PROCUREMENT RULES

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Code of Colorado Regulations › 100,800 Department of Personnel and Administration › 101 Division of Finance and Procurement › 1 CCR 101-9

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Text

DEPARTMENT OF PERSONNEL AND ADMINISTRATION

Division of Finance and Procurement

PROCUREMENT RULES

1 CCR 101-9

[Editor’s Notes follow the text of the rules at the end of this CCR Document.]

_________________________________________________________________________

ARTICLE 101 GENERAL PROVISIONS

PART 1

PURPOSES, CONSTRUCTION AND APPLICATION

R-24-101-101 General

These rules implement the provisions of the Colorado Procurement Code (section 24-101-101, et seq.,

C.R.S.) referred to in these rules as the “code”, the Construction Bidding for Public Projects Act (section

24-92-101, et seq., C.R.S.), Construction Contracts with Public Entities (section 24-91-101, et seq.,

C.R.S.) and the Integrated Delivery Method for Public Projects Act (section 24-93-101, et seq., C.R.S.).

R-24-101-105 Applicability

These rules shall apply to all publicly funded contracts entered into by all governmental bodies of the

executive branch of this state; except as otherwise specified in the code. The procurements are further

clarified as follows:

(a)

For purposes of subparagraph (1)(a)(VIII) of section 24-101-105, C.R.S., “utilities” does not

include telecommunications.

(b)

For purposes of subparagraph (1)(a)(X) of section 24-101-105, C.R.S., “subscriptions” does not

include software.

(c)

For purposes of subparagraph (1)(a)(XII) of section 24-101-105, C.R.S., “client-based services”

includes supplies when supplies are provided in connection with the services being provided by

the governmental body to the client.

(d)

For purposes of subparagraph (1)(a)(XIII) of section 24-101-105, C.R.S., dues and memberships

mean charges paid to an organization at regular intervals to belong or become a member of the

organization. Any additional services offered by the organization are not included in this definition.

R-24-101-107-01

Ethics

All individuals who are involved in any aspect of the procurement process within the state of Colorado,

regardless of whether they are employed by the state, shall not:

memberships

mean charges paid to an organization at regular intervals to belong or become a member of the

organization. Any additional services offered by the organization are not included in this definition.

R-24-101-107-01

Ethics

All individuals who are involved in any aspect of the procurement process within the state of Colorado,

regardless of whether they are employed by the state, shall not:

(a)

Engage in or give the appearance of unethical or compromising practice in relationships, actions,

and communications related to the procurement process.

(b)

Solicit or accept money, loans, credits, or prejudicial discounts, and avoid the acceptance of gifts,

entertainment, favors, or services from another party which might influence, or appear to

influence a procurement decision.

Code of Colorado Regulations

Secretary of State

State of Colorado

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(c)

Offer money, loans, credits, prejudicial discounts, gifts, entertainment, favors, or services with the

intent to influence, or in such a manner that might influence, a procurement decision.

(d)

Make material misrepresentations in any communications related to a procurement process,

including, but not limited to, information presented in proposals and bids.

Violation of this rule by an individual acting on behalf of the state may result in removal of the individual

from the procurement process and imposition of any applicable remedies. Violation of this rule by a

vendor or contractor may result in that vendor’s or contractor’s disqualification from award of any contract

that was impacted by the violation, the imposition of contractual remedies under any contract, and/or

remedies available in article 109 of the code

ate may result in removal of the individual

from the procurement process and imposition of any applicable remedies. Violation of this rule by a

vendor or contractor may result in that vendor’s or contractor’s disqualification from award of any contract

that was impacted by the violation, the imposition of contractual remedies under any contract, and/or

remedies available in article 109 of the code.

R-24-101-107-02

Conflicts of Interest

All individuals who are involved in any aspect of the procurement process within the state of Colorado,

regardless of whether they are employed by the state, shall avoid any actual or apparent, individual or

organizational conflict of interest in accordance with department policies and all associated technical

guidance.

PART 2

WRITTEN DETERMINATIONS

R-24-101-201-01

Preparation and Execution

Where the code or these rules require a written determination, the procurement official or his or her

designee required to prepare the determination may delegate its preparation. The determination is

subject to the approval of the procurement official or his or her designee.

R-24-101-201-02

Content

Each written determination shall set out sufficient facts, circumstances, and reasoning to substantiate the

specific determination which is made.

R-24-101-201-03

Supporting Information

The procurement official or his or her designee responsible for the execution of a written determination

may require other state personnel, including technical personnel and appropriate personnel in the using

agency, to furnish, in an accurate and adequate fashion, any information pertinent to the determination.

PART 3

DEFINITIONS

R-24-101-301 Defined Terms

As used throughout these rules, words and terms defined in the code shall have the same meaning as in

the code. In addition, for the purposes of these rules, the following terms shall have the meanings set

forth below:

(a)

“Commodity”, “goods” and “supplies” as used in these rules shall have the same meaning as

“product”.

ertinent to the determination.

PART 3

DEFINITIONS

R-24-101-301 Defined Terms

As used throughout these rules, words and terms defined in the code shall have the same meaning as in

the code. In addition, for the purposes of these rules, the following terms shall have the meanings set

forth below:

(a)

“Commodity”, “goods” and “supplies” as used in these rules shall have the same meaning as

“product”.

(b)

“Electronic procurement systems” means database and notification systems created pursuant to

section 24-102-202.5, C.R.S.

(c)

“Procurement agent” as used in these rules also may include a procurement official. The

procurement official has the authority to perform as the procurement agent.

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(d)

“Product” means anything that is produced or manufactured and that may be obtained, or needs

to be obtained, by the state, either in and of itself, or in conjunction with services.

(e)

“Construction project,” for purposes of rule R-24-102-202.5-02, means any procurement that

meets the definition of a “public project,” as defined in section 24-92-102(8), C.R.S., or any

procurement that meets the definition of “construction” as defined in section 24-101-301, C.R.S.

PART 4

PROCUREMENT RECORDS AND INFORMATION

R-24-101-401-01

Prior to Award

Following the closing time and date for the submission of solicitation responses and prior to award of a

contract, the names of the bidders or offerors shall be made available for inspection, upon request. For

solicitations where the award is based on the lowest bid or where price is the primary consideration, the

amount of each bid or proposal shall be included with the name of the bidder or offeror. For solicitations

where the award is based on factors other than the lowest bid or where price is not the primary

consideration, the amount of each bid or proposal shall not be made available prior to award. In no event

shall a solicitation response be made available publicly prior to award

consideration, the

amount of each bid or proposal shall be included with the name of the bidder or offeror. For solicitations

where the award is based on factors other than the lowest bid or where price is not the primary

consideration, the amount of each bid or proposal shall not be made available prior to award. In no event

shall a solicitation response be made available publicly prior to award.

R-24-101-401-02

After Award

After award of a solicitation, all documentation related to the solicitation, including bidder or offeror

responses, shall be open to public inspection, except to the extent the state has approved a request from

a bidder or offeror to classify certain portions of the response as trade secrets or other confidential or

proprietary information.

R-24-101-401-03

Request for Confidentiality

A bidder or offeror may submit, as a part of its solicitation response, a written request for classification of

certain portions of the response as trade secrets or other confidential or proprietary information. Material

for which confidentiality has been requested shall be readily identifiable and separable from other portions

of the solicitation to facilitate public inspection of the non-confidential portion of the solicitation response.

In no event shall an entire solicitation response be classified as confidential. The procurement official or

his or her designee shall determine if the information identified in the request is exempt from disclosure in

accordance with section 24-72-204, C.R.S., and shall inform the bidder or offeror in writing of his or her

determination. If the bidder or offeror does not agree with the determination of the procurement official or

his or her designee, the bidder or offeror may protest the determination in accordance with article 109 of

the code

e information identified in the request is exempt from disclosure in

accordance with section 24-72-204, C.R.S., and shall inform the bidder or offeror in writing of his or her

determination. If the bidder or offeror does not agree with the determination of the procurement official or

his or her designee, the bidder or offeror may protest the determination in accordance with article 109 of

the code.

R-24-101-401-04

Non-Competitive Procurements

The rules applicable to the disclosure of information prior to and after an award and the process for

determining if certain information is exempt from disclosure in accordance with section 24-72-204, C.R.S.,

also shall apply to non-competitive procurements.

R-24-101-401-05

Confidentiality regarding Cancellation of a Solicitation

The reason and documentation supporting the decision to cancel any solicitation, or rejection of bids or

proposals, in whole or in part, before a contract is executed shall remain confidential in accordance with

section 24-103-301, C.R.S., for the lesser of six months or until the contract at issue is awarded.

PART 5

PROCUREMENT CODE WORKING GROUP

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ARTICLE 102 PROCUREMENT ORGANIZATION

PART 1

EXECUTIVE DIRECTOR, DEPARTMENT OF ADMINISTRATION

PART 2

PURCHASING

R-24-102-201 Chief Procurement Officer

The chief procurement officer shall be appointed by the executive director and shall have these powers

and duties through delegation from the executive director. Any powers and duties not so delegated

remain with the executive director. The executive director and the chief procurement officer have the

authority to perform the role of procurement official as needed.

R-24-102-202-01

Mandatory and Permissive Price Agreements

icer shall be appointed by the executive director and shall have these powers

and duties through delegation from the executive director. Any powers and duties not so delegated

remain with the executive director. The executive director and the chief procurement officer have the

authority to perform the role of procurement official as needed.

R-24-102-202-01

Mandatory and Permissive Price Agreements

(a)

“Price agreement” means a contract negotiated, managed and maintained by the department for

commonly sourced supplies and services. These contracts may be used by all governmental

bodies, institutions, local governments and nonprofits certified pursuant to section 24-110-207.5,

C.R.S.

(b)

The chief procurement officer may issue mandatory or permissive price agreements for supplies

or services.

(c)

Mandatory price agreements shall be used by all governmental bodies if and when the supplies

or services are needed. Any governmental body desiring to purchase supplies or services of a

similar nature from a source other than a mandatory price agreement must request and receive

written authorization to do so from the chief procurement officer or his or her designee.

(d)

Permissive price agreements may be used by all governmental bodies if the supplies or services

are needed.

(e)

If a governmental body does not use mandatory or permissive price agreements to obtain the

covered supplies or services, the needs must be submitted for competition as provided by these

rules.

R-24-102-202-02

Purchasing Delegations

Recognizing the importance of local control to meet local needs, delegation of purchasing authority is

encouraged where efficient. Purchasing delegations will have limits as described in rule R-24-103-201-01,

and all associated subsections

ments to obtain the

covered supplies or services, the needs must be submitted for competition as provided by these

rules.

R-24-102-202-02

Purchasing Delegations

Recognizing the importance of local control to meet local needs, delegation of purchasing authority is

encouraged where efficient. Purchasing delegations will have limits as described in rule R-24-103-201-01,

and all associated subsections. A governmental body that receives limited purchasing authority from the

executive director or chief procurement officer shall be referred to as a “group I purchasing agency”, and

a governmental body that receives a full purchasing delegation shall be referred to as a “group II

purchasing agency”. The procurement official may further delegate his or her responsibilities in

accordance with the policies of the department.

(a)

Minimum criteria to receive a group I purchasing delegation shall include:

(i)

a signed delegation agreement between the executive director or chief procurement

officer and the procurement official of the governmental body;

(ii)

successful completion by staff of training as requested by the department; and

(iii)

use of an electronic procurement system.

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(b)

Minimum criteria to receive a group II purchasing delegation shall include:

(i)

a signed delegation agreement between the executive director or chief procurement

officer and the procurement official of the governmental body;

(ii)

demonstrated need;

(iii)

demonstrated existing staff competency in state purchasing; and

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(b)

Minimum criteria to receive a group II purchasing delegation shall include:

(i)

a signed delegation agreement between the executive director or chief procurement

officer and the procurement official of the governmental body;

(ii)

demonstrated need;

(iii)

demonstrated existing staff competency in state purchasing; and

(iv)

use of an electronic procurement system.

R-24-102-202-03

Revocation of Purchasing Delegation

If abuses to these rules by a governmental body are discovered, the chief procurement officer may

revoke the purchasing authority in its entirety or modify the delegation to prevent future violations.

R-24-102-202.5-01

Use of Electronic Procurement Systems - Goods and Services

An electronic procurement system shall be the notification method for competitive solicitations for goods

and services.

R-24-102-202.5-02

Use of Electronic Procurement Systems - Notice of Construction Projects

and Professional Services

For all construction projects and for all procurements for professional services (as defined in section 24-

30-1402(6), C.R.S.) for which competitive notification or solicitation procedures are required, a notification

of the solicitation must be placed on an electronic procurement system, and the award must be posted on

the same electronic procurement system.

R-24-102-206-01

Department – Services Contracts

The department will collect the data required by section 24-102-206, C.R.S. for all services contracts,

including contracts for construction services.

R-24-102-206-02

Written Notice and Post of Notice Timeline

Pursuant to section 24-102-206(3), C.R.S., a governmental body shall provide written notice to the

department within 30 calendar days of the receipt by the governmental body of a vendor’s notice that the

vendor or the vendor’s subcontractor will perform services outside of the United States or the state

contracts for construction services.

R-24-102-206-02

Written Notice and Post of Notice Timeline

Pursuant to section 24-102-206(3), C.R.S., a governmental body shall provide written notice to the

department within 30 calendar days of the receipt by the governmental body of a vendor’s notice that the

vendor or the vendor’s subcontractor will perform services outside of the United States or the state.

Pursuant to section 24-102-206(5), C.R.S., the department will post on the department’s official web site,

for a period of six months, any written notice that a vendor provides to a governmental body within 30

calendar days of the department’s receipt of such notice.

PART 3

ORGANIZATION OF PUBLIC PROCUREMENT

PART 4

STATE PROCUREMENT RULES

PART 5

COORDINATION

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ARTICLE 103 SOURCE SELECTION AND CONTRACT FORMATION

PART 1

DEFINITIONS

PART 2

METHODS OF SOURCE SELECTION

R-24-103-201 General Rules of Source Selection

The following general rules apply to all methods of source selection, unless otherwise specified. For

methods of source selection for construction, see rules implementing article 105 of the code.

R-24-103-201-01

Purchasing Thresholds

(a)

Purchases of goods or services may be made without benefit of competition as follows:

(i)

A governmental body without delegated purchasing authority may purchase goods or

services up to a limit of $5,000;

(ii)

A governmental body with delegated purchasing authority may purchase goods or

services up to $50,000; and

ules implementing article 105 of the code.

R-24-103-201-01

Purchasing Thresholds

(a)

Purchases of goods or services may be made without benefit of competition as follows:

(i)

A governmental body without delegated purchasing authority may purchase goods or

services up to a limit of $5,000;

(ii)

A governmental body with delegated purchasing authority may purchase goods or

services up to $50,000; and

(b)

Small purchases are goods and services purchases costing less than $250,000. Goods and

services up to $250,000 may be purchased using a documented quote process, described in rule

R-24-103-204-01, or the methods identified in section 24-103-201, C.R.S. The chief procurement

officer may approve or deny a request from a procurement official or his or her designee to allow

the purchasing agency to use a documented quote process when the estimated cost would

exceed the small purchase threshold.

(c)

Invitation for bids, described in rule R-24-103-202-01, request for proposals, described in rule R-

24-103-203, and invitations to negotiate, described in rule R-24-103-208-03, may be used for

goods or services estimated to exceed the small purchase threshold of $250,000.

