Subject: Purchasing Policy and Procedures
The following policy and procedures, Minimum General Bid Conditions (Attachment A), and Code of Ethics in Procurement and Contracting (Attachment B) are adopted as minimum standards for exercise by the TBR Central Office, Presidents of the institutions and Directors of the technology centers, governed by the Tennessee Board of Regents, of their delegated authority to purchase materials, supplies, equipment and services. Except as specifically provided in this policy or other TBR policies or guidelines, the authority of the Presidents and Technology Center Directors pursuant to these policies and procedures shall not include the purchase or lease of real property, purchase of data processing equipment over $249,999.99, the purchase of insurance, or purchases for capital outlay projects from any fund source whatsoever. Goods and services may be procured without competitive bidding only if such purchases are justified in writing and approved by the Chancellor, President, or Director as required by TBR policies and guidelines. In cases where the TBR policies and procedures do not address a specific procedure for purchase of a particular item, the Department of General Services' rules and regulations will govern, if applicable. The Chancellor, President, Director, Chief Business Officer, or Chief Procurement Officer may delegate approval authority as specified in this policy to designees. Time periods specified in this policy shall be calculated by excluding the first day and including the last, unless the last day is a Saturday, a Sunday, or a legal holiday, and then it shall also be excluded.
I. COMPETITIVE BIDDING AND SPECIFICATIONS
All purchases shall be based upon the principle of competitive bidding except as herein provided. Required documentation related to competitive bidding shall be routed through the institution’s procurement/contract office, prior to the purchase, to ensure compliance with applicable policies and guidelines. Unless original signatures are otherwise required (e.g., easements, deeds and other real property documents), electronic procurement is permitted for formal procurements when the required rules and procedures are developed in accordance with TBR Guideline B-095, and TCA §12-3-704, which provides that state agencies shall not require small and minority owned businesses to receive or respond to invitations to bid/request for quotations or request for proposals, or other solicitations electronically. Whenever possible, all specifications for materials, supplies, equipment and services shall be worded or designed so as to permit open and competitive bidding for the supplying of the article, commodities or services to which they apply. For all RFPs and RFQs exceeding $100,000, written certification from the author or committee that the specifications, to the best of their knowledge, are not proprietary shall be documented in the bid file. It is the responsibility of the procurement officer to ensure all competitive bidding is considered fair and open in a bid process. It will be considered open and competitive bidding by utilizing one of the following procurement techniques:
A. Requests for Quotation (RFQ)/Invitation to Bid (ITB) – a competitive process soliciting bids from possible suppliers for a one-time procurement of product(s) and/or service(s).
Specifications based on brand names and product numbers - reference to brand names, trade names, model numbers or other descriptions peculiar to specific brand products is made to establish a required level of quality and functional capabilities; it is not intended to exclude other products of that level. Comparable products of other manufacturers will be considered if proof of comparability is contained in the bid. Vendors are required to notify the Chief Procurement Officer whenever specifications procedures are not perceived to be fair and open. All suggestions or objections shall be made in writing and received by the Chief Procurement Officer at least three (3) working days prior to the bid opening. It shall be the responsibility of the vendors, including vendors whose product is referenced, to furnish with the bid such specifications, catalog pages, brochures or other data as will provide an adequate basis for determining the quality and functional capabilities of the product offered. Failure to provide this data may be considered valid justification for rejection of a bid;
Specifications based on standard specifications;
Specifications based on qualified products list; or
Specifications based on catalogs, price lists, or price schedules.
For any contract that results from an RFQ or ITB, Institutions are not permitted to change the scope of the service(s) once a contract is awarded. (Department of General Services Purchasing Division, Agency Purchasing Procedures Manual, Revision Twelve, Approved by the Board of Standards, January 30, 2007)
B. Requests for Proposals (RFP) – a competitive process in which bids are solicited from possible suppliers, with a source or sources of supply established for a specified period of time at agreed upon unit pricing for goods and/or services.
1. Request for Proposal – Under $25,000, sealed bid with cost and technical proposal submitted as one document (under $25,000 does not require sealed bids; can be written, telephone or electronic as provided in Section IV.B).
2. Request for Proposal – $25,000 and over, sealed bid with separate sealed technical and cost proposals which must be submitted at the same time. Compliance with the mandatory RFP requirements shall be determined by the RFP Coordinator in consultation with the Chief Business Officer or designee. Evaluation of technical offers shall be determined by an evaluation team selected by the president or designee. Members of the evaluation team should be adequate and appropriate to the scope and nature of the RFP. Procurement department representatives shall review the proposals to ensure procurement procedures were followed and shall offer guidance to the evaluation team, but shall not serve on the evaluation team, and shall not score technical proposals received, except in instances where the RFP is directly related to a good/service needed by the procurement department. Any technical offers shall be evaluated based on the criteria of the RFP and other information learned during the technical evaluation process. Any technical offer submitted which contains any pricing information of any type shall be rejected. Technical offers not deemed acceptable will not proceed to the pricing phase. Cost proposals shall not be opened if the associated technical proposal has been deemed non-responsive and is rejected by the institution. Technical and cost proposals shall not be made public until the inspection period following the evaluation of the cost proposals; or
3. Additional Procedures for Multi-step Sealed Bidding – the use of a multi-step sealed bidding process is required in the bidding process for the procurement of products and/or services when it is not practical to prepare initially definitive specifications.
Multi-step sealed bidding is a two-phase process consisting of a technical first phase composed of one or more steps in which proposers submit unpriced technical offers to be evaluated and a second phase in which those proposers whose technical offers are determined to be responsive during the first phase have their price proposals considered.
For any contract that results from an RFP, Institutions are not permitted to change the scope of the service(s) once a contract is awarded. (Department of General Services Purchasing Division, Agency Purchasing Procedures Manual, Revision Twelve, Approved by the Board of Standards, January 30, 2007)
C. Procurement Under the Authority of Another Entity’s Bid Process:
Purchase of materials or services, for which any TBR or UT institution or the State of Tennessee Department of General Services, Purchasing Division, has awarded a contract to a vendor through the competitive bidding process may be made without adherence to Section IV, Minimum Notice and Number of Bids, provided the vendor meets the bid specifications. Note: the competitive bidding process of another entity (except the State Purchasing Division) must have specified that other institutions would be permitted to purchase under the bid. Institutions are strongly encouraged to include language in RFPs/RFQs asking if the bid is open to other TBR and UT institutions. This Section does not preclude institutions from utilizing an SWC as a bid in accordance with the competitive bidding process outlined in Section IV, Minimum Notice and Number of Bids, if so desired. (F&A Rule 0690-3-1-.01 (5) and Section XVII of this policy.)
D. Procurement of State Manufactured Articles and Services:
All institutions and technology centers are required to purchase items (goods) and services from other State agencies, e.g., Department of Correction, Blind Services, Tennessee Rehabilitative Initiative in Correction (TRICOR), Community Rehabilitation Agencies (CMRA) / TRUST in Tennessee, whenever such items or services are available therefrom and meet the desired conditions and standards. (General Services Rule 0690-3-1-.01 (7) (d).)
In addition, for personal, professional and consultant service contracts only, no competitive process is required when the contractor is a state agency (as provided in the immediately preceding paragraph), a political subdivision of the state, any other public entity in Tennessee, or an entity of the federal government. The non-competitive negotiation process in Section XV B. of this Policy may be used for such contracts. (F&A Rule 0620-3-3-.03).
E. Procurement Under Contracts with Group Purchasing Organizations (See Section XXI for Reporting and Documentation Requirements):
Institutions and technology centers are permitted to make purchases of goods and services under a contract with a group purchasing program as provided in TCA 49-7-127. The statute specifically permits such purchases when the price for goods or services under a group purchasing program is lower than the price available on a state contract. A state contract is defined in this section as a TBR institution contract, a TBR system contract, a UT contract, or a General Services contract. Comparison pricing must have been obtained within twelve (12) months of the date of comparison.
Gifts do not require a procurement process subject to this policy. See TBR Policy 4:01:04:00 Solicitation and Acceptance of Gifts and TBR G-030 Section 3.
For purposes of this policy, a gift to the institution shall be defined as a voluntary transfer of goods or services to the institution made gratuitously and without consideration. Essential elements of a gift are:
(1) Capacity of the donor of the gift,
(2) Intention of donor to make a gift,
(3) Completed delivery of the gift to or for the institution, and
(4) Acceptance of the gift by the institution.
Nothing in this policy shall be construed to mean that the institution must accept any gift.
