bidder-contracting-guide-DES.docx

BIDDER CONTRACTING GUIDE

FOR

ENTERPRISE PROCUREMENT SOLUTION CONTRACTS

FOR

GOODS AND SERVICES

Dated January 22, 2025

ENTERPRISE PROCUREMENT SOLUTION CONTRACTS PAGE 1

(Rev 2025-1-22)

TABLE OF CONTENTS

Note: The Table of Contents includes links to enable quick access to specific sections. Simply put your mouse cursor over the relevant page number in the Table of contents for the desired section and use the Ctrl+click feature to jump to the desired section.

INTRODUCTION

This Bidder Contracting Guide for Enterprise Procurement Solution Contracts for Goods/Services (“Contracting Guide”) provides useful information regarding enterprise procurement solution contracts for goods/services that are competitively solicited and/or established by the Washington State Department of Enterprise Services (“Enterprise Services”) for use by Washington state agencies and other specified purchasers (collectively, ”Eligible Purchasers”). These contracts, known as enterprise procurement solution contracts are unique and differ in significant ways from Washington state agency contracts for goods/services.

Bidders who are interested in bidding on competitive solicitations for enterprise procurement solution contracts for goods/services must review the information included in this Contracting Guide. Bidders who have questions and/or concerns regarding the information in this document may raise such questions and/or concerns during the Pre-Bid Conference and the Question & Answer Period for the applicable Competitive Solicitation.

This document is organized into five sections, as follows:

· Section 1: Enterprise Procurement Solution Contracts;

· Section 2: Competitive Solicitations: Bidder Complaints, Debrief Conferences, & Protest Requirements;

· Section 3: Contracting With the State of Washington for Goods/Services Contracts;

· Section 4: Required Contract Provisions, Contract Provisions that Are Highly Unlikely To Be Included, and Certain Economic Provisions that Bidders May Request Modification; and

· Section 5: Good/Services Contracting Opportunities for Small & Diverse Businesses; and

In addition, this document also includes a helpful glossary of terms. See Appendix A – Terminology Pertaining to Competitive Solicitations for Enterprise Procurement Solutions for Good/Services.

§ 1 – ENTERPRISE PROCUREMENT SOLUTION CONTRACTS

Competitive solicitations and resulting enterprise procurement solution contracts are unique and differ in significant ways from Washington state agency contracts for goods/services. The following graphic depicts certain important differences:

ENTERPRISE PROCUREMENT SOLUTION CONTRACTS

Enterprise Services has statewide responsibility to develop specified enterprise procurement solutions (e.g., contracts and cooperative purchasing agreements) for goods and services. See RCW 39.26.080(3) and RCW 39.26.060. Such enterprise procurement solutions, including contracts resulting from competitive solicitations for enterprise procurement solutions, are competitively solicited and established by Enterprise Services, on behalf of the State of Washington, for use by Washington state agencies and other statutorily specified eligible purchasers (collectively, “Purchasers” or “Eligible Purchasers”) (see below). See RCW 39.26.050 and RCW 39.34.055.Figure 1 - Procurement Bridge

As depicted in the graphic below, the Washington State Legislature has authorized Enterprise Services, on behalf of the State of Washington, to develop and/or participate in various types of enterprise procurement solutions for goods and services:

This Contracting Guide provides guidance for the category identified on the left-hand side in the above graphic – i.e., Statewide Contracts for Goods/Services.

The Washington State Legislature, in authorizing Enterprise Services, on behalf of the state, to develop and/or participate in enterprise procurement solution contracts, made a public policy decision informed by several strategic considerations, including:

· Creating and authorizing Enterprise Services as a single central procurement organization for the State of Washington would better enable Washington to achieve and utilize cost-effective and efficient procurement solutions;

· Such procurement solutions, by creating an opportunity to aggregate state agency and other eligible Purchaser spending, could decrease administrative and transactional costs for Purchasers, awarded Contractors, and Washingtonians; and

· Such procurement solutions may enable Purchasers and innovative vendors to implement state procurement priorities.

ELIGIBLE PURCHASERS

The Washington State Legislature specifies the type of entities who may use (and in the case of mandatory contracts, who must use) enterprise procurement solution contracts for goods and services. See, e.g., RCW 39.26.050, RCW 39.26.060, and RCW 39.26.251.

Enterprise procurement solution contracts solicited and awarded by Enterprise Services are available to two groups of purchasers, collectively referred to as Eligible Purchasers:

Note: The competitive solicitation and resulting enterprise procurement solution contract will specify the scope of Eligible Purchasers. In the event the enterprise procurement solution is a cooperative purchasing agreement, the scope of eligible purchasers may be broader and include other specified states and their local governmental entities. See RCW 39.26.060.