(d)

Reverse auctions, described in rule R-24-103-208-01; special circumstance procurements,

described in rule R-24-103-208-04; emergency procurements, described in rule R-24-103-206

and rule R-24-105-101.6; and sole source procurements, described in rule R-24-103-205 and rule

R-24-105-101.5, may be used at any dollar threshold.

R-24-103-201-02

Fair and Reasonable Price

(a)

Small purchases are subject to the requirement that prices paid be fair and reasonable in

accordance with section 24-30-202(2), C.R.S.

(b)

The individual conducting the acquisition on behalf of the state, to include the procurement official

or his or her designee as required by these rules, shall use professional judgment to ensure that

the state is receiving maximum value. This rule does not preclude the option to place the

solicitation on an electronic procurement system.

asonable in

accordance with section 24-30-202(2), C.R.S.

(b)

The individual conducting the acquisition on behalf of the state, to include the procurement official

or his or her designee as required by these rules, shall use professional judgment to ensure that

the state is receiving maximum value. This rule does not preclude the option to place the

solicitation on an electronic procurement system.

(c)

Procurement of services greater than $50,000 must be reviewed by the procurement official or his

or her designee to determine if prices or rates are fair and reasonable.

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(d)

If only one bid or proposal is received in response to a solicitation, an award may be made to the

single bidder or offeror if the procurement official finds that the price submitted is fair and

reasonable and that other prospective bidders or offerors had reasonable opportunity to respond.

If the price submitted is not fair and reasonable and there is not adequate time for re-solicitation,

the procurement official may enter into competitive negotiation in accordance with rule R-24-103-

208-02. If responsiveness is a requirement for award, the bid or proposal of the sole prospective

bidder or offeror must be responsive before being considered for award. Otherwise, the bid must

be rejected.

R-24-103-201-03

Terminology

(a)

An “acceptable bid or proposal” means a bid or proposal submitted by any person in response to

a solicitation, issued by the state, which is in compliance with the solicitation terms and

conditions, and within the requirements of the plans and specifications described and required

therein.

(b)

“Advantageous” means a judgmental assessment by a governmental body of what is in the best

interests of the governmental body.

(c)

A “bid or proposal” means a vendor’s response, to a solicitation, also called a response or offer.

state, which is in compliance with the solicitation terms and

conditions, and within the requirements of the plans and specifications described and required

therein.

(b)

“Advantageous” means a judgmental assessment by a governmental body of what is in the best

interests of the governmental body.

(c)

A “bid or proposal” means a vendor’s response, to a solicitation, also called a response or offer.

(d)

A “substitute bid” means an offer submitted by any person in response to a solicitation that is not

in substantial compliance with the terms and conditions and specifications of the solicitation as

issued. A substitute bid is non-responsive to the requirements of the solicitation. If a substitute bid

demonstrates that a different specification could be used to provide the desired or similar product

or service, the procurement agent will be responsible for determining whether the alternative

specification creates a justification for canceling the solicitation and re-soliciting.

R-24-103-201-04

Content of Solicitations

(a)

At a minimum, a solicitation shall include the following:

(i)

instructions and information to vendors concerning the bid submission requirements,

including the time and closing date for submission of bids or proposals, the address of

the office to which bids or proposals are to be delivered, and any other special

information; and

(ii)

specifications or requirements which are not unduly restrictive. Brand name

specifications, brand name or equal specifications, or qualified products lists shall only be

used in accordance with the provisions of rules implementing article 104 of the code.

(b)

The solicitation may incorporate documents by reference provided that the solicitation specifies

where such documents can be obtained.

(ii)

specifications or requirements which are not unduly restrictive. Brand name

specifications, brand name or equal specifications, or qualified products lists shall only be

used in accordance with the provisions of rules implementing article 104 of the code.

(b)

The solicitation may incorporate documents by reference provided that the solicitation specifies

where such documents can be obtained.

(c)

Solicitations shall be conducted only by a procurement official or his or her designee.

R-24-103-201-05

Solicitation Publication Time

Except as provided under emergency procedures, described in rule R-24-103-206 and the rules

implementing article 105 of the code, solicitations shall be published on an electronic procurement system

as follows:

(a)

Documented quotes, as described in rule R-24-103-204-01, shall be published for at least three

consecutive business days.

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(b)

Invitations for bids, described in rule R-24-103-202-02, shall be published for at least 10

consecutive business days.

(c)

Requests for proposals, described in rule R-24-103-203, and invitations to negotiate, described in

rule R-24-103-208-03, shall be published for at least 30 consecutive calendar days.

(d)

The intent to conduct a competitive reverse auction, described in rule R-24-103-208-01, shall be

published for at least 10 consecutive business days.

(e)

When special requirements or conditions exist, the procurement official may lengthen or shorten

the posting time, but in no case shall the time period be shortened to reduce competition. If a

solicitation, other than a documented quote, is posted on an electronic procurement system for

less than the publication time required in this rule, the procurement official shall document the

reason a reduced publication period was required in the procurement record.

R-24-103-201-06

Questions and Clarifications

ng time, but in no case shall the time period be shortened to reduce competition. If a

solicitation, other than a documented quote, is posted on an electronic procurement system for

less than the publication time required in this rule, the procurement official shall document the

reason a reduced publication period was required in the procurement record.

R-24-103-201-06

Questions and Clarifications

(a)

In cases where a solicitation may require interpretation, or raises questions or concerns from

potential bidders or offerors, all known potential bidders or offerors must be given an opportunity

to ask questions and receive answers or clarifications.

(b)

This may be accomplished by the use of a pre-bid or pre-proposal conference, a formal inquiry

period, or a combination of methods. The solicitation shall state the anticipated method(s) to be

used, and shall list corresponding dates, times and locations for any such opportunities.

(c)

Pre-bid or pre-proposal conferences may be conducted to explain the procurement requirements.

Nothing stated at the pre-bid or pre-proposal conference shall change the solicitation unless a

change is made by written amendment, posted on an electronic procurement system. Pre-bid or

pre-proposal conference attendance may be mandatory or optional, but must be stated as such in

the solicitation.

(d)

If responses to inquiries, regardless of the method of receiving and answering them, result in any

material changes to the scope of work or otherwise affect the manner or form of response, the

procurement official or his or her designee must notify all known potential bidders or offerors of

any such change through modification of the solicitation.

R-24-103-201-07

Amendments

(a)

Amendments to solicitations shall be identified as such and may require that the bidder or offeror

acknowledge receipt of all amendments issued when submitted its bid or proposal.

(b)

Amendments shall reference the portions of the solicitation it amends.

e must notify all known potential bidders or offerors of

any such change through modification of the solicitation.

R-24-103-201-07

Amendments

(a)

Amendments to solicitations shall be identified as such and may require that the bidder or offeror

acknowledge receipt of all amendments issued when submitted its bid or proposal.

(b)

Amendments shall reference the portions of the solicitation it amends.

(c)

Amendments shall be posted on an electronic procurement system with sufficient time to allow

prospective bidders or offerors to consider them in preparing their bids or proposals. If the time

set for bid or proposal opening will not permit such preparation, such time shall be increased in

the amendment.

R-24-103-201-08

Mistakes in Bids or Proposals

(a)

When it appears from a review of the bid or proposal that a mistake has been made, the

procurement agent should request that the bidder or offeror confirm the bid or proposal.

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(b)

Minor informalities are matters of form rather than substance, which are evident from the bid or

proposal document, or insignificant mistakes that can be waived or corrected without prejudice to

other bidders or offerors; that is, the effect on price, quantity, quality, delivery, or contractual

conditions is negligible. The procurement official or his or her designee may waive such

informalities or allow the bidder or offeror to correct them depending on which option is in the best

interest of the state.

(c)

If the mistakes are clearly evident on the face of the bid or proposal document, the bid or

proposal may not be withdrawn solely for this reason. Instead, the bidder or offeror may correct

the mistakes to reflect the intended bid or proposal. Examples of mistakes that may be clearly

evident on the face of the bid or proposal document are typographical errors, errors in extending

unit prices, mathematical errors and transposition errors.

he face of the bid or proposal document, the bid or

proposal may not be withdrawn solely for this reason. Instead, the bidder or offeror may correct

the mistakes to reflect the intended bid or proposal. Examples of mistakes that may be clearly

evident on the face of the bid or proposal document are typographical errors, errors in extending

unit prices, mathematical errors and transposition errors.

(d)

If the mistakes are attributable to an error in judgment, the bid or proposal may not be corrected.

(e)

Any decision to permit or deny correction of a bid or proposal under this section shall be

supported by a written determination prepared by the procurement official or his or her designee.

R-24-103-201-09

Withdrawal of Bids or Proposals

(a)

Any bid or proposal may be modified or withdrawn by written notice to the appropriate purchasing

agency prior to the specified bid opening date and time.

(b)

The procurement official may allow a bid or proposal to be withdrawn from the appropriate

purchasing agency after bid or proposal opening but prior to award provided:

(i)

the bidder or offeror provides written notice including evidentiary proof that clearly and

convincingly demonstrates that a mistake was made in the costs or other material matter

provided or the mistake is clearly evident on the face of the bid or proposal; and

(ii)

the procurement official determines that it is reasonable to allow the bid or proposal to be

withdrawn.

(c)

A bid or proposal may not be withdrawn from the purchasing agency after award.

(d)

If a bid is withdrawn in accordance with this rule, any bid surety shall be returned to the bidder or

offeror in a timely manner.

R-24-103-201-10

Timeliness of Bids or Proposals

Bids or proposals received after the bid or proposal submission time shall not be opened and shall be

rejected as a late response. The following exceptions may be permitted by the procurement official:

ncy after award.

(d)

If a bid is withdrawn in accordance with this rule, any bid surety shall be returned to the bidder or

offeror in a timely manner.

R-24-103-201-10

Timeliness of Bids or Proposals

Bids or proposals received after the bid or proposal submission time shall not be opened and shall be

rejected as a late response. The following exceptions may be permitted by the procurement official:

(a)

If a bid or proposal is not delivered by the specified submission date and time, the bid or proposal

may be accepted if it can be reasonably determined by the procurement official that:

(i)

the postal service, a courier or delivery service outside of the control of the vendor was in

possession of the bid or proposal at the specified submission date and time; and

(ii)

the bid or proposal was originally scheduled for delivery by a courier or delivery service

outside the control of the vendor to the purchasing agency by the specified submission

date and time; and

(iii)

the bid or proposal is received by the purchasing agency on the business day following

the specified submission date.

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(b)

A bid or proposal that is in the possession of a purchasing agency’s internal distribution system at

the specified opening date and time shall be deemed to be received by the purchasing agency by

the specified date and time.

(c)

In the event of a labor unrest (strike, work slowdown, etc.) which may affect mail delivery, the

executive director or his or her designee is authorized to develop and issue emergency

procedures.

(d)

In those situations where the late bid or proposal was not in the control of the vendor at the time

of the bid or proposal submission date and time, the procurement official shall not accept the late

bid or proposal unless he or she further finds that extenuating circumstances justifying

acceptance of the late bid or proposal exist and can be documented.

develop and issue emergency

procedures.

(d)

In those situations where the late bid or proposal was not in the control of the vendor at the time

of the bid or proposal submission date and time, the procurement official shall not accept the late

bid or proposal unless he or she further finds that extenuating circumstances justifying

acceptance of the late bid or proposal exist and can be documented.

(e)

The responsibility for ensuring that the bid or proposal is received on time rests with the vendor,

and the reasonably foreseeable problems inherent in the delivery of bids or proposals (e.g. slow

messengers, slow mail service, weather, bad directions, mechanical failures, traffic, etc.) are not

extraordinary circumstances permitting acceptance of late bids or proposals.

R-24-103-201-11

Bid or Proposal Submissions

(a)

Telephone bids from vendors will not be accepted, except for small purchases allowed in section

24-103-204, C.R.S., and emergency procurements under section 24-103-206, C.R.S., or when

the procurement official makes a written determination that market conditions are of such nature

that it is in the best interest of the state to solicit telephone bids.

(b)

Bids or proposals may be submitted electronically via an electronic procurement system when the

terms of the solicitation permit electronic submission.

(c)

Bids or proposals may be submitted electronically via means other than an electronic

procurement system only if the solicitation permits electronic submission and the method of

submission is approved by the department.

(d)

Bids or proposal shall allow for a minimum of 180 calendar days for acceptance by the state,

unless otherwise specified in the solicitation. The procurement agent may require that bidders or

offerors extend the time for acceptance by the state, provided that no other change is permitted.

(e)

Bids or proposals that do not comply with rules R-24-103-201-01 through R-24-103-201-11 will be

rejected.

R-24-103-201-12

Alternate Bids or Offers

mum of 180 calendar days for acceptance by the state,

unless otherwise specified in the solicitation. The procurement agent may require that bidders or

offerors extend the time for acceptance by the state, provided that no other change is permitted.

(e)

Bids or proposals that do not comply with rules R-24-103-201-01 through R-24-103-201-11 will be

rejected.

R-24-103-201-12

Alternate Bids or Offers

(a)

An alternate bid or proposal means an offer or response submitted in response to a solicitation

issued by the state that is in essential compliance with the solicitation terms and conditions but

offers an alternate that does not significantly deviate from the required specifications contained in

the solicitation. The procurement agent would be responsible for determining whether an

alternate bid or proposal is acceptable.

(b)

A solicitation may prohibit multiple or alternate bids or proposals. When prohibited the multiple or

alternate bids or proposals shall be rejected although a clearly identified base bid or proposal will

be considered for award as though it were the only bid or proposal submitted by the bidder or

offeror. A solicitation shall specify if multiple or alternate bids or proposals will be allowed and

how they will be treated.

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(c)

Any bid or proposal which is conditioned upon receiving an award under both the particular

solicitation for which the bid or proposal is made and another state solicitation shall be deemed

nonresponsive and unacceptable.

R-24-103-201-13

Opening and Recording of Bids and Proposals

(a)

Upon receipt, all bids and proposals shall be recorded to reflect the date and time they were

received by the purchasing agency, but shall not be opened.

ed upon receiving an award under both the particular

solicitation for which the bid or proposal is made and another state solicitation shall be deemed

nonresponsive and unacceptable.

R-24-103-201-13

Opening and Recording of Bids and Proposals

(a)

Upon receipt, all bids and proposals shall be recorded to reflect the date and time they were

received by the purchasing agency, but shall not be opened.

(b)

Bids and proposals shall be opened publicly, in the presence of one or more witnesses, at the

time and place designated in the solicitation. A register of bids and proposals shall be prepared

which shall include the name of each bidder or offeror that responded.

(c)

The procurement agent shall examine the bids to determine the validity of any requests for

nondisclosure of trade secrets and other proprietary data identified in writing in accordance with

rules R-24-101-401-01 through R-24-101-401-05.

(d)

Documented quotes, described in rule R-24-103-204-01, do not require a public opening and may

be opened upon receipt. However, a register of responses shall be prepared.

R-24-103-201-14

Discussions

When permitted by the solicitation type, discussions may be held with bidders or offerors for purposes of

clarification.

(a)

Bids or proposals may be initially classified as:

(i)

acceptable;

(ii)

potentially acceptable, that is, reasonable susceptible of being made acceptable; or

(iii)

unacceptable.

