An Act To Create the Procurement Review Board
Maine Legislature, Session 128, LD 1295
Committee: State and Local Government
Sponsors: LIBBY
Amends: 5 MRSA §1811, 5 MRSA §1812, 5 MRSA §1813, 5 MRSA §1815, 5 MRSA §1816-A, 5 MRSA §1819, 5 MRSA §1825, 5 MRSA §1825-B, 5 MRSA §1825-C, 5 MRSA §1825-E, 5 MRSA §1825-M, 5 MRSA §1825-O, 5 MRSA §1826-C, 5 MRSA §12004-G, 5 MRSA §1826-E

Legislative Document
No. 1295
S.P. 447
In Senate, April 4, 2017
An Act To Create the Procurement Review Board
Reference to the Committee on State and Local Government suggested and ordered printed.
HEATHER J.R. PRIEST
Secretary of the Senate
Presented by Senator LIBBY of Androscoggin.
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  5 MRSA §1811, first ¶, as amended by PL 1991, c. 780, Pt. Y, §61, is 
further amended to read: 
The Subject to review by the Procurement Review Board under subchapter 3, the 
Department of Administrative and Financial Services, through the Bureau of General 
Services, has authority: 
Sec. 2.  5 MRSA §1812, as amended by PL 1991, c. 780, Pt. Y, §67, is further 
amended by adding at the end a new paragraph to read: 
Purchases pursuant to this section are subject to review by the Procurement Review 
Board under subchapter 3. 
Sec. 3.  5 MRSA §1813, first ¶, as amended by PL 1991, c. 780, Pt. Y, §68, is 
further amended to read: 
The Director of the Bureau of General Services, with the approval of the 
Commissioner of Administrative and Financial Services, and in accordance with the 
authority of the Procurement Review Board to review, comment upon and approve or 
disapprove all requests for proposals; bids; and contract renewals, amendments, 
extensions or other changes to existing contracts pursuant to subchapter 3, may adopt, 
modify or abrogate rules for the following purposes: 
Sec. 4.  5 MRSA §1815 is amended to read: 
§1815.  Requisitions required 
Except as otherwise provided in subchapter 3 and chapters 141 to 155 and the rules 
and regulations adopted hereunder under those provisions, services, supplies, materials 
and equipment shall may be purchased by or furnished to the State Government or any 
department or agency thereof only upon requisition to the State Purchasing Agent. The 
State Purchasing Agent, or his authorized representative, shall examine each requisition 
submitted to him by any department or agency of the State Government and may revise it 
as to quantity, quality or estimated cost after consultation with the department or agency 
concerned.  
Sec. 5.  5 MRSA §1816-A, first ¶ is enacted to read: 
A contract governed by this section is subject to review by the Procurement Review 
Board under subchapter 3. 
Sec. 6.  5 MRSA §1819 is amended to read: 
§1819.  Unlawful purchases 
Whenever any department or agency of the State Government, required by 
subchapter 3 and chapters 141 to 155 and rules and regulations adopted pursuant thereto 
to those provisions, applying to the purchase of services, supplies, materials or equipment 
through the State Purchasing Agent, shall contract contracts for the purchase of such 
services, supplies, materials or equipment contrary to subchapter 3 or chapters 141 to 155 
or the rules and regulations made hereunder under those provisions, such contract shall be 
is void and have has no effect. If any such department or agency purchases any services, 
supplies, materials or equipment contrary to subchapter 3 or chapters 141 to 155 or rules 
and regulations made hereunder under those provisions, the head of such department or 
agency shall be is personally liable for the costs thereof, and if such services, supplies, 
materials or equipment are so unlawfully purchased and paid for out of state moneys 
money, the amount thereof may be recovered in the name of the State in an appropriate 
action instituted therefor.  
Sec. 7.  5 MRSA §1825, as amended by PL 1991, c. 780, Pt. Y, §69, is further 
amended to read: 
§1825.  Prohibitions 
All state agencies, except the Department of Transportation, are prohibited from 
purchasing what is normally classified as heavy equipment not previously authorized by 
the Legislature through the budget process, without prior written authorization from the 
Commissioner of Administrative and Financial Services; authorized purchases are subject 
to review by the Procurement Review Board under subchapter 3. All purchase 
requisitions for heavy equipment must indicate the budget year and account that 
authorized each item of equipment and, if required, contain the written authorization 
authorizations of the Commissioner of Administrative and Financial Services and the 
Procurement Review Board. 
Sec. 8.  5 MRSA §1825-B, sub-§1-A is enacted to read: 
1-A.  Procurement Review Board.  All awards of orders, grants and contracts 
pursuant to this section are subject to review by the Procurement Review Board under 
subchapter 3. 
