Procurement of professional services
HRS §103D-304
in effect103D-304. Procurement of professional services
(a) Professional services shall be procured in accordance with sections 103D-302, 103D-303, 103D-305, 103D-306, or 103D-307, or this section; provided that design professional services furnished by licensees under chapter 464 shall be procured pursuant to this section or section 103D-307. Contracts for professional services shall be awarded on the basis of demonstrated competence and qualification for the type of services required, and at fair and reasonable prices.
(b) At a minimum, before the beginning of each
fiscal year, the head of each purchasing agency shall publish a notice inviting
persons engaged in providing professional services that the agency anticipates
needing in the next fiscal year, to submit current statements of qualifications
and expressions of interest to the agency. Additional notices shall be given
if:
(1) The response to the initial notice is inadequate;
(2) The response to the initial notice does not
result in adequate representation of available sources;
(3) New needs for professional services arise; or
(4) Rules adopted by the policy board so specify.
The chief procurement officer may specify a uniform
format for statements of qualifications. Persons may amend these statements by
filing a new statement prior to the date designated for submission.
(c) The head of the purchasing agency shall
designate a review committee consisting of a minimum of three persons with
sufficient education, training, and licenses or credentials for each type of
professional service that may be required. In designating the members of the
review committee, the head of the purchasing agency shall ensure the
impartiality and independence of committee members. The names of the members
of the review committee established under this section shall be placed in the
contract file.
The committee shall review and evaluate all
submissions and other pertinent information, including references and reports,
and prepare a list of qualified persons to provide these services. Persons
included on the list of qualified persons may amend their statements of
qualifications as necessary or appropriate. Persons shall immediately inform
the head of the purchasing agency of any change in information furnished that
would disqualify the person from being considered for a contract award.
(d) Whenever during the course of the fiscal
year the agency needs a particular professional service, the head of the
purchasing agency shall designate a selection committee to evaluate the
statements of qualification and performance data of those persons on the list
prepared pursuant to subsection (c) along with any other pertinent information,
including references and reports. The selection committee shall be comprised
of a minimum of three persons with sufficient education, training, and licenses
or credentials in the area of the services required. In designating the
members of the selection committee, the head of the purchasing agency shall
ensure the impartiality and independence of committee members. The names of
the members of a selection committee established under this section shall be
placed in the contract file.
(e) [Repeal and
reenactment on June 30, 2028. L 2024, c 113, §7.] The
selection criteria employed in descending order of importance shall be:
(1) Experience and professional qualifications
relevant to the project type;
(2) Past performance on projects of similar scope for
public agencies or private industry, including corrective actions and other
responses to notices of deficiencies;
(3) Capacity to accomplish the work in the required
time;
(4) For accounting services, whether the accounting
service business is located in the State, with a preference for Hawaii
accounting service businesses; provided that the Hawaii accounting service
business shall provide a self-certification that:
(A) Not less than eighty per cent of the
labor for accounting services, with respect to time and expenses incurred, will
be performed in the State by persons domiciled in the State; and
(B) With respect to the size of the physical
location, the commercial place of business is of sufficient capacity to
accommodate every person performing accounting services under any contract
subject to this chapter; and
(5) Any additional criteria determined in writing by
the selection committee to be relevant to the purchasing agency's needs or
necessary and appropriate to ensure full, open, and fair competition for
professional services contracts.
(f) The selection committee shall evaluate the
submissions of persons on the list prepared pursuant to subsection (c) and any
other pertinent information that may be available to the agency, against the
selection criteria. The committee may conduct confidential discussions with
any person who is included on the list prepared pursuant to subsection (c)
regarding the services that are required and the services they are able to
provide. In conducting discussions, there shall be no disclosure of any information
derived from the competing professional service offerors.
(g) The selection committee shall rank a
minimum of three persons based on the selection criteria and send the ranking
to the head of the purchasing agency. The contract file shall contain a copy
of the summary of qualifications for the ranking of each of the persons
provided to the head of the purchasing agency for contract negotiations. If
more than one person holds the same qualifications under this section, the
selection committee shall rank the persons in a manner that ensures equal
distribution of contracts among the persons holding the same qualifications.
The recommendations of the selection committee shall not be overturned without
due cause.
(h) The head of the purchasing agency or
designee shall negotiate a contract with the first ranked person, including a
rate of compensation that is fair and reasonable, established in writing, and
based upon the estimated value, scope, complexity, and nature of the services
to be rendered. If a satisfactory contract cannot be negotiated with the first
ranked person, negotiations with that person shall be formally terminated and
negotiations with the second ranked person on the list shall commence. The contract
file shall include documentation from the head of the purchasing agency, or
designee, to support selection of other than the first ranked or next ranked
person. Failing accord with the second ranked person, negotiations with the
next ranked person on the list shall commence. If a contract at a fair and
reasonable price cannot be negotiated, the selection committee may be asked to
submit a minimum of three additional persons for the head of the purchasing
agency to resume negotiations in the same manner provided in this subsection.