(b)

Bidders or offerors shall be accorded fair and equitable treatment. In conducting discussions,

auction techniques (except for reverse auctions described in rule R-24-103-208-01) or disclosure

of any information derived from responses submitted by competing bidders or offerors is

prohibited.

R-24-103-201-15

Evaluation and Award

(a)

Each method of source selection shall have a process for evaluation of bids and proposals as

determined by the procurement official or his or her designee. Specific requirements for

evaluation, if any, are addressed in these rules.

4-103-208-01) or disclosure

of any information derived from responses submitted by competing bidders or offerors is

prohibited.

R-24-103-201-15

Evaluation and Award

(a)

Each method of source selection shall have a process for evaluation of bids and proposals as

determined by the procurement official or his or her designee. Specific requirements for

evaluation, if any, are addressed in these rules.

(b)

An award indicates the state’s selection of a bid(s) or proposal(s) to receive a contract. However,

an award does not mean that a contract has been executed.

(c)

No property interest of any nature shall accrue until the awarded contract is approved in

accordance with section 24-30-202(2), C.R.S.

R-24-103-201-16

Procurement Records

The purchasing agency administering the procurement shall maintain a record of the procurement in

accordance with department policies and all associated technical guidance.

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R-24-103-201.5-01

Market Research

In addition to requests for information, other sources of market research include, but are not limited to:

(a)

Other governmental bodies;

(b)

Industry data;

(c)

Purchasing networks;

(d)

Academic institutions;

(e)

Professional associations;

(f)

Organizations that gather and analyze research data about business trends; and

(g)

Internet and database searches.

R-24-103-201.5-02

Formal Market Research

Formal market research is based on a defined need and may be derived from multiple sources. The

findings resulting from formal market research should be summarized in a manner that preserves the

information and protects any confidential information. Formal market research is encouraged for complex

procurements

trends; and

(g)

Internet and database searches.

R-24-103-201.5-02

Formal Market Research

Formal market research is based on a defined need and may be derived from multiple sources. The

findings resulting from formal market research should be summarized in a manner that preserves the

information and protects any confidential information. Formal market research is encouraged for complex

procurements.

R-24-103-201.5-03

Information Technology Projects

Due to the complexity of information technology projects and the emerging technology industry, formal

market research is required for major information technology projects pursuant to section 24-37-

302(1)(a.5), C.R.S., to ensure that the state is including the most appropriate information technology

requirements in its solicitations.

R-24-103-201.5-04

Valid Procurement Need

Solicitations should only be issued when there is a valid procurement need. Solicitations should not be

issued to obtain estimates or to “test the water.” A governmental body should use market research as a

means to gain information when the procurement need is being assessed.

R-24-103-202-01

Invitation for Bids

A contract may be awarded by an invitation for bids. Unless otherwise specified, the general rules under

rule R-24-103-201 shall apply to invitations for bids.

R-24-103-202-02

Bid Evaluation and Award

(a)

Following determination of acceptability of goods or services, bids shall be evaluated to

determine which bidder offers the lowest cost to the state in accordance with specifications.

(b)

Discussions with bidders are permitted only if there has been a mistake in bids in accordance

with rule R-24-103-201-08.

(c)

In the event an evaluation based on value analysis or other cost formulas will be used, this

information shall be set forth in the invitation for bids.

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te in accordance with specifications.

(b)

Discussions with bidders are permitted only if there has been a mistake in bids in accordance

with rule R-24-103-201-08.

(c)

In the event an evaluation based on value analysis or other cost formulas will be used, this

information shall be set forth in the invitation for bids.

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(d)

A contract may not be awarded to a bidder submitting a higher quality item than that designated

in the invitation for bids unless such bidder is also the lowest bidder as determined by value

analysis or life cycle cost formulas as permitted in section 24-103-202, C.R.S., and this rule.

(e)

The provisions of section 24-103-904, C.R.S., which require a preference for environmentally

preferable products apply to the award of contracts under this rule.

(f)

The contract shall be awarded to the lowest responsible and responsive bidder whose bid meets

the requirements and criteria set forth in the invitation for bids.

R-24-103-202-03

Multi-Step Invitation for Bids

A contract may be awarded by a multi-step invitation for bids. Unless otherwise specified, the general

rules under rule R-24-103-201 shall apply to multi-step invitations for bids.

(a)

A multi-step invitation for bids is a two-phase process consisting of a technical first phase of one

or more steps in which bidders submit un-priced technical bids to be evaluated by the state.

Those bidders whose technical bids are determined to be acceptable during the first phase will be

eligible to participate in the pricing second phase. The price bids of eligible bidders will be opened

and considered during the second phase.

s a two-phase process consisting of a technical first phase of one

or more steps in which bidders submit un-priced technical bids to be evaluated by the state.

Those bidders whose technical bids are determined to be acceptable during the first phase will be

eligible to participate in the pricing second phase. The price bids of eligible bidders will be opened

and considered during the second phase.

(b)

The solicitation for a multi-step invitation for bids may require all bidders to submit both the

technical bid and the price bid prior to the solicitation closing date. In the alternative, the

solicitation may require all bidders to submit the technical bid prior to the solicitation pricing date.

Only those bidders whose technical bids are determined to be acceptable will be asked to submit

price bids.

(c)

The multi-step invitation for bids method may be used when it is not practical to prepare a

definitive description of the items being purchased, which would be sufficient to permit an award

based on price.

R-24-103-202.3 Invitation for Best Value Bids

A contract may be awarded by an invitation for best value bids. Unless otherwise specified, the general

rules under rule R-24-103-201 shall apply to invitations for best value bids.

R-24-103-202.3-01

Definitions

For purposes of section 24-103-202.3, C.R.S., and rules R-24-103-202.3 through R-24-103-202.3-03, the

following definitions apply.

(a)

“Base bid” means the minimum functional requirements set forth in the bid, as issued by the

state.

(b)

“Enhancements” means components, services, or products that exceed the minimum functional

requirements and would improve the quality of the products or services being procured by the

state.

(c)

“Options” means choices of additional components, services, or products that would provide

increased value to the state beyond the base bid.

al requirements set forth in the bid, as issued by the

state.

(b)

“Enhancements” means components, services, or products that exceed the minimum functional

requirements and would improve the quality of the products or services being procured by the

state.

(c)

“Options” means choices of additional components, services, or products that would provide

increased value to the state beyond the base bid.

(d)

“Alternatives” means a different product or service that meets or exceeds the functional

requirements of the base bid.

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(e)

“Best value” means the lowest overall cost to the state after taking into consideration costs,

benefits, and savings.

R-24-103-202.3-02

Evaluation

(a)

Bids shall be evaluated against the minimum functional requirements in the base bid. All bids

meeting these requirements shall be determined to be responsive.

(b)

The invitation for best value bids shall expressly allow for enhancements, options, and/or

alternatives to include pricing. The invitation for best value bid shall set forth the criteria or

formula to be used for evaluation. The criteria or formula for evaluation must include objective

consideration of the costs and savings and/or benefits associated with the enhancements,

options, or alternatives.

R-24-103-202.3-03

Award

Based on the evaluation of the cost of the base bid, the dollar value of enhancements, options, or

alternatives, and the determination of which enhancements, options, or alternatives best meet the needs

of the state, an award shall be made to the bidder whose bid meets the minimum functional requirements

in the base bid and provides the best value to the state.

R-24-103-203 Request for Proposals

A contract may be awarded by a request for proposals. Unless otherwise specified, the general rules

under rule R-24-103-201 shall apply to requests for proposals

tions, or alternatives best meet the needs

of the state, an award shall be made to the bidder whose bid meets the minimum functional requirements

in the base bid and provides the best value to the state.

R-24-103-203 Request for Proposals

A contract may be awarded by a request for proposals. Unless otherwise specified, the general rules

under rule R-24-103-201 shall apply to requests for proposals. A request for proposals is intended to

solicit proposals from potential vendors to determine the best method for achieving a specific goal or

solving a particular problem and identify responsive vendors. The state may determine which of the

responsive proposals is most advantageous.

R-24-103-203-01

Content of Request for Proposals

The request for proposals must include, at a minimum, a statement of work or specifications that address

the specific goals or problems that are the subject of the solicitation, proposed terms of the resulting

contract, and evaluation factors.

R-24-103-203-02

Evaluation of Proposals

The request for proposals shall state all of the evaluation factors, including price. The evaluation shall be

based on the evaluation factors set forth in the request for proposals. Numerical rating systems may be

used. Factors not specified in the request for proposals shall not be considered. Vendors should submit

their most favorable response as the initial response and not assume there will be an opportunity for

discussions.

R-24-103-203-03

Proposal Discussion with Individual Offerors after Opening

(a)

After proposals have been opened, discussions may be held with responsible offerors whose

proposals are determined to be reasonably susceptible to be selected for award to:

considered. Vendors should submit

their most favorable response as the initial response and not assume there will be an opportunity for

discussions.

R-24-103-203-03

Proposal Discussion with Individual Offerors after Opening

(a)

After proposals have been opened, discussions may be held with responsible offerors whose

proposals are determined to be reasonably susceptible to be selected for award to:

(i)

promote understanding of the state's requirements and the offerors’ proposals; and

(ii)

facilitate a contract that will be most advantageous to the state taking into consideration

price and the other evaluation factors set forth in the request for proposals.

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(b)

Offerors shall be accorded fair and equitable treatment in discussion and revision of their

proposals. The offeror may make adjustments in goods or services and in costs and/or prices.

Any changes to the technical or pricing portions of the proposal, shall be confirmed in writing by

the offeror(s).

R-24-103-203-04

Award

(a)

Awards shall be made to the responsible offeror whose proposal is determined to be most

advantageous to the state based on the evaluation factors set forth in the request for proposals.

(b)

The evaluation committee established to evaluate offers shall make such determination and make

a recommendation to the procurement official or his or her designee. If the procurement official or

his or her designee approves the recommendation, an award shall be made in accordance with

the recommendation.

R-24-103-204 Small Purchases

A contract may be awarded by small purchases procedures. Procurements shall not be artificially divided

so as to constitute small purchases under this rule.

R-24-103-204-01

Documented Quotes

A contract for small purchases may be awarded by a documented quote. Unless otherwise specified, the

general rules under rule R-24-103-201 shall apply to documented quotes.

dation.

R-24-103-204 Small Purchases

A contract may be awarded by small purchases procedures. Procurements shall not be artificially divided

so as to constitute small purchases under this rule.

R-24-103-204-01

Documented Quotes

A contract for small purchases may be awarded by a documented quote. Unless otherwise specified, the

general rules under rule R-24-103-201 shall apply to documented quotes.

(a)

The deadline for submission of responses to a documented quote is flexible unless otherwise

stated in the documented quote.

(b)

For goods and services procurements, neither the solicitation nor the vendor’s response

constitutes an offer; therefore, responsiveness at the time of receipt is not an absolute criterion.

The procurement official or his or her designee may determine whether a response is acceptable

and may compare the relative value of competing responses, not solely the price. “Acceptable,”

for purposes of this paragraph and paragraphs (c) and (d) below, means that the good or service

will meet the state’s needs and that the price is fair and reasonable. The commitment voucher

constitutes an offer. The vendor may accept by performance, unless the commitment voucher

expressly requires acceptance by written acknowledgment.

(c)

The choice of vendor for goods and services must be based on which acceptable response is

most advantageous to the state, price/cost being the primary consideration. The basis for the

selection must be documented and will be final and conclusive unless determined to be arbitrary,

capricious, or contrary to law.

ess the commitment voucher

expressly requires acceptance by written acknowledgment.

(c)

The choice of vendor for goods and services must be based on which acceptable response is

most advantageous to the state, price/cost being the primary consideration. The basis for the

selection must be documented and will be final and conclusive unless determined to be arbitrary,

capricious, or contrary to law.

(d)

The procurement official or his or her designee may negotiate with any vendor or contractor to

clarify its quote or to effect modifications that will make the quote acceptable (including curing a

defective bid bond) or more advantageous to the state; provided, that the requirements in the

documented quote solicitation may not be negotiated. During the negotiation process, the terms

of a vendor’s quote shall not be revealed to a competing vendor. All quotes shall be kept

confidential until an award is made on an electronic procurement system.

R-24-103-205 Sole Source Procurements

Contracts may be awarded by use of a sole source procurement only if the following conditions are met:

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(a)

A sole source procurement is justified when there is only one good or service that can reasonably

meet the need and there is only one vendor who can provide the good or service. A requirement

for a particular proprietary item (i.e., a brand name specification) does not justify a sole source

procurement if there is more than one potential bidder or offeror for that item.

(b)

The procurement official or his or her designee shall make a written determination that a

procurement is sole source, setting forth the reasons. In cases of reasonable doubt, competition

should be solicited. Any request by a using agency that a procurement be restricted to one

potential contractor shall be accompanied by an explanation as to why no other contractors will

be suitable or acceptable to meet the need.

fficial or his or her designee shall make a written determination that a

procurement is sole source, setting forth the reasons. In cases of reasonable doubt, competition

should be solicited. Any request by a using agency that a procurement be restricted to one

potential contractor shall be accompanied by an explanation as to why no other contractors will

be suitable or acceptable to meet the need.

(c)

When a sole source procurement is authorized, the procurement official or his or her designee

shall conduct negotiations, as appropriate, as to price, delivery, and terms.

(d)

When applicable, the procurement official or his or designee shall publish a notice of the sole

source on an electronic procurement system for not less than three business days in accordance

with section 24-106-103(5), C.R.S.

R-24-103-206 Emergency Procurements

A contract may be awarded by an emergency procurement when an emergency condition arises.

R-24-103-206-01

Definition of Emergency Conditions

An emergency condition is a situation which creates a threat to public health, welfare, or safety such as

may arise by reason of floods, epidemics, riots, equipment failures, or such other reason as may be

identified by the using agency and approved by the procurement official or his or her designee. In the

event that emergency controlled maintenance funding is requested, the office of the state architect shall

also be notified by the next business day. The existence of such condition creates an immediate and

serious need for supplies, services, or construction that cannot be met through normal procurement

methods and the lack of which would seriously threaten the:

(a)

functioning of state government, or its programs;

(b)

preservation or protection of property; or

the office of the state architect shall

also be notified by the next business day. The existence of such condition creates an immediate and

serious need for supplies, services, or construction that cannot be met through normal procurement

methods and the lack of which would seriously threaten the:

(a)

functioning of state government, or its programs;

(b)

preservation or protection of property; or

(c)

health or safety of any person or persons.

R-24-103-206-02

Scope of Emergency Procurements

Emergency procurements shall be limited to supplies, services, or construction items in such quantities as

are necessary to meet the emergency.

R-24-103-206-03

Authority to Make Emergency Procurements

Any governmental body may make emergency procurements when an emergency condition arises and

the need cannot be met through normal procurement methods; provided, that whenever practical,

approval by the procurement official or his or her designee shall be obtained prior to the procurement. In

the event an emergency arises after normal business hours, the governmental body shall notify the

procurement official or his or her designee on the next business day.

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R-24-103-206-04

Source Selection Methods

(a)

The procedure used shall be selected to assure that the required supplies, services, or

construction items are procured in time to meet the emergency. Given this constraint, such

competition as is practicable shall be obtained.

his or her designee on the next business day.