Sec. 9.  5 MRSA §1825-C, as amended by PL 2015, c. 179, §3, is further amended 
to read: 
§1825-C.  Rulemaking 
The State Purchasing Agent shall adopt rules under this subchapter governing the 
purchase of services, the awarding of grants or contracts and the procedure by which 
aggrieved persons may appeal award decisions made by a department or agency of State 
Government.  Rules adopted pursuant to this section must be in accordance with the 
authority of the Procurement Review Board to review, comment upon and approve or 
disapprove all requests for proposals; bids; and contract renewals, amendments, 
extensions or other changes to existing contracts pursuant to subchapter 3.  These rules 
must be adopted in accordance with the Maine Administrative Procedure Act and apply 
to all departments and agencies of State Government subject to the authority of the 
Department of Administrative and Financial Services as set forth in this chapter. 
Sec. 10.  5 MRSA §1825-E, first ¶, as amended by PL 2015, c. 179, §6, is further 
amended to read: 
The Director of the Bureau of General Services shall ensure that every department or 
agency of State Government affords aggrieved persons an opportunity to appeal a 
contract or grant award decision except that a decision of the Procurement Review Board 
under subchapter 3 may not be appealed pursuant to this section.  As provided by this 
section, rules adopted under this subchapter must establish clear procedures by which an 
aggrieved person may appeal a contract or grant award decision. 
Sec. 11.  5 MRSA §1825-M, as enacted by PL 2001, c. 439, Pt. NNNN, §1, is 
amended to read: 
§1825-M.  Exception 
The State Purchasing Agent may accept and award a bid, subject to review by the 
Procurement Review Board under subchapter 3, to a supplier who has not met the 
requirements provided in section 1825-K if, after reasonable investigation by the State 
Purchasing Agent, it appears that the required unit or item of supply or brand of that unit 
or item, is procurable by the State from only that supplier. 
Sec. 12.  5 MRSA §1825-O, first ¶, as enacted by PL 2001, c. 439, Pt. NNNN, 
§1, is amended to read: 
The State Purchasing Agent shall adopt rules under this subchapter governing the 
award of bids. Those rules must include specific guidelines for vendors to follow in order 
to comply with the state purchasing code of conduct and criteria for seeking disclosure of 
names and addresses of vendors' suppliers and suppliers' working conditions.  Rules 
adopted pursuant to this section must be in accordance with the authority of the 
Procurement Review Board to review, comment upon and approve or disapprove all 
requests for proposals; bids; and contract renewals, amendments, extensions or other 
changes to existing contracts pursuant to subchapter 3. 
Sec. 13.  5 MRSA §1826-C, sub-§8 is enacted to read: 
8.  Review by Procurement Review Board.  All contracts awarded pursuant to this 
section are subject to review by the Procurement Review Board under subchapter 3. 
Sec. 14.  5 MRSA c. 155, sub-c. 3 is enacted to read: 
SUBCHAPTER 3 
PROCUREMENT REVIEW BOARD 
§1826-E.  Procurement Review Board 
1.  Board established.  The Procurement Review Board, referred to in this 
subchapter as "the board," is established pursuant to section 12004-G, subsection 32-A. 
A.  The board consists of 7 members: 
(1)  The Attorney General or the Attorney General's designee; 
(2)  The Treasurer of State or the Treasurer of State's designee; and 
(3)  Five members nominated by the Governor and confirmed by a majority vote 
of the joint standing committee of the Legislature having jurisdiction over state 
and local government matters and by a majority vote of the Senate.  Each 
member must have demonstrated sufficient business or professional experience in 
the area of procurement to perform the functions of the board. 
The Attorney General and the Treasurer of State or their designees serve as nonvoting 
members of the board.  A member of the board may not be a member of the 
Legislature.  In the event that the Governor has not nominated an individual to fill a 
vacancy on the board within 30 days of the vacancy, the President of the Senate shall 
nominate an individual to fill the vacancy. 
B.  At the first meeting, the voting members of the board shall select a chair from 
among its members.  The chair serves for a one-year term. 
C.  A voting member of the board serves for a 4-year term.  The Governor may 
nominate a voting member for a 2nd term. 
D.  A member of the board employed by or holding an interest in an entity doing 
business with or attempting to do business with the State does not by the member's 
service on the board preclude that entity from doing business with or attempting to do 
business with the State.  
E.  The board shall meet at least twice per month.  Meetings of the board must be 
conducted in person and must be open to the public.  Written minutes of such 
meetings must be created and made available for public inspection and copying. 
F.  A majority of the voting members of the board constitutes a quorum. 
G.  A member of the board receives no compensation but must be reimbursed for 
expenses reasonably incurred in the performance of the member's duties.  