II. PROCUREMENT OF GOODS, MATERIALS AND SUPPLIES/ SERVICES
A. Goods. Goods, materials, and supplies (cumulatively called "goods") should be awarded to the lowest responsive and responsible* bidder pursuant to a Request for Quotation, sometimes called an Invitation to Bid. (A sample Request for Quotation is available at the TBR web site.)
*"Responsive" means that the bid meets the requirements and criteria set forth in the Request for Quotation or Request for Proposal. "Responsible" means that the bidder is capable of performing or is not otherwise disqualified. In the event a bidder is not responsive and/or not responsible, then the bid is to be disqualified.
B. Goods and Services. Certain services or a combination of goods and services may be procured as a "good", based on a Request for Quotation rather than a Request for Proposal, if the end product is more important than the service that goes toward its production or when the vendor has little discretion in determining its actual content or form.
(1) Examples of this type of service may include, but are not limited to: (a) pest control; (b) security services; (c) moving and hauling; (d) refuse collections; (e) charter services; (f) printing services, and (g) maintenance services.
(2) Mischaracterization of an item to be procured as a good or service shall not constitute an error in the procurement if the requirements of this policy are met, but it may be grounds for the institution to terminate the procurement process. For competitive procurement of goods, an Invitation to Bid (or Request for Quotation) is appropriate, and in general, a purchase order may be used to finalize the purchase. For competitive procurement of services, a Request for Proposal is more appropriate, and a purchase order is generally not sufficient to serve as the written contract for the services. For procurement of services which will require Central Office approval, the Request for Proposal format approved by the Central Office shall be used.
C. Services. A contract for personal, professional, or consulting service shall be used when the vendor’s discretion or the form of the end product or service is critical to the performance. All purchases of personal, professional, and consultant services should be based, to the maximum extent practicable, on evaluation and consideration of vendor qualifications and cost. Detailed information regarding service contracts is provided in TBR Guideline G-030. A sample Request for Proposal for service contracts is available at the TBR web site. Each institution’s RFP should contain, at a minimum, the requirements of the sample RFP provided by TBR Central Office.
A contract for consulting services hereunder which exceeds $25,000 shall not be allowed unless it is determined by the Chancellor, President, or Director, in writing that the services are in fact needed and that they cannot be satisfactorily or economically performed by a state agency. A cover form will be required to be completed by the requisitioning department, submitted to the institution’s procurement office, certifying the need for the service(s) and that appropriate consideration has been given to the use of state resources (sample language is available through the TBR Central Office).
D. Outsourcing. Institutions are encouraged to determine whether some services can be delivered more economically by the private rather than the public sector. The following process is hereby permitted and encouraged:
(1) The state's cost of the service may be ascertained and kept confidential as part of the evaluation process. This cost must be finally determined and provided to the Chancellor, President, or Director, as appropriate, in a sealed envelope prior to bid/proposal due date.
(2) The service may be the subject of an RFQ/RFP, as appropriate, which approximately describes the services heretofore provided by the TBR/institution.
(3) The RFP/RFQ may require that if the proposer’s/bidder’s price exceeds the state’s confidential cost, the proposal/bid may be rejected.
E. Monitoring of Services. Institutions shall have a monitoring plan for all service contracts*, including grants and grant subcontracts, to ensure the following:
(1) that deliverables are received,
(2) financial obligation of the institution does not exceed the contract pricing, and
(3) services are in compliance with the terms and conditions of the contract.
*Service contracts shall have the same meaning as provided in Section II of this policy. Procurement of goods under this policy shall not require a monitoring plan, but shall comply with TBR and institution internal controls and audit procedures.
F. Illegal Immigrants. No person may enter into a contract to supply goods or services to the state or other state entities without first attesting in writing that the person will not knowingly utilize the services of illegal immigrants in the performance of the contract, and will not knowingly utilizing the services of any subcontractor who will utilize the services of illegal immigrants in the performance of the contract. The procedures for implementing this Policy and the attestation form are provided in TBR Guideline G-030. Language to be included in bids/proposals is included in Attachment A, Minimum General Bid Conditions
III. REQUESTS FOR QUOTATION AND REQUESTS FOR PROPOSAL
A. Requests for Quotation and Requests for Proposal shall specify:
(1) The time and place that bids will be received and opened;
(2) Information describing the purpose of the procurement, technical requirements, bidder qualifications, and any other information considered relevant to the goods or services being acquired;
(3) the amount or number of articles or services required;
(4) For all RFPs and RFQs exceeding $100,000, in estimated expenditure or revenue, a question/answer period and/or pre-bidders’ conference, with all questions and responses forwarded to all prospective bidders (The larger or more complex an RFP is, the more likely a pre-bidders' conference should be held, and the more likely it may be that two periods of questions and answers may be appropriate.);
(5) the time of delivery;
(6) the amount, if any, of any bid bond or certified checks to accompany the bid/proposal;
(7) the amount, if any, of any performance bond which may be required if the vendor is the successful bidder;
(8) a declaration of the contract terms and conditions which shall be required by the institution;
(9) a description of the factors to be considered in evaluating bids/proposals, if applicable;
(10) date bid/proposals evaluations will be available for viewing;
(11) if applicable, whether other TBR institutions and/or UT institutions may purchase from the contract; and
(12) the period of time during which each bidder/proposer will hold its bid open and the period during which the contract awarded will be available to other institutions, if applicable.
B. RFQs/RFPs may specify any other requirements, conditions, or information in reference to the purchase deemed necessary.
C. RFQ/RFP files (hard-copy or electronic) shall contain, at a minimum, the following:
(1) a copy of the RFQ/RFP issued (including specifications),
(2) a list of vendors for solicitation,
(3) the date vendors were sent the RFQ/RFP,
(4) for RFPs and applicable RFQs, any pre-bid questions/responses or addendums to the RFQ/RFP,
(5) for RFPs and applicable RFQs, all documentation relating to the composition of the evaluation team and the evaluation documentation used to make the award,
(6) as applicable, any documentation that warrants a re-bid of the RFQ/RFP,
(7) any informal bid complaints and the respective responses/actions,
(8) as applicable, copies of intent to award letters, and
(9) the executed purchase order and/or contract.
IV. MINIMUM NOTICE AND NUMBER OF BIDS
The number of bids required and the notice to bidders for solicitation of bids for purchases and revenue contracts shall be as follows:
A. If the estimated amount of the purchase (or revenue) is $25,000 or more, written sealed bids must be solicited from fifteen (15) vendors or the number of vendors on the Vendors List--whichever is less and to all that request the specific RFQ/RFP. (The Chief Procurement Officer must approve the solicitation of less than 15 bids). If the annual estimated amount of the purchase is $100,000 or more, solicitations must be sent in a manner that verifies proof of delivery. An RFQ for goods must be sent at least fourteen (14) days (ten (10) days when all vendors are local vendors) before the date that the bids are scheduled to be opened. For RFPs and applicable RFQs, (for example, those RFQs having requirements in addition to or other than the purchase of goods), a minimum of four (4) to six (6) weeks should be allowed for vendors to adequately prepare a competitive proposal based on the method of RFP or RFQ delivery, bid specifications and pre-bidders questions/responses. Examples of types of bids which would need to allow at least six (6) weeks include, but are not limited to, banking and other financial services, bookstore and food services, custom software and or IT system services, advertising management services and any other bid for which the additional time is appropriate. A vendor’s general or standing request for notice for all RFQs/RFPs or all RFQs/RFPs of a given type shall not suffice as a request for a specific RFQ/RFP and shall create no obligation on the institution.
B. If the estimated amount of the purchase (or revenue) is at least $5,000 but less than $25,000, written, telephone or electronic bids must be solicited from at least three (3) qualified vendors (with the exception of Section I. E. above). When telephone bids are solicited, a written record of the bidders and amounts bid shall be maintained.
V. BID WITHDRAWAL, BID REVISION, AND BID REJECTION
Before bid opening, a vendor may be permitted to withdraw a bid entirely and/or submit a substitute bid. The vendor making such a request must submit suitable identification.
After bid opening, a vendor will be permitted to withdraw a bid only where there is obvious clerical error in the bid such as a misplaced decimal point, or when enforcement of the bid would impose unconscionable hardship due to an error in the bid resulting in a quotation substantially below the other bids received. Withdrawal will be considered only upon written request from the vendor.
In cases of errors in the extension of prices in the bid, the unit price will govern.