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R-24-103-206-04

Source Selection Methods

(a)

The procedure used shall be selected to assure that the required supplies, services, or

construction items are procured in time to meet the emergency. Given this constraint, such

competition as is practicable shall be obtained.

(b)

The procurement official or his or her designee shall make a written determination stating the

basis for an emergency procurement and for the selection of the particular contractor or

contractors. If approval from the procurement official or his or her designee is not provided prior

to the procurement, the written determination shall be made by the individual involved in making

the selection of the contractor or contractors on behalf of the state. Such determination shall be

sent promptly to the procurement official or his or her designee.

R-24-103-208 Other Procurement Methods

In addition to the methods of procurement identified in section 24-103-201, C.R.S., the following other

procurement methods are allowed:

(a)

Competitive reverse auctions;

(b)

Competitive negotiation;

(c)

Invitation to negotiate; and

(d)

Special circumstance procurement.

R-24-103-208-01

Competitive Reverse Auctions

Contracts for goods and services may be awarded by competitive reverse auctions if the procurement

official determines that adequate competition, as defined in rule R-24-103-403-01, can be achieved and

that the process is likely to result in better pricing. Unless otherwise specified, the general rules under rule

R-24-103-201 shall apply to competitive reverse auctions. Competitive reverse auction means a bidding

process through which a pre-established group of vendors may post bids for a defined period of time and

change their bids as desired during the bidding period.

3-01, can be achieved and

that the process is likely to result in better pricing. Unless otherwise specified, the general rules under rule

R-24-103-201 shall apply to competitive reverse auctions. Competitive reverse auction means a bidding

process through which a pre-established group of vendors may post bids for a defined period of time and

change their bids as desired during the bidding period.

(a)

An electronic procurement system notice shall include all terms, conditions, and specifications

and provide instruction for participating in the process. If the procurement official believes that an

electronic procurement system is not likely to yield adequate competition, the purchasing agency

may notify potential vendors through additional methods.

(b)

All responsible vendors willing to accept the terms and conditions of the procurement and to meet

the specifications of the bid shall be eligible to participate. The purchasing agency may conduct a

preliminary evaluation to determine vendor responsibility and to ensure the vendor’s

responsiveness to terms and specifications.

(c)

During the bidding process, the participating vendors shall be identified only by a letter, number,

or other symbol to protect their identities. Each bid price and the letter, number, or symbol

designation of the vendor shall be made available to all bidding vendors immediately upon receipt

by the purchasing agency.

(d)

The contract shall be awarded to the lowest responsible bidder whose bid meets the

requirements and specifications.

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R-24-103-208-02

Competitive Negotiation

Contracts may be awarded by competitive negotiation.

(a)

After an unsuccessful solicitation process, a contract may be awarded by competitive negotiation

if the procurement official determines that time does not permit re-solicitation.

meets the

requirements and specifications.

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R-24-103-208-02

Competitive Negotiation

Contracts may be awarded by competitive negotiation.

(a)

After an unsuccessful solicitation process, a contract may be awarded by competitive negotiation

if the procurement official determines that time does not permit re-solicitation.

(b)

A solicitation process is unsuccessful if (1) all offers received are unreasonable or not individually

competed; (2) the low bid exceeds available funds; (3) the solicitation has been properly

cancelled in accordance with the provisions of section 24-103-301, C.R.S., or part 5 of article 109

of the code (except sections 24-109-503 and 24-109-504, C.R.S., which require prior approval

from executive director or his or her designee); or (4) the number of responsive offers is not

adequate to ensure adequate competition.

(c)

The competitive negotiation process shall include all vendors who responded to the solicitation or

any rebid and may include other vendors capable of fulfilling the state’s needs.

(d)

The purchasing agency may set reasonable times and locations for participation in the

competitive negotiation, reflecting the fact that time constraints are the basis for the competitive

negotiation process.

(e)

Each vendor with whom the purchasing agency negotiates shall be given a fair and equitable

chance to compete. Negotiations shall be conducted separately and independently with each

vendor. In no case shall the terms of any vendor’s offer be communicated to any other vendor

until an intent to award notice has been issued. Any change in requirements shall be

communicated to all vendors participating in the competitive negotiation.

(f)

A vendor may be eliminated from the process upon a determination that its offer is not reasonably

susceptible of being selected for award.

each

vendor. In no case shall the terms of any vendor’s offer be communicated to any other vendor

until an intent to award notice has been issued. Any change in requirements shall be

communicated to all vendors participating in the competitive negotiation.

(f)

A vendor may be eliminated from the process upon a determination that its offer is not reasonably

susceptible of being selected for award.

(g)

The award shall be made to the vendor whose offer is most advantageous to the state, taking into

consideration the price and the evaluation factors set forth in the solicitation. The procurement

official shall make a written determination that identifies the nature of the discussions with each

vendor and that states why the selected offer is the most advantageous to the state.

R-24-103-208-03

Invitation to Negotiate

Contracts may be awarded by an invitation to negotiate. Unless otherwise specified, the general rules

under rule R-24-103-201 shall apply to invitations to negotiate. The invitation to negotiate is intended to

solicit responses from potential vendors to determine the best method for achieving a specific goal or

solving a particular problem to identify one or more responsive vendors with which the state may

negotiate to determine the response that is most advantageous.

(a)

The invitation to negotiate must include, at a minimum, a statement of work or specifications that

address the specific goals or problems that are the subject of the solicitation, proposed terms of

the resulting contract, and evaluation factors. The invitation to negotiate must describe which

items can be negotiated and which are non-negotiable. Anything that is identified as non-

negotiable is considered mandatory and may not be waived by the state. Evaluation factors are

non-negotiable.

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ion, proposed terms of

the resulting contract, and evaluation factors. The invitation to negotiate must describe which

items can be negotiated and which are non-negotiable. Anything that is identified as non-

negotiable is considered mandatory and may not be waived by the state. Evaluation factors are

non-negotiable.

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(b)

The state shall evaluate responses against all evaluation factors set forth in the invitation to

negotiate. Numerical rating systems may be used. Prior to determining the competitive range of

responses reasonably susceptible of award, the state, in its discretion, may hold discussions with

any or all responsible vendors who submit responses for the purpose of clarification to assure

understanding of the solicitation requirements and the vendor’s responses. Vendors shall be

accorded fair and equitable treatment. The evaluation, including the results of any discussions,

shall result in the determination of a competitive range of responses reasonably susceptible of

award.

(c)

The state shall commence negotiations with those vendors whose responses are determined to

be in the competitive range. The state may discontinue negotiations with a vendor if the state

determines that the response is no longer reasonably susceptible of award. The purpose of

negotiations is to facilitate a contract that will be most advantageous to the state, taking into

consideration price and the other evaluation factors set forth in the invitation to negotiate.

(d)

The committee(s) established to evaluate the responses and negotiate with vendors whose

proposals are in the competitive range shall make a recommendation to the procurement official

or his or her designee. If the procurement official or his or her designee approves the

recommendation, an award shall be made in accordance with the recommendation.

ctors set forth in the invitation to negotiate.

(d)

The committee(s) established to evaluate the responses and negotiate with vendors whose

proposals are in the competitive range shall make a recommendation to the procurement official

or his or her designee. If the procurement official or his or her designee approves the

recommendation, an award shall be made in accordance with the recommendation.

(e)

The award shall be made to the responsible vendor whose response is determined in writing to

be the most advantageous to the state, taking into consideration the price and the evaluation

factors set forth in the invitation to negotiate and the result of negotiations. No other factors or

criteria shall be used in the evaluation.

(f)

The procurement record shall contain the basis on which the award is made along with an

explanation of why the award provides the best value to the state.

R-24-103-208-04

Special Circumstance Procurement

A contract may be awarded by use of a special circumstance procurement. A special circumstance exists

where competition is required but procurement methods available in the code or these rules are contrary

to the public interest or not advantageous to the state. In these situations, the procurement official may

initiate a special circumstance procurement.

(a)

Examples of special circumstance include, but are not limited to:

(i)

the market for providing a good or service is limited based on specific, tangible

requirements;

(ii)

the market has not matured to the point of providing adequate competition, as defined in

rule R-24-103-403-01; or

(iii)

disclosure of the requirements for the goods or services is contrary to the public interest.

(b)

To qualify a procurement as a special circumstance procurement, the procurement official shall

provide a written request to the chief procurement officer, stating the reasons the procurement

qualifies as a special circumstance. This request should be supported by sufficient market

research and address the requirement of fair and reasonable pricing.

services is contrary to the public interest.

(b)

To qualify a procurement as a special circumstance procurement, the procurement official shall

provide a written request to the chief procurement officer, stating the reasons the procurement

qualifies as a special circumstance. This request should be supported by sufficient market

research and address the requirement of fair and reasonable pricing.

(c)

The determination of the chief procurement officer as to whether the procurement qualifies as a

special circumstance procurement shall be final.

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PART 3

CANCELLATION OF SOLICITATIONS: REJECTION OF BIDS OR PROPOSALS

R-24-103-301 Cancellation of Solicitations and Awards

The provisions of this rule shall govern the cancellation of any solicitations or other source selection

methods, the rejection of bids or proposals in whole or in part, for being non-responsive or non-

responsible and the cancellation of awards.

R-24-103-301-01

Cancellation of Solicitation: Rejection of All Bids or Proposals

A solicitation may be cancelled only when there are cogent and compelling reasons to believe that the

cancellation of the solicitation is in the state's best interest.

(a)

A solicitation may be cancelled, in whole or in part, when the procurement official determines in

writing that such action is in the state's best interest. Reasons for cancelling a solicitation include,

but not limited to:

(i)

the state no longer requires the supplies, services, or construction;

(ii)

the state no longer can reasonably expect to fund the procurement;

(iii)

prices exceed available funds and it would not be appropriate to adjust quantities or

qualities to come within available funds;

(iv)

all responsive bids or proposals received are at clearly unreasonable prices;

citation include,

but not limited to:

(i)

the state no longer requires the supplies, services, or construction;

(ii)

the state no longer can reasonably expect to fund the procurement;

(iii)

prices exceed available funds and it would not be appropriate to adjust quantities or

qualities to come within available funds;

(iv)

all responsive bids or proposals received are at clearly unreasonable prices;

(v)

there is reason to believe that the bids or proposals may not have been independently

arrived at in open competition, may have been collusive, or may have been submitted in

bad faith;

(vi)

the solicitation did not provide for consideration of all factors of significance to the state;

(vii)

ambiguous or otherwise inadequate specifications were part of the solicitation; or

(viii)

proposed amendments to the solicitation would be of such magnitude that a new

solicitation is desirable.

(b)

When a solicitation is cancelled, a notice of cancellation should be sent to all persons that

submitted bids or proposals.

(c)

The reasons for cancellation or rejection shall be made a part of the procurement record and shall

be confidential for the period of time specified in section 24-103-301, C.R.S.

(d)

When a solicitation is cancelled after bids or proposals are received, the bids or proposals which

have been opened shall be retained in the procurement record, or if unopened, returned to the

bidders or offerors upon request, at their expense, or otherwise disposed of.

R-24-103-301-02

Cancellation of Award

An award of a contract under a solicitation may be cancelled, in whole or in part, when the procurement

official determines in writing that such action is in the state's best interest. Reasons supporting the

cancellation of an award include those identified in rule R-24-103-301-01. The cancellation of an award

does not require cancellation of the solicitation. No property interest of any nature shall accrue until the

awarded contract is approved in accordance with section 24-30-202(2), C.R.S.

rement

official determines in writing that such action is in the state's best interest. Reasons supporting the

cancellation of an award include those identified in rule R-24-103-301-01. The cancellation of an award

does not require cancellation of the solicitation. No property interest of any nature shall accrue until the

awarded contract is approved in accordance with section 24-30-202(2), C.R.S.

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R-24-103-301-03

Waiver of Non-Material Mandatory Requirements in Solicitations

The procurement official has the authority to waive mandatory requirements in a solicitation in the event:

(a)

The procurement official has determined that the requirements are not material;

(b)

The solicitation discloses that the state has reserved this right;

(c)

The mandatory requirements have not been met by any of the respondents to the solicitation;

(d)

The waiver does not create a disadvantage to the state;

(e)

The waiver does not benefit any individual bidder or offeror; and

(f)

The waiver does not prejudice any non-winning bidder or offeror or potential bidder or offeror.

PART 4

QUALIFICATIONS AND DUTIES

R-24-103-401 Responsibility of Prospective Contractors or Vendors

A determination of responsibility or non-responsibility shall be governed by these rules.

R-24-103-401-01

Standards of Responsibility

(a)

Factors to be considered in determining whether the standard of responsibility has been met

include whether a prospective contractor or vendor:

(i)

has or can obtain the appropriate financial, material, equipment, facility, personnel

resources and expertise to indicate the capability to meet all contractual requirements;

(ii)

has a satisfactory record of performance;

(iii)

has a satisfactory record of integrity;

(iv)

does not appear on any debarred lists;

(v)

is qualified legally to contract with the state; and

(vi)

has supplied all necessary information in connection with the inquiry concerning

responsibility.

lity, personnel

resources and expertise to indicate the capability to meet all contractual requirements;

(ii)

has a satisfactory record of performance;

(iii)

has a satisfactory record of integrity;

(iv)

does not appear on any debarred lists;

(v)

is qualified legally to contract with the state; and

(vi)

has supplied all necessary information in connection with the inquiry concerning

responsibility.

(b)

The prospective contractor or vendor shall supply information requested by the procurement

official concerning the responsibility of such contractor. If such contractor or vendor fails to supply

the requested information, the chief procurement officer or procurement official shall base the

determination of responsibility upon any available information.

R-24-103-401-02

Ability to Meet Standards

The prospective contractor or vendor may demonstrate the availability of necessary financing, equipment,

facilities, expertise, and personnel by submitting upon request:

(a)

Evidence that such contractor possesses such necessary items;

(b)

Acceptable plans to subcontract for such necessary items; or

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(c)

A documented commitment from, or explicit arrangement with a satisfactory source to provide the

necessary items.

R-24-103-401-03

Written Determination of Non-Responsibility Required

If a prospective contractor or vendor who otherwise would have been awarded a contract is found to be

non-responsible, a written determination of non-responsibility setting forth the basis of the finding shall be

prepared by the procurement official. A copy of the determination shall be sent promptly to the non-

responsible prospective contractor or vendor. The determination shall be made part of the procurement

record.

R-24-103-402 Prequalification of Suppliers

(a)

The procurement official may develop pre-qualification procedures for specific solicitations.

setting forth the basis of the finding shall be

prepared by the procurement official. A copy of the determination shall be sent promptly to the non-

responsible prospective contractor or vendor. The determination shall be made part of the procurement

record.

R-24-103-402 Prequalification of Suppliers

(a)

The procurement official may develop pre-qualification procedures for specific solicitations.

(b)

Colorado labor shall be employed on a public works project unless a waiver is allowed pursuant

to section 8-17-101, C.R.S.

R-24-103-403-01

Cost or Pricing Data Definitions

(a)

“Cost data” is factual information concerning the cost of labor, material, overhead, and other cost

elements which are expected to be incurred or which have been actually incurred by the

contractor in performing the contract.

(b)

“Pricing data” is factual information concerning prices for supplies, services, or construction

substantially identical to those being procured. Prices in this definition refer to offered or proposed

selling prices, historical selling prices, and current selling prices of such supplies, services or

construction. The definition refers to data relevant to both prime and subcontract prices.