PURCHASER USE OF ENTERPRISE PROCUREMENT SOLUTION CONTRACTS

Typically, Eligible Purchasers use enterprise procurement solution contracts through a purchase order, work order, or similar document as specified in the enterprise procurement solution contract resulting from the competitive solicitation. Such Contracts are designed to function as a ‘procurement bridge’ between suppliers who have bid and won a Competitive Solicitation to supply/provide Goods/Services and Eligible Purchasers who wish to purchase such Goods/Services pursuant to pre-determined, clear, consistent, easy to use, value-added contracts. In short, such Contracts establish:

· Precisely what Goods/Services may be purchased (i.e., the included Goods/Services);

· The relevant performance requirements for such Goods/Services as well as the vendor’s contractual performance;

· The applicable price for such Goods/Services; and

· Relevant terms and conditions for the performance of the Contract.

Purchaser-specific Purchase Orders will specify, for example, the particular volume of Goods/Services, the specific Purchaser’s delivery location, etc. This approach is designed, in part, to create contracting efficiencies for awarded Bidders, Eligible Purchasers, and Washingtonians.

Operationally, this procurement approach is depicted as follows:

§ 2 – COMPETITIVE SOLICITATIONS: BIDDER COMPLAINTS, DEBRIEF CONFERENCES, & PROTEST REQUIREMENTS

This section provides detailed information regarding Bidder opportunities to question and/or challenge competitive solicitations for enterprise procurement solution contracts and the applicable requirements for Bidder complaints, Bidder debrief conferences, and Bidder protests. This section includes the following:

· An overview, including relevant legal requirements, and information to contextualize these processes;

· Bidder complaints;

· Bidder debrief conferences; and

· Bidder protests.

OVERVIEW REGARDING BIDDER OPPORTUNITIES TO QUESTION AND/OR CHALLENGE COMPETITIVE SOLICITATIONS AND CONTRACT AWARDS

Competitive solicitations for enterprise procurement solution contracts for goods/services issued by Enterprise Services are governed by:

· Washington’s Procurement Code for Goods/Services (RCW 39.26). See RCW 39.26.080(3) (master contracts – i.e., enterprise procurement solution contracts for goods/services); RCW 39.26.060 (cooperative purchasing agreements); and RCW 39.26.050 (administration and use of enterprise procurement solution contracts for goods/services).

· Applicable enterprise procurement policies promulgated by Enterprise Services that are applicable to all Washington state agencies contracting for goods/services pursuant to Washington’s Procurement Code for Goods/Services. See RCW 39.26.080(1) & (2).

· Applicable procurement policies, standards, or guidance adopted by Enterprise Services pertaining to its Enterprise Services procurement of enterprise procurement solution contracts for goods/services.

· The requirements set forth in the specific competitive solicitation.

Collectively, these authorities, provide multiple opportunities for Bidders to question and/or challenge competitive solicitations for enterprise procurement solution contracts:

· Washington’s Procurement Code for Goods/Services requires Enterprise Services to have clear and transparent processes for Bidder complaints and Bidder protests. See RCW 39.26.170(1) (Bidder complaints) and RCW 39.26.170(2) (Bidder protests).

· Applicable enterprise procurement policy establishes procedural requirements for Bidder complaints, Bidder protests, and Bidder debrief conferences. See ENTERPRISE PROCUREMENT POLICY NO. POL-DES-170-00.

· Enterprise Services, through its competitive solicitations for enterprise procurement solution contracts for goods/services provides for:

· Pre-Bid Conferences in which Bidders may raise questions and/or concerns;

· Question & Answer Periods in which Bidders may raise questions and/or concerns; and

· Debrief conferences in which Bidders may discuss their bid and evaluation with Enterprise Services.

Chronologically, the above-described opportunities for Bidders to question and/or challenge competitive solicitations for enterprise procurement solution contracts are depicted as follows:

Importantly, the above-described opportunities for Bidders to question and/or challenge competitive solicitations for enterprise procurement solution contracts are not without limitation. Rather, these opportunities are designed to accomplish two primary public policy goals pertaining to the procurement:

1. Optimize Participation: Enable interested parties to ask questions regarding the procurement, gain clarity regarding procurement requirements, and provide feedback to Enterprise Services regarding the procurement; and

2. Reduce Procurement Integrity Risks: Enable interested parties to challenge procurement requirements, assumptions, structure; and process that create procurement integrity risks (e.g., the procurement as structured unnecessarily reduces competition; the procurement evaluation process is biased or unfair; the procurement is unnecessarily ambiguous or unclear; evaluator bias, discrimination, or conflict of interest; failure to follow specified procurement process).

