committee and involve only an inquiry into whether the protest committee exceeded its jurisdiction, followed an unlawful procedure, or acted illegally, fraudulently, or arbitrarily without material evidence to support its action. This bill adds that supplementation of the record of the protest and the protest committee and any discovery relating thereto, is expressly prohibited unless mutually agreed to by the parties. <br /> <br /> This bill adds that protesting parties must show by clear and convincing evidence that the facts and grounds set forth in the protest warrant a reversal of (i) an award of a contract; (ii) an intent to award a contract; or (iii) cancellation of a solicitation. Moreover, this bill provides that a protest filed pursuant to this provision is not actionable if the protest is based upon the following grounds, in whole or in part:<br /> <br /> (1) Variances in scoring, absent proof of prejudice or bias by a member of the evaluation panel;<br /> <br /> (2) Allegations of violations of ethical standards and policies, including conflicts of interest or organizational conflicts of interest, absent proof of an actual violation or proof of an existing conflict of interest or organizational conflict of interest that has not been disclosed to and resolved by the chief procurement officer as set forth in the rules, policies, and procedures of the central procurement office and the procurement commission;<br /> <br /> (3) An objection to a solicitation made prior to the award of a contract or intent to award a contract and based on facts known to a protesting party, unless notice is given to the central procurement office during the procurement process; or<br /> <br /> (4) Clarifications to solicitations, as approved by the chief procurement officer.<br /> <br /> Additionally, a protesting party lacks standing to protest the award of a contract or intent to award a contract if the protesting party failed to do any of the following:<br /> <br /> (1) Follow the terms of the solicitation; <br /> <br /> (2) Submit a response or other required documents, samples, descriptive literature, or materials in the manner and by the time and date specified by the solicitation or by the solicitation coordinator; <br /> <br /> (3) Post a protest bond in the amount and form required by the chief procurement officer; or<br /> <br /> (4) State all the facts and grounds supporting a protest of a solicitation authorized.<br /> <br /> This bill applies to all contracts and contract amendments subject to law relative to public purchases that are entered into on or after the effective date of this bill.<br /> <br /> ON MARCH 14, 2024, THE HOUSE ADOPTED AMENDMENT #1 AND PASSED HOUSE BILL 2090, AS AMENDED.<br /> <br /> AMENDMENT #1 requires a protesting party to show by clear and convincing evidence that the facts and grounds set forth in the protest warrant either of the following actions by the chief procurement officer: (i) the award of a contract to a protesting party; or (ii) the cancellation of a solicitation, whether in whole or in part.<br />