IDOA Role of Department of Administration in Contracting:
IDOA Role of Department of Administration in Contracting: Tony Green, General Counsel Leasing: Steve Harless, Director of Real Estate Division Procurement and Contracts: Teresa Bucker, Procurement, Training Team Lead Contract Amendments and Renewals: Jeff Gill, Assistant General Counsel
Minority and Women Owned Business Issues: Felecia Roseburgh, Deputy Commissioner Role of IDOA Leasing Division: establish uniform standards for determining amount and type of facilities needed by agencies; assign facilities in or on property owned or leased by the State; with the approval of the Governor, lease facilities for the use of agencies. Procurement Division: acts as the purchasing agent for state agencies and sets policies and procedures for all state agencies purchasing (except for INDOT, quasi-agencies, other elected offices). Procurement does advise those excepted. Contracts: supervising and regulating the making of contracts by
state agencies; provide review of contracts and become involved in the negotiation of contracts or resolution of contract disputes as requested; MWBE Division: establishes goals and ensures compliance there of; manages certification process certifying businesses as minority or women owned; and contract compliance of MWBE; Executive Document Summary (EDS) All contracts submitted for signature approvals must be accompanied by a fully completed EDS. EDSs are used by the IOT (when applicable), IDOA, Budget, the OAG, and agency staff to track necessary contract information and to assure appropriate policies are followed.
It is essential that the information on the EDS be accurate. This information will be used in the development of reports. Inaccurate information may reflect poorly on your agency, contribute to inaccurate reporting of contract information, and possibly lead to enhanced scrutiny on State Board of Accounts audits. Furthermore, inaccurate information could ultimately lead to the contracts rejection during the approval process. Contracts In General What type of Contracts? Contracts or Agreements for professional services,
personal services, or fund grants for all State Agencies must go through IDOA Contracts for quasi-agencies do not need to go thru IDOA or Budget, but still most go thru OAG 10 IAC 2-3-1 lists the contracts the OAG does not have to review, but those are specifically ones listed and must be under $2,500. To be consistent, IDOA has traditionally had a policy that contracts for more than 90 days and/or more than $2500 have to come to IDOA. What does IDOA review? Deliverables clearly defined? Were the proper procurement/solicitation procedures used?
Are the financial interests of the State and the rights of contractors protected? Are the required boilerplate clauses present? Contract Approval Process Indiana Code section 4-13-2-14.1(a) requires that, after signature by the vendor and the agency, contracts must be approved by (1) IDOA, (2) the State Budget Agency (Budget), and (3) the Office of the Attorney General (OAG). Unless your agency has specific delegated authority from IDOA or Budget, or is using a specific contract that has been given written form approval by the OAG within the last 12 months, it will have to be circulated through these 3 agencies for approval.
The average processing time for a contract runs in between 20-25 days. However, sufficient lead-time should be given when preparing a contract so it can be reviewed and executed by the approving agencies. We suggest allowing 60 days for this process. Timeline When submitting a proposed agreement to IDOA make sure you have assembled the fully signed agreement contract (or grant) with all attachments and exhibits, the tax clearances, and the Indiana Economic Impact form (when applicable), sole source request (when applicable) and the completed EDS sheet). By statute, the Office of the Attorney General is allowed forty five (45) days to review a contract; however, the Advisory Section tries to complete all reviews within 10 business days of receipt.
Timeline Approval process for IDOA, IOT and Budget: 5 days for IDOA, 10 days for IOT and 10 days for Budget. IDOA Goal is two working days; IOT Goal is five working days; Budget Goal is 5 working days. Result: Has been a quicker approval process. Either resulting in approval or giving more timely feedback to agencies if proposed agreements have issues that preclude approval. Timeline Impediments to timely approval 1. 2. 3. 4.
