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

(b)  [Repeal and reenactment on July 1,2012.  L 2009, c 175, §14(1).]  Notwithstanding subsection (a), thischapter 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 enteredinto prior to July 1, 1994;

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

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

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

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

(D)  For entitlement programs, including publicassistance, unemployment, and workers' compensation programs, established bystate or federal law;

(E)  For dues and fees of organizations ofwhich the State or its officers and employees are members, including theNational Association of Governors, the National Association of State and CountyGovernments, 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 administeredby a governmental body; and

(I)  For contracts awarded in accordance withchapter 103F;

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

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

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

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

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

(D)  Meats and foodstuffs for the Kalaupapasettlement;

(E)  Opponents for athletic contests;

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

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

(H)  Goods and services for commercial resaleby the State;

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

(J)  Services of attorneys employed or retainedto advise, represent, or provide any other legal service to the State or any ofits agencies, on matters arising under laws of another state or foreigncountry, or in an action brought in another state, federal, or foreignjurisdiction, when substantially all legal services are expected to beperformed outside this State;

(K)  Financing agreements under chapter 37D;and

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

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

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

(B)  Trade agreements, including the UruguayRound General Agreement on Tariffs and Trade (GATT) which require certainnon-construction and non-software development procurements by the comptrollerto be conducted in accordance with its terms; and

(6)  With a bidder or offeror who is a United StatesGeneral Services Administration-approved sole source vendor, who shall beexempt from complying with section 103D-302, 103D-303, or 103D-304, asapplicable, in any procurement funded by state and federal matching funds, ifthe bidder or offeror was responsible for obtaining and was the recipient ofthe federal funds.

(c)  Notwithstanding subsection (a), thischapter shall not apply to contracts made by any regional system board of theHawaii health systems corporation.

(d)  Governmental bodies making procurementswhich are exempt from this chapter are nevertheless encouraged to adopt and useprovisions of this chapter and its implementing rules as appropriate; providedthat the use of one or more provisions shall not constitute a waiver of theexemption conferred and subject the procurement or the governmental body to anyother 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 inthis section.

 

Attorney General Opinions

 

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

 

Case Notes

 

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