Accordingly, Bidder opportunities to question and/or challenge competitive solicitations for enterprise procurement solution contracts are designed – deliberately – to identify problems, if any, as early as possible so that, as appropriate, the procurement can be amended or modified to address the issue in a cost-effective and efficient manner. This also explains why opportunities to challenge such competitive solicitations are more limited later in the procurement process.

BIDDER COMPLAINTS

PURPOSE OF THE COMPLAINT PERIOD

The complaint period is an opportunity to raise objections or concerns or suggest changes to the competitive solicitation that were not addressed during the Question & Answer Period (see Competitive Solicitation at Section 2.4) or during the Pre-Bid Conference (see Competitive Solicitation at Section 2.5).

A Bidder’s failure to raise a complaint during the complaint period may waive its right for later consideration. Enterprise Services will consider all complaints but is not required to modify the Competitive Solicitation, in part or in full. If bidder complaints result in changes to the competitive solicitation, Enterprise Services will post to WEBS written amendments to the Competitive Solicitation.

COMPLAINT PERIOD

Competitive solicitations for enterprise procurement solution contracts include a complaint period for Bidders to raise objections to the competitive solicitation. The complaint period ends five (5) business days before the deadline for submitting bids (bid due date) set forth in the competitive solicitation. See Competitive Solicitation at Section 2.4 [Competitive Solicitation Deadlines].

CRITERIA FOR COMPLAINT

A complaint may be based only on one or more of the following grounds:

1. The Competitive Solicitation unnecessarily restricts competition;

2. The Competitive Solicitation’s evaluation or scoring process is unfair or flawed; or

3. The Competitive Solicitation’s requirements are inadequate or insufficient to prepare a response.

INITIATING A COMPLAINT

A complaint must:

1. Be in writing;

2. Clearly articulate the basis of the complaint and include a proposed remedy (note: a complaint MUST be based only on one or more of the criteria for complaint set forth above);

3. State all facts and arguments on which the complaining is relying as the basis for its complaint;

4. Include any relevant documentation or other supporting evidence;

5. Be signed by the complaining Bidder or an authorized agent;

6. Identify the competitive solicitation number;

7. Conspicuously state “Complaint” in any subject line of any correspondence or email; and

8. Be timely delivered to the email address or postal address specified below.

HOW TO SUBMIT A COMPLAINT

To submit a complaint, Bidders timely must send an email message to the procurement coordinator specified in the Competitive Solicitation, such that it is timely received. See Competitive Solicitation at Section 2.6 [Competitive Solicitation Questions]. The email message must include “Complaint” in the subject line of the email message.

Alternatively, timely mail the complaint to the procurement coordinator specified in the Competitive Solicitation, such that it is timely received, at the following address:

Attn: Procurement Coordinator – Complaint Contracts & Procurement Division Washington State Department of Enterprise Services P.O. Box 41411 Olympia, WA 98504-1411

Complaints must be timely delivered to and received by the procurement coordinator no less than five (5) business days prior to the deadline for bid submittal [see Competitive Solicitation at Section 2.4 (Competitive Solicitation Deadlines)]

RESPONSE TO A COMPLAINT

When a complaint is received, the Procurement Coordinator (or designee) will consider all the facts available and respond, in writing, prior to the deadline for bid submittals, unless more time is needed. The Procurement Coordinator will post to WEBS the response(s) to such complaint(s).

RESPONSE IS FINAL

The Procurement Coordinator’s response to a complaint is final and not subject to administrative appeal. Issues raised in a complaint may not be raised again during the protest period. Furthermore, any issue, exception, addition, or omission not brought to the attention of the Procurement Coordinator prior to bid submittal may be deemed to be waived for protest purposes.

BIDDER DEBRIEF CONFERENCES

PURPOSE OF A DEBRIEF CONFERENCE

Any Bidder who has submitted a timely bid may request a debrief conference. A debrief conference provides an opportunity for the Bidder to meet with Enterprise Services to discuss Bidder’s bid and evaluation. It does not provide an opportunity to discuss other bids and evaluations. As further explained below, a debrief conference is a necessary prerequisite to filing a protest.

