§103D-102  Application of this chapter. 
(a)  This chapter shall apply to all procurement contracts made by governmental
bodies whether the consideration for the contract is cash, revenues,
realizations, receipts, or earnings, any of which the State receives or is
owed; in-kind benefits; or forbearance; provided that nothing in this chapter
or rules adopted hereunder shall prevent any governmental body from complying
with the terms and conditions of any other grant, gift, bequest, or cooperative
agreement.



(b)  [Repeal and reenactment on July 1,
2012.  L 2009, c 175, §14(1).]  Notwithstanding subsection (a), this
chapter shall not apply to contracts by governmental bodies:



(1)  Solicited or entered into before July 1, 1994,
unless the parties agree to its application to a contract solicited or entered
into prior to July 1, 1994;



(2)  To disburse funds, irrespective of their source:



(A)  For grants or subsidies as those terms are
defined in section 42F-101, made by the State in accordance with standards provided
by law as required by article VII, section 4, of the State Constitution; or by
the counties pursuant to their respective charters or ordinances;



(B)  To make payments to or on behalf of public
officers and employees for salaries, fringe benefits, professional fees, or
reimbursements;



(C)  To satisfy obligations that the State is
required to pay by law, including paying fees, permanent settlements,
subsidies, or other claims, making refunds, and returning funds held by the
State as trustee, custodian, or bailee;



(D)  For entitlement programs, including public
assistance, unemployment, and workers' compensation programs, established by
state or federal law;



(E)  For dues and fees of organizations of
which the State or its officers and employees are members, including the
National Association of Governors, the National Association of State and County
Governments, and the Multi-State Tax Commission;



(F)  For deposit, investment, or safekeeping,
including expenses related to their deposit, investment, or safekeeping;



(G)  To governmental bodies of the State;



(H)  As loans, under loan programs administered
by a governmental body; and



(I)  For contracts awarded in accordance with
chapter 103F;



(3)  To procure goods, services, or construction from
a governmental body other than the University of Hawaii bookstores, from the
federal government, or from another state or its political subdivision;



(4)  To procure the following goods or services which
are available from multiple sources but for which procurement by competitive
means is either not practicable or not advantageous to the State:



(A)  Services of expert witnesses for potential
and actual litigation of legal matters involving the State, its agencies, and
its officers and employees, including administrative quasi-judicial
proceedings;



(B)  Works of art for museum or public display;



(C)  Research and reference materials including
books, maps, periodicals, and pamphlets, which are published in print, video,
audio, magnetic, or electronic form;



(D)  Meats and foodstuffs for the Kalaupapa
settlement;



(E)  Opponents for athletic contests;



(F)  Utility services whose rates or prices are
fixed by regulatory processes or agencies;



(G)  Performances, including entertainment,
speeches, and cultural and artistic presentations;



(H)  Goods and services for commercial resale
by the State;



(I)  Services of printers, rating agencies,
support facilities, fiscal and paying agents, and registrars for the issuance
and sale of the State's or counties' bonds;



(J)  Services of attorneys employed or retained
to advise, represent, or provide any other legal service to the State or any of
its agencies, on matters arising under laws of another state or foreign
country, or in an action brought in another state, federal, or foreign
jurisdiction, when substantially all legal services are expected to be
performed outside this State;



(K)  Financing agreements under chapter 37D;
and



(L)  Any other goods or services which the
policy board determines by rules or the chief procurement officer determines in
writing is available from multiple sources but for which procurement by
competitive means is either not practicable or not advantageous to the State;



(5)  Which are specific procurements expressly exempt
from any or all of the requirements of this chapter by:



(A)  References in state or federal law to
provisions of this chapter or a section of this chapter, or references to a
particular requirement of this chapter; and



(B)  Trade agreements, including the Uruguay
Round General Agreement on Tariffs and Trade (GATT) which require certain
non-construction and non-software development procurements by the comptroller
to be conducted in accordance with its terms; and



(6)  With a bidder or offeror who is a United States
General Services Administration-approved sole source vendor, who shall be
exempt from complying with section 103D-302, 103D-303, or 103D-304, as
applicable, in any procurement funded by state and federal matching funds, if
the bidder or offeror was responsible for obtaining and was the recipient of
the federal funds.



(c)  Notwithstanding subsection (a), this
chapter shall not apply to contracts made by any regional system board of the
Hawaii health systems corporation.



(d)  Governmental bodies making procurements
which are exempt from this chapter are nevertheless encouraged to adopt and use
provisions of this chapter and its implementing rules as appropriate; provided
that the use of one or more provisions shall not constitute a waiver of the
exemption conferred and subject the procurement or the governmental body to any
other provision of this chapter. [L Sp 1993, c 8, pt of §2; am L 1994, c 186,
§6; am L 1995, c 16, §1 and c 178, §3; am L 1996, c 13, §3; am L 1997, c 186,
§§2, 5 and c 352, §23; am L 1999, c 149, §12; am L 2001, c 200, §4; am L 2002,
c 182, §4; am L 2003, c 9, §3; am L 2007, c 290, §16; am L 2009, c 175, §1]



 



Note



 



  The amendment made by L 1997, c 190, §6 is not included in
this section.



 



Attorney General Opinions



 



  The Code did not apply to board of trustees of deferred
compensation plan's existing administrator or investment-product-provider
contracts because they were entered into prior to July 1, 1994
applicability date in subsection (a) (Comp. 1993).  Att. Gen. Op. 94-4.



 



Case Notes



 



  Subsection (b) precludes administrative review of a chief
procurement officer's exemption determination; hearings officer correctly
concluded that officer did not have jurisdiction to review chief procurement
officer's determination that the interim library automation services contract
at issue was exempt from the requirements of the procurement code.  93 H. 155,
997 P.2d 567.