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HomeMy WebLinkAboutCOM 0582.009 2004-2006 0I Harry Kim ~,c~''•~''•.o William Takaba Mayor Director Nancy E. Crawford _ lJeputy Director ~h'or'Mr'~ i , i, .i ~ 7 County of Hawaii . Finance Department 25 Aupuni Stree[, Room ll8 Hilo, Hawaii 96720 (808) 961-8234 • Fax (808) 961-8248 February 10, 2006 Gary Safazik, Chairman Committee on Environmental Management Hawaii County Council 25 Aupuni Street Hilo, HI 96720 Subject: Solid Waste Reduction Facility RFP Resolution 238-02 Enclosed, please find an opinion from the Office of the Corporation Counsel responding to the question as to whether or not Resolution 238-02 applies to RFP No. 2210 as it relates to who is placed on the evaluation committee. Should you need further information, please contact me at your convenience. Thank you very much. i, J, 'Y~ifr~ William Take ba Director Enclosure cc: Harry Kim, Mayor Comm. No.__ $z • 9 Ref. To: PrG~ec;;~ Ref. Ca!~-FEB 1 0 200 I Harry Kim Lincoln S.T. Ashida Mayor s Corpora[ion Counsel Gerald Takase COUNTY OF IIAWAI`I Assistant Carpam[ion Counsel OFFICE OF THE CORPORATION COUNSEL I01 Aupuni Street, Suite 325 ~ Hilo, HawaYi 96920-4262 ~ (808) 961-8251 ~ Fax (808) 961-8622 February 6, 2006 Q~^ ',r : :";T ` I - 5 2Q06 William Takaba, Director of Finance y, : - County of Hawaii FILE: i 25 Aupuni Street - Hilo, Hawaii 96720 Dear Bill: Re: RFP No. 2210--Evaluation Committee WRK No. 06-11553 This is in response to your request of January 30, 2006 for a legal opinion. Issue: Does Resolution 238-02, Draft 5, apply to RFP No. 2210 as it relates to who is placed on the evaluation committee? Aualysis: It must be recognized that since the adoption of Resolution 238-02, Act 52 of the 2003 Hawai `i State Legislature made sweeping changes in the procurement process, including changes in the selection process For competitive sealed proposals commonly known as "RFP" or "Request For Proposal," which no longer permits Resolution 238-02 to be applied. Based on Act 52 of 2003, Hawaii Administrative Rule ("HAR") 3-122-45.01 was adopted and is the guiding authority on this issue. Section 3-122-45.01, HAR, states: Prior to the preparation of the request for proposals, a determination shall be made by the procurement officer that the procurement officer or an evaluation committee selected in writing by the procurement officer shall evaluate the proposals. A copy of the document identifying any committee members and any subsequent changes thereto shall be placed in the contract file. From this section, it is clear that it is the procurement officer who makes the determination as to whether he will evaluate the responses to the RFP or whether an evaluation committee will evaluate the responses. Moreover, it is the procurement officer who determines who will be placed on the evaluation committee, based on subsections (1), (2), (3) and (4) of § 3-122-45.01, HAR.I Section 3-122-45.01 and its subsections are directly contrary to Resolution 283-02's attempts to have the Council direct who is placed on the evaluation committee. Hawaii County is an Equal Opportunity Provider and Employer William Takaba, Director of Finance Page -2- February 6, 2006 Resolution 283-02 states in part: BE IT FURTHER RESOLVED that the top final two proposals recommended by the RFP Evaluation Committee shall be submitted to the County Council for information and discussion in Executive Session before the final decision is made by the Mayor. This section of Resolution 283-02 seems to imply that the Council will play a role in the selection of who will be awarded the RFP or that the Mayor will make the selection of the award of contract. It should be noted that the Council and the Mayor have no authority under § 3-122-52 HARz in the evaluation process. It must be remembered that § 3-122-52 is based on State law which is superior to a resolution and ordinance enacted by the County unless there are specific provisions within State ]aw that allow it. Conclusion: Resolution 283-02 cannot be followed in the procurement process as it relates to the selection of the evaluation committee or the actions of the Council or the Mayor in playing a role in the evaluation of the solicitations received in response to the RFP. The Mayor as the Charter-mandated contracting authority, always retains the option of rejecting the contract but does not have a role in the evaluation of the solicitations responding to an RFP. Sincerely, CRAIG T. ASUDA Deputy orporation Cotmsel CTM:de s:\dept\finance\ctm miscUtr Takaba evaluation comm.\2-06\CTMde.doc ~ § 3-122-45.01 Evaluation Committee. Prior to the preparation of the request for proposals, a detemtination shall be made by the procurement officer that the procurement officer or an evaluation cottunittee selected in writing by the procurement officer shall evaluate the proposals. A copy of the document identifying any committee members and any subsequent changes thereto shall be placed in the contract file. (1) The evaluation committee shall consist of at least three governmental erriployees with sufficient qualifications in the azea of the goods, services, or constmction to be procured. (2) Private consultants may also serve on the committee and shall: (A) Have sufficient knowledge to serve on the committee; (B) Serve without compensation, unless justified and determined in writing by the head of the purchasing agency that compensation is justified; and (C) Sign an affidavit: (i) Attesting to having no personal, business, or any other relationship that will influence their decision in the evaluation process; (ii) Agreeing not to disclose any information on the evaluation process to other than an employee of a governmental body; and (iii) Agreeing that [heir names will become public information upon awazd of the contract. (3) The William Takaba, Director of Finance Page -3- Februazy 6, 2006 contract administrator shall serve as a member of the committee. (4) The contract administrator or a designee shall serve as chairperson and the procurement officer or a designee as advisor. z § 3-122-52 Evaluation of proposals. (a) Evaluation factors shall be set out in the request for proposals and the evaluation shall be based only the evaluation factors. Evaluation factors not specified in the request for proposals may not be considered. (b) A numerical rating system shall be used. The relative priority to be applied to each evaluation factor shall also be set out in the request for proposals. (c) The points to be applied to each evaluation factor shall be set out in the request for proposals. (1) The procurement officer, or each member of the evaluation committee, as applicable, shall explain his or her ranking determination in writing which shall be placed in the procurement file. (2) The written ranking evaluations or explanations shall be available for public inspection after the award of the contract is posted. (d) When applicable, cost shall be an evaluation factor. (1) The proposal with the lowest cost factor must receive the highest available rating allocated to cos[. Each proposal that has a higher cost factor than the lowest must have a lower rating for cost. (2) If a numerical rating system is used to evaluate the cost factor, the points allocated to higher-priced proposals must be equal to the lowest proposal price multiplied by the maximum points available for price, divided by the higher proposal price. (e) An evaluation factor must be included which takes into consideration whether an offeror qualifies for any procurement preferences pursuant to chapter 3-124.