(c)

“Adequate competition” exists if a solicitation has been conducted and at least two responsible

and responsive offerors have independently competed to provide the state's needed supplies or

services. If the foregoing conditions are met, competition shall be presumed to be “adequate”

unless the procurement official or his or her designee determines, in writing that such competition

is not adequate.

R-24-103-403-02

Requirement for Cost or Pricing Data

(a)

Cost data and pricing data shall not be required where the contract price is based on:

(i)

adequate competition;

(ii)

established catalog prices;

(iii)

law or rule; or

(iv)

where the requirements are waived by the procurement official.

e procurement official or his or her designee determines, in writing that such competition

is not adequate.

R-24-103-403-02

Requirement for Cost or Pricing Data

(a)

Cost data and pricing data shall not be required where the contract price is based on:

(i)

adequate competition;

(ii)

established catalog prices;

(iii)

law or rule; or

(iv)

where the requirements are waived by the procurement official.

(b)

Unless otherwise specified in these rules, a contractor shall submit cost or pricing data for the

pricing of any contract to include sole source procurements, described in rules R-24-103-205 and

R-24-105-101.5, where the total contract value is expected to exceed $150,000.

(c)

Unless otherwise specified in these rules, a contractor shall submit cost data or pricing data for

the pricing of any contract modification which is expected to exceed ten percent of the total

contract value.

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(d)

The procurement official or his or her designee may request cost data or pricing data to be

provided within a reasonable time and in a reasonable manner.

(e)

Any disputes related to the submission of cost data or pricing data are subject to the contractor's

rights in accordance with article 109 of the code.

R-24-103-403-03

Defective Cost or Pricing Data

(a)

If cost data or pricing data are found to have been inaccurate, incomplete, or non-current as of

the date submitted by the contractor, the state is entitled to an adjustment of the contract price to

account for the defect.

the submission of cost data or pricing data are subject to the contractor's

rights in accordance with article 109 of the code.

R-24-103-403-03

Defective Cost or Pricing Data

(a)

If cost data or pricing data are found to have been inaccurate, incomplete, or non-current as of

the date submitted by the contractor, the state is entitled to an adjustment of the contract price to

account for the defect.

(b)

Judgmental errors made in good faith concerning the estimated portions of future costs or

projections do not constitute defective data.

PART 5

TYPES OF CONTRACTS

PART 6

AUDIT OF RECORDS

PART 7

DETERMINATIONS AND REPORTS

PART 8

SET ASIDES IN STATE PROCUREMENT FOR ALL PERSONS WITH SEVERE

DISABILITIES

R-24-103-802 Definitions

All terms used in rules under this part 8 have the same meaning as defined in section 24-103-802, C.R.S.

Section 24-103-802(2), C.R.S., defines “department” as the department of human services, solely for the

purposes of part 8 of article 3 of the code.

R-24-103-803-01

Nonprofit Agencies – Application

A nonprofit agency seeking inclusion on the self-certified vendor list shall complete an application

describing the services it is able to provide and certifying its eligibility as a self-certified vendor. The

department shall make the application form available electronically and shall accept applications for

consideration throughout the calendar year. Approved applications will be added the self-certified vendor

list in accordance with rule R-24-103-804-01.

R-24-103-803-02

Self-certified Vendor List – Creation

The department shall update the self-certified vendor list to include newly self-certified vendors and

remove vendors that have not recertified pursuant to section 24-103-803(4), C.R.S.

R-24-103-804-01

Services Set Aside List – Creation, Determination, and Review

(a)

The department shall review each application for certification as required in section 24-103-

803(2), C.R.S.

Vendor List – Creation

The department shall update the self-certified vendor list to include newly self-certified vendors and

remove vendors that have not recertified pursuant to section 24-103-803(4), C.R.S.

R-24-103-804-01

Services Set Aside List – Creation, Determination, and Review

(a)

The department shall review each application for certification as required in section 24-103-

803(2), C.R.S.

(b)

The department shall identify a specific date for updating the services set aside list annually with

new self-certified vendors and services, if any. As determined by the department, quarterly

updates to the services set aside list may be made for new self-certified vendors or services

accepted in accordance with section 24-103-803(2), C.R.S.

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R-24-103-804-02

Services Set Aside List – Publication

The department shall provide the services set aside list to the chief procurement officer, who shall make

the services set aside list available to all state agencies electronically.

R-24-103-805 Bid Process

(a)

If a service is not on the services set aside list, the state agency may proceed with another

method of source selection as provided in the code.

(b)

Prior to obtaining services through a set aside solicitation, the state agency must comply with the

same requirements that must be met for services obtained through other methods of source

selection as provided in the code and these rules.

(c)

A state agency shall send a statement of work describing the needed services to all self-certified

vendors who have indicated they can provide the service in the services set aside list.

(d)

The self-certified vendors will have a minimum of three business days to respond, unless

otherwise extended by the state agency. Responses from self-certified vendors must

demonstrate their ability to meet the requirements and include pricing.

ent of work describing the needed services to all self-certified

vendors who have indicated they can provide the service in the services set aside list.

(d)

The self-certified vendors will have a minimum of three business days to respond, unless

otherwise extended by the state agency. Responses from self-certified vendors must

demonstrate their ability to meet the requirements and include pricing.

(e)

Responses from self-certified vendors shall be evaluated and a contract will be awarded based

on which acceptable response is most advantageous to the state taking into consideration factors

other than price alone.

(f)

If no responses from self-certified vendors are received within the designated response time, the

state agency may proceed with another method of source selection as provided in the code.

PART 9

PROCUREMENT PREFERENCES AND GOALS

R-24-103-901 Use of Preferences

The underlying purposes of this code foster effective broad-based competition within the free enterprise

system and ensure the fair and equitable treatment of all persons who deal with the procurement system

of the state. In furtherance of these purposes, procurement officials and procurement agents are

encouraged to maximize opportunities for small businesses, minority-owned businesses, woman-owned

businesses, veteran-owned businesses, and businesses that employ people with disabilities to compete

for state contracts. No provision is made in the code for preferences or set asides for minority-owned or

women-owned businesses.

R-24-103-904 Definition

“Costs of ownership life cycle analysis” means an accounting of the estimated total cost of ownership,

including but not limited to: initial costs; operational costs; longevity; stranded utility costs; and service

and disposal costs; along with an assessment of life-cycle environmental; health and energy impacts

resulting from new material extraction; transportation; manufacturing; use; and disposal.

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including but not limited to: initial costs; operational costs; longevity; stranded utility costs; and service

and disposal costs; along with an assessment of life-cycle environmental; health and energy impacts

resulting from new material extraction; transportation; manufacturing; use; and disposal.

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ARTICLE 104 SPECIFICATIONS

PART 1

DEFINITIONS

PART 2

SPECIFICATIONS

R-24-104-202 Brand Name or Equal Specification: Conditions for Use

“Brand name or equal specification” means a specification which uses one or more manufacturer's names

or catalogue numbers to describe the standard of quality, performance, and other characteristics needed

to meet state requirements, and which allows for the submission of equivalent products. Brand name or

equal specifications may be used when it is in the best interest of the state and when the item to be

procured is best described by use of such a specification.

R-24-104-202-01

Brand Name Specifications: Conditions for Use

“Brand name specification” means a specification limited to one or more items by manufacturer's names

or catalogue numbers. Since use of a brand name specification is restrictive, it may be used when only

the brand name or items will satisfy the state's needs. The procurement agent shall seek to identify

sources from which the designated brand name or item can be obtained and shall solicit such sources to

achieve whatever degree of competition is practicable.

R-24-104-202-02

Qualified Products List: Conditions for Use

“Qualified products list” means an approved list of supplies, services or construction items described by

model or catalog numbers, which, prior to competitive solicitation, the state has determined will meet the

applicable specification requirements

and shall solicit such sources to

achieve whatever degree of competition is practicable.

R-24-104-202-02

Qualified Products List: Conditions for Use

“Qualified products list” means an approved list of supplies, services or construction items described by

model or catalog numbers, which, prior to competitive solicitation, the state has determined will meet the

applicable specification requirements. A qualified products list may be developed with the approval of the

procurement official when testing or examination of the supplies or construction items prior to issuance of

the solicitation is desirable or necessary to best satisfy the state's requirements.

ARTICLE 105 CONSTRUCTION CONTRACTS

PART 1

MANAGEMENT OF CONSTRUCTION CONTRACTING

R-24-105-101 Selection Methods

The following rules apply to state agencies and state institutions of higher education, as defined in section

24-30-1301(17) and (18), C.R.S., for all methods of source selection for construction unless otherwise

exempt in accordance with sections 24-30-1301(15)(b)(II) and (III), C.R.S., or a waiver has been granted

by the office of the state architect. Additional methods of source selection in article 103 of these rules may

be considered for construction if permitted through delegation and approval of the office of the state

architect. However, in the event of a conflict, the rules in article 105 will govern source selection for

construction. For methods of source selection for other than construction, see rules implementing article

103 of the code.

R-24-105-101-01

Terminology

ection in article 103 of these rules may

be considered for construction if permitted through delegation and approval of the office of the state

architect. However, in the event of a conflict, the rules in article 105 will govern source selection for

construction. For methods of source selection for other than construction, see rules implementing article

103 of the code.

R-24-105-101-01

Terminology

(a)

The following terms provide a common vocabulary for use in the context of this rule and for

general discussion concerning the construction contracting activities of the state. The methods

described are not all mutually exclusive and may be combined on one project. In each project

these terms may be adapted to fit the circumstances of that project. However, the procurement

official should endeavor to ensure that these terms are defined adequately in the appropriate

contracts, are not used in a misleading manner, and are understood by all relevant parties.

Significant deviations from the terms provided in this rule should be explicitly noted in the

contract.

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(b)

“Prime contractor,” as used in this article means a person who has a contract with the state to

build, alter, repair, improve, or demolish any public structure or building, or other public

improvements of any kind on any public real property.

(c)

The “single prime contractor method” of contracting is typified by one person (general contractor)

contracting with the state to timely complete an entire construction project in accordance with

plans and specifications provided by the state. Often these plans and specifications are prepared

by a private architectural firm under contract to the state. Further, while the general contractor

must take responsibility for successful completion of the project, much of the work may be

performed by specialty contractors with whom the prime contractor has entered into subcontracts.

accordance with

plans and specifications provided by the state. Often these plans and specifications are prepared

by a private architectural firm under contract to the state. Further, while the general contractor

must take responsibility for successful completion of the project, much of the work may be

performed by specialty contractors with whom the prime contractor has entered into subcontracts.

(d)

In a “design-build or turnkey project,” a contractor contracts directly with the state to meet the

state's requirements as described in a set of performance specifications by constructing a facility

using the contractor’s plans and specifications. Design responsibility and construction

responsibility both rest with the design-build contractor. This method can include instances where

the design-build contractor supplies the site as part of the package.

(e)

“Construction management” is a team approach to construction. A construction manager/general

contractor is a person experienced in construction that has the ability to evaluate and implement

plans and specifications as they affect time, cost, and quality of construction and to coordinate

the design team (consisting of architect/engineers and other consultants as may be required).

The construction manager/general contractor contracts directly with sub-contractors for

performance of the construction of the project and, administers change orders.

(f)

“Phased design and construction” denotes a method in which construction begins when

appropriate portions have been designed, but before substantial design of the entire structure has

been completed. This method is also known as “fast-track” construction.

The above defined methods of construction contracting are not to be construed as an exclusive list.

Consult with the office of the state architect for approval of a construction contracting method other than a

single prime contractor

opriate portions have been designed, but before substantial design of the entire structure has

been completed. This method is also known as “fast-track” construction.

The above defined methods of construction contracting are not to be construed as an exclusive list.

Consult with the office of the state architect for approval of a construction contracting method other than a

single prime contractor. In selecting the appropriate construction contracting method, consideration must

be given to all appropriate and effective methods, their comparative advantages and disadvantages and

how they might be adapted or combined to fulfill state requirements.

R-24-105-101-02

Purchasing Thresholds

Purchases of construction services and supplies may be made as follows:

(a)

All agencies may procure construction services and supplies up to $50,000 without benefit of

competition.

(b)

Small purchases procedures may be used to procure services and supplies for construction

projects costing less than $250,000.

(c)

Invitations for bids or requests for proposals must be used to procure services and supplies for

construction projects estimated to exceed the small purchase threshold of $250,000.

R-24-105-101-03

Solicitation Publication Time

Except as provided under emergency procedures, described in R-24-105-101.6, solicitations shall be

published on an electronic procurement system as follows:

(a)

Documented quotes, described in rule R-24-105-101.4, shall be published for at least three

consecutive business days.

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(b)

Invitation for bids shall be published for at least 14 consecutive business days. The posting time

for an invitation for bids shall not be reduced to a shorter time.

urement system as follows:

(a)

Documented quotes, described in rule R-24-105-101.4, shall be published for at least three

consecutive business days.

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(b)

Invitation for bids shall be published for at least 14 consecutive business days. The posting time

for an invitation for bids shall not be reduced to a shorter time.

(c)

Requests for proposals shall be published for at least 30 consecutive calendar days. When

special requirements or conditions exist, the procurement official may shorten the posting time for

a request for proposal, but in no case shall the time period be shortened to reduce competition.

The procurement official shall document the reason a reduced time period was necessary in the

procurement record.

(d)

When special requirements or conditions exist, the procurement official may lengthen the posting

time.

R-24-105-101-04

General Bidding Provisions

(a)

For purposes of the rules under article 105 of the code, use of the term “bid”, “bids”, “proposal”

and “proposals” are interchangeable based on the solicitation method.

(b)

After opening bids or proposals, the procurement official may request low bidders to extend the

time during which the state may accept their bids or proposals, provided that no other change is

permitted. The reasons for requesting such extension shall be documented in the procurement

record.

(c)

If only one responsive bid or proposal is received in response to a solicitation, an award may be

made to the single bidder if the procurement official finds that the price submitted is fair and

reasonable and that either other prospective bidders had reasonable opportunity to respond, or

there is not adequate time for re-solicitation

ch extension shall be documented in the procurement

record.

(c)

If only one responsive bid or proposal is received in response to a solicitation, an award may be

made to the single bidder if the procurement official finds that the price submitted is fair and

reasonable and that either other prospective bidders had reasonable opportunity to respond, or

there is not adequate time for re-solicitation. In the event that all bids for a construction project

exceed available funds, as certified by the appropriate fiscal officer, the procurement official is

authorized in accordance with section 24-103-202(7), C.R.S., in situations where time or

economic considerations preclude re-solicitation of work of a reduced scope, to negotiate an

adjustment of the bid price with the low responsible bidder in order to bring the bid within the

amount of available funds; except that the functional specifications integral to completion of the

project may not be reduced in scope, taking into account the project plan, design, and

specifications and quality of materials. Otherwise, the bid must be rejected and:

(i)

new bids may be solicited; or

(ii)

the proposed procurement may be cancelled; or

(iii)

if the procurement official determines in writing that the need for the construction

continues but that the price of the one bid or proposal is not fair and reasonable and

there is no time for re-solicitation or re-solicitation would likely be futile, the procurement

may then be conducted as a sole source procurement under rule R-24-105-101.5 or an

emergency procurement under rule R-24-105-101.6, as appropriate.

