Written Determinations A presentation to the South Carolina Association of Governmental Purchasing Officials November 9, 2016
Disclaimer This presentation is not to be construed as a copy of the South Carolina Consolidated Procurement Code (Code) or Regulations and is furnished for information only.
Objectives Define the term, written determination Identify where and why required Address what is needed to satisfy the requirements of audit Identify what happens if no determination is prepared
Definition Not a defined term in the SC Consolidated Procurement Code, but Determinations 3 a : the act of deciding definitely and firmly; also : the result of such an act of decision Merriam-Webster Dictionary www.merriam-webster.com
Code References 26 U.S. Code SECTION 6110. Public inspection of written determinations. (b) Definitions For purposes of this section (1) Written determination (A) In general The term written determination means a ruling, determination letter, technical advice memorandum, or Chief Counsel advice. Cornell University Law School, Legal Information Institute www.law.cornell.edu/uscode/text/26/
Has the Code Changed? No, not really regarding written determinations But, the courts have spoken clearly in recent years about the standards for written determinations.
Code References SECTION 11-35-210. Determinations. Written determinations expressly required by the code or regulations must be retained in an official contract file of the governmental body administering the contract. These determinations must be documented in sufficient detail to satisfy the requirements of audit as provided in Section 11-35-1230.
Code References 11-35-310 (25) "Procurement officer" means any person duly authorized by the governmental body, in accordance with procedures prescribed by regulation, to enter into and administer contracts and make written determinations and findings with respect thereto. The term also includes an authorized representative of the governmental body within the scope of his authority
Code References SECTION 11-35-2410. Finality of determinations. (A) The determinations required by the following sections and related regulations are final and conclusive, unless clearly erroneous, arbitrary, capricious, or contrary to law
Why a focus on Determinations? The courts have spoken clearly about the standards for written determinations, most notably in Sloan v. School District of Greenville County.
Court Decisions The Code requires a written determination to afford the District and the public sufficient information to intelligently and objectively review the decision. The decision to use the emergency exception must be sufficiently detailed to satisfy an audit, and it must be made available to the public. The purpose of the determination is to provide the basis of the decision to the school board and to the public. If the determination provides, in sufficient detail, the information necessary for the school board and the public to make an intelligent, objective review of these decisions, then it has accomplished its purpose. The Court is empowered to determine whether the written determination is sufficiently detailed to accomplish this purpose. Sloan v. School District of Greenville County, No. 98-CP-23-2816 (Greenville, S.C., Ct. Common Pleas, July 15, 2003)
Court Decision This decision elevated the standard not only for emergency procurement, but for all written determinations required by the Procurement Code.
Why are written determinations necessary? They are black letter requirements of the Consolidated Procurement Code or Regulations. They provide support for the premise of open government. They are a continued procurement audit focus. They are required documents in a request for delegated authority from ITMO/MMO.
What should they contain? Written determinations must contain sufficient factual grounds and reasoning to provide an informed, objective explanation for the decision. A written determination must stand on its own.
What should they contain? In source selection decisions: A description of the supply, service or information technology you plan to acquire An explanation of why the use of competitive sealed bidding is either not practicable or not advantageous to the State, and Identify why the selected source selection method is the most advantageous to the State. Must explain the application of the statute to THE SPECIFIC SITUATION.
Some of the Most Common Written Determinations Fixed-Price Bidding Best Value Bidding Competitive Sealed Proposals - RFP Sole Source Emergency Multi-term contracts
The Code prefers Competitive Sealed Bidding Default Method of Procurement Sealed bidding must be used unless it is determined in writing "that the use of competitive sealed bidding is either not practicable or not advantageous to the State." No written determination is required to use this method.
Competitive Fixed-Price Bidding 11-35-1525 Determine in writing that the use of competitive sealed bidding is not practicable or not advantageous Purpose: (1) Provides multiple sources of supply (2) Presets a maximum price (3) Flexibility to allow additions to awarded vendor s list after bid opening
Best Value Bids 11-35-1528 Determine in writing that the use of competitive sealed bidding is not practicable or not advantageous Purpose: (1) Allow factors other than price to be considered based on pre-determined criteria (2) Cost cannot be less than 60%
Competitive Sealed Proposals 11-35-1530 Determine in writing that the use of competitive sealed bidding is not practicable or not advantageous Purpose: (1) Allow factors other than price to be considered based on pre-determined criteria (2) Cost cannot be less than 20% unless approved by a Chief Procurement Officer* (3) Allows for flexible negotiations
Sole Source 11-35-1560 Determine there is only one source for the required supply, service, information technology, or construction item Decision that a procurement be restricted to one potential vendor must be accompanied by an explanation why no other will be suitable or acceptable to meet the need Address unique item or service only available from a single source
Emergency 11-35-1570 Condition that creates an immediate threat to public health, welfare, critical economy and efficiency, or safety that cannot be met through normal procurement means
Multi-Term Contracts 11-35-2030 Estimated requirements cover the period of the contract and are reasonably firm and continuing; and Such a contract serves the best interests of the State by encouraging effective competition or otherwise promoting economies in state procurement. Regulation next page
Multi-Term Contracts 19-445.2135 To Regulation http://www.scstatehouse.gov/coderegs/c h%2019.pdf
Other Written Determinations Negotiations After Competitive Sealed Bidding Justification for Competitive Sealed Proposal Award Multi-Term Contracts Extended Term Requests Non-responsiveness Non-responsibility
Negotiations after Unsuccessful Competitive Sealed Bidding 11-35-1540 - requires a written determination to enter into negotiations after an unsuccessful competitive sealed bid
Justification for Competitive Sealed Proposal Award 11-35-1530 (9) - requires the procurement officer to identify whose proposal is determined in writing to be the most advantageous to the State. The contract file must contain the basis on which the award is made and must be sufficient to satisfy external audit.
Multi-Term Contracts Determination Prior to Use of Multi-Term Contract (if applicable) Ref. Code Section 11-35-2030(2) and Regulation 19-445.2135, (D), (1) and (2)
Extended Term Requests Extended Term Request (if applicable) for maximum contract periods longer than five years Reference 11-35-2030(4) Up to seven years designated State Fiscal Accountability Authority (SFAA) / Procurement Services Officer approval Longer than seven years full SFAA approval
Non-responsiveness Vendor responses are determined to be responsive if their submittal conforms in all materials respects to the requirements of the solicitation. Solicitation requirements are developed by the Procurement Manager to provide a valid comparison of submittals. Non-responsive determinations are documented with a Memorandum for Record Non-responsive determinations are necessary for bids lower than that of award for an IFB. Document all on a Best Value Bid or RFP.
Non-responsibility The capability of the vendor in all respects to fully perform the contract requirements: capacity to meet the contract terms satisfactory record of performance for similar contracts satisfactory record of integrity qualified legally to contract with the State Issuance of an Award Statement signifies a responsible determination A completed Justification for Determination of Nonresponsibility is required to document a non-responsible finding.
Non-responsibility 11-35-1810 (2) requires a written determination to declare a vendor non-responsible Examples: Inadequate references (poor performance), financials, suspended or debarred by another governmental entity, etc. Many resources are available including the Secretary of State s website. Prospective offeror deemed non-responsible must be notified in writing of the determination. Case Law http://procurement.sc.gov/ps/legal/decisions/2013-12.pdf
Discussion Examples Your questions
END OF PRESENTATION For training sponsored by Procurement Services, visit: www.procurement.sc.gov