Exhibits are not labeled or are mislabeled. Dollar amount in consideration section of agreement is more than the amount noted in the exhibited budget amount. Contract has not been competed and no sole source request/approval. Proposed contract submitted for approval has photocopy signatures and not original signatures Proposed Agreements rejected by IDOA 2007 2008 2009 2010 30% 14% 9% 10%
Promissory Estoppel In order to be enforceable, a contract with the State must be a written document, executed under the requirements of IC 4-13-2-14.1. Case law provides that promissory estoppel cannot be used against the State and is not generally applicable against government entities for the actions of public officials. Case law provides that one State employee generally does not have authority to create such a binding obligation on the State by making a promise. "If the government could be estopped, then dishonest, incompetent or negligent public officials could damage the interests of the public. At the same time, if the government were bound by its employees' unauthorized representations, then government, itself, could be
precluded from functioning. Promissory Estoppel However, . . . "[E]stoppel may be appropriate where the party asserting estoppel has detrimentally relied on [a] governmental entity's affirmative assertion or on its silence where there was a duty to speak." A party asserting promissory estoppel must establish five elements: (1) (2)
(3) (4) (5) a promise by the promissor made with the expectation that the promisee will rely thereon which induces reasonable reliance by the promisee of a definite and substantial nature and injustice can be avoided only by enforcement of the promise." Leasing Steve Harless, Director of Real Estate Division Leasing Duties: establish uniform standards for determining amount and type of facilities needed by agencies; assign facilities in or on property owned or leased by the State; with the approval of the Governor, lease facilities for the use of agencies.
Leasing Statistics: Approximately 502 leases 78 Modified Gross leases 19 Triple-Net Leases 405 Full Service Leases Annual costs reduced during the last three years by over 20%, from $38.6 million in 2008 to $31 million in 2011. Leasing Important Points Cancel For Convenience Clause S202 Form Request to Lease Space Eliminate leases. Reduce square
footage Lease Duration Procurement and Contracts Teresa Bucker, Procurement Procurement Routing (Non Professional Services) Small Purchases (below $75k) Purchases above $75k RFPs Protest Process Special Procurements Things to Know PROCUREMENT CONTRACT ROUTING (NON PROFESSIONAL SERVICES)
A Requisition generated from PeopleSoft (multiple year requisition if multiple year commitment) that is approved with a valid budget check The solicitation documents and recommendation Justification for vendor selection (if special procurement is being requested. Completed EDS with signature of agency Fiscal Officer in box Clearance checks (DOR and DWD) Evidence of Secretary of State Registration or Statement as to why vendor is not required to register Contract to IDOA Procurement (signed by Vendor/Contractor and Agency) IDOA Procurement routes for signature After signature IDOA Procurement sends back to Agency Agency creates, approves PO and sends to vendor (under $75000.00)
Over $75000.00 Agency creates PO and requests PO approval from IDOA Procurement at [email protected]v (includes EDS, PO#) Agency finalizes (if applicable) checks budget, dispatches Purchase Order, and sends to vendor Encompass and Requisitions Amendments do require new requisitions. The requisition lines are then copied onto the existing purchase order (PO). Funding is added to the existing PO with the copy from function and creates a separate line for new year funding or increases. If your original PO has been closed, submit a GMIS issue and request it be reopened (internal policies apply). Renewals do require new requisitions. The requisition lines are then copied onto the existing purchase order (PO). Funding is added to the existing PO with the copy from function and creates a separate line for new year funding or increases. If your original PO has been closed, submit a GMIS issue and request it be reopened (internal policies apply).
If you have questions regarding renewals/amendments process/procedure, please contact Jeania Geer [email protected], Teresa Bucker [email protected] or Myra Wilson [email protected] , all of Procurement Division. Procurement IDOA is the official procurement agent for most State Agencies. State agencies have delegated procurement authority under $75000.00 Any amount over agency delegation of $75000.00- IDOA Procurement Division is
responsible for bidding process. Procurement Small Purchases up to $75,000 (RFQs) ALL QPAS regardless of dollar amount must be entered requisition to PO 500 to $2,500 $2,500 to $5,000 same as above + follow-up with low bidder by sending RFQ package (specification) Clearance Checks and Secretary of State
$5,000 to $75,000 agency solicits by phone or in writing must select at least 3 known vendors upon award, purchase orders are issued agency determines needs and writes spec agency selects at least 3 known vendors to send w/spec & leave open for 7 days Clearance Checks and Secretary of State -upon award, purchase orders are issued up to authorized RFQ amount