2.  Authority and duties.  The board shall review, comment upon and approve or 
disapprove all requests for proposals; bids; and contract renewals, amendments, 
extensions or other changes to an existing contract for the procurement of supplies, 
professional or artistic services, construction and real property and capital improvement 
leases procured by the State valued at $1,000,000 or more.  Upon a majority vote of its 
voting members, the board may review requests for proposals; bids; and contract 
renewals, amendments, extensions or other changes to an existing contract valued at less 
than $1,000,000.  If the board takes no action to initiate the review of a request for 
proposal; bid; or contract renewal, amendment, extension or other change to an existing 
contract within 30 days of receiving it, a department or agency may proceed without the 
review, comment or approval of the board.  The board may review, study and hold public 
hearings concerning the implementation of its duties.  Each chief procurement officer, 
state purchasing officer, procurement compliance monitor and state department or agency 
shall cooperate with the board, provide information to the board and be responsive to the 
board in the board's conduct of its reviews, studies and hearings. 
3.  Contracts of $1,000,000 or more.  State departments and agencies shall submit to 
the board for approval all requests for proposals; bids; and contract renewals, 
amendments, extensions or other changes to an existing contract valued at $1,000,000 or 
more. 
4.  Contracts of $3,000,000 or more.  State departments or agencies that intend to 
enter into a contract that is subject to the board's approval, before issuing a public request 
for proposals or bids or, in the case of an existing contract, before seeking approval to 
renew, extend, amend or otherwise alter the contract, shall timely request and obtain legal 
advice from the Attorney General regarding the terms of the proposal whenever more 
than $3,000,000 could reasonably be expected to be expended as a result of the request 
for proposals or bids or as a result of the contract, renewal, extension, amendment or 
other change that is being proposed for approval by the board. 
5.  Advice of Attorney General.  The board shall timely seek legal advice from the 
Attorney General regarding any proposed contract when the board determines the 
contract: 
A.  May expose the State to substantial risk in the event of nonperformance; or 
B.  Could reasonably be expected to incur costs to the State in excess of $3,000,000 
over the full term of the proposed contract, exclusive of extensions or amendments.  
Upon a majority vote of the voting members of the board, the board also may seek 
legal review by and consult with the Attorney General on any contractual matter 
subject to the board's approval. 
6.  Approval criteria.  The board shall approve the award of a contract if the board is 
satisfied that: 
A.  The service to be performed under the contract cannot be economically provided 
by State Government; 
B.  The award of the contract is the most economical, effective and appropriate 
means of fulfilling a demonstrated need; 
C.  The contract will not impair the ability of the department or agency to meet its 
statutory duties and responsibilities under other state laws; and 
D.  The contract does not diminish the impact of statewide or other budgetary cost-
savings initiatives. 
Upon a majority vote of its voting members that the conditions under paragraphs A to D 
have not been satisfied, the board may reject a proposal; bid; or contract renewal, 
amendment, extension or change to an existing contract. 
7.  Sole-source contracts.  Notwithstanding subsection 6, a sole-source contract 
subject to the board's review may be approved only when the department has exercised 
due diligence in determining that the costs, fees or rates negotiated are fair and 
responsible and the sole-source contract is accompanied by written justification that 
demonstrates: 
A.  The contract is critical or essential to department or agency responsibilities or 
operations; 
B.  Insufficient staffing or expertise is available from within the department or 
agency or through other government entities; 
C.  The supplies or services required are unique to a specific contractor; or 
D.  Timeliness in supporting department or agency responsibilities or operations is an 
immediate concern through no fault of the department or agency and only one known 
source can meet the department's or agency's needs within the required time frame. 
8.  Cost overrun.  A state department or agency shall notify the legislative 
committee of jurisdiction of a contract that results in a cost overrun and shall report the 
dollar amount of the overrun. 
9.  Staff support.  Upon a majority vote of its voting members, the board may 
employ an executive director, subject to appropriation.  The board also may employ a 
reasonable and necessary number of staff persons, subject to appropriation. 
Sec. 15.  5 MRSA §12004-G, sub-§32-A is enacted to read: 
32-A.   
Sec. 16.  Initial terms of Procurement Review Board.  Notwithstanding the 
Maine Revised Statutes, Title 5, section 1826-E, subsection 1, paragraph C, of the initial 
confirmed members of the Procurement Review Board, the first member serves for a one-
year term, the 2nd and 3rd members serve for 2-year terms and the 4th and 5th members 
serve for 3-year terms. 
SUMMARY 
This bill establishes the Procurement Review Board, which is required to review and 
approve or disapprove all requests for proposals, bids, contract renewals, amendments, 
extensions or other changes to an existing contract for the State's procurement of supplies, 
professional or artistic services, construction and real property and capital improvement 
leases valued at $1,000,000 or more.  The board by majority vote may review 
procurements valued at less than $1,000,000. 
State Procurement Procurement Review 
Board 
Expenses Only 
MRSA §1826-E