Incorrect proposal information – If the institution determines that a proposer has provided, for consideration in a contractor selection process or in negotiations, information which the proposer knew or should have known was materially incorrect, the subject proposal may be determined non-responsive, the proposal may be rejected and the vendor may be removed from the vendor list.
A bid may not be revised after bid opening.
However, after evaluation is complete and the successful bidder/proposer selected, the institution may initiate negotiations which serve to alter the bid/proposal in a way favorable to the institution. For example, prices may be reduced, time requirements may be revised, the bid/proposal may be revised to supply omitted contract terms, etc. In no event shall negotiations increase the cost or amend the proposal such that the apparent successful proposer no longer offers the best proposal.
Any proposal that restricts the rights of the institution or otherwise qualifies or limits the proposal may be considered to be non-responsive, and the proposal may be rejected.
When it becomes necessary to reject all bids, the reason for such rejection must be set out in complete detail and made available to all bidders who submitted a bid.
Action to reject all bids shall be taken only for unreasonably high prices, errors in the RFQ/RFP, cessation of need, unavailability of funds, failure of all proposals to meet technical specifications, lack of competition, a determination that the goods/services can be more economically delivered pursuant to an agreement with another TBR institution of other state agency, or a determination that proceeding with the procurement would be detrimental to the best interests of the institution, the reason for which must be documented and approved by the Chancellor or designee, President or designee, Vice Chancellor for Technology Centers or Director.
If another RFP is to be issued, all prior offers and/or proposals shall remain closed to inspection by the proposers and/or the public until the evaluation of the re-bid is complete
VI. ACCEPTANCE OF BIDS / NO RIGHTS CREATED
Notwithstanding any provision contained herein or in any solicitation document, submission of a bid or a proposal shall not create rights, interests or claims of entitlement in any bidder or proposer, including the successful bidder or proposer. Notwithstanding any action or agreement to the contrary, no such right, interest, or claim shall exist unless and until a purchase order has been issued or a contract is fully executed.
For RFPs and applicable RFQs, a notice of intent to award shall be sent to all proposers containing, at a minimum, the content provided by the TBR Central Office.
All bids shall be subject to rejection by the Chancellor or designee, President or designee, Vice Chancellor for Technology Centers or Director. If awarded, the contract for purchase shall be awarded to the lowest qualified and responsible bidder, taking into consideration quantifiable factors including but not limited to the apparent ability of the bidder to perform the proposed contract, the conformity of the articles or services to the specifications, any discount allowed for prompt payment or for any other reason, transportation charges, and the date of delivery specified in the RFP/RFQ.
A bond for the faithful performance of any contract may be required at the discretion of the institution or technology center.
A complete written record on all procedures and justifications shall be maintained on each procurement transaction in order to provide a clear audit trail on the purchase.
Bids must be received in the specified location on or before the date and hour designated for bid opening. All bids received must be date and time stamped to show compliance with the designated opening date and time. Late bids will not be considered in contract award.
All RFQs received shall be publicly opened and examined by a designated institutional representative at the time and place specified in the RFQ. Whenever sealed bidding is utilized, bidders shall have no less than five (5) working days after the opening before a purchase order/contract may be awarded.
All RFQs/RFPs conforming to the RFQ/RFP specifications, together with the name of the bidders, shall be recorded. Only after the completion of evaluation shall the complete procurement files become a matter of public record and open to public inspection.
Each bid should give the full name and business address of the bidder; if the vendor is a corporation, the name shall be stated as it is in the corporate charter. Each bid must be signed in ink by the vendor’s authorized agent. Unsigned bids will be rejected. The person signing the bid must show his title, and if requested by the institution or technology center, must furnish satisfactory proof of his or her authority to bind his or her company in contract. Bids must be typewritten or in ink; otherwise they may not be considered. However, institutions may conduct informal procurement electronically, and if the institution requests or permits electronic bidding, no bidder’s signature shall be required. TCA §12-3-704. Unless original signatures are otherwise required (e.g., easements, deeds and other real property documents), electronic procurement is permitted for formal procurements when the required rules and procedures are developed in accordance with TBR Guidelines B-095 and TCA §12-3-704, which provides that state agencies shall not require small and minority owned businesses to receive or respond to invitations to bid/request for quotations or request for proposals, or other solicitations electronically. A purchase order, if applicable, will be issued to the firm name appearing on the bid.
When more than one item is specified in the RFQ/RFP, the institution may provide in the RFQ/RFP that the institution shall have the right to determine the low vendor(s) either on the basis of each individual item, a group of items, or the total of all items.
Alternate bids will not be considered unless specifically called for in the bid.
All material, supplies, and equipment offered and furnished must be new unless the RFQ/RFP specifically permits offers of used, remanufactured, or reconditioned items. RFQs/RFPs which specifically permit offers of used, remanufactured, or reconditioned items shall require a warranty; however, the Chancellor, President, or Director shall have the authority to waive this requirement.
VII. PROTESTED BIDS
A. Right to Protest
(i) Any actual proposer who claims to be aggrieved in connection with a specific solicitation process may submit a protest in writing to the Chief Procurement Officer within seven (7) calendar days after he or she knows or should have known the facts giving rise to the protest.
All proposers should know and shall be deemed responsible for knowing the facts documented in the institution’s procurement files on the day the institution opens the bid files for public inspection.
Any issues raised by the protesting party after the seven (7) calendar day period shall not be considered as part of the protest.
(ii) Signature on Protest Constitutes Certificate. The signature of an attorney or protesting party on a request for consideration, protest, motion, or other document constitutes a certificate by the signer that the signer has read such document, that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass, limit competition, or to cause unnecessary delay, or needless increase in the cost of the procurement or of the litigation. If a request for consideration, protest, pleading, motion, or other document is signed in violation of this subsection before or after appeal to the Chancellor, the Chancellor upon motion or upon his/her own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties, including the affected institution, the amount of the reasonable expenses incurred because of the filing of the protest, a petition for a stay of award, pleading, motion, or other paper, including reasonable attorneys’ fees.
(iii) Neither a protest nor a stay of award shall proceed under this section unless the protesting party posts a protest bond (See Appendix I). The protesting party shall post, with the Chief Procurement Officer of the institution, at the time of filing a notice of protest, a bond payable to the institution in the amount of five percent (5%) of the lowest cost proposal evaluated or five percent (5%) of the highest revenue proposal evaluated. Such protest bond shall be in form and substance acceptable to the institution and shall be immediately payable to the institution conditioned upon a decision by the Chancellor that:
1. A request for consideration, protest, pleading, motion, or other document is signed, before or after appeal to the Chancellor, in violation of subsection VII A. (ii);
2. The protest has been brought or pursued in bad faith; or
3. The protest does not state on its face a valid basis for protest.
(iv) The institution shall hold such protest bond for at least eleven (11) calendar days after the date of the final determination by the institution. If the protesting party appeals the determination in accordance with subdivision (vii), the institution shall hold such protest bond until instructed by the Chancellor to either keep the bond or return it to the protesting party.
(v) At the time of filing notice of a protest of a procurement in which the lowest evaluated cost proposal is less than one million dollars ($1,000,000), or in which the highest evaluated revenue proposal is less than one hundred thousand dollars ($100,000), a minority or small business protesting party may submit a written petition to the Chief Procurement Officer for exemption from the protest bond requirement of subsection VII.A.(iii). Such a petition must include clear evidence of minority or small business status. On the day of receipt, the petition shall be given (may be faxed) to the Chancellor or designee. The Chancellor has five (5) business days in which to make a determination. If an exemption from the protest bond requirement is granted, the protest shall proceed as though the bond were posted. Should the Chancellor deny an exemption from the requirement, the protesting party shall post the bond with the Chief Procurement Officer of the institution as required in subsection VII.A.(iii) within three (3) business days of the determination. For the purposes of this section, “minority business” is defined as solely owned or at least fifty-one percent (51%) owned by a person or persons who control the daily operation of such business and who is disabled (a person having a physical or mental impairment that in the written opinion of the person’s licensed physician, substantially limits one (1) or more of the major life activities of such person, including caring for oneself, and performing manual tasks, which include writing, walking, seeing, hearing, speaking, and breathing); African American (persons having origins in any of the Black racial groups of Africa); Asian American (persons having origins in any of the original peoples of the Far East, Southeast Asia and Asia, the subcontinent, or the Pacific Islands); Hispanic American (persons of Cuban, Mexican, Puerto Rican, Central or South American, or other Spanish or Portuguese origin, culture, or descent, regardless of race,); or Native American (persons having origins in any of the original peoples of North America). For purposes of this section, “small business” is defined as one which is independently owned and operated, has total gross receipts of no more than two million dollars ($2,000,000) for the most recently ended federal tax year, and employs no more than thirty (30) persons on a full-time basis.
