§ 143-53. Rules.

NORTH CAROLINA STATUTES AND CODES

§ 143‑53. Rules.

(a) The Secretary ofAdministration may adopt rules governing the following:

(1) Prescribing theroutine and procedures to be followed in canvassing bids and awardingcontracts, and for reviewing decisions made pursuant thereto, and the decisionof the reviewing body shall be the final administrative review. The Division ofPurchase and Contract shall review and decide a protest on a contract valued attwenty‑five thousand dollars ($25,000) or more. The Secretary shall adoptrules or criteria governing the review of and decision on a protest on acontract of less than twenty‑five thousand dollars ($25,000) by theagency that awarded the contract.

(2) (See Editor'snote) Prescribing the routine, including consistent contract language, forsecuring bids on items that do not exceed the bid value benchmark establishedunder the provisions of G.S. 143‑53.1 or G.S. 116‑31.10. Thepurchasing delegation for securing offers (excluding the special responsibilityconstituent institutions of The University of North Carolina), for each Statedepartment, institution, agency, and community college shall be determined bythe Director of the Division of Purchase and Contract. For the State agenciesthis shall be done following the Director's consultation with the State BudgetOfficer and the State Auditor. The Director for the Division of Purchase andContract may set or lower the delegation, or raise the delegation upon writtenrequest by the agency, after consideration of their overall capabilities,including staff resources, purchasing compliance reviews, and audit reports ofthe individual agency. The routine prescribed by the Secretary shall includecontract award protest procedures and consistent requirements for advertisingof solicitations for securing offers issued by State departments, institutions,universities (including the special responsibility constituent institutions ofThe University of North Carolina), agencies, community colleges, and the publicschool administrative units.

(3) Defining contractualservices for the purposes of G.S. 143‑49(3) and G.S. 143‑49(5).

(4) Prescribing itemsand quantities, and conditions and procedures, governing the acquisition ofgoods and services which may be delegated to departments, institutions andagencies, notwithstanding any other provisions of this Article.

(5) Prescribingconditions under which purchases and contracts for the purchase, installment orlease‑purchase, rental or lease of equipment, materials, supplies orservices may be entered into by means other than competitive bidding,including, but not limited to, negotiation, reverse auctions, and acceptance ofelectronic bids. Reverse auctions may only be utilized for the purchase orexchange of supplies, equipment, and materials as provided in G.S. 115C‑522.Notwithstanding the provisions of subsections (a) and (b) of this section, anywaiver of competition for the purchase, rental, or lease of equipment,materials, supplies, or services is subject to prior review by the Secretary,if the expenditure exceeds ten thousand dollars ($10,000). The Division maylevy a fee, not to exceed one dollar ($1.00), for review of each waiverapplication.

(6) Prescribingconditions under which partial, progressive and multiple awards may be made.

(7) Prescribing conditionsand procedures governing the purchase of used equipment, materials andsupplies.

(8) Providing conditionsunder which bids may be rejected in whole or in part.

(9) Prescribingconditions under which information submitted by bidders or suppliers may be consideredproprietary or confidential.

(10) Prescribingprocedures for making purchases under programs involving participation by twoor more levels or agencies of government, or otherwise with funds other thanState‑appropriated.

(11) Prescribing proceduresto encourage the purchase of North Carolina farm products, and products ofNorth Carolina manufacturing enterprises.

(12) Repealed by SessionLaws 1987, c. 827, s. 216.

(b) In adopting therules authorized by subsection (a) of this section, the Secretary shall includespecial provisions for the purchase of goods and services, which provisions arenecessary to meet the documented training, work, or independent living needs ofpersons with disabilities according to the requirements of the Rehabilitation Actof 1973, as amended, and the Americans with Disabilities Act, as amended. TheSecretary may consult with other agencies having expertise in meeting the needsof individuals with disabilities in developing these provisions. These specialprovisions shall establish purchasing procedures that:

(1) Provide for theinvolvement of the individual in the choice of particular goods, serviceproviders, and in the methods used to provide the goods and services;

(2) Provide theflexibility necessary to meet those varying needs of individuals that arerelated to their disabilities;

(3) Allow for purchaseoutside of certified sources of supply and competitive bidding when a singlesource can provide multiple pieces of equipment, including adaptive equipment,that are more compatible with each other than they would be if they werepurchased from multiple vendors;

(4) Permit priorityconsideration for vendors who have the expertise to provide appropriate andnecessary training for the users of the equipment and who will guarantee promptservice, ongoing support, and maintenance of this equipment;

(5) Permit agencies togive priority consideration to suppliers offering the earliest possibledelivery date of goods or services especially when a time factor is crucial tothe individual's ability to secure a job, meet the probationary trainingperiods of employment, continue to meet job requirements, or avoid residentialplacement in an institutional setting; and

(6) Allow considerationof the convenience of the provider's location for the individual with thedisability.

In developing these purchasingprovisions, the Secretary shall also consider the following criteria: (i) cost‑effectiveness,(ii) quality, (iii) the provider's general reputation and performancecapabilities, (iv) substantial conformity with specifications and otherconditions set forth for these purchases, (v) the suitability of the goods orservices for the intended use, (vi) the personal or other related servicesneeded, (vii) transportation charges, and (viii) any other factors theSecretary considers pertinent to the purchases in question.

(d) Notwithstanding theprovisions of this section or any rule adopted pursuant to this Article, TheUniversity of North Carolina may solicit bids for service contracts with a termof 10 years or less, including extensions and renewals, without the priorapproval of the State Purchasing Officer.

(e) (Expires June30, 2012) The Secretary of Administration, in coordination with the Officeof Economic Recovery and Investment (OERI), shall adopt rules, policies, andregulations regarding the requisition, issuance, advertising, opening,evaluation, award, protests, contract performance, contract administration,default, termination, and debarment for all contracts for goods, equipment, orservices to be awarded by the Department of Administration, State departments,institutions, agencies, universities, and community colleges using funds fromand to meet the goals of the American Recovery and Reinvestment Act of 2009(ARRA) (Public Law 111‑5). The rules adopted under this subsection shallbe adopted in accordance with G.S. 150B‑21.1B. (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.)