(d)

An alternate bid or proposal means an offer or response submitted in response to a solicitation

issued by the state that is in essential compliance with the solicitation terms and conditions but

offers an alternate that does not significantly deviate from the required specifications contained in

the solicitation. The procurement official would be responsible for determining whether an

alternate bid or proposal is acceptable.

means an offer or response submitted in response to a solicitation

issued by the state that is in essential compliance with the solicitation terms and conditions but

offers an alternate that does not significantly deviate from the required specifications contained in

the solicitation. The procurement official would be responsible for determining whether an

alternate bid or proposal is acceptable.

(e)

A solicitation may prohibit multiple or alternate bids or proposals. When prohibited the multiple or

alternate bids or proposals shall be rejected although a clearly identified base bid or proposal will

be considered for award as though it were the only bid or proposal submitted by the bidder or

offeror. A solicitation shall specify if multiple or alternate bids or proposals will be allowed and

how they will be treated.

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(f)

Any bid or proposal which is conditioned upon receiving an award under both the particular

solicitation for which the bid or proposal is made and another state solicitation shall be deemed

nonresponsive and unacceptable.

(g)

Affiliates are prohibited from submitting bids for the same contract. An “affiliate” of a

bidder or offeror is any person directly or indirectly:

(i)

controlling;

(ii)

controlled by; or

(iii)

under common control with the bidder or offeror.

(h)

The procurement official may determine whether a supply item or group of supply items shall be

included as a part of, or procured separately from, any contract for construction.

(i)

All construction bidding and contracting procedures shall utilize standard state forms, which are

available on-line from the website of the office of the state architect. Any changes or modifications

of the state forms, including general conditions of the contract, shall not be valid unless issued in

the form of supplementary general conditions and approved by the office of the state architect.

i)

All construction bidding and contracting procedures shall utilize standard state forms, which are

available on-line from the website of the office of the state architect. Any changes or modifications

of the state forms, including general conditions of the contract, shall not be valid unless issued in

the form of supplementary general conditions and approved by the office of the state architect.

(j)

Invitations for bids or invitation for best value bids may be used for public projects that have no

federal funding involved, pursuant to sections 24-92-103 and 24-92-103.5, C.R.S.

R-24-105-101-05

Content of Solicitations

(a)

The notice of the invitation for bids or request for proposals shall include the following information

and statements:

(i)

date, time and location of the bid opening;

(ii)

project number, name and location;

(iii)

project time of completion;

(iv)

location where bidding documents may be obtained;

(v)

deposit required, if any, for a complete set of contract documents;

(vi)

preference shall be given to Colorado resident bidders and for Colorado labor as

provided by law;

(vii)

when the use of federal funds is involved, the rate of wages to be paid for all laborers and

mechanics shall be in accordance with the applicable Davis-Bacon rates of wages for the

project. Such rates will be specified in the general contract documents.

(b)

Solicitations may incorporate documents by reference, provided, that the solicitation specifies

where such documents can be obtained.

(c)

The solicitation response shall require the acknowledgment of the receipt by the bidder or offeror

of all addenda issued to the solicitation.

(d)

Bidding time is the period of time between the date of the advertisement for bids and the date set

for opening of bids. In each case, the bidding time shall provide bidders a reasonable time to

prepare their bids.

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he acknowledgment of the receipt by the bidder or offeror

of all addenda issued to the solicitation.

(d)

Bidding time is the period of time between the date of the advertisement for bids and the date set

for opening of bids. In each case, the bidding time shall provide bidders a reasonable time to

prepare their bids.

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(e)

Pre-bid conferences may be conducted to explain the procurement requirements. They shall be

announced to all prospective bidders. The conference shall be held long enough after the

solicitation has been issued to allow bidders to become familiar with it, but sufficiently before bid

opening to allow consideration of the conference results in preparing their bids. Nothing stated at

the pre-bid conference shall change the solicitation unless a change is made by written

addendum as provided elsewhere in these rules and the solicitation and the notice of the pre-bid

conference shall so provide.

R-24-105-101-06

Public Notice

Notice of the solicitation shall be advertised in accordance with the provisions of sections 24-70-101

through 24-70-107, C.R.S., and these rules. The notice will be advertised as described in the solicitation

or in an electronic medium approved by the executive director pursuant to section 24-92-103(3), C.R.S.

Publication of the notice shall occur twice, one week apart. Nothing in these rules shall prevent the

procurement official from advertising or otherwise giving public notice in additional media and locations.

R-24-105-101-07

Addenda and Clarifications

(a)

If addenda or clarifications result in any material changes to the scope of work or otherwise affect

the manner or form of response, the procurement official or his or her designee must notify all

known potential bidders.

rules shall prevent the

procurement official from advertising or otherwise giving public notice in additional media and locations.

R-24-105-101-07

Addenda and Clarifications

(a)

If addenda or clarifications result in any material changes to the scope of work or otherwise affect

the manner or form of response, the procurement official or his or her designee must notify all

known potential bidders.

(b)

Addenda to solicitations shall be identified as such and shall require that the bidder acknowledge

receipt of all amendments issued in the bidder’s response. Each addendum shall reference the

portions of the solicitation it amends.

(c)

Addenda shall be posted on an electronic procurement system with sufficient time to allow

prospective bidders or offerors to consider them in preparing their bids or proposals. If the time

set for bid or proposal opening will not permit such preparation, such time shall be increased in

the addendum.

(d)

Refer to rule R-24-103-201-14, regarding discussions with bidders or offerors.

R-24-105-101-08

Form of Submissions

(a)

Bidders and offerors must execute and submit bids and proposals on the form prescribed by the

office of the state architect, and as specified by the solicitation. A bid or proposal received on any

other form will be unresponsive.

(b)

Electronic bids or proposals shall be in accordance with rule R-24-103-201-11.

R-24-105-101-09

Mistakes in Bids or Proposals

When it appears from a review of the bid or proposal that a mistake has been made, the procurement

official should request that the bidder or offeror confirm the bid or proposal and shall take such further

action as may be required in rule R-24-103-201-08.

R-24-105-101-10

Withdrawal of Bids or Proposals

Any bid or proposal may be modified or withdrawn by written notice to the appropriate purchasing agency

prior to the specified bid opening date and time as described in rule R-24-103-201-09.

R-24-105-101-11

Timeliness of Bids or Proposals

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e required in rule R-24-103-201-08.

R-24-105-101-10

Withdrawal of Bids or Proposals

Any bid or proposal may be modified or withdrawn by written notice to the appropriate purchasing agency

prior to the specified bid opening date and time as described in rule R-24-103-201-09.

R-24-105-101-11

Timeliness of Bids or Proposals

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Bids or proposals received after the bid or proposal opening time shall not be opened, and shall be

rejected as a late response. Exceptions may be permitted by the procurement official pursuant to rule R-

24-103-201-10.

R-24-105-101-12

Alternate Bids

Alternate bids shall be governed by rule R-24-103-201-12.

R-24-105-101-13

Opening and Recording of Bids and Proposals

(a)

Upon receipt, all bids and proposals shall be recorded to reflect the date and time they were

received by the purchasing agency, but shall not be opened.

(b)

Bids and proposals shall be opened publicly, in the presence of one or more witnesses, at the

time and place designated in the solicitation. A register of bids and proposals shall be prepared

which shall include the name of each bidder or offeror that responded.

(c)

The procurement agent shall examine the bids to determine the validity of any requests for

nondisclosure of trade secrets and other proprietary data identified in writing in accordance with

rules R-24-101-401-01 through R-24-101-401-05.

(d)

Documented quotes, described in rule R-24-103-204-01, do not require a public opening and may

be opened upon receipt. However, a register of responses shall be prepared.

R-24-105-101-14

Bid and Proposal Evaluation and Award

(a)

The contract shall be awarded to the lowest responsible and responsive bidder whose bid meets

the requirements and criteria set forth in the invitation for bids or request for proposals. The

invitation for bids or request for proposals shall set forth the requirements and criteria which will

be used to determine the acceptability of a response.

-105-101-14

Bid and Proposal Evaluation and Award

(a)

The contract shall be awarded to the lowest responsible and responsive bidder whose bid meets

the requirements and criteria set forth in the invitation for bids or request for proposals. The

invitation for bids or request for proposals shall set forth the requirements and criteria which will

be used to determine the acceptability of a response.

(b)

Bids and proposals will be evaluated to determine which bidder or offeror offers the lowest cost to

the state in accordance with the evaluation criteria set forth in the invitation for bids and request

for proposals. Only objectively measurable criteria set forth in the invitation for bids or request for

proposals shall be applied in determining the lowest bidder.

(c)

Evaluation criteria need not be precise predictors of actual future cost, but to the extent possible

such evaluation criteria shall:

(i)

provide reasonable estimates based upon information the state has available concerning

future use; and

(ii)

treat all bids equitably.

(d)

A contract may not be awarded to a bidder submitting a higher quality item than that designated

in the invitation for bids or request for proposals, unless such bidder is also the lowest bidder as

determined by value analysis or life-cycle cost formulas as permitted in this rule.

R-24-105-101-15

Forms

All construction contracts and procedural documents shall be executed on standard state of Colorado

forms available on-line on the office of the state architect website.

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nless such bidder is also the lowest bidder as

determined by value analysis or life-cycle cost formulas as permitted in this rule.

R-24-105-101-15

Forms

All construction contracts and procedural documents shall be executed on standard state of Colorado

forms available on-line on the office of the state architect website.

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R-24-105-101-16

Use of Electronic Procurement Systems - Notice of Construction Projects

and Professional Services

For all construction projects and for all procurements for professional services (as defined in section 24-

30-1402(6), C.R.S.) for which competitive notification or solicitation procedures are required, a notification

must be placed on an electronic procurement system, and the award must be posted on the same

electronic procurement system.

(a)

Detailed specifications need not be included in the notice, but all information must be open to

public view, without password protection.

(b)

Contractors and bidders need not be registered for an electronic procurement system in order to

be deemed responsive.

R-24-105-101.2-01

Multi-Step Invitation for Bids

A contract may be entered into by multi-step invitation for bids. Unless otherwise specified, the general

rules under rule R-24-103-202-03 shall apply to multi-step invitation for bids.

(a)

The multi-step invitation for bid method will be used when it is not practical to initially prepare a

definitive scope of work which will be suitable to permit an award based on price. Utilization of

this method requires prior approval from the office of the state architect.

Unless otherwise specified, the general

rules under rule R-24-103-202-03 shall apply to multi-step invitation for bids.

(a)

The multi-step invitation for bid method will be used when it is not practical to initially prepare a

definitive scope of work which will be suitable to permit an award based on price. Utilization of

this method requires prior approval from the office of the state architect.

(b)

The procedure for multi-step invitation for bid will be set forth in office of the state architect

policies.

R-24-105-101.3-01

Invitation for Best Value Bids

The use of invitation for best value bids shall follow the requirements in accordance with rule R-24-103-

202.3 and section 24-92-103.5, C.R.S., for construction projects.

R-24-105-101.3-02

Disclosure

An agency choosing between methods of invitation for bids or invitation for best value bids shall disclose

the rationale behind its decision in accordance with section 24-92-103.7, C.R.S.

R-24-105-101.3-03

Evaluation

The criteria for evaluating invitations for best value bids shall be those in section 24-92-103.5(3), C.R.S.

R-24-105-101.4

Documented Quotes

(a)

Services and supplies for construction projects up to $250,000 may be purchased using a

documented quote process.

(b)

The contractor’s response constitutes an offer and is binding if accepted by the state.

(c)

The contractor’s response must be on their letterhead or in a format approved by the state.

(d)

The award must be made to the low acceptable quote.

(e)

Requests for documented quotes must be placed on an electronic procurement system in

accordance with these rules. Solicitations must remain posted for at least three business days

unless the director or head of a purchasing agency determines in writing that a lesser time is

required in order to meet an immediate state need.

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s for documented quotes must be placed on an electronic procurement system in

accordance with these rules. Solicitations must remain posted for at least three business days

unless the director or head of a purchasing agency determines in writing that a lesser time is

required in order to meet an immediate state need.

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(f)

The procurement official or his or her designee may negotiate with any vendor or contractor to

clarify its quote or to effect modifications that will make the quote acceptable (including curing a

defective bid bond) or make the quote more advantageous to the state. However, in the

negotiation process, the terms of one vendor’s quote shall not be revealed to a competing

vendor, and quotes shall be kept confidential until a commitment voucher is issued.

(g)

State agencies and state institutions of higher education, with the approval of the office of the

state architect, may utilize a standing order process for projects less than $250,000. An approved

process must include open public solicitation (including advertising on an electronic procurement

system) for eligible contractors at least once per year, a process for obtaining at least three

quotes before awarding a contract to an eligible contractor, and an equitable process for

determining which contractors will be given an opportunity to provide quotes.

(h)

Bonding and retainage requirements set forth in section 38-26-106, C.R.S., section 24-105-201,

et seq., C.R.S., and section 24-91-103(1), C.R.S., and rules promulgated thereunder are not

affected by this rule. Failure to provide a required bid bond, if not cured, makes the quote

unacceptable. State agencies and state institutions of higher education should seek legal advice

when bid bonds have been required and the terms of the quote are modified after receipt

6, C.R.S., section 24-105-201,

et seq., C.R.S., and section 24-91-103(1), C.R.S., and rules promulgated thereunder are not

affected by this rule. Failure to provide a required bid bond, if not cured, makes the quote

unacceptable. State agencies and state institutions of higher education should seek legal advice

when bid bonds have been required and the terms of the quote are modified after receipt.

R-24-105-101.5

Sole Source Procurements

Contracts for capital construction or controlled maintenance may be awarded by use of a sole source

procurement only after consulting with the office of the state architect and only if the following conditions

are met:

(a)

A sole source procurement is justified when there is only one service that can reasonably meet

the need and there is only one vendor who can provide the service.

(b)

The procurement official or his or her designee shall make a written determination that a

procurement is sole source, setting forth the reasons in the procurement record. For purposes of

this rule, the procurement official is delegated in accordance with section 24-102-302(2), C.R.S.

(c)

In cases of reasonable doubt, competition should be solicited. Any request by a using agency that

a procurement be restricted to one potential contractor shall be accompanied by an explanation

as to why no other will be suitable or acceptable to meet the need.

(d)

When a sole source procurement is authorized, the procurement official or his or her designee

shall conduct negotiations, as appropriate, as to price, delivery, and terms.

ition should be solicited. Any request by a using agency that

a procurement be restricted to one potential contractor shall be accompanied by an explanation

as to why no other will be suitable or acceptable to meet the need.

(d)

When a sole source procurement is authorized, the procurement official or his or her designee

shall conduct negotiations, as appropriate, as to price, delivery, and terms.

(e)

When applicable, the procurement official or his or designee shall publish a notice of the sole

source on an electronic procurement system for not less than three business days in accordance

with section 24-106-103(5), C.R.S.

R-24-105-101.6

Emergency Procurements

Contracts may be awarded by use of an emergency procurement.

R-24-105-101.6-01

Definition of Emergency Conditions

An emergency condition is a situation which creates a threat to public health, welfare, or safety such as

may arise by reason of floods, epidemics, riots, equipment failures, or such other reason as may be

identified by the using agency and approved by the chief procurement officer, the procurement official, or

a designee of either officer. The existence of such condition creates an immediate and serious need for

supplies, services, or construction that cannot be met through normal procurement methods and the lack

of which would seriously threaten:

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(a)

The functioning of state government, or its programs;

(b)

The preservation or protection of property; or

(c)

The health or safety of any person or persons.

