How is delegated authority to be applied to a project that may include multiple contracts?
The dollar value of each contract will determine which delegated authority applies when projects warrant creation of multiple contracts.
How are procurements that were underway handled after chapter 39.26 RCW became effective on Jan. 1, 2013?
The applicable procurement authority in existence prior to Jan. 1, 2013 applies to procurements that were advertised prior to Jan. 1, 2013 but have not been awarded. All applicable procurements advertised after Jan. 1, 2013 must comply with chapter 39.26 RCW.
If a master contract item can be found for less elsewhere, may the agency be exempted from using the master contract with pricing as the justification for not satisfying the agency needs?
Perhaps, although doing so would not relieve the agency from satisfying competitive requirements. For audit purposes, it is also recommended that the agency document their justification for not using the master contract.
Under RCW 39.26.125(6), client services contracts are exempt from competition. Which of the following examples are client services contracts?
Example 1: The Department of Social and Health Services (DSHS) hires an optometrist to perform vision tests on children who are clients of the agency.
Analysis: "Client services" means services provided directly to agency clients. See RCW 39.26.010.This is a client services contract, because the optometrist's services are provided directly to an agency client. The contract is exempt from competition.
Example 2: The Department of Early Learning contracts with a community-based organization (CBO) to provide a variety of services to children aged 0-3 years old in a rural county. The contract requires the CBO to find, screen, and conduct background checks of all potential independent contractors. Qualified individuals enter into contracts with the CBO and then provide the services to the children. None of the CBO employees provide services directly to the children.
Analysis: CBO Contract. The contract between the agency and the CBO is not a client services contract. The CBO does not provide direct services to any client. This contract must be competed, or a sole source approval for the contract must be sought.
Independent Contractors. The contracts between the CBO and the independent contractors are not agency contracts and are not subject to any of the provisions of RCW 39.26. Rather, they are private contracts between the CBO and their subcontractors. However, the private contracts between the CBO and their subcontractors may be subject to pass-through requirements contained in the contract between the agency and the CBO.
Example 3: Similar to the scenario in Example #2, DSHS contracts with a community-based organization (CBO) to provide a variety of services to blind persons in a major city. The contract requires the CBO to find, screen, and conduct background checks of all potential independent contractors. Qualified individuals enter into contracts with the CBO and then provide the services to the blind persons. Unlike the situation in Example #2, both the CBO's and the subcontractor's employees provide services directly to the clients.
Analysis: CBO Contract. The contract between the agency and the CBO may be a client services contract. Here, the CBO provides direct services to some of its clients.
To determine whether the CBO Contract is a client services contract, agencies must review the totality of the services provided under the CBO contract, exclusive of all subcontractors. If the majority of the CBO contract provides direct services to clients, then it is a client services contract and is exempt from competition. Otherwise, the CBO contract must be competed, or a sole source approval for the contract must be sought.
Example 3a: DSHS obtains a combination of services under the terms of the CBO contract, exclusive of all subcontracts. More than 50% of these services are directly to clients.
Analysis: The CBO contract is a client services contract and is exempt from competition.
If DES does not provide a decision within 10 business days of the filing, does the sole source contract automatically become approved?
No. The goal of DES is to process all requests within 10 business days. There may be circumstances in which additional time will be required. DES will notify the agency of any delays or need for additional time.
May the 5 business days advertising requirement, the 10 business days approval process and the 10 business days public inspection posting requirement run concurrently?
Are agencies required to report client service contracts?
No. Client service contracts are exempt from competition and should not be reported as sole source contracts.
Rather than posting on the agency website, can’t there be a central repository made available where all sole source contracts are available for public inspection?
DES is working toward this end, but for now and to meet statutory requirements sole source contracts are to be made accessible directly from the agency.
When would a grant require an agency to contract with a specific vendor?
An agency may name a firm or individual in the written grant application to perform specific services or provide specific goods. If the approval from the funding source and receipt of funds requires the agency to contract with the named vendor, that contract is not required to be competitively awarded. It would not need to be filed with DES or require approval by DES.
Should the sole source contract approval process be used for urgent/crucial procurements?
No. DES will only approve procurements that legitimately qualify as a sole source contract. Alternatively and if no related master contract exists, see Direct Buy Policy, Emergency Procurement/Purchase Policy or RCW 39.26.125(4).
Does the complaint and protest policy apply to low dollar request for quotes (RFQs) in which the lowest bid price determines the award?
What if the agency has an urgent need that cannot accommodate the length of time it takes to fulfill the required complaint and protest time lines?
Most agency procurement needs may be satisfied through proper planning, direct buy provisions or use of qualified master contracts. However, if DES procurement analysis suggests otherwise, an exemption may be granted.
Are solicitations released prior to Jan. 1, 2013 exempt from this policy?
Yes. Agencies are to follow the related laws, rules, and policies in force at the time when the solicitation was released.
When should a protest bond be required and how do you set the bond limit?
DES is in the process of developing a protest bond policy and best practices. Until then, agencies should contact DES prior to requiring a protest bond.
What is a debriefing conference and how do I conduct one?
A debriefing conference provides an opportunity for the bidder to meet with the agency to discuss its bid and evaluation. DES is developing a debriefing conference policy with information on how to conduct a debriefing conference.
Since the effective date is Jan. 1, 2013, what will be the initial reporting period?
All contracts with an effective date on or after Jan. 1, 2013 must be reported as well as all current contracts that have been amended with an amendment effective date on or after Jan. 1, 2013.
Will agencies be required to report procurements made using qualified master contracts?
Yes, but only if the use of qualified master contract results in an agency specific contract that includes a statement of work. The agency should report the effective dates of the agency specific contract.
Will agencies be required to report click-through agreements including those that have a fee?
Yes, if they exceed the direct buy limit. Click-through agreements may impact other software agreements and therefore must be reported.
Will agencies be required to report purchasing card (P-Card) transactions?
No. The P-Card is a method of payment, not a type of contract. Use of a P-Card does not determine whether the contract is reportable. See 'Contract Reporting Exemptions' for those contracts that are exempt from reporting.
Contact us by email at ContractProcure@des.wa.gov.