B. Authority to Resolve Protest
(i) The Chief Procurement Officer of the institution has the authority to resolve the protest. If deemed necessary, the Chief Procurement Officer may request a meeting with the protesting party to seek clarification of the protest issues.
(ii) The final determination of the Chief Procurement Officer shall be given in writing and submitted to the protesting party.
(iii) The protesting party may request that the final determination of the Chief Procurement Officer be considered by the Chief Business Officer of the institution. The request for consideration shall be made in writing to the Chief Business Officer within seven (7) calendar days from the date of the final determination by the Chief Procurement Officer.
(iv) The Chief Business Officer has the authority to review and resolve the protest. If deemed necessary, the Chief Business Officer may request a meeting with the protesting party to seek clarification of the protest issues. The final determination of the Chief Business Officer shall be given in writing and submitted to the protesting party.
(v) The protesting party may request that the final determination of the Chief Business Officer be considered by the President or Director of the institution. The request for consideration shall be made in writing to the President or Director within seven (7) calendar days from the date of the final determination by the Chief Business Officer.
(vi) The institution shall have no longer than sixty (60) calendar days from receipt of the protest to resolve the protest.
(vii) The protesting party may request that the final determination of the President/Director be considered by the Chancellor. The request for consideration shall be made in writing to the Chancellor within seven (7) calendar days from the date of the final determination by the President/Director. The determination of the Chancellor or designee is final and shall be given in writing and submitted to the protestor.
(viii) In the event that the institution fails to acknowledge receipt of a protest within fifteen (15) days of receipt of a protest or fails to resolve the protest within sixty (60) calendar days, the protesting party may request that the Chancellor consider the protest at a meeting.
C. Stay of Award
Prior to the award of a contract, a proposer who has protested may submit to the Chief Business Officer a written petition for stay of award. Such stay shall become effective upon receipt by the Chief Business Officer. The Chief Procurement Officer shall not proceed further with the solicitation process or the award of the contract until the protest has been resolved in accordance with this section, unless the Chancellor makes a written determination that continuation of the solicitation process or the award of the contract without delay is necessary to protect substantial interests of the institution. It shall be the responsibility of the Chief Business Officer to seek such determination by the Chancellor.
D. Protest Subsequent to Award
The Tennessee Claims Commission has exclusive jurisdiction to determine all monetary claims against the state for the negligent deprivation of statutory rights.
E. Appeal to Chancery Court
Protests appealed to the chancery court from the Chancellor's decision shall be by common law writ of certiorari. The scope of review in the proceedings shall be limited to the record made before the Chancellor and shall involve only an inquiry into whether the Chancellor exceeded his/her jurisdiction; followed an unlawful procedure;, or acted illegally, fraudulently or arbitrarily without material evidence to support his/her action.
F. Appendix I
A protest bond may be presented to the institution in form and substance compliant with the Protest Bond format attached in Appendix I. Any protest bond presented to the institution that represents a deviation from the Appendix I format shall be considered for acceptability by the institution on a case by case basis.
VIII. TIE BIDS
A. Goods - A tie bid exists when two or more bidders offer goods and/or services that meet all specifications, terms and conditions at identical prices, including cash discount offered. In such case, a tie bid will be broken by the following methods, in descending order of preference:
(1) Tennessee businesses will be given preference. Tennessee business means a business (T.C.A. § 12-4-121(c)(2):
(a) incorporated in this state;
(b) that has its principal place of business in this state; or
(c) that has an established physical presence in this state.
(2) Small, minority and women-owned business will be given preference (business classifications defined in Section XII).
(3) Award item(s) to vendor who was low bidder on other item(s) being bid per the same requisition.
(4) Best delivery.
(5) By lot or coin toss (properly witnessed and documented).
B. Personal, professional and consultant services - In the event that a proposal evaluation process results in two or more proposals receiving evaluation scores that tie for the rank of highest score, the institution shall request best and final cost proposals from only those proposers with scores that tie. The institution may calculate new evaluation scores for the tying proposals by adding the original technical scores to the recalculated cost scores. Should another tie result, the contract shall be awarded by coin toss.
IX. RECEIVING REPORTS
When any supplies, equipment, or materials are received by an institution or technology center, the receiving agent thereof shall maintain a record of receipt that the supplies, equipment, or materials received were equal in quality and quantity to those requisitioned. Appropriate documentation of contract performance or specific deliverables shall be provided by the requisitioning department prior to payment for services, supplies, equipment, and materials. Complete records on all receiving reports/documentation shall be maintained in order to provide for a clear audit trail on the receipt of all purchases.
X. VENDORS LIST
Each institution and technology center shall maintain a list of vendors which shows the types or classes of materials, supplies, equipment or services which the person, firm or corporation is willing and able to furnish to the institution or technology center. The institution or technology center may require the person, firm or corporation to submit sufficient information to demonstrate ability to perform any future commitment prior to inclusion on the list of bidders.
XI. REMOVAL FROM VENDORS LIST
Vendors who fail to respond to a reasonable number of bids or fail to provide adequate goods and/or services shall be removed from the vendors list. Reported failure to comply with bids, awards, and/or orders becomes a part of the bidder's application file. If a qualified bidder repeatedly fails to respond to Invitations to Bid, the bidder will be removed from all commodity groups. Examples of failure to comply include but are not limited to:
Shipments not in Conformance with Specifications
Failure to Ship
Other principal causes for temporary or permanent removal from the bid list are:
Misrepresentation of Merchandise
Failure of a vendor to perform satisfactorily in any of the above areas may result in a vendor's liability for damages to the institution.
XII. PURCHASES FROM SMALL/MINORITY/WOMEN OWNED BUSINESSES
All institutions, in accordance with state and federal law, shall actively promote and encourage diversity participation with small, minority, and women-owned businesses in order to obtain a fair proportion of goods and services from such businesses as further defined in Attachment C to this policy. Information regarding small, minority, and women-owned business solicitations and purchases will be filed with the Governor’s Office of Diversity Business Enterprise and the Department of General Services which will consolidate this information into reports to the Legislature.
XIII. EMERGENCY PURCHASES
Purchases of specific materials, supplies, equipment or services may be made in the open market for immediate delivery only to meet bona fide emergencies arising from any unforeseen cause. All bona fide emergency purchases must be approved by the Chancellor, President, or Director, and a written report on the circumstances of any such emergency justifying the purchase shall be prepared and maintained. All emergency purchases shall, if practicable, be made on the basis of competitive bids.
XIV. SPECIAL PURCHASE CATEGORIES
A. Competitive Negotiation
A contract may be entered into by competitive negotiation only in cases when the institution or technology center is unable to obtain needed goods and/or services by the competitive bid process. In addition, competitive negotiation may be appropriate for personal, professional and consultant service contracts when one of the following is true:
1. public need will not permit the delay incident to the RFP process;
2. no acceptable proposals have been received after the RFP process;
3. rates payable for the services are regulated by law; or
4. as provided in IV B. of this Policy. (F&A Rule 0620-3-3-.03)
The Chancellor, President, or Director shall prescribe the procedures under which negotiation is to be conducted. These procedures shall provide for the safeguarding of the information and provide fairness to the vendors in the negotiation process; procedures shall mandate communication of the requirements of the institution, clarify best interests of the institution, and solicit bids from at least three (3) potential providers (including minority, disadvantaged and small business providers as otherwise required by TBR policy and guidelines), and require documentation of the solicitation process. In the event it appears the competitive negotiation process is to be implemented, such an action must be approved by the Chancellor, President, or Director. Once the negotiations have been concluded, a recommendation shall be made by the negotiating team to the Chancellor, President, or Director, and he or she shall approve the results prior to entering into a contract.
B. Non-competitive negotiation for sole source procurement – the negotiation of the terms of a contract with only one provider.
Personal, professional and consultant service contracts may be obtained by non-competitive negotiation when the contractor is a state agency, a political subdivision of the state, and any other public entity in Tennessee, or an entity of the federal government. (See Section I. D. of this policy and F&A Rule 0620-3-3-.03.)
Sole source or proprietary purchases may be allowed pursuant to the following:
Sole Source Procurement - Sole source purchases are made only when items are unique and possess specific characteristics that can be filled by only one source. The vendor must furnish a letter indicating that it is the sole source and the letter must be signed by an authorized company representative.