R-24-105-101.6-02

Scope of Emergency Procurements

Emergency procurements shall be limited to supplies, services, or construction items in such quantities as

are necessary to meet the emergency.

R-24-105-101.6-03

Authority to Make Emergency Procurements

ioning of state government, or its programs;

(b)

The preservation or protection of property; or

(c)

The health or safety of any person or persons.

R-24-105-101.6-02

Scope of Emergency Procurements

Emergency procurements shall be limited to supplies, services, or construction items in such quantities as

are necessary to meet the emergency.

R-24-105-101.6-03

Authority to Make Emergency Procurements

(a)

Any governmental body may make emergency procurements when an emergency condition

arises and the need cannot be met through normal procurement methods, provided, that

whenever practical, approval by the chief procurement officer, the procurement official, or a

designee of either officer, shall be obtained prior to the procurement. For purposes of this rule,

procurement official is delegated in accordance with section 24-102-302(2), C.R.S.

(b)

If emergency controlled maintenance funding is to be requested by the governmental body, the

office of the state architect shall be notified no later than the next business day.

(c)

In the event an emergency arises after normal business hours, the governmental body shall notify

the chief procurement officer, the procurement official, or a designee of either officer, and the

office of the state architect no later than the next business day.

PART 2

BONDS

R-24-105-201 Acceptable Bid Security

Bid security is submitted as a guarantee that the bid or proposal will be maintained in full force and effect

for a period of thirty (30) days after the opening of the bids or proposals or as specified in the solicitations.

Acceptable bid security shall be limited to:

(a)

A one-time bid bond underwritten by a company licensed to issue bid bonds in the state of

Colorado, and in the form prescribed in section 24-105-203, C.R.S.; or

(b)

A bank cashier's check made payable to the treasurer of the state of Colorado; or

iod of thirty (30) days after the opening of the bids or proposals or as specified in the solicitations.

Acceptable bid security shall be limited to:

(a)

A one-time bid bond underwritten by a company licensed to issue bid bonds in the state of

Colorado, and in the form prescribed in section 24-105-203, C.R.S.; or

(b)

A bank cashier's check made payable to the treasurer of the state of Colorado; or

(c)

A bank certified check made payable to the treasurer of the state of Colorado.

R-24-105-202 Exceptions

If it is deemed to be in the state's best interest, the procurement official may require, as provided in

section 24-105-202(2), C.R.S., a performance bond or other security in addition to those bonds or in

circumstances other than those specified in section 24-105-202(a), (b), C.R.S., as amended.

R-24-105-203 Bond Forms and Copies

All construction contracts and procedural documents shall be executed on standard state of Colorado

forms available on the office of the state architect website.

PART 3

CONSTRUCTION CONTRACT CLAUSES AND FISCAL RESPONSIBILITY

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ARTICLE 106 MODIFICATION AND TERMINATION OF CONTRACTS (FOR OTHER THAN

CONSTRUCTION)

R-24-106-104 Cost-Plus-a-Percentage-of-Cost

A cost-plus-a-percentage-of-cost contract is a contract in which the vendor is paid for allowable costs plus

a percentage of the allowable costs as profit and the costs are unknown. Cost-plus-a-percentage-of-cost

does not include purchases where the cost is known at the time the obligation is incurred, regardless of

how the vendor determines those costs.

R-24-106-105-01

Definition

“Multiyear contract” means a contract for the purchase of supplies or services with a performance period

of more than twelve months at the time of its initial execution. A contract with a performance period of

twelve or fewer months with subsequent renewal options on the part of the state of no more than one

year does not constitute a multiyear contract

ines those costs.

R-24-106-105-01

Definition

“Multiyear contract” means a contract for the purchase of supplies or services with a performance period

of more than twelve months at the time of its initial execution. A contract with a performance period of

twelve or fewer months with subsequent renewal options on the part of the state of no more than one

year does not constitute a multiyear contract. Written approval by the procurement official or his or her

designee is required prior to entering into a multiyear contract.

R-24-106-105-02

Pre Contract

Contracts, including multiyear contracts, for periods in excess of five years, including the initial term and

all extensions, shall only be executed with written permission from the chief procurement officer. Where

applicable, the maximum approved term must be included in the method of source selection.

R-24-106-105-03

Post Contract

Requests for extensions of contracts, including multiyear contracts, for periods in excess of the term

included in the original method of source selection, as described in article 103 of the code, shall be

submitted to the chief procurement officer for approval. The chief procurement officer will determine if

extenuating circumstances support an extension of the contract.

R-24-106-105-04

Short Term Extensions

End of contract extensions, also known as a holdover of a contract, allow for a short-term extension of a

contract at the end of its current term. In contracts where an end of contract extension is permitted,

exercising this extension does not require written permission from the chief procurement officer.

R-24-106-105-05

Conditions for Extensions and Pricing

Any contract with allowable extensions shall contain conditions for exercising the extensions. Methods

used to determine price escalation or de-escalation shall be part of the original method of source

selection and made a part of the resulting contract.

R-24-106-109 Terms and Conditions in Contracts

Section 24-106-109, C.R.S., applies to all contracts entered into by the state

ensions and Pricing

Any contract with allowable extensions shall contain conditions for exercising the extensions. Methods

used to determine price escalation or de-escalation shall be part of the original method of source

selection and made a part of the resulting contract.

R-24-106-109 Terms and Conditions in Contracts

Section 24-106-109, C.R.S., applies to all contracts entered into by the state.

ARTICLE 107 COST PRINCIPLES

ARTICLE 108 SUPPLY MANAGEMENT

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ARTICLE 109 REMEDIES

PART 1

PRELITIGATION RESOLUTION OF CONTROVERSIES

R-24-109-102-01

Filing of Protest

(a)

An aggrieved party may file a written protest at any phase of solicitation or award concerning a

material issue(s), including but not limited to specifications, award, or disclosure of information

marked confidential in the bid or proposal.

(b)

The written protest shall include, at a minimum, the following:

(i)

name and address of the aggrieved party;

(ii)

appropriate identification of the procurement by solicitation or award number;

(iii)

a statement of the material issue(s) giving rise to the protest; and

(iv)

any available exhibits, evidence, or documents substantiating the protest.

(c)

A written protest shall be submitted to the procurement official by mail, hand delivery, electronic

submission or other means as approved by the state.

(d)

A written protest must be received by the procurement official by the deadline set forth in section

24-109-102, C.R.S., and rule R-24-109-108.

the protest; and

(iv)

any available exhibits, evidence, or documents substantiating the protest.

(c)

A written protest shall be submitted to the procurement official by mail, hand delivery, electronic

submission or other means as approved by the state.

(d)

A written protest must be received by the procurement official by the deadline set forth in section

24-109-102, C.R.S., and rule R-24-109-108.

(e)

If an action concerning the protest has been commenced in district court, the procurement official

shall not act on the protest but shall refer it to the attorney general.

R-24-109-102-02

Requested Information

Any additional information regarding the protest should be submitted within the time period requested by

the procurement official in order to expedite resolution of the protest. If any party fails to comply

expeditiously with any request for additional information by the procurement official, the protest may be

resolved without such information.

R-24-109-102-03

Decision

The written decision issued by the procurement official shall inform the aggrieved party of his or her right

to appeal administratively or judicially in accordance with article 109 of the code.

R-24-109-105-01

Suspension

(a)

After consultation with the affected using agency, the attorney general, and where practicable, the

contractor or potential contractor who is to be suspended, the procurement official may issue a

written determination to suspend a person from consideration of contracts pending an

investigation to determine whether cause exists for debarment. A notice of suspension, including

a copy of the determination, shall be sent to the suspended contractor or prospective contractor.

Such notice shall:

, the

contractor or potential contractor who is to be suspended, the procurement official may issue a

written determination to suspend a person from consideration of contracts pending an

investigation to determine whether cause exists for debarment. A notice of suspension, including

a copy of the determination, shall be sent to the suspended contractor or prospective contractor.

Such notice shall:

(i)

state that the suspension will be for the period necessary to complete an investigation

into possible debarment, as limited in section 24-109-105, C.R.S.;

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(ii)

inform the suspended contractor or prospective contractor that bids or proposals will not

be solicited from the contractor or prospective contractor and, if received, will not be

considered during the period of suspension; and

(iii)

inform the contractor or prospective contractor of his or her right to appeal

administratively or judicially in accordance with article 109 of the code.

(b)

A contractor or prospective contractor shall be suspended upon issuance of the notice of

suspension. The suspension shall remain in effect during any appeals.

(c)

For purposes of this section, the conduct of an individual may impact the suspension of a

contractor or prospective contractor based on factors such as the individual’s position with the

contractor or prospective contractor to include but not limited to an officer, director, partner,

manager, key employee, or other principal of the contractor or prospective contractor.

R-24-109-105-02

Debarment

c)

For purposes of this section, the conduct of an individual may impact the suspension of a

contractor or prospective contractor based on factors such as the individual’s position with the

contractor or prospective contractor to include but not limited to an officer, director, partner,

manager, key employee, or other principal of the contractor or prospective contractor.

R-24-109-105-02

Debarment

(a)

Following completion of the investigation to determine whether a contractor or prospective

contractor has engaged in activities which are a cause for debarment, and after consultation with

the affected using agencies and attorney general, the procurement official may debar a contractor

or prospective contractor for their department only. A written notice of debarment shall be sent to

the debarred person by certified mail, return receipt requested. The notice shall inform the

debarred person of his, her or its right to appeal the decision administratively or judicially in

accordance with article 109 of the code.

(b)

A debarment decision will take effect 20 business days after the date the written notice of

debarment is sent by certified mail unless an appeal of the debarment is filed during that time.

After the debarment decision takes effect, the person shall remain debarred for the debarment

period specified in the decision, unless a court, the executive director, or the procurement official

who issued the debarment decision orders otherwise.

(c)

If an appeal is filed by the debarred person prior to the effective date of the debarment, the

suspension shall remain in effect until the appeal has been resolved. In the event the appeal is

denied, the debarment shall be effective on the completion of the initial 20 business day period or

upon resolution of the appeal, whichever is later.

l

who issued the debarment decision orders otherwise.

(c)

If an appeal is filed by the debarred person prior to the effective date of the debarment, the

suspension shall remain in effect until the appeal has been resolved. In the event the appeal is

denied, the debarment shall be effective on the completion of the initial 20 business day period or

upon resolution of the appeal, whichever is later.

(d)

For purposes of this section, the conduct of an individual may impact the debarment of a

contractor or prospective contractor based on factors such as the individual’s position with the

contractor or prospective contractor to include but not limited to an officer, director, partner,

manager, key employee, or other principal of the contractor or prospective contractor.

R-24-109-105-03

Statewide Debarment

Following a debarment decision under rule R-24-109-105-02, the procurement official may recommend

statewide debarment to the chief procurement officer. The chief procurement officer or his or her

designee shall investigate, including consultation with the affected using agencies and attorney general,

to determine whether a contractor or prospective contractor has engaged in activities which are a cause

for statewide debarment. After the debarment decision takes effect, the person shall remain debarred for

the debarment period specified in the decision, unless a court, the executive director, or the chief

procurement officer orders otherwise.

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R-24-109-105-04

Lists of Suspended and Debarred Persons

(a)

The chief procurement officer shall maintain a current list of all debarred and suspended persons

and shall share such lists and updates to the procurement officials. The list shall indicate whether

the suspension or debarment is specific to a purchasing agency or statewide.

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R-24-109-105-04

Lists of Suspended and Debarred Persons

(a)

The chief procurement officer shall maintain a current list of all debarred and suspended persons

and shall share such lists and updates to the procurement officials. The list shall indicate whether

the suspension or debarment is specific to a purchasing agency or statewide.

(b)

The procurement official or his or her designee shall consider the suspended and debarred list

when determining responsibility of prospective contractors for consideration of contracts.

(c)

In the event a contractor on the debarred and suspended list has an existing contract with

another purchasing agency, the procurement official of the other purchasing agency or his or her

designee shall follow the terms of the contract regarding suspension or termination of said

contract if deemed in the best interest of the state.

R-24-109-106-01

Resolution of Controversies

The code establishes procedures and remedies to resolve contract and breach of contract controversies

between the state and a contractor. It is the state's intent to try to resolve all controversies by mutual

agreement through informal discussions without litigation. As used in these rules, the word “controversy”

is meant to be broad and all-encompassing, including the full spectrum of disagreements from pricing of

routine contract changes to claims of breach of contract

R-24-109-106-02

Filing of Controversy

(a)

A contractor may file a controversy with the procurement official concerning breach of contract,

mistake, misrepresentation, or any other cause for contract modification or rescission.

(b)

The written request for a decision related to a controversy shall include, at a minimum, the

following:

(i)

name and address of the contractor;

(ii)

appropriate identification of the contract;

(iii)

a description of the controversy; and

(iv)

any available exhibits, evidence, or documents substantiating the controversy.

representation, or any other cause for contract modification or rescission.

(b)

The written request for a decision related to a controversy shall include, at a minimum, the

following:

(i)

name and address of the contractor;

(ii)

appropriate identification of the contract;

(iii)

a description of the controversy; and

(iv)

any available exhibits, evidence, or documents substantiating the controversy.

(c)

The controversy shall be submitted to the procurement official or his or her designee in

accordance with the terms of the contract or if not specified in the contract, by mail, hand delivery,

electronic submission or other means as approved by the state.

R-24-109-106-03

Decision

(a)

Before issuing a final decision, the procurement official or his or her designee shall review the

facts pertinent to the controversy and secure any necessary assistance from legal, fiscal, and

other advisers.

(b)

The procurement official or his or her designee shall furnish a copy of the decision to the

contractor within the time specified in section 24-109-106(1.5), C.R.S., by certified mail, return

receipt requested. The decision shall include:

(i)

a description of the controversy;

(ii)

a reference to the pertinent contract provision;

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(iii)

a statement of the factual areas of agreement and disagreement;

(iv)

the supporting rationale for the decision; and

(v)

notice of the contractor's right to appeal the decision administratively or judicially in

accordance with the provisions of article 109 of the code.

erence to the pertinent contract provision;

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(iii)

a statement of the factual areas of agreement and disagreement;

(iv)

the supporting rationale for the decision; and

(v)

notice of the contractor's right to appeal the decision administratively or judicially in

accordance with the provisions of article 109 of the code.

(c)

The amount and interest on the amount determined payable pursuant to the decision, less any

portion already paid, should be paid without awaiting contractor action concerning appeal. Such

payment shall be without prejudice to the rights of either party. If, on appeal, such payments are

required to be returned, interest shall be paid by the contractor from the date of payment.

