Rhode Island Code of Regulations › Title 835 - Narragansett Bay Commission › Chapter 30 - Purchasing and Acquisitions › Subchapter 00 - N/A › Part 1 - Purchasing Rules and Regulations (835-RICR-30-00-1) › Section 835-RICR-30-00-1.4 - Negotiation

Current through June 14, 2024
1.4.1
Procedures for Negotiation
A. The objective of negotiation shall be to
				 secure advantageous terms and conditions and/or to exact improvements in terms
				 and conditions offered to the NBC to reduce potential costs to the
				 NBC.
B. Negotiation shall be used
				 to establish or modify contractual provisions in all cases where:
1. Fixed pricing is not the sole determinant
				 for award;
2. Responses to
				 competitive bidding or requests for proposal suggest that lower pricing, or
				 other improvements in offers, are achievable;
3. Sole source purchases are made;
4. Responses to the competitive bidding or
				 requests for proposal do not permit effective comparison, due to the differing
				 nature of the responses;
5. The
				 scope of a contract changes during the performance period, such that
				 modification of price or of other provisions may be warranted;
6. The Chief Purchasing Officer has
				 determined in writing that a product or the market in which a product is sold
				 is noncompetitive in nature; or
7.
				 The Chief Purchasing Officer has determined in writing that the NBC is in need
				 of special services.
C.
				 The Chief Purchasing Officer may delegate authority for directing and
				 negotiating change orders to subordinate personnel. Such delegation shall be in
				 accordance with specific limitations defined by the Chief Purchasing
				 Officer.
D. Competitive Negotiation
1. Contracts may be competitively negotiated
				 when it is determined in writing by the Chief Purchasing Officer that the bids
				 or proposals received by competitive sealed bidding or sealed request for
				 proposals are either unreasonable as to all or part of the requirements or were
				 not independently reached in open competition and for which:
a. Each responsible / responsive bidder or
				 proposer has been notified of the intention to negotiate and is given
				 reasonable opportunity to negotiate; and
b. The negotiated price is lower than the
				 lowest rejected bid price or proposal price by any responsible / responsive
				 bidder or proposer; and
c. The
				 negotiated price is the lowest negotiated price offered by any responsible /
				 responsive bidder or proposer.
2. Competitive negotiation may be used in any
				 case where the scope, term, or other requirements of the purchase have not been
				 determined at the time that a requisition is issued, or where optional bids or
				 proposals are desired and encouraged, or where the value of the purchase has
				 not been definitively established.
3. Procedures: Requests for Proposals in
				 Competitive Negotiations:
a. Public Notice:
				 Unless the invitations for bid are accessible under the provisions of R.I. Gen.
				 Laws §
													37-2-17.1,
				 adequate public notice of the request for proposals (RFP) shall include
				 publication in a newspaper of general circulation in the State of Rhode Island
				 and may include other publications as determined by the NBC not less than seven
				 (7) days nor more than twenty-eight (28) days before the date set for the
				 opening of the RFP. In the event that the NBC determines that there is a need
				 to waive the twenty-eight (28) day limitation, the NBC shall make a written
				 determination stating the reasons why the limitation is being waived and shall
				 state the number of days, giving a minimum and maximum, before the date set for
				 the opening of RFP when public notice is to be given.
b. The RFP shall describe and enumerate the
				 item(s) covered, their specification(s), contract term(s), and any other
				 special provisions or requirements. The RFP shall indicate the relative
				 importance of the evaluation factors including price.
c. At a public opening of responses to the
				 RFP, the Chief Purchasing Officer shall not be required to reveal any
				 information other than the names of those responding. The nature of responses
				 shall not be subject to public disclosure until a contract has been
				 awarded.
d. Review and Discussion:
				 Written or oral discussion shall be conducted with all responsible and
				 responsive proposers who submit proposals determined in writing to be
				 potentially selected for award. Discussions shall not disclose any information
				 derived from proposals submitted by competing proposers. Discussion need not be
				 conducted under the following circumstances:
(1) With respect to prices, where such prices
				 are fixed by law or regulation, except that consideration shall be given to
				 competitive terms and conditions; or
(2) Where time of delivery or performance
				 will not permit discussions; or
(3)
				 Where it can be clearly demonstrated and documented from the existence of
				 adequate competition or accurate prior cost experience with the particular
				 supply, service equipment, or construction item, that acceptance of an initial
				 proposal without discussion may result in fair and reasonable prices and the
				 RFP notifies all proposers of the possibility that the award may be made on the
				 basis of the initial offers.