Proprietary Purchase - A proprietary product is one that is manufactured and marketed by a person or persons having the exclusive right to manufacture and sell the product. Marketing is generally controlled by franchises that may include competitive sales at wholesale or retail levels. When it is found that bids may be obtained from different franchises, bid invitations must be issued unless the estimated purchase is less than $5,000.
Factors to be considered in sole source and proprietary purchases include the following:
1 . Whether the vendor possesses exclusive and/or predominant capabilities or the items contain a patented feature providing superior utility not obtainable from similar products.
2. Whether the product or service is unique and easily established as one of a kind.
3. Whether the program requirements can be modified so that competitive products or services may be used.
4. Whether the product is available from only one source and not merchandised through wholesalers, jobbers, and retailers.
5. Whether items must be interchangeable or compatible with in-place items.
6. Whether the cost of conversion, including but not limited to disruption, re-training, and replacement precludes bidding competitively.
7. Whether the product is to be used in an instructional setting and the intent is to provide instruction on the specific product or diversity of products.
8. For personal, professional and consultant services, whether the use of non-competitive negotiation is in the best interests of the institution. (F&A Rule 0620-3-3-.03)
9. Other justifications as approved by the Chancellor, President, Director.
Only authorized sole source may be procured utilizing non‑competitive negotiation and a completed non-competitive justification form.
Whenever specifications are not so worded or designed to provide competitive bidding, or specify a single brand, the person responsible for the recommendation shall be required to justify the necessity for the specification in writing, and the request shall be approved by the Chancellor, President, or Director. The TBR Justification for Non-Competitive Purchases and Contracts Form must be completed and approved by the institution’s procurement office or TBR Central Office (when applicable).
C. Purchases for Resale in Auxiliary Enterprises
Purchases of items for resale shall be made as follows:
1. Textbooks and other course related materials may be purchased without adherence to Section IV of this policy, Minimum Notice and Number of Bids. All textbook ordering lists and authorization forms must be maintained for audit purposes.
2. Certain items for resale for which customers have expressed a preference, and/or promotional items procured under accepted retail merchandising practices, may be purchased without adherence to Section IV of this Policy, Minimum Notice and Number of Bids. Appropriate documentation shall be maintained which supports the action taken.
D. Purchases for Libraries, Excluding Materials and Supplies Identified for Consumption by the Library
Purchases of materials for additions to a library collection include cost of books, catalogs, periodicals, binding, audio-visual media, and other general publications. These items are capital expenditures. Each institution and technology center shall be responsible for developing procurement policies and procedures for the library. These purchases may be made without formal bids or quotations, and appropriate documentation shall be maintained on these purchases to support sole source procurement.
Purchases of electronic journals, subscriptions, and databases for libraries shall be procured through the institution’s procurement or contract office in instances when a competitive process can be used. In addition, any required electronic or written agreements to license journals, subscriptions, or databases shall be routed through the institution’s procurement or contracts office for review and approval prior to use. Appropriate documentation must be maintained for purchases to support sole source procurement. Additionally, these items may require the approval of the Fiscal Review Committee if the purchase exceeds the Fiscal Review Committee threshold.
E. Federal Guidelines
Purchases utilizing federal funding are to follow federal guidelines regarding such purchases. Purchases for goods or services shall not be made from vendors on the List of Parties Excluded From Federal Procurement and Non-procurement Programs.
F. Utility Contracts
The institution or technology center shall purchase or contract for all telephone, telegraph, electric light, gas, power, postal and other services for which a rate for the use thereof has been established by a public authority in such manner as the institution deems to be in the best interest of the State of Tennessee. Each such purchase or contract shall be made on a competitive basis, whenever possible, in accordance with this policy, unless it has been determined that such purchase is single source. If such purchase has been determined to be single source, the purchase shall then be made pursuant to Section XIV. B., Non-competitive negotiation, of this TBR Purchasing Policy.
XV. CONTRACTS AND AGREEMENTS
All contracts and agreements will be in conformance with TBR Policy 1:03:02:10 Approval of Agreements and TBR Guideline G‑030, Contracts and Agreements.
A. No agreement of any nature which requires the expenditures of funds shall extend beyond the end of fiscal year in which it is entered into unless expressly subject to the condition that the institution or technology center shall have the right to terminate the agreement at the end of any fiscal year in the event that sufficient funds are not appropriated by the General Assembly and/or budgeted for continuation of the agreement.
B. All agreements, contracts and subcontracts shall contain all necessary affirmative action and nondiscrimination requirements provided by Federal or State laws and regulations.
C. No contract for purchase of materials, supplies, equipment or services shall be awarded pursuant to these procedures unless funds have been appropriated and are available for the purchase. No contract shall be entered into in addition to the contract resulting from acceptance of a bid and issuance of a purchase order except pursuant to TBR Policy No. 1:03:02:10, Approval of Agreements.
D. Contracts containing no financial consideration may be negotiated.
E. Expenditure contracts, other than real property contracts, may not have a contract term for a period in excess of sixty (60) months. Revenue contracts may not have a contract term for a period in excess of one hundred twenty (120) months.
F. A revenue contract shall be used to formalize an agreement in which a TBR institution provides specific deliverable goods or services for monetary compensation. Revenue contracts shall conform to the requirements of this policy, TBR Policy 1:03:02:10 and G-030.
G. Individuals who execute agreements, contracts or subcontracts containing impermissible clauses may be subject to personal liability (TCA 12-3-105)
H. Limitation of Liability - Personal, Professional and Consultant Service Contracts.
The provisions of this Section XV subsection H. are not required to be followed for contracts of adhesion; for such contracts, the provisions of G-030 Section 11 subsection Contract of Adhesion may be applied
1. The Chancellor or designee, President or designee, and the Vice Chancellor for the Tennessee Technology Centers or designee may approve limitations of liability below two (2) times the value of the contract and limitations of warranty in contracts for personal services, professional services, and consultant services.
Approval Process. The request made under this Section must be submitted in writing, with appropiate supporting information, to the approving authority and must be signed by the Chief Procurement Officer of the institution.
Not Authorized. In no event shall a limitation of liability or warranty permitted under this Section limit the liability of the contractor for intentional torts, criminal acts, or fraudulent conduct. This Section does not authorize any further limitation of the legal rights of TBR as a state entity, does not constitute a waiver of sovereign immunity, and does not authorize a cause of action against TBR in any jurisdiction.
2. Institutions may purchase software for use restricted solely to academic teaching or research upon terms which may limit he contractors liability or warranties; provided, that in no event shall the liability of the contractor be limited for intentional torts, criminal acts, or fraudulent conduct.
Approval Process. The request made under this Section must be subimtted in writing, with appropriate supporting information, to the approving authority and must be signed by the Chief Procurement Officer of the instuitution.
3. Institutions may acquire software or services, materials, supplies and equipment free or at a nominal cost upon terms which may limit the contractor's liability or warranties; provided, that in no event shall the liability of the contractor be limited for intentional torts, criminal acts, or fraudulent conduct.
Approval Process. The request made under this Section must be subimtted in writing, with appropriate supporting information, to the approving authority and must be signed by the Chief Procurement Officer of the instuitution.
I. Limitations of Liability – Materials, Supplies, Equipment and Services.
The provisions of this Section XV subsection I. are not required to be followed for contracts of adhesion; for such contracts, the provisions of G-030 Section 11 subsection Contracts of Adhesion may be applied.
The Chancellor or designee, President or designee, and the Vice Chancellor for the Tennessee Technology Centers or designee may approve contracts for the purchase of materials, supplies, equipment and services when such contracts contain limitations of the liability of contractors for damage claims.
Not Authorized. The approving authority is not authorized to approve limitations of contractor liability for intentional torts, criminal acts, or fraudulent conduct; nor is the approving authority authorized to accept limitation of liability for an amount less than two (2) times the value of the contract. Further, Sections H. and I. do not authorize TBR or its institutions to indemnify contractors for the acts or negligence of the contractors or third parties.
Approval Timeliness. Any request to the approving authority under this Section must be made at an appropriate time in the procurement process to ensure that no such decision shall detrimentally impact the fairness of the procurement or the interests of the state in competitive procurements. In a formal ITB process, the procuring institution may determine to request the approving authoriy's approval under this Section I. after receiving written comments from potential proposers. If the approving authority approves such request, an amendment to the ITB may be made. An institution may request, and the approving authority may approve, initiation of a new procurement process, including a contractor’s limitation of liability, at any stage of the procurement process and may authorize negotiation of a limitation on a contractor’s liability in circumstances in which the applicable procurement process has failed to provide a qualified proposer or a responsive bid.