R-24-109-108 Timeliness of Submissions

For purposes of the rules under article 109 of the code, submissions from an aggrieved party must be

received by the executive director, chief procurement officer, or procurement official, or a designee of any

such officer, by the deadlines established in article 109 of the code and the associated rules, unless

otherwise agreed upon in writing by the parties. Submissions received after the deadlines specified in

article 109 of the code and associated rules or as agreed upon, shall be rejected as late. The following

exceptions may be considered when determining the timeliness of a submission:

(a)

If an aggrieved party’s submission is not delivered by the deadlines established in article 109 of

the code, the submission may be accepted if it can be reasonably determined by the executive

director, chief procurement officer, or procurement official, or a designee of any such officer, that:

as late. The following

exceptions may be considered when determining the timeliness of a submission:

(a)

If an aggrieved party’s submission is not delivered by the deadlines established in article 109 of

the code, the submission may be accepted if it can be reasonably determined by the executive

director, chief procurement officer, or procurement official, or a designee of any such officer, that:

(i)

the postal service, a courier or delivery service outside of the control of the vendor, was

in possession of the submission at the specified deadline; and

(ii)

the submission was originally scheduled for delivery by the postal service, a courier or

delivery service outside of the control of the vendor to the purchasing agency by the

specified deadline; and

(iii)

the submission is received by the purchasing agency on the business day following the

specified submission date.

(b)

A submission that is in the possession of the state’s internal distribution system at the specified

submission time shall be deemed to be received by the purchasing agency by the specified

submission deadline.

(c)

In the event of a labor unrest (strike, work slowdown, etc.) which may affect mail delivery, the

executive director or chief procurement officer is authorized to develop and issue emergency

procedures.

(d)

In those situations where the late submission was not in the control of the aggrieved party at the

time of the submission deadline, the procurement official shall not accept the late submission

unless he or she further finds that extenuating circumstances justifying acceptance of the late

submission exist and can be documented.

t officer is authorized to develop and issue emergency

procedures.

(d)

In those situations where the late submission was not in the control of the aggrieved party at the

time of the submission deadline, the procurement official shall not accept the late submission

unless he or she further finds that extenuating circumstances justifying acceptance of the late

submission exist and can be documented.

(e)

The responsibility for ensuring that the submission is received on time rests with the aggrieved

party, and the reasonably foreseeable problems inherent in the delivery of submissions (e.g. slow

messengers, slow mail service, weather, bad directions, mechanical failures, traffic, etc.) are not

extraordinary circumstances permitting acceptance of late submissions.

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PART 2

APPEALS

R-24-109-201 Appeal to the Executive Director – Stay of Procurements

At any time an aggrieved party files an appeal to district court in accordance with section 24-109-205,

C.R.S., the stay in subsection (2) of section 24-109-201, C.R.S. shall terminate.

R-24-109-202-01

Filing of Appeals

(a)

An aggrieved party may file a written appeal of any decision. Appeals of decisions of the

procurement official shall be submitted in writing to the executive director within ten (10) business

days of the date a decision is mailed or within twenty (20) business days of a decision regarding a

suspension, debarment or contract controversy, in accordance with section 24-109-203, C.R.S.

Appeals received after the prescribed time periods shall not be considered

(b)

The written appeal shall include, at a minimum, the following:

(i)

name and address of the aggrieved party;

(ii)

appropriate identification of the procurement by solicitation or award number;

(iii)

a statement of the material issue(s) or controversy giving rise to the appeal;

(iv)

copies of all documents and evidence previously submitted to the procurement official or

his or her designee;

ered

(b)

The written appeal shall include, at a minimum, the following:

(i)

name and address of the aggrieved party;

(ii)

appropriate identification of the procurement by solicitation or award number;

(iii)

a statement of the material issue(s) or controversy giving rise to the appeal;

(iv)

copies of all documents and evidence previously submitted to the procurement official or

his or her designee;

(v)

the decision rendered by the procurement official or his or her designee or, in the

absence of a timely decision under subsection 3 of section 24-109-102, C.R.S., a

statement of this fact; and

(vi)

any additional relevant information.

(c)

The written appeal shall be limited to the material issues raised in the original protest.

(d)

A written appeal shall be submitted to the executive director or his or her designee in a manner

such as mail, hand delivery, or electronic submission such as email. The means of delivery must

be commonly used to reasonably allow for receipt by the executive director or his or designee.

(e)

A written appeal must be received by the executive director or his or her designee by the deadline

computed in accordance with rule R-24-109-108.

R-24-109-202-02

Additional Information

The executive director or his or her designee may request that the parties submit any additional

information necessary to make a decision on the appeal. If any party fails to submit requested information

within the time period set by the executive director or his or her designee, the appeal may be considered

without such information.

R-24-109-202-03

Hearing by the Executive Director

(a)

An aggrieved party bringing an appeal may request in writing that the executive director or his or

her designee conduct a hearing on the appeal.

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ime period set by the executive director or his or her designee, the appeal may be considered

without such information.

R-24-109-202-03

Hearing by the Executive Director

(a)

An aggrieved party bringing an appeal may request in writing that the executive director or his or

her designee conduct a hearing on the appeal.

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(b)

If a hearing is requested, the executive director or his or her designee shall send a written notice

of the time and place of the hearing to all parties and the attorney general. Such notice shall be

sent by certified mail, return receipt requested.

(c)

Hearings shall be as informal as possible under the circumstances. The weight to be attached to

any evidence presented shall be within the discretion of the executive director or his or her

designee. Stipulations of fact agreed upon by the parties may be used as evidence at the

hearing. The executive director or his or her designee may request evidence in addition to that

presented by the parties. A hearing may be recorded but need not be transcribed except at the

request and expense of the aggrieved party. A record of those present, identification of any

written evidence presented, copies of all written statements, and a summary of the hearing shall

be sufficient record. The executive director or his or her designee may:

(i)

hold informal conferences with one or both of the parties to settle, simplify, or fix the issue

or to consider other matters that may aid in an expeditious disposition of the appeal;

(ii)

require parties to state their position with respect to the various issues;

(iii)

require parties to produce for examination those relevant witnesses and documents

under their control;

(iv)

regulate the course of the hearing and conduct of participants;

h of the parties to settle, simplify, or fix the issue

or to consider other matters that may aid in an expeditious disposition of the appeal;

(ii)

require parties to state their position with respect to the various issues;

(iii)

require parties to produce for examination those relevant witnesses and documents

under their control;

(iv)

regulate the course of the hearing and conduct of participants;

(v)

receive, rule on, exclude, or limit evidence and limit lines of questioning or testimony

which are irrelevant, immaterial, or unduly repetitious; and

(vi)

request and set time limitation for submission of briefs.

R-24-109-204 Decision of the Executive Director

(a)

The executive director or his or her designee shall issue a final decision on the issue. Copies of

the decision shall inform the aggrieved party of his or her rights to judicial appeal in accordance

with article 109 of the code. However, if an action concerning the protest, suspension, debarment,

or contract controversy has been commenced in court, the executive director or his or her

designee shall not act on the matter but shall refer it to the attorney general.

(b)

If the executive director or his or her designee refers an appeal to the office of administrative

courts in accordance with section 24-109-201(1), C.R.S., the timeline for a written decision may

be adjusted based on section 24-4-105, C.R.S.

R-24-109-205 Appeals to District Court

If at any time an aggrieved party files an appeal to district court, the stay of the award imposed by

subsection (2) of section 24-109-201, C.R.S., shall terminate.

PART 3

INTEREST

PART 4

SOLICITATIONS AND AWARDS IN VIOLATION OF THE LAW

R-24-109-404-01

Definitions

(a)

An “unauthorized purchase” is when a purchase has occurred or a purchase commitment has

been issued to a vendor to obtain goods, services, or construction and:

party files an appeal to district court, the stay of the award imposed by

subsection (2) of section 24-109-201, C.R.S., shall terminate.

PART 3

INTEREST

PART 4

SOLICITATIONS AND AWARDS IN VIOLATION OF THE LAW

R-24-109-404-01

Definitions

(a)

An “unauthorized purchase” is when a purchase has occurred or a purchase commitment has

been issued to a vendor to obtain goods, services, or construction and:

(i)

the using agency has not followed the code and rules; or

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(ii)

a purchase or commitment to purchase is made by a person(s) who is not so authorized.

(b)

“Ratification” is the approval of an unauthorized purchase by the executive director, chief

procurement officer or using agency's procurement official, to the extent authorized under rule R-

24-109-404-02, following a review and consideration of all to the facts surrounding the

unauthorized purchase.

(c)

“Responsible individual(s)” is the person(s) who has made an unauthorized purchase.

R-24-109-404-02

Authority of the Executive Director, Chief Procurement Officer and

Procurement Official

(a)

The executive director or chief procurement officer, or designee of either officer, after review and

consideration of all facts involved in an unauthorized purchase, may ratify the unauthorized

purchase in accordance with rules R-24-109-404-04 and -05.

(b)

A procurement official, after review and consideration of all facts involved in an unauthorized

purchase, may ratify an unauthorized purchase in accordance with rules R-24-109-404-04 and R-

24-109-404-05, unless:

ither officer, after review and

consideration of all facts involved in an unauthorized purchase, may ratify the unauthorized

purchase in accordance with rules R-24-109-404-04 and -05.

(b)

A procurement official, after review and consideration of all facts involved in an unauthorized

purchase, may ratify an unauthorized purchase in accordance with rules R-24-109-404-04 and R-

24-109-404-05, unless:

(i)

ratification requires the approval of the executive director or chief procurement officer in

accordance with section 24-109-503, C.R.S.;

(ii)

ratification requires the approval of the executive director or chief procurement officer in

accordance with section 24-109-504, C.R.S.; and

(iii)

the original procurement giving rise to the unauthorized purchase required approval of

the executive director or chief procurement officer or a designee of either officer.

R-24-109-404-03

Factors to Be Considered in Ratification of an Unauthorized Purchase.

(a)

The procurement official shall consider all factors related to the procurement including, but not

limited to, the following in determining whether to ratify an unauthorized purchase:

(i)

the facts and circumstances giving rise to the need for the good or service, including the

responsible individual's explanation as to why established procedures were not followed,

and any lack of information or training on the part of the responsible individual;

(ii)

indications of intent to deliberately evade established purchasing procedures;

(iii)

whether the purchase, if it had been made according to established procedures, would

have been reasonable (prudent) and appropriate;

(iv)

the extent to which any competition was obtained;

tablished procedures were not followed,

and any lack of information or training on the part of the responsible individual;

(ii)

indications of intent to deliberately evade established purchasing procedures;

(iii)

whether the purchase, if it had been made according to established procedures, would

have been reasonable (prudent) and appropriate;

(iv)

the extent to which any competition was obtained;

(v)

whether this is the first violation or a repeat violation by the responsible individual;

(vi)

whether appropriate written assurances and safeguards have been established by the

purchasing agency to preclude a subsequent unauthorized procurement; and

(vii)

indications as to whether either the purchasing agency or vendor has acted fraudulently

or in bad faith.

(b)

The procurement official shall consider the above factors as they apply to the purposes of section

24-101-102, C.R.S., and fairness to any vendor who has acted fairly and in good faith.

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R-24-109-404-04

Purchasing Agency Actions - Ratification of Individual’s Action

In addition to the action required in rule R-24-109-404-05, after consideration of the factors in rule R-24-

109-404-03, the procurement official may take one of the following actions.

(a)

If the procurement official determines that the responsible individual operated in good faith, the

procurement official may ratify the actions of the responsible individual; or

(b)

If the procurement official determines that the responsible individual operated in bad faith, the

procurement official shall not ratify the actions of the responsible individual.

R-24-109-404-05

Purchasing Agency Actions - Ratification of Contract

In addition to the action required in rule R-24-109-404-04, and after consideration of the factors in rule R-

24-109-404-03, the procurement official may take one of the following actions.

(a)

The procurement official may ratify the contract and authorize payment if the procurement official

determines:

the responsible individual.

R-24-109-404-05

Purchasing Agency Actions - Ratification of Contract

In addition to the action required in rule R-24-109-404-04, and after consideration of the factors in rule R-

24-109-404-03, the procurement official may take one of the following actions.

(a)

The procurement official may ratify the contract and authorize payment if the procurement official

determines:

(i)

contractor acted in good faith;

(ii)

procurement meets substantive requirements of the code; and

(iii)

violation is only procedural.

(b)

The procurement official may ratify the contract and authorize payment if the procurement official

determines:

(i)

contractor acted in good faith;

(ii)

procurement does not meet substantive requirements of the code; and

(iii)

ratification is in best interest of state.

(c)

The procurement official shall not ratify the contract, but may authorize payment in an amount

equal to lesser of amount agreed to in unauthorized purchase or contractor’s actual, documented

expenses and reasonable profit as determined by the procurement official, when the conditions

are:

(i)

contractor acted in good faith;

(ii)

procurement does not meet substantive requirement of the code; and

(iii)

ratification is not in best interest of state.

(d)

The procurement official shall not ratify the contract or authorize payment if the procurement

official determines that the contractor acted in bad faith.

R-24-109-404-06

Purchasing Agency Actions - In the Event of Denial

(a)

In the event the procurement official refuses to ratify the unauthorized procurement, he or she

shall notify:

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fficial shall not ratify the contract or authorize payment if the procurement

official determines that the contractor acted in bad faith.

R-24-109-404-06

Purchasing Agency Actions - In the Event of Denial

(a)

In the event the procurement official refuses to ratify the unauthorized procurement, he or she

shall notify:

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(i)

the responsible individual, the state controller and the controller for the purchasing

agency, that ratification is denied, and that the responsible individual(s) may be held

personally liable for payment;

(ii)

the affected vendor(s) that the state has denied responsibility for the purchase, in whole

or in part, as determined in the ratification review process; and

(iii)

the chief procurement officer, if the determination is made by a procurement official.

(b)

In the event a court action is filed involving a procurement that is undergoing a ratification review,

the ratification process shall cease and the matter shall be referred to the attorney general.

R-24-109-404-07

Written Determination

A written determination setting forth the basis for the decision shall be made and included in the

procurement record.

PART 5

REMEDIES

ARTICLE 110 INTERGOVERNMENTAL RELATIONS

PART 1

DEFINITIONS

PART 2

COOPERATIVE PURCHASING

R-24-110-201 Cooperative Purchasing

The chief procurement officer or his or her designee may approve the purchase of goods or services in

accordance with section 24-110-201(2), C.R.S., if such purchase is in the best interests of the state, after

considering: (1) the interests of Colorado vendors; (2) the competitiveness of pricing under the

cooperative procurement; (3) the ability to effectively meet the state’s business needs; (4) the efficiencies

and cost savings of using the cooperative procurement, beyond the savings and administrative

convenience achieved from not having to comply with article 103 of the code; and (5) the purposes of the

code, as set forth in section 24-101-102, C.R.S.

2) the competitiveness of pricing under the

cooperative procurement; (3) the ability to effectively meet the state’s business needs; (4) the efficiencies

and cost savings of using the cooperative procurement, beyond the savings and administrative

convenience achieved from not having to comply with article 103 of the code; and (5) the purposes of the

code, as set forth in section 24-101-102, C.R.S.

(a)

The procurement official shall make the request through the chief procurement officer or his or

her designee addressing the considerations set forth above.

(b)

The chief procurement officer or his or her designee may approve a single purchase, make a

conditional approval, or approve participation in an on-going program with the external

procurement activity or the local public procurement unit. Participation in a cooperative

purchasing agreement is limited to the term approved by the chief procurement officer or his or

her designee or the term of the agreement, whichever is shorter.

R-24-110-207.5

Definition

“Public benefit nonprofit entity” means an organization that:

(a)

Is exempt from federal taxation under 26 U.S.C. section 501 (c) (3) of the federal “Internal

Revenue Code of 1986”, as amended;

(

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PROCUREMENT RULES · 1 CCR 101-9 | Frix