TIME PERIOD TO REQUEST A DEBRIEF CONFERENCE

Following bid evaluation, Enterprise Services will announce the apparent successful bidder(s) (“ASBs announcement”). See Competitive Solicitation at Section 3 (Announcement of Apparent Successful Bidders). The ASB announcement may be made by any means, but Enterprise Services likely will use email to each bidder’s email address provided by bidder in Bidder’s Certification. See Competitive Solicitation at Exhibit A – Bidder’s Certification (see bidder information).

Bidder has 3 business days to request a debrief.

Bidder MUST participate in a debrief conference as a prerequisite to protest.

Bidders will have three (3) business days to request a debrief conference, if desired.

If a debrief conference is timely requested, Enterprise Services will offer the requesting Bidder one meeting opportunity and notify the Bidder of the debrief conference place, date, and time. Please note, because the debrief process must occur before making contract awards, Enterprise Services likely will schedule debrief conferences shortly after the ASB announcement and the bidder’s request for a debrief conference. Enterprise Services will not allow the debrief process to delay contract awards. Accordingly, Bidders should plan for contingencies and alternate representatives.

Bidders who wish to protest must first participate in a debrief conference. Bidders who are unwilling or unable to attend the debrief conference will lose the opportunity to protest. A debrief conference is a required prerequisite for a bidder to file a protest.

INITIATING A DEBRIEF CONFERENCE

A debrief conference request must:

1. Be in writing;

2. Be signed by the requesting Bidder or an authorized agent;

3. Identify the competitive solicitation number;

4. Conspicuously state “Debrief” in any subject line of any correspondence or email; and

5. Be timely delivered to the email address specified below.

HOW TO REQUEST A DEBRIEF CONFERENCE

To request a debrief conference, Bidders must, within three (3) business days following ASB announcement, send an email message to the procurement coordinator specified in the competitive solicitation. See Competitive Solicitation at Section 2.3 [Competitive Solicitation Questions]. The email message must include “Debrief” in the subject line of the email message.

Debrief conferences may be conducted either in person at Enterprise Services’ offices in Olympia, Washington, or virtually (e.g., by telephone or web-based virtual meeting such as MS Teams), as determined by Enterprise Services, and may be limited by Enterprise Services to a specified period of time.

BIDDER PARTICIPATION IN A DEBRIEF CONFERENCE IS A PERQUISITE TO A BIDDER PROTEST

A bidder’s failure to request a debrief conference within the specified time and attend the debrief conference constitutes a waiver of the right to submit a protest.

BIDDER PROTESTS

Following a Debrief Conference, Bidders may protest the award of a Contract.

CRITERIA FOR A PROTEST

A protest may be based ONLY on one or more of the following:

1. Bias, discrimination, or conflict of interest on the part of an evaluator;

2. Error in computing evaluation scores; or

3. Non-compliance with any procedures described in the competitive solicitation.

Because protests occur both at the end of a costly and time-consuming process and after Bidders have had opportunities to raise issues or concerns in a Pre-Bid Conference, a Question & Answer Period, a complaint process, and a debrief conference, the protest officer has very narrow jurisdiction and properly may consider a Bidder protest ONLY if such Bidder protest clearly meets the criteria for protest set forth herein. Bidder protests that do not meet the criteria for protest set forth herein shall be dismissed and not considered.

INITIATING A PROTEST

Any Bidder may protest a contract award to an ASB. A protest must:

1. Be in writing;

2. State all facts and arguments on which the protesting Bidder is relying as the basis for its protest;

3. Include any relevant documentation or other supporting evidence;

4. Be signed by the protesting Bidder or an authorized agent;

5. Identify the competitive solicitation number;

6. Conspicuously state “Protest” in any subject line of any correspondence or email; and

7. Be timely delivered to the email address or postal address specified below.

HOW TO SUBMIT A PROTEST

Send an email message to Enterprise Services’ protest officer at the following email address: DESDLProcurementProtest@des.wa.gov. The email message must include “Protest” in the subject line of the email message.

Alternatively, mail the protest to the protest officer at the following address:

Attn: Protest Officer Contracts & Procurement Division Washington State Department of Enterprise Services P.O. Box 41411 Olympia, WA 98504-1411

Protests must be received by the Protest Officer within five (5) business days after the Debrief Conference; Provided, however, that Enterprise Services may extend such time period, by written notice, at its discretion.

PROTEST RESPONSE

For protests that meet the criteria for protest set forth above, Enterprise Services’ protest officer, after reviewing the protest and available facts, will issue a written response within ten (10) business days from receipt of the protest, unless additional time is needed.

DECISION IS FINAL

The protest decision is final and not subject to administrative appeal. If the protesting Bidder does not accept Enterprise Services’ protest response, the Bidder may seek relief in Thurston County Superior Court.