Approval Process. The request under this Section I. must be submitted in writing to the approving authority and must be signed by the Chef Procurement Officer. The request must contain justification that addresses the following:
1. the text of the limitation of liability sought to be used;
2. the risks of liability to the state created by the information technology services and/or products to be purchased under the contract, and the impact on the state of allowing the limitation;
3. the conditions of the market which justify a limitation of liability;
4. the anticipated impact on the state’s procurement if limitation of liability is not approved; and
5. the identification of one or more persons at the procuring TBR institution familiar with the information set forth in the request.
The approving authority may deny or approve the request or may authorize limitation of liability under other language than that proposed in the request.
Notwithstanding the above, the approving authority may authorize, with respect to contracts for telecommunications and information technology goods and services, a limitation of liability of not less than two (2) times the value of the contract provided that the limitation of liability permitted under this paragraph shall not apply to intentional torts, criminal acts, fraudulent conduct or acts or omissions that result in personal injuries or death. Any limitation beyond that permitted in this paragraph must be approved by the Chancellor.
TCA § 12-3-315 and General Services Rule 0690-3-2
XVI. COORDINATION OF PROCUREMENT FUNCTIONS AMONG SYSTEM INSTITUTIONS AND TECHNOLOGY CENTERS AND WITH THE UNIVERSITY OF TENNESSEE SYSTEM
In all contracts and other bid processes wording should be included that would allow TBR member institutions and UT institutions to purchase under the terms and conditions of the bid of the individual institution unless to do so would ot be potentially helpful to other schools or unless to do so is not in the best interestsof the institution. TBR institutions shall also be permitted to purchase under the terms and conditions of a contract or bid of the UT System if theontract or bid authorizes TBR institutions to do so. That is to ay that TBR institutions and UT institutions may purchase under the bid of any other institution in either system if language in the bid documents ecifies that the ogher institutions may do so. Sometimes an exception applies, and a procurement is made without a bid process; in such situations, TBR and UT institutions may purchase off the contract resulting from the procurement process as long as the contract specifies that they may do so.
XVII. LIFE‑CYCLE COSTS
It is the policy of TBR to use the life cycle costs of commodities as developed and disseminated by the federal government when feasible. (T.C.A. §12-3-602)
In determining life cycle costs, the acquisition cost of the product, the energy consumption and the projected energy cost of energy over the useful life of the product and the anticipated resale or salvage value of the product may be considered in the evaluation. (T.C.A. §12-3-606)
XVIII. ENERGY EFFICIENCY STANDARDS
Energy Star is a joint program of the U.S. Environmental Protection Agency and the U.S. Department of Energy that has established energy efficiency standards that are used by the Federal Government in its contracting for major energy-consuming products, as well as energy efficient best practices.
TBR institutions shall use energy efficiency standards prescribed by Energy Star for the purchase of energy-consuming products. The Energy Star website (http://www.energystar.gov) provides a qualified list of products and commodities meeting Energy Star's minimal energy specifications, life cycle costing calculations, life cycle formula information and qualified products that meet Energy Star's rating for using less energy and helping to protect the environment. (T.C.A. §§12-3-604 & 12-3-605) Products and commodities listed on the Energy Star website's list of qualified products and commodities will be used as "acceptable brands and models" on bid documents.
The minimal energy specifications for products and commodities listed on the Energy Star Qualified Products list (see link above) must be included in the line item specifications on all bid documents for the purchase of major energy-consuming products.
XIX. DISPOSAL OF SURPLUS PERSONAL PROPERTY
Surplus property is personal property which has been determined obsolete, outmoded, unusable or no longer usable by the institution or technology center, or property for which future needs do not justify the cost of maintenance and/or storage. Disposal of such property must be in accordance with TBR Policy No. 4:02:20:00, Disposal of Surplus Personal Property.
XX. PROHIBITED TRANSACTIONS
No personal items shall be purchased through the institution or technology center or from funds of the institution or technology center for any employee of the institution or technology center or any relative of any employee. No employee of an institution or technology center responsible for initiating or approving requisitions shall accept or receive, directly or indirectly, from any person, firm or corporation to whom any contract may be awarded, by rebate, gift or otherwise, any money or anything of value whatsoever, or any promise, obligation or contract for future awards or compensation. Whenever any contract is awarded contrary to the provisions of these policies and procedures, the contract shall be void and of no effect, and if the violation was intentional, the employee responsible for the purchase shall be liable for any state funds paid contrary to these policies and procedures.
XXI. PROCUREMENT MANUAL
Each institution and technology center shall maintain a written procurement manual (may be in electronic format) which sets forth any procedures of the institution or technology center which are in addition to and necessary to comply with this guideline.
Reports shall be submitted to the TBR Central Office as follows:
A. Small/Minority/Women-Owned Business Report. This report consists of transactions with minority-owned, women-owned, and small businesses required by TCA 12-3-808 shall be reported to the TBR Director of Purchasing and Contracts on a quarterly basis (January‑March, April‑June, July-September, and October‑December).
B. Group Purchasing Report. This report consists of transactions procured with comparison pricing from group purchasing organizations required by TCA 49-7-124 and shall be reported to the TBR Director of Purchasing and Contracts on an annual basis.
C. RFP Diversity Report. This report consists of contracts issued from request for proposals for goods and/or services pursuant to TCA 12-3-807(b) and shall be reported to the TBR Director of Purchasing and Contracts.
Any exceptions to the policies and procedures established herein shall be subject to the approval of the Chancellor or designee. An institution may devise and document procedures for an Alternate Competitive Procurement Method and use the methodology in a specific contractor selection process, provided that prior, written approval of the Chancellor or designee is obtained for the proposed method to be used in the specified instance.
XXIV. COUNCIL OF BUYERS
The Chancellor has established a Council of Buyers. The Council shall be comprised of at least one (1) procurement representative from each institution, and representatives from the TBR Central Office appointed by the Chancellor. The Council should meet quarterly, or at minimum semi-annually, or upon request of the Chancellor or designee, and shall have the responsibilities including but not limited to the following:
A. Development of uniform procedures, forms, and general conditions governing procurement which may be feasible and practicable for use by all institutions and technology centers in the System, including affirmative action and equal opportunity provisions, for review and approval by the Chancellor. Uniform procedures, forms, and general conditions governing procurement developed by the Council of Buyers shall be posted at the TBR web site.
B. Formulation of standard specifications for purchase of specific materials, supplies, equipment, and/or services which may be feasible and practicable for use by the institutions and technology centers, for review and approval by the Chancellor or designee. Standard specifications for purchase of specific materials, supplies, equipment, and/or services developed by the Council of Buyers shall be posted at the TBR web site.
C. Consideration of the feasibility and advantages of possible term contracts for the System, of designation of certain institutions or technology centers as responsible procurement agents for specific materials, supplies, equipment, and/or services for the System, and of the possibility of coordinating procurement functions among institutions and technology centers within geographic areas, with recommendations to be submitted to the Chancellor.
D. Formulation of a uniform code of ethics for governing the professional conduct of employees responsible for procurement. (Attachment B)
E. Any other matters referred to the Council by the Chancellor or designee.
The Surety Company issuing the bond shall be licensed to transact business in the State of Tennessee by the Tennessee Department of Commerce and Insurance. The bond shall have certified and current Power-of Attorney for the Surety’s Attorney-in-Fact attached.
KNOW ALL BY THESE PRESENTS:
(Name of Protestor)
(Address of Protestor)
as the Party filing a protest of the State of Tennessee’s determination(s) regarding a Request for Proposals (RFP) process, hereinafter called the Protestor, and
(Name of Surety)
(Address of Surety)
as Surety, hereinafter call the Surety, do hereby acknowledge ourselves indebted and securely bound and held unto the State of Tennessee as Obligee, hereinafter called the Obligee, and in the penal sum of
(Dollar Amount of Bond)
good and lawful money of the United States of America, for the use and benefit of those entitled thereto, for the payment of which, well and truly to be made, we bind ourselves, our heirs, our administrators, executors, successors, and assigns, jointly and severally, firmly by these presents.
