15-213

15-213. Procurement practices of school
districts and charter schools; definitions

A. The state board of education shall adopt rules prescribing procurement practices
for all school districts in this state as follows:

1. The state board shall submit to the auditor general proposed rules consistent
with the procurement practices prescribed in title 41, chapter 23, modifying the
provisions for public notice of invitation for bids, requests for proposals and requests
for qualifications to allow a governing board to give public notice of the invitation for
bids, requests for proposals and requests for qualifications by publication in the
official newspaper of the county as defined in section 11-255, modifying the provisions
relating to disposal of materials to comply with section 15-342, paragraph 18, providing
for governing board delegation of procurement authority and modifying as necessary other
provisions that the state board determines are not appropriate for school districts. The
rules shall include provisions specifying that school districts are not required to
engage in competitive bidding in order to make the decision to participate in programs
pursuant to section 15-382 and that a program authorized by section 15-382 is not
required to engage in competitive bidding for the services necessary to administer the
program or for purchase of insurance or reinsurance. The rules shall include provisions
specifying that school districts are not required to engage in competitive bidding in
order to place a pupil in a private school that provides special education services if
such placement is prescribed in the pupil's individualized education program and the
private school has been approved by the department of education division of special
education pursuant to section 15-765, subsection D. This placement is not subject to
rules adopted by the state board of education before November 24, 2009 pursuant to this
section. The rules for procurement of construction projects shall include provisions
specifying that surety bonds furnished as bid security and performance and payment bonds
shall be executed and furnished as required by title 34, chapter 2 or 6, as applicable.
The rules shall specify the total cost of a procurement that is subject to invitations
for bids, requests for proposals and requests for clarification, using the aggregate
dollar amount limits for procurements prescribed in section 41-2535.

2. The state board of education shall adopt rules for procurements involving
construction not exceeding one hundred fifty thousand dollars, which shall be known as
the simplified school construction procurement program. At a minimum, the rules for a
simplified construction procurement program shall require that:

(a) A list be maintained by each county school superintendent of persons who desire
to receive solicitations to bid on construction projects to which additions shall be
permitted throughout the year.

(b) The list of persons be available for public inspection.

(c) A performance bond and a payment bond as required by this section be provided
for contracts for construction by contractors.

(d) All bids for construction be opened at a public opening and the bids shall
remain confidential until the public opening.

(e) All persons desiring to submit bids be treated equitably and the information
related to each project be available to all eligible persons.

(f) Competition for construction projects under the simplified school construction
procurement program be encouraged to the maximum extent possible. At a minimum, a school
district shall submit information on each project to all persons listed with the county
school superintendent by any school district within that county.

(g) A provision, covenant, clause or understanding in, collateral to or affecting a
construction contract that makes the contract subject to the laws of another state or
that requires any litigation, arbitration or other dispute resolution proceeding arising
from the contract to be conducted in another state is against this state's public policy
and is void and unenforceable.

3. The state board of education shall adopt rules for the procurement of goods and
information services by school districts and charter schools using electronic, online
bidding. The rules adopted by the state board shall include the use of reverse auctions
and shall be consistent with the procurement practices prescribed in title 41, chapter
23, article 13, modifying as necessary those provisions and the rules adopted pursuant to
that article that the state board determines are not appropriate for school districts and
charter schools. Until the rules are adopted, school districts and charter schools may
procure goods and information services pursuant to title 41, chapter 23, article 13 using
the rules adopted by the department of administration in implementing that article.

4. The auditor general shall review the proposed rules to determine whether the
rules are consistent with the procurement practices prescribed in title 41, chapter 23
and any modifications are required to adapt the procedures for school districts.

5. If the auditor general approves the proposed rules, the auditor general shall
notify the state board in writing and the state board shall adopt such rules.

6. If the auditor general objects to the proposed rules, the auditor general shall
notify the state board of the objections in writing and the state board, in adopting the
rules, shall conform the proposed rules to meet the objections of the auditor general or
revise the proposed rules to which an objection has been made and submit the revisions to
the auditor general for approval.