§ 3 – CONTRACTING WITH THE STATE OF WASHINGTON FOR GOODS/SERVICES

This section provides additional information regarding how certain aspects of competitive solicitations for enterprise procurement solutions for goods/services impact how businesses do business with the State of Washington. This section includes information regarding the following:

· WEBS registration;

· Business license and state registration;

· Washington’s Public Records Act & public records disclosure requests;

· State procurement priorities and bid preferences; and

· State procurement priorities – environmentally preferable products.

WEBS REGISTRATION

Individuals and firms interested in contracting opportunities with Enterprise Services (including enterprise procurement solution contracts) or any Washington state agency should register for competitive solicitation notices at the Washington Electronic Business Solution (WEBS) WEBS Registration. There is no cost to register in WEBS.

WEBS:

· Is the web-based vendor registration and bid notification system administered by Enterprise Services.

· Enables businesses to find and receive notices regarding current public agency competitive solicitations for:

· Goods/Services;

· Architectural & Engineering Services;

· Public Works; and

· Real Estate Leasing.

· Includes all businesses who are interested in contracting with the state.

· Includes all competitive solicitations for goods/services issued by all Washington state agencies. See RCW 39.26.150.

· Includes contract award results regarding all competitive solicitations for goods/services issued by all Washington state agencies. See RCW 39.26.160(7) (requiring Washington state agencies to enter into WEBS the name of each bidder and an indication as to the successful bidder).

Note: To be eligible for a goods/services contract award, Bidders must be registered in WEBS.

BUSINESS LICENSE & STATE REGISTRATION

To be eligible for a contract award to provide goods/services to Washington state agencies and other Eligible Purchasers, Bidders – including Washington state businesses and out-of-state businesses – must satisfy the following requirements prior to Contract Award:

· Washington Business License: Awarded Bidders must have a Washington Business License issued by the Washington State Department of Revenue;

· Registration with the Washington State Department of Revenue: Awarded Bidders must be registered with the Washington State Department of Revenue (which occurs when applying for a Washington Business License); and

· Registration with the Washington Secretary of State: Awarded Bidders, except for sole proprietors and general partnerships, must be registered with the Washington Secretary of State.

WASHINGTON’S PUBLIC RECORDS ACT – PUBLIC RECORDS DISCLOSURE REQUESTS

All documents (written and electronic) submitted to Enterprise Services as part of competitive solicitation for an enterprise procurement solution contract for goods/services are public records. Unless statutorily exempt from disclosure, such records are subject to disclosure if requested. See RCW 42.56, Public Records Act. Enterprise Services strongly discourages Bidders from unnecessarily submitting sensitive information (e.g., information Bidders may categorize as ‘confidential,’ ‘proprietary,’ ‘sensitive,’ ‘trade secret,’ etc.).

· If, in Bidder’s judgment, Washington’s Public Records Act provides an applicable statutory exemption from disclosure for certain portions of Bidder’s bid, please mark the precise portion(s) of the relevant page(s) of the bid that Bidder believes are statutorily exempt from disclosure and identify the precise statutory basis for exemption from disclosure.

· In addition, if, in Bidder’s judgment, certain portions of Bidder’s bid are not statutorily exempt from disclosure but are sensitive because these particular portions of Bidder’s bid (NOT including pricing) include highly confidential, proprietary, or trade secret information (or the equivalent) that Bidder protects through the regular use of confidentiality or similar agreements and routine enforcements through court enforcement actions, please mark the precise portion(s) of the relevant page(s) of Bidder’s bid that include such sensitive information.

In the event that Enterprise Services receives a public records disclosure request pertaining to information that Bidder has submitted and marked either as (a) statutorily exempt from disclosure; or (b) sensitive, Enterprise Services, prior to disclosure, will do the following:

· Enterprise Services’ Public Records Officer will review any records marked by Bidder as statutorily exempt from disclosure. In those situations, where Bidder’s designation of the precise portion(s) of the relevant page(s) of Bidder’s bid aligns with the stated precise statutory exemption from disclosure, Enterprise Services will redact or withhold the precise portion(s) of the relevant page(s) of Bidder’s bid document(s) as appropriate.

