(Attach B.1)
Purchasing Waiver Request from Iowa Homeland Security
DAS GSE Purchasing comments to the HSEMD waiver
A procedure for emergency purchases (combined with the normal sole source request) is located at http://das.gse.iowa.gov/solesource.pdf. If any Executive Branch agency (minus independent authorities) has an emergency need and the item is not on contract, they only need to fill out this form. The last emergency request was for IPTV in late July and it was approved in one day. Everyone who needed to give input did, not just one person. The TGB could consider using something similar to help get the right questions answered quickly and to ensure the right people are involved. Note: In the case of a request for sole source (waiver from rules), at least 5 days before submitting the request to DAS GSE, agencies are to advertise the sole source request on the Bid Opportunities website at http://bidopportunities.iowa.gov/. That procedure helps to ensure that vendors are aware of the sole source request. Additional comments from DAS-GSE regarding the HSEMD waiver: 1. Is there a material difference in technical specs between the 2 quotes provided by HSEMD? Beyond that, the quote from Dell is based upon a quantity buy of 10 with the apparent direct assistance of a Dell representative by email, while the HP quote was apparently acquired by simple Internet E-Store quote on just one unit most likely without the direct assistance of our HP account representative. As such, the two quotes do not represent an apples to apples comparison. DAS Purchasing would have verified representatives from HP, Gateway and Lenovo had an equal chance to personally bid 10 units too and then see how the prices compared before considering this waiver on a commodity purchase of $20,789, urgent or not. 2. The quote attached from Dell is not using the GSA contract as HSEMD claims. The Dell quote clearly states Iowa's "NASP/WSCA contract". 3. GSA Schedule 70 contracts do not comply with Admin Code 105 on competitive procurement. Iowa does not participate in them, and are therefore not included in any of our DAS GSE IT contract offerings. They were obtained without bids. Vendors agreed to a 'negotiated' price schedule (often where the vendors merely promised the Feds that no other customer would get a cheaper price). Competitive bidding, if our rules are followed often provide cheaper than GSA pricing in spite of that. Further clarification on administrative rules, GSA and WSCA provided by DAS GSE Purchasing: Iowa Administrative Rules Chapter 105.4(4) - Procurement based on competition managed by other governmental entities. a. Justification for procurement based on competition managed by other governmental entities. The department may utilize a current contract, agreement, or purchase order issued by a governmental entity to establish an enterprise master agreement or make a purchase without further competition. The department may join a contract or agreement let by a purchasing consortium when the department reasonably believes it is in the best interest of the enterprise and reasonably believes the contract, agreement, or order was awarded in a fair and competitive manner.
1
(Attach B.1)
b. Special procedures for procurement based on competition managed by other governmental entities. The department shall notify the other governmental entity and the requesting agency of its intent to use a contract, agreement, or purchase order prior to procuring the good or service in this manner. The department may purchase goods or services from contracts let by other governmental entities provided that the vendor is in agreement and the terms and conditions of the purchase do not adversely impact the governmental entity which was the original signatory to the contract. About GSA: http://www.gsa.gov/Portal/gsa/ep/contentView.do?contentId=8202&contentType=GSA_OVERVIEW Under the GSA Schedules Program, GSA establishes long-term government wide contracts that allow customers to acquire a vast array of supplies (products) and services directly from commercial suppliers. To become a GSA Schedule contractor, a vendor must first submit an offer in response to the applicable GSA Schedule solicitation. GSA awards contracts to responsible companies offering commercial items, at fair and reasonable prices, that fall within the generic descriptions in the GSA Schedule solicitations. Contracting Officers determine whether prices are fair and reasonable by comparing the prices/discounts that a company offers the government with the prices/discounts that the company offers to commercial customers. This negotiation objective is commonly known as "most favored customer" pricing. In order to make this comparison, GSA requires offerors to furnish commercial pricelists and disclose information regarding their pricing/discounting practices. http://www.gsa.gov/Portal/gsa/ep/contentView.do?faq=yes&pageTypeId=8199&contentId=22410&co ntentType=GSA_OVERVIEW#2 8. Are state and local government entities required to use the GSA Schedules Program? No. Disaster Recovery Purchasing is voluntary for both state and local government entities and for Schedule contractors. State and local entities have full discretion to decide if they wish to make a GSA Schedule purchase, subject to any limitations that may be established under state and local laws and procedures. The federal government has made available contracts that can be used when an emergency declaration occurs—and has stated that the list is for ease of use—but still requires competitive procurement. See GSA rules below: 1. Full and Open Competition A Public Assistance State, local, or tribal government applicant that opts to use the GSA Federal Supply Schedule shall not seek competition outside the GSA Federal Supply Schedules. However, competition is still required among the pool of GSA contractors. Under the appropriate ordering procedures stated above, participating State, local, and tribal governments must survey at least three (3) Schedule contractors. When restricted competition exists (e.g., only one source is capable of responding due to the unique set of circumstances or nature of the work and/or an urgent and compelling need exists and following the ordering procedures would result in unacceptable delays), participating State, local, and tribal governments are referred to 48 CFR §8.405-6. When competition is not possible because only one Schedule contractor is listed, State and local governments are not
2
(Attach B.1)
relieved from applicable Federal, State and local procurement and competition laws and regulations. See 44 CFR §13.36(b), 48 CFR §8.404.
http://www.gsa.gov/Portal/gsa/ep/contentView.do?faq=yes&pageTypeId=8199&contentId=8125&cont entType=GSA_OVERVIEW#Cooperative%20Purchasing 2. Can state and local governments purchase from all GSA Schedules? No. Section 211 of the Act only allows for state and local government entities to purchase from GSA Schedule 70, Information Technology, and Consolidated (formerly Corporate Contracts) Schedule contracts containing IT SINs. State and local government entities may not purchase information technology from any other GSA Schedules.
18. Can state and local government entities be granted additional price reductions under the Schedule contracts? Yes. State and local government entities may be granted additional price reductions under Cooperative Purchasing. About WSCA: The WSCA contracts are obtained by the same fair and open RFP process that the State of Iowa uses. Ashley Super is on the committee representing Iowa. A new RFP will be issued by September, lead by Minnesota. As with any general contract included in the offerings by DAS GSE Purchasing, state agencies may procure from these contracts in lieu of a fair and open bid process. Concluding comments from DAS GSE Purchasing: DAS GSE Purchasing believes there is confusion about emergency and sole source procurement approval—and the TGB approval. DAS GSE’s understanding is that the TGB is reviewing a purchase outside of the established standard to determine if a standard needs to be waived. In the HSEMD case, it appears that the request was an emergency—but for the waiver only. All emergency procurements of goods, which are not on contract, must be approved by the DAS Director. This also applies to sole source procurements for goods—not on a master contract. In this case, the Dell contract was available on a DAS contract, and a competitive acquisition had been conducted by NASPO/WSCA, which included DAS as an evaluator on the committee. The question remains, how can DAS GSE assist the TGB with its role in determining whether a waiver should be granted? If DAS GSE had been contacted, the purchasing area would have contacted the suppliers to ensure that the product requested was only available from the one vendor and would have made an inquiry about pricing for the requested number of units. This does not require a formal bid and could have been done expeditiously. DAS GSE’s findings would have been provided to the TGB so the board could make a determination about whether there was a business reason for purchasing outside the standard. DAS GSE would have also provided information about whether the purchase needs to be competitively bid, sole-sourced or an emergency purchase request prepared. This is an area where purchasing and the TGB waiver process seem to be intermingled. DAS GSE Purchasing is ready to help as the TGB deems necessary.
3