Commodities: (1) agency does above process up to delegation amount (2) agency then does an outright purchase Services: (Not Professional or Personal Services) (1) agency does above process up to delegation amount; (2) over $5,000, contract package must go through IDOA Procurement to sign (See IDOA Procurement Routing) Procurement Purchases above $75,000
Negotiated Bids Agency determines need and writes specifications. Specifications sent to IDOA Procurement Cost/price is the only thing considered Open up to 21 days Reviews negotiated bids Procurement contacts vendors to negotiate after initial bids Requests For Proposals Factors other than cost/price considered Award is based on a score of 100 points (with a possible 7 bonus points based on MBE/WBE and cost. Various factors are assigned specific point values Procurement Request For Proposal (RFP) Step 1: Adherence to Requirements Can be tailored to the agencys major (most important)
program/technical needs. Vendors not meeting these requirements can be failed Step 2: Management Assessment/Quality and Cost (Price) Business and Technical Proposal Step 3: Possible Short-list of proposals that will then be evaluated based on all of the evaluation criteria Criteria includes Indiana Economic Impact (IEI), Buy Indiana, MBE and WBE, MAQ and Cost *approximately 180 day timeline Procurement Protest Process is Two Tier First Review:
Vendor files a written letter with the Procurement Division within 5 business days (pre-award) protesting inadequate or restrictive specifications. 5 days (after the contract) award date; letter should indicate the specific details of the protested issues; Appeal Decision: Vendor files a protest with Commissioner of IDOA w/in 5 days of being notified of first protest decision ***Required to exhaust all administrative remedies before filing law suit in Court ***Protest process for all procurements above and below $75,000 except First Review is slightly different for Negotiated Bids over $200k Procurement Special Procurements (IC 5-22-10) if not obtaining a service under a bid or an RFP, then request to purchase service must fit under IC 5-22-10;
must maintain separate file for all special purchases and the file shall include a written determination for each special purchase; there is no amount limit Process to request a Special Procurement - Over $5000.00,justification and subsequent approval are required. - Email request to Deputy Commissioner, Nicole Kenney for approval. Form #54650 Examples: emergency, short notice, compatibility, single source for supply, substantial savings; Procurement Things to Know: Register with Secretary of State Except Sole Proprietorship and General Partnerships
Must be in good standing with Department of Revenue and Department of Workforce Development. Register with the Auditor of State for Direct Deposit or to obtain a waiver. Register with IDOA Procurement at: http:// www.in.gov/idoa/2464.htm Contract Issues Jeff Gill, Legal Counsel Contract amendments and renewals Purchase Orders Secretary of State filings Expired Contracts Addendums and Form Contracts Renewal or Amendment Things
to know about a Renewal? Should be used when your agency would like to continue the same terms and conditions of the original contract/grant for an additional term; Renewals cannot contain any modification to the contract/grant; A contract cannot be renewed if there was not a renewal clause in the original contract/grant; A contract cannot be renewed for a term longer than the original term; A contract cannot be renewed if there is language in the original contract stating it cannot be extended. Renewal or Amendment Renewal A renewal may allow for an increase in payment only if an increase has been provided for in the original contract/grant; A renewal does not require signature approval from OAG or IOT, but you still need IDOA and Budget approval If you need more time on the contract/grant to complete work
in process, you may want to consider an amendment to extend the term only; Things to know about an amendment Used when you alter the terms and/or conditions of an original contract/grant. An amendment is also used when the identity of the contractor or grantee changes because of a corporate purchase, sale, or other restructuring A justification should be provided as to why the original contract/grant must be amended; An agency can modify the terms of the original contract/ grant and renew the contract/grant for an additional term through an amendment. The original contract/grant and any other amendments previously executed must be attached to the amendment being processed. Amendment Development Amendments MUST be numbered in
proper consecutive order. MUST attach previously executed contract and amendments. Provide justification i.e. Why? Change in Dollar Amount MUST be explained Signature Page must Mirror Original Contract Reminders on Amendments If additional funds, Then Total Remuneration not to exceed must = the Original Amount + the new additional Amount.
If you have a Budget Exhibit, it must be labeled and include additional funds. New Budget Exhibits must be labeled differently than the Original Budget Exhibit and state whether they supersede the Original. Make sure the Math adds up (old + new amounts; itemized totals, etc.) NON-COLLUSION Clause Must be last paragraph before Signatures. MUST be signed prior to expiration of Original Term. Purchase Orders Purchase Orders must be issued in the same name as the parties on the contract. If a Vendor wants to assign his right to receive payments to another entity, there must be an Assignment
Clause in the Contract, and the Vendor must give written notice