· For documents marked by Bidder as ‘sensitive’ or for documents where Enterprise Services either determines that no statutory exemption to disclosure applies or is unable to determine whether the stated precise statutory exemption to disclosure properly applies, Enterprise Services will notify Bidder, at the address provided in the bid submittal, of the public records disclosure request and identify the date that Enterprise Services intends to release the document(s) (including documents marked ‘sensitive’ or exempt from disclosure) to the requester unless Bidder, at Bidder’s sole expense, timely obtains a court order enjoining Enterprise Services from such disclosure. In the event Bidder fails to timely file a motion for a court order enjoining such disclosure, Enterprise Services will release the requested document(s) on the date specified. Bidder’s failure properly to identify exempted or sensitive information or timely respond after notice of request for public disclosure has been given shall be deemed a waiver by Bidder of any claim that such materials are exempt or protected from disclosure.

ENVIRONMENTAL SUSTAINABILITY

The Washington State Legislature and Governor have enacted or ordered Washington state agencies, through their procurement of goods and services to consider or prefer goods and/or activities that either promote environmental sustainability or reduce adverse environmental impacts (e.g., greenhouse gas reduction). As appropriate, in designing, developing, and delivering enterprise procurement solutions to support Washington state agencies and other Eligible Purchasers in procuring Goods/Services, Enterprise Services diligently endeavors to implement various state environmental procurement priorities, including:

· Products containing recycled material. See RCW 39.26.255. See also, Enterprise Services Policy No. POL-DES-255-00 – Recycled Content Purchasing Preference.

· Electronic Products that reduce or eliminate hazardous materials. See RCW 39.26.265. See also, ENTERPRISE SERVICES POLICY NO. POL-DES-265-00 – Electronic Products Purchasing Preference.

· Products and product packaging that do not contain polychlorinated biphenyls (PCBs). See RCW 39.26.280. See also, ENTERPRISE SERVICES POLICY NO. POL-DES-280-00 –Purchasing Preference for Products and Packaging That Do Not Contain Polychlorinated Biphenyls (PCBs).

· Products that do not contain hydrofluorocarbons (HFCs). See RCW 39.26.310. See also, ENTERPRISE SERVICES POLICY NO. POL-DES-310-00 –Purchasing Preference for Products Not Containing Hydrofluorocarbons (HFCs).

· Nonmercury-Added Products. See RCW 70A.230. See also ENTERPRISE SERVICES POLICY NO. POL-DES-70A-230-00 – Nonmercury-Added Products Purchasing Preference Policy.

Bidders, of course, are welcome to inform Enterprise Services of goods and or services that align with such environmental sustainability procurement priorities.

POLYCHLORINATED BIPHENYLS (PCBS) NOTICE

Polychlorinated biphenyls, commonly known as PCBs, have adverse effects on human health and the environment. Accordingly, the State of Washington, through its procurements of goods/services, is trying to minimize the purchase of products with PCBs and to incentivize its contractual vendors to sell products and products-in-packaging without PCBs.

§ 4 – REQUIRED CONTRACT PROVISIONS, CONTRACT PROVISIONS THAT ARE HIGHLY UNLIKELY TO BE INCLUDED, AND CERTAIN ECONOMIC PROVISIONS THAT BIDDERS MAY REQUEST MODIFICATION

OVERVIEW: CONTRACT REQUIREMENTS FOR ENTERPRISE PROCUREMENT SOLUTIONS

The Washington State Legislature has authorized Enterprise Services, on behalf of the State of Washington, to design, develop, competitively solicit, and award enterprise procurement solution contracts for goods/services and to participate in competitively solicited and awarded cooperative purchasing agreements (collectively, ‘Enterprise Procurement Solutions’) that may be used by all Washington state agencies and certain other specified Eligible Purchasers (e.g., local governments and agencies, schools, certain public benefit nonprofit organizations).

Enterprise Procurement Solutions, in addition to addressing procurement-specific transactional issues (e.g., ordering, delivery, performance requirements, etc.), must comply with:

· Washington’s Procurement Code for Goods/Services (RCW 39.26);

· Enterprise Procurement Policies pertaining to procurements for goods/services;

· State procurement priorities (e.g., contracting and procurement requirements established by the Washington State Legislature and the Governor);

· Other applicable laws; and

· Procurement integrity requirements.

Accordingly, contracts for Enterprise Procurement Solutions necessarily must:

· Include certain terms and conditions that are NOT negotiable and that may be unfamiliar to parties who do not frequently contract with governmental entities; and

· Exclude certain terms and conditions that, although perhaps although common in private sector contracts for goods/services, are not permitted as a matter of law or policy in state contracts for goods/services.