BUT THE CONDITION OF THE FOREGOING OBLIGATION OR BOND IS THIS:
WHEREAS, the Obligee has issued a Request for Proposals bearing the RFP Number:
AND, the Protestor, as an actual proposer to the RFP, claims to be aggrieved in connection with said RFP process;
AND, the signature of an attorney or the Protestor on a request for consideration, protest, motion, or other document constitutes a certificate by the signer that the signer has read such document, that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass, limit competition, or to cause unnecessary delay or needless increase in the cost of the procurement or of the litigation;
AND, neither a protest nor a stay of award shall proceed under the laws of the State of Tennessee unless the Protestor posts a protest bond, the Protestor does file this protest bond payable to the Obligee with a notice of protest regarding the subject RFP process;
AND, the Obligee shall hold the protest bond for at least eleven (11) calendar days after the date of the final determination on the protest by the head of the affected agency;
AND, if the Protestor appeals the affected agency head’s determination on the protest to the Chancellor, in accordance with subsection Tennessee Code Annotated, § 12-4-109(a)(I)(E)(vii), the head of the agency shall hold said protest bond until instructed by the Chancellor as to its disposition.
NOW, THEREFORE, this obligation or bond shall remain in full force and effect conditioned upon a decision by the Review Committee that:
A request for consideration, protest, pleading, motion, or other document is signed by an attorney or the Protestor, before or after appeal to the Chancellor, in violation of Tennessee Code Annotated, § 12-4-109(a)(I(E)(ii);
the Protestor has brought or pursued the protest in bad faith; or
the Protestor’s notice of protest does not state on its face a valid basis for protest.
In which case, this obligation or bond shall be immediately payable to the Obligee. Otherwise, this obligation or bond shall be null and void.
IN WITNESS WHEREOF, the Protestor has hereunto affixed its signature and Surety has hereunto caused to be affixed its corporate signature and seal, by its duly authorized officers,
On this __________________________ day of_______ _______________in the year________
(Name of Protestor)
(Authorized Signature of Protestor)
(Name and Title of Signatory)
(Name of Surety)
(Signature of Attorney-in-Fact)
(Name of Attorney-in-Fact)
(Tennessee License Number of Surety)
Source: TBR Meetings, March 5, 1976; June 30, 1978; December 12, 1980; September 18, 1981; June 25, 1982; September 30, 1983; September 20, 1985 ; December 4, 1987; June 24, 1988; June 30, 1989; September 22, 1989; September 21, 1990; June 28, 1991; June 25, 1993; September 23, 1994; September 20, 1996, March 7, 1997, December 5, 1997; March 27, 1998, December 4, 1998; June 28, 2002; June 27, 2003, April 2, 2004; September 30, 2005; December 8, 2006; March30, 2007; June 29, 2007; September 28, 2007; March 28, 2008; December 4, 2008; June 19, 2009; TBR Board Meeting September 25, 2009.
TENNESSEE BOARD OF REGENTS
COUNCIL OF BUYERS
Minimum General Bid Conditions
Pursuant to Section II of TBR Policy 4:02:10:00, Purchasing Policy and Procedures, the following Minimum General Bid Conditions have been developed by the TBR Council of Buyers and approved by the Chancellor.
1. ACCEPTANCE AND REJECTION. The Institution reserves the right to reject any and all bids, to waive any informality in bids and, unless otherwise specified by the bidder, to accept any item in the bid. Bids may be awarded based on low by item, low by group of items or low by total items accepted, as best suits the needs of the Institution.
2. PREPARATION AND SUBMISSION OF BID.
a. Failure to examine any drawings, specifications, or instructions will be at the bidder’s risk.
b. Each bid should give the full name and business address of the bidder. Unsigned bids will be rejected. The person signing the bid must show his title, and if requested by the Institution, must furnish satisfactory proof of his or her authority to bind his or her company in contract. Bids must be typewritten or in ink; otherwise they may not be considered. Purchase order will be issued to the firm name appearing on the bid.
c. No erasures are permitted. Errors may be crossed out and corrections printed in ink or typewritten adjacent to error and must be initialed in ink by person signing bid.
d. Discounts, other than “Time” or “Cash”, offered should be deducted from the unit price.
e. Specifications: Reference to available specifications shall be sufficient to make the terms of the specifications binding on the bidder. The use of the name of a manufacturer, or any special brand or make in describing an item does not restrict the bidder to that manufacturer or specific article, unless specifically stated. The articles on which the bids/proposals are submitted must be equal or superior to that specified. Informative and Descriptive Literature: Bidders must furnish all information requested in the space provided in the bid form unless otherwise specified by the Institution. When applicable, bidders must submit for bid evaluation, cuts, sketches, descriptive literature and technical specifications covering the product(s) offered. References to literature submitted with a previous bid or on file with the Institution will not be sufficient.
f. Samples: Samples of items when called for, must be furnished free of expense, and if not destroyed will, upon request, be returned at the bidder’s expense. Requests for the return of samples must be made within ten (10) days of bid opening. Each sample must be labeled with the bidder’s name, manufacturer’s brand name and number, bid number and item reference.
g. Time of Acceptance. If a bidder fails to state a time within which a bid must be accepted, it is understood and agreed that the Institution shall have sixty (60) days to accept.
h. Time of Performance: The number of calendar days in which delivery is to be made after receipt of order shall be stated in the bid and may be a factor in making an award, price notwithstanding. If no delivery time is stated in the bid, bidder agrees that delivery is to be made within two weeks (10 business days) of order.
i. Transportation and delivery charges should be included in the price and be fully prepaid by the vendor to make delivery F.O.B. Institution, or another destination which may be specified in the bid.
j. All items bid must be new unless otherwise specifically stated in the bid.
k. Alternate/multiple bids will not be considered unless specifically called for in the bid.
l. Bond Requirements: Bond Requirements, if any, will be stated on the face of the Request for Quotation/Proposal (RFQ/RFP). The Institution reserves the right to require that the selected vendor post a performance and/or payment bond in such amount as deemed reasonable by the Institution. The cost of the bond shall be separately identified in the bid. The Institution reserves the right to waive the bond requirement and delete the cost of the bond from the successful bid.
m. Brand and Trade Names. The bidder must show brand or trade names of the articles bid, when applicable.
n. Bids for purchases of $25,000 or more must be signed and sealed with the bid number or other identifying information listed on the outside of the envelope.
o. Late bids will NOT be opened or considered. Bidders are cautioned to verify their bids before submission, as amendments received after the bid deadline will not be considered.
p. Bids are to be submitted on bid forms furnished by the Institution, otherwise they may not be considered. The Institution reserves the right to consider telephone, e-mail or faxed bids for purchase under $25,000 if received by the deadline and confirmed in writing within five (5) days on Institution forms.
3. FAILURE TO BID/ERROR IN BID. Failure to bid without advising the Institution that future invitations for bids are desirable may result in removal from Institution’s bidders’ list covering this category of items. In case of errors in the extension of prices in the bid, the unit price will govern. No bid shall be altered or amended after the specified time for opening bids. After bid opening, a vendor will be permitted to withdraw a bid only where there is obvious clerical error in the bid such as a misplaced decimal point, or where enforcement of the bid would impose unconscionable hardship due to an error in the bid resulting in a quotation substantially below the other bids received. Bid withdrawals will be considered only upon written request from the vendor.
4. INSPECTION OF BIDS. All bids will be opened publicly and are subject to public inspection after completion of the bid evaluation. Bidders may be present at opening.
5. DISCOUNT PERIOD. Time in connection with discount offered will be computed from date of satisfactory delivery at destination and performance, or from the date correct invoices are received, whichever is later. Discount periods of less than 20 days will not be considered in determination of low bid. Discounts other than time discounts will be shown on the face of the bid opposite the item to which it applies.
6. DEFAULT OF SELECTED VENDOR. In case of default of the vendor, the Institution may procure the articles or services from other sources and hold the vendor responsible for any excess cost occasioned thereby.
7. TAXES. The Institution is tax exempt; do not include taxes in quotation. Appropriate exemption certificates will be furnished to the successful bidder upon request. Vendors making improvements to, additions to, or repair work on real property on behalf of the Institution are liable for any applicable sales or use tax on purchases of tangible personal property used in connection with the contract or furnished to vendors by the Institution for use under the contract.
8. INSPECTION OF PURCHASES. Articles received which are not equivalent will not be accepted and will be picked up by the vendor or returned to vendor, shipping charges collect. The Institution shall have a reasonable period in which to inspect and accept or reject materials without liability. If necessity requires the Institution to use nonconforming materials, an appropriate reduction in payment may be made.
9. NON-DISCRIMINATION. The parties agree to comply with Title VI and VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, Executive Order 11,246, and the American Disabilities Act of 1990, and the related regulations to each. Each party assures that it will not discriminate against any individual including, but not limited to employees or applicants for employment and/or students, because of race, religion, creed, color, sex, age, disability, veteran status or national origin.