B. After the bids submitted in response to an invitation for bids are opened and
the award is made or after the proposals or qualifications are submitted in response to a
request for proposals or a request for qualifications and the award is made, the
governing board shall make available for public inspection all information, all bids,
proposals and qualifications submitted and all findings and other information considered
in determining whose bid conforms to the invitation for bids and will be the most
advantageous with respect to price, conformity to the specifications and other factors or
whose proposal or qualifications are to be selected for the award. The invitation for
bids, request for proposals or request for qualifications shall include a notice that all
information and bids, proposals and qualifications submitted will be made available for
public inspection. The rules adopted by the state board shall prohibit the use in
connection with procurement of specifications in any way proprietary to one supplier
unless the specification includes all of the following:

1. A statement of the reasons why no other specification is practicable.

2. A description of the essential characteristics of the specified product.

3. A statement specifically permitting an acceptable alternative product to be
supplied.

C. No project or purchase may be divided or sequenced into separate projects or
purchases in order to avoid the limits prescribed by the state board under subsection A
of this section.

D. A contract for the procurement of construction or construction services shall
include a provision that provides for negotiations between the school district and the
contractor for the recovery of damages related to expenses incurred by the contractor for
a delay for which the school district is responsible, which is unreasonable under the
circumstances and which was not within the contemplation of the parties to the contract.
This subsection shall not be construed to void any provision in the contract that
requires notice of delays, provides for arbitration or other procedure for settlement or
provides for liquidated damages.

E. The auditor general may conduct discretionary reviews, investigations and audits
of the financial and operational procurement activities of school districts, nonexempt
charter schools and school purchasing cooperatives. The auditor general has final review
and approval authority over all school district, nonexempt charter school and school
purchasing cooperative audit contracts and any audit reports issued in accordance with
this section.

F. In addition to the requirements of sections 15-914 and 15-914.01, school
districts, nonexempt charter schools and school purchasing cooperatives, in connection
with any audit conducted by a certified public accountant, shall contract for a
systematic review of purchasing practices using methodology consistent with sampling
guidelines established by the auditor general. The auditor general shall consider cost
when establishing guidelines pursuant to this subsection and to the extent possible shall
attempt to minimize the cost of the review. The purpose of the review is to determine
whether the school district, nonexempt charter school or school purchasing cooperative is
in compliance with the procurement laws and applicable procurement rules of this state.
A copy of the review shall be submitted on completion to the auditor general. The auditor
general may conduct discretionary reviews of school districts, nonexempt charter schools
and school purchasing cooperatives not required to contract for independent audits.

G. The attorney general or county attorney has jurisdiction to enforce this
section. The attorney general or county attorney may seek relief for any violation of
this section through an appropriate civil or criminal action in superior court, including
an action to enjoin a threatened or pending violation of this section and including an
action to enforce compliance with any request for documents made by the auditor general
pursuant to this section.

H. The department of education shall enact policies and procedures for the
acceptance and disposition of complaints from the public regarding school procurement
practices and shall forward all school procurement complaints to the attorney general.
Notwithstanding rules adopted by the state board, school districts shall not be required
to prepare or submit an annual report on the benefits associated with the use of
construction-manager-at-risk, design-build, qualified select bidders list and
job-order-contracting methods.

I. The state board of education shall adopt, and the auditor general shall review,
rules authorizing school districts to procure construction services by
construction-manager-at-risk, design-build, qualified select bidders list and
job-order-contracting methods of project delivery.

J. A school district or charter school may evaluate United States general services
administration contracts for materials and services. The governing board or governing
body may authorize purchases under a current contract for materials or services without
complying with the requirements of the procurement rules adopted by the state board of
education if the governing board or governing body determines in writing that all of the
following apply:

1. The price for materials or services is equal to or less than the contractor's
current federal supply contract price with the general services administration.

2. The contractor has indicated in writing that the contractor is willing to extend
the current federal supply contract pricing, terms and conditions to the school district
or charter school.

3. The purchase order adequately identifies the federal supply contract on which
the order is based.

4. The purchase contract is cost effective and is in the best interests of the
school district or charter school.

K. For the purposes of this section:

1. "Nonexempt charter school" means a charter school that is not exempted from
procurement laws pursuant to section 15-183, subsection E, paragraph 6.

2. "School purchasing cooperative" means an entity engaged in cooperative
purchasing as defined in section 41-2631.

3. "Total cost" means the cost of all materials and services, including the cost of
labor performed by employees of the school district, for all construction as provided in
subsection A of this section.