This section includes three high level summary charts:

· Chart 1 – Contract Provisions that MUST Be Included in Enterprise Procurement Solution Contracts for Goods/Services;

· Chart 2 – Contract Provisions that Will NOT Be Included in Enterprise Procurement Solution Contracts for Goods/Services; and

· Chart 3 – Contract Provisions that Bidders Timely May Request Be Modified.

Charts 1 and 2 are designed to provide Bidders a high-level overview and identify certain contract provisions that MUST be included (Chart 1) or will NOT be included (Chart 2) in the resulting contract for goods/services as well as a brief summary explaining why the particular provision either must be included or will NOT be included. Chart 3, by contrast, is designed to identify contract provisions that Bidders timely may request be modified – prior to close of the Question & Answer Period – for ALL Bidders.

The above-referenced charts are differentiated to provide greater clarity, transparency, and fairness to all stakeholders. In addition, because the charts address different concepts, the charts are separated.

As depicted in the graphic below, without certain limitations on substantive modifications to proposed contracts for goods/services (either to delete or modify existing provisions or to add certain provisions), the contracting and procurement process can become needlessly complex and uncertain, both of which are factors that undermine cost-effective and efficient procure.

This clear, transparent approach to procurement and contracting is designed to promote procurement integrity. Competitive Solicitations for goods/services contracts that lack clear, transparent, known limitations regarding substantive modifications to the proposed contract, create unnecessary inefficiencies in the procurement process. For example, without clear, transparent, known limitations regarding substantive modifications to the proposed contract:

· Bidders, incorrectly, may be tempted to price in contract performance that does not align with the proposed contract but rather with a hypothetical contract that the bidder is hopeful to end up with through a negotiation process to eliminate or modify certain contract provisions and include other contract provisions designed to benefit the bidder.

· Bidders, who believe they have market or negotiating power, are incentivized to seek contract modifications to their benefit, typically late in the procurement process where the procurement authority has sunk costs and competing bidders may have been eliminated.

· Bidders may seek to have the procuring agency accept contract provisions that are beyond the agency’s authority or create ambiguity regarding such contract provisions (e.g., ‘to the extent allowed by law’) that serve to benefit only the bidder, while undermining the agency’s efforts to turn square corners.

· Bidders, if economically rational, will be incentivized to propose or demand contract provisions (e.g., cap on damages) that fundamentally change the procurement by abandoning the proposed risk/return allocation and substituting a different approach … again … late in the procurement process.

CONTRACT PROVISIONS THAT MUST BE INCLUDED IN CONTRACTS FOR GOODS/SERVICES

The following chart identifies contract provisions that MUST be included in contracts for goods/services. Accordingly, Enterprise Services will NOT negotiate these provisions. Bids that are conditioned on modifying any of these provisions will be deemed to be nonresponsive and such bids will not be considered.

CHART 1 – PROVISIONS THAT MUST BE INCLUDED IN STATE CONTRACTS FOR GOODS/SERVICES

CONTRACT PROVISIONS THAT WILL NOT BE INCLUDED IN CONTRACTS FOR GOODS/SERVICES

The following chart identifies certain contract provisions that Enterprise Services will NOT include in contracts for goods/services. Generally speaking, Enterprise Services has not been granted authority to include these specific provisions in contracts for goods/services (e.g., including such provision would violate applicable law, impermissibly intrude on another agency’s authority, etc.). Accordingly, bids that are conditioned on modifying the contract to include any of the provisions set forth in Chart 2 will be deemed to be nonresponsive and will not be considered.

CHART 2 – PROVISIONS THAT WILL NOT BE INCLUDED IN STATE CONTRACTS FOR GOODS/SERVICES

BIDDER REQUESTS TO MODIFY CERTAIN ECONOMIC PROVISIONS

Bidders, however, may request Contract modifications to any of the provisions set forth in Chart 3; Provided, however, that such Bidder request must timely be made, in writing, during the Competitive Solicitation’s Question & Answer Period. In addition, such Bidder requests must:

· Provide a compelling reason as to why the requested provision is in the best interest of the State (e.g., a damage cap results in lower costs to Purchasers) and would not present unnecessary risk to the State.

Bidder requests to modify the Contract to include any of the provisions set forth in Chart 3 that merely opine that such provision is ‘customary,’ the ‘normal course of business,’ or similar reasoning are presumed to be insufficient justification to modify the Contract to include such provisions.

CHART 3 – BIDDER REQUESTS TO MODIFY CERTAIN ECONOMIC PROVISIONS

· Cap or limit Contractor’s liability;

· Exclude damages for personal injury, property damage, or intellectual property infringement; or

· Exclude any damages that are reasonable and foreseeable.

Enterprise Services’ contracts for goods/services are designed to be commercially reasonable and to allocate risk/return to, among other things, incentivize prudent, responsible behavior. Provisions that limit a contractor’s liability for damages caused by the contractor and/or cap or exclude damages caused by the contractor result in transferring such risk to the State who is NOT in a position to manage such risk effectively or obtain financial concessions for doing so.

The insurance requirements are designed, in part, to ensure that the awarded contractor will have certain minimal insurance coverages such that, in the event of a claim, the contractor is less likely to go out of business and adversely impact the procurement solution. Contractors who do not meet applicable insurance requirements are not responsible bidders for purposes of contract awards.

In addition, the insurance requirements are designed to provide a source of funds to stand behind the contractor’s indemnity obligation.

§ 5 – CONTRACTING OPPORTUNITIES FOR SMALL & DIVERSE BUSINESSES

This section provides information regarding Enterprise Services’ efforts to enable Washington’s small, diverse, and veteran-owned businesses to compete for and participate in enterprise procurement solution contracts for goods/services.

ENTERPRISE SERVICES’ GOALS

Enterprise Services, in accordance with Washington law, encourages small and diverse businesses to compete for and participate in state procurements as contractors and as subcontractors to awarded Bidders. See, e.g., RCW 39.19 (OMWBE certified businesses); RCW 43.60A.200 (WDVA Certified Veteran-Owned Businesses); and RCW 39.26.005 (Washington Small Businesses). In support of the state’s economic goals and to support a diverse supplier pool, Enterprise Services has established the following voluntary numerical goals for Enterprise Services’ Competitive Solicitations:

· Ten percent (10%) Minority-Owned Businesses certified by the Washington State Office of Minority and Women’s Business Enterprises (OMWBE);

· Six percent (6%) Women-Owned Businesses certified by the Washington State Office of Minority and Women’s Business Enterprises (OMWBE);

· Five percent (5%) Veteran-Owned Businesses certified by the Washington State Department of Veterans Affairs (WDVA); and

· Twenty-five percent (25%) Washington Small Businesses, five percent (5%) of which are microbusinesses or minibusinesses as defined in RCW 39.26.010(16) and (17).

Achievement of these goals is encouraged whether directly or through subcontractors.

RESOURCES FOR WASHINGTON SMALL BUSINESSES

Bidders may contact Enterprise Services about small and diverse business inclusion and qualification as a Washington Small Business. If Bidder qualifies as a Washington Small Business, identify Bidder as such in WEBS. Call WEBS Customer Service at 360-902-7400. The qualification requirements to self-certify as a Washington Small Business are set forth in Exhibit A – Bidder’s Certification.

RESOURCES FOR VETERAN-OWNED BUSINESSES – CERTIFICATION AS A CERTIFIED VETERAN-OWNED BUSINESS

Bidders may contact the Washington State Department of Veterans’ Affairs (WDVA) for information regarding Certified Veteran-Owned Businesses or to become a Certified Veteran-Owned Business. The WDVA can be reached by telephone, (360) 725-2169, or through their website at WDVA. The qualification requirements to be a Certified Veteran-Owned Business are set forth in Exhibit A – Bidder’s Certification.

RESOURCES FOR OMWBE CERTIFICATION

OMWBE CERTIFICATION. Bidders may contact the Washington State Office of Minority and Women’s Business Enterprises (OMWBE) regarding information on Minority-Owned and Women-Owned certified firms, state and federal certification programs, or to become certified. OMWBE can be reached by telephone, 866-208-1064, or through their website at OMWBE.

APPENDIX A – TERMINOLOGY PERTAINING TO COMPETITIVE SOLICITATIONS FOR ENTERPRISE PROCUREMENT SOLUTION CONTRACTS FOR GOOD/SERVICES

Competitive solicitations for enterprise procurement solutions for goods/services use terms derived from Washington’s Procurement Code for Good/Services (RCW 39.26) and certain other commonly used terms. Typically, when a term is defined in the competitive solicitation, the term will be formatted to appear in initial caps – e.g., if the term ‘purchaser’ is defined in the competitive solicitation, the term typically would appear in the competitive solicitation as Purchaser.

Although Bidders should rely on terms defined in the specific competitive solicitation, the following terms commonly are used in competitive solicitations for enterprise procurement solutions for goods/services issued by Enterprise Services (note: if the definition of a particular term uses a defined term, such defined terms are formatted in italics) (if the definition references a document that is specific to a particular procurement – e.g., the Competitive Solicitation that you, as a bidder, may be interested in submitting a bid, those documents are…