The parties also agree to take affirmative action to ensure that applicants are employed and that employees are treated during their employment without regard to their race, religion, creed, color, sex, age, disability, veteran status, or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection available to employees and applicants for employment.
10. PROHIBITIONS / CONFLICT OF INTEREST. Acceptance of gifts from vendors is prohibited. TCA 12-3-106. Bidding by state employees is prohibited. TCA 12-4-103. The bidder warrants that no part of the total contract amount shall be paid directly or indirectly to any officer or employee of the State of Tennessee.
11. NO VENDOR CONTRACT FORM – TERMS / TENNESSEE LAW. The contract documents for purchase under the RFQ/RFP request shall consist of the RFQ OR RFP, the successful bidder’s quotation/proposal, the contract awarded and/or the Institution’s purchase order. The terms and conditions of an order and duly authorized change orders shall be the sole terms and conditions that apply to a purchase. Any subsequent terms and conditions set forth by the vendor on invoices, or in any other manner, shall not apply unless expressly agreed to in writing by the institution. The contract shall be governed by Tennessee law.
12. AUDIT. The Contractor shall maintain documentation for all charges against the Institution and payment made by the Institution under this Contract. The books, records and documents of the Contractor, insofar as they relate to work performed or money received under this Contract, shall be maintained for a period of three (3) full years from the date of final payment. These documents shall be subject to audit at any time and upon reasonable notice, by Institution or the Comptroller of the Treasury or their duly appointed representatives. The Contractor’s financial statements shall be prepared in accordance with generally accepted accounting principles.
13. Prohibition on Hiring Illegal Immigrants. Tennessee Public Chapter No. 878 of 2006, TCA 12-4-124, requires that Contactor attest in writing that Contractor will not knowingly utilize the services of illegal immigrants in the performance of this Contract and will not knowingly utilize the services of any subcontractor, if permitted under this Contract, who will utilize the services of illegal immigrants in the performance of this Contract.
If Contractor is discovered to have breached the Attestation, the Commissioner of Finance and Administration shall declare that the Contractor shall be prohibited from contracting or submitting a bid to any Tennessee Board of Regents institution or any other state entity for a period of one (1) year from the date of discovery of the breach. Contractor may appeal the one (1) year by utilizing an appeals process in the Rules of Finance and Administration, Chapter 0620.
14. PURCHASING POLICIES / BID PROTESTS. This bid request and any award made hereunder are subject to the policies and guidelines of the Tennessee Board of Regents.
TENNESSEE BOARD OF REGENTS
CODE OF ETHICS IN PROCUREMENT AND CONTRACTING
The code of ethics was developed by the TBR Council of Buyers, approved by the Chancellor, and shall be applicable to all employees in the Tennessee Board of Regents System who are primarily responsible for the purchase of goods or services for any institution or technology center in the System.
1. Statement of Policy
Employees must discharge their duties and responsibilities fairly and impartially. They also should maintain a standard of conduct that will inspire public confidence in the integrity of the institutions and technology centers.
2. General Standards of Ethical Conduct
(a) Any attempt to realize personal gain through public employment, inconsistent with the responsible discharge of that public employment, is a breach of public trust.
(b) Employees shall base all purchases on the principle of competitive bidding consistent with policies of the Board and the institution or technology center.
(c) Employees shall grant all competitive bidders equal consideration, regard each transaction on its own merits, and foster and promote fair, ethical and legal trade practices.
(d) Employees shall avoid misrepresentation and sharp practices, and demand honesty in sales representations whether offered through the medium of a verbal or written statement, an advertisement, or a sample of a product.
(e) Employees shall be receptive to competent counsel from colleagues, and be willing to submit any major controversy through the appropriate appeals processes.
(f) Employees shall accord prompt and courteous reception insofar as conditions permit to all who call on legitimate business missions.
(g) Employees shall not use without consent the original designs developed by a vendor for competitive purposes.
3. Conflict of Interest
It shall be a breach of ethical standards for any employee, in the performance of his or her official duties, to participate directly or indirectly in any proceeding or application, request for ruling or other determination, claim or controversy, or other particular matter pertaining to any contract, or subcontract, and any solicitation or proposal thereof, in which to his or her knowledge:
(a) he or she or any member of his or her immediate family has a substantial financial interest; or
(b) a business or organization in which he or she or any member of his or her immediate family has a substantial financial interest as an officer, director, trustee, partner or employee, is a party; or
(c) any other person, business, or organization with whom he or she or a member of his or her immediate family is negotiating or has an agreement concerning prospective employment is a party.
The determination of whether a substantial financial interest exists shall be based upon the criteria identified in TBR Policy No. 1:02:03:10, Conflict of Interest.
Direct or indirect participation shall include but not be limited to involvement through decision, approval, disapproval, recommendation, preparation of any part of a purchase request, influencing the content of any specification or purchase standard, rendering of advice, investigation, auditing or in any other advisory capacity.
It shall be a breach of ethical standards for any employee or former employee to solicit, demand, accept, or agree to accept from another person, a gratuity or an offer of employment, in connection with any decision, approval, disapproval, recommendation, preparation of any part of a purchase request, influencing the content of any specification or purchase standard, rendering of advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling or other determination, claim or controversy, or other particular matter, pertaining to any contract or subcontract and any solicitation or proposal thereof.
5. Contemporaneous Employment Prohibited
It shall be a breach of ethical standards for any employee who is involved in procurement to become or be, while such an employee, the employee of any party contracting with the particular governmental body by which the employee is employed.
SMALL, MINORITY, AND WOMEN OWNED BUSINESSES
The Tennessee Board of Regents (TBR Institutions), consistent with state and federal law, seek to optimize opportunities for entering into contractual or purchasing opportunities with minority-owned businesses, woman-owned, and small businesses. TBR Institutions will seek to do business with firms and organizations that demonstrate and foster commerce with diversity businesses within their programs and policies. Through these efforts TBR Institutions will actively pursue its goals of building a more reflective marketplace for the community within the State of Tennessee.
TBR Institutions will fully cooperate and seek guidance from the Governor’s Office of Diversity Business Enterprise (GO-DBE) to meet this objective.
TCA §§12-3-101, 12-3-103 and 12-3-801 through 12-3-808.
Tennessee Minority Owned, Woman Owned and Small Business Procurement and Contracting Act
Executive Order Number 14 issued December 8, 2003.
Minority-owned business – A continuing, independent, for profit business which performs a commercially useful function and is at least 51% owned and controlled by one or more minority individuals who are impeded from normal entry into the economic mainstream because of past practices of discrimination based on race or ethnic background in accordance with the provisions of T.C.A § 12-3-802.
Woman-owned business – A women owned business that is a continuing, independent, for profit business which performs a commercially useful function, and is at least 51% owned and controlled by one or more women; or, in the case of any publicly owned business, at least 51% of the stock of which is owned and controlled by one or more women and whose management and daily business operations are under the control of one or more women in accordance with the provisions of T.C.A § 12-3-802.
Small business – A business which is independently owned and operated, in accordance with the provisions of T.C.A § 12-3-802, and is not dominant in its field of operation.
1. TBR Institutions shall incorporate diversity language into the vendor application/registration process.
2. TBR Institutions shall ensure that minority owned, woman owned and small businesses are included when soliciting bids for awarding of contracts or purchasing goods or services, through the purchasing department, whenever practicable. These businesses are subject to and governed under the same policies and procedures applicable to all businesses in relationship to terms, price, conditions, and quality for participation in procurement activities with the State of Tennessee.
3. TBR Institutions will request diversity information for all bids and requests for proposals processed through Purchasing Departments.
4. The Governor’s Office of Diversity Business Enterprise has compiled a comprehensive directory of minority owned, woman owned and small businesses. This directory and TBR Institutional lists of qualified bidders will be used in locating potential sources for various products and services. The directory maintained by the State of Tennessee is located on the world-wide-web at: www.tennessee.gov/diversity or intranet site at email@example.com. The State of Tennessee’s database provides a listing of diversity businesses including industry capabilities for which these vendors are registered.
5. Vendor/bidder complaints that may lead to the cancellation or termination of contracts or purchase orders awarded to diversity businesses registered with the Governor’s Office of Diversity Business Enterprise, and will be shared with the Director of the Governor’s Office of Diversity Business Enterprise.
6. The Tennessee Board of Regents shall provide a report to the Governor’s Office of Diversity Business Enterprise, as requested.
Related Policies and Guidelines:
Policy No. 4:02:10:00
Guideline No. G-030