e. Evaluation: Responses to the request for
				 proposals shall be evaluated:
(1) To determine
				 nonresponsive proposals, which shall be eliminated from further consideration;
				 and
(2) To determine the lowest
				 cost combination of options, terms, and conditions, establishing a base-line;
				 and
(3) To establish a cost
				 ranking of responses to that base-line.
f. Where there is more than one proposer,
				 competitive negotiations shall be conducted with the three (two if there are
				 only two) proposers who have been determined in writing to be the lowest
				 responsive and responsible proposers to the RFP. Such competitive negotiations
				 shall be conducted under the following restrictions:
(1) All potential proposers shall have equal
				 opportunity to take part in discussions pertaining to the revision of the scope
				 of services in a contract.
(2) In a
				 case where a revised request for proposals is requested, it shall be issued as
				 promptly as possible and shall demand a diligent response to the revised
				 requirements. The award shall be granted upon the basis of the lowest evaluated
				 proposed price submitted by any responsive and responsible proposer.
(3) In the event that all proposals submitted
				 pursuant to this article result in offers in excess of the funds available for
				 the purchase and the lowest proposal is ten percent (10%) greater than the next
				 lowest price offer then the Chief Purchasing Officer has the option of
				 accepting the lowest cost bid rather than negotiating.
g. The Chief Purchasing Officer is not
				 prohibited from negotiating with vendors who maintain a General Service
				 Administration Price Agreement with the United States of America, the State of
				 Rhode Island, or any agency thereof, provided, however, that no contract
				 executed under this provision shall authorize a price higher than is contained
				 in the contract between the General Service Administration or the State of
				 Rhode Island and the vendor affected.
h. Request for Best and Final Proposal
(1) On the basis of discussions with
				 proposers, a request for best and final proposal, which describes the
				 requirements of the purchase in the final form, shall be issued to all
				 proposers still under consideration.
(2) Each proposer shall submit a best and
				 final proposal, which defines their best price and other terms, for the
				 purchase.
(3) Best and final
				 proposals shall be evaluated and awarded to the responsible proposer whose
				 proposal is determined in writing to be the most advantageous to the NBC taking
				 into consideration price and the evaluation factors set forth in the
				 RFP.
E. Noncompetitive Negotiation
1. In the event that all sealed bids
				 submitted through a formal solicitation result in bid prices in excess of the
				 funds available for the purchase, and the Chief Purchasing Officer determines
				 in writing that there are no additional funds available from any source so as
				 to permit an award to the lowest responsive and responsible bidder, and the
				 best interest of the NBC will not permit the delay attendant to a
				 re-solicitation under revised specification or for revised quantities under
				 competitive sealed bidding, then a negotiated award may be made as set forth in
				 this section.
2. Noncompetitive
				 negotiation may be used to improve the price offered on the lowest evaluated
				 bid price that is both responsive and responsible to any competitive
				 bid.
3. The Chief Purchasing
				 Officer may authorize the award of a contract on the basis of noncompetitive
				 negotiation, where it has been determined in writing that:
a. Sole source purchasing is appropriate;
				 or
b. The product or market in
				 which a product is sold is noncompetitive in nature; or
c. Deceptive or exclusionary selling
				 practices are in evidence.
4. Noncompetitive negotiation may be used to
				 modify a contract during its performance, provided that no attempt is made to
				 reduce the contractual obligations of the supplier, vendor, or contractor or
				 the contract term is not extended except in response to a request by the
				 supplier, vendor, or contractor in consideration for other substantive changes
				 and where such extension of the contract term is determined in writing by the
				 Chief Purchasing Officer to be in the NBC's best interest.
5. In all negotiations, the noncompetitive
				 negotiation process, including, but not limited to: issues discussed, options
				 considered, the rationale applied to decisions made, and agreements reached
				 shall be documented in summary form and placed in the purchase order
				 file.