Negotiations shall be conducted confidentially.
(i) If, after ten business days, fewer than
three qualified persons respond to the additional notice of need posted
pursuant to subsection (b), the purchasing agency may submit a request to the
head of the purchasing agency, except as provided in paragraph (3), for
approval to proceed under this subsection. Submissions shall be evaluated by
the selection committee in accordance with subsection (e); provided that:
(1) For two qualified persons, the selection
committee shall rank the qualified persons based on the criteria in subsection
(e). If both persons hold the same qualifications, the selection committee
shall rank the persons in a manner that ensures equal distribution of contracts
among persons holding the same qualifications. The ranking shall be provided
to the head of the purchasing agency for negotiations conducted in the manner
set forth in subsection (h). The rankings of the selection committee shall not
be overturned without due cause;
(2) For one qualified person, the selection committee
shall first evaluate the person's qualifications and may then provide the name
of the person to the head of the purchasing agency to negotiate a contract at a
fair and reasonable price. If the head of the purchasing agency determines in
writing that either the price of the offer received is not fair and reasonable,
or that the qualifications of the offeror are not adequate to meet the
procurement needs, the head of the purchasing agency may request approval from
the chief procurement officer to proceed as if no person had responded;
(3) If no qualified person responds, the head of the
purchasing agency may determine in writing that the need for the service
continues and that there is no time for resolicitation or that resolicitation
would likely be futile; provided that when making this determination,
consideration shall be given to time constraints and competition in the
marketplace; provided further that:
(A) In the event of this determination, the
head of the purchasing agency shall submit a written request to the chief
procurement officer for approval to engage in direct negotiations with a
qualified person. The written request shall be made on a "Notice of No
Interest" form provided by the chief procurement officer and shall include
the following:
(i) The date of the solicitation notice and the
estimated dollar amount of the contract; and
(ii) The names of persons on the list, including
the situation in which no person responds; and
(B) If the requirements of subparagraph (A)
are met, negotiations may proceed; provided that:
(i) The chief procurement officer shall post a
copy of the request on an internet site accessible to the public for seven
days;
(ii) Any objections to the request shall be
submitted in writing and received by the chief procurement officer within the
seven-day public posting period; and
(iii) The chief procurement officer has approved
the request, after considering the circumstances of each individual case; and
(4) The determinations required by this subsection
shall be final and conclusive unless the determinations are clearly erroneous,
arbitrary, capricious, or contrary to law.
(j) Contracts awarded under this section for
$5,000 or more shall be posted electronically within seven days of the contract
award by the chief procurement officer or designee and shall remain posted for
at least one year. Information to be posted shall include, but not be limited
to:
(1) The names of the persons submitted under
subsection (g) or (i);
(2) The name of the person or organization receiving
the award;
(3) The dollar amount of the contract;
(4) The name of the head of the purchasing agency or
designee making the selection; and
(5) Any relationship of the principals to the
official making the award.
(k) Contracts for professional services of
less than the limits in section 103D-305, may be negotiated by the head of the
purchasing agency, or designee, with at least any two persons on the list of
qualified persons established pursuant to subsection (c). Negotiations shall
be conducted in the manner set forth in subsection (h), with ranking based on
the selection criteria of subsection (e) as determined by the head of the
agency.
(l) In cases of
awards made under this section, nonselected professional service providers may
submit a written request for debriefing to the chief procurement officer or
designee within three working days after the posting of the award of the
contract. Thereafter, the head of the purchasing agency shall provide the
requester a prompt debriefing in accordance with rules adopted by the policy
board. Any protest by the requester pursuant to section 103D-701 following
debriefing shall be filed in writing with the chief procurement officer or
designee within five working days after the date that the debriefing is
completed. [L Sp 1993, c 8, pt of §2; am L 1995, c 178, §10; am L 1997,
c 21, §1 and c 352, §7; am L 2000, c 141, §1; am L 2003, c 52, §5; am L 2004, c
216, §1; am L 2023, c 188, §2; am L 2024, c 113, §4]
Note
L 1997, c 352, §23 purports to amend this section.
Source: Hawaii State Legislature (capitol.hawaii.gov), via Internet Archive capturesURL: http://www.capitol.hawaii.gov/hrscurrent/Vol02_Ch0046-0115/HRS0103D/HRS_0103D-0304.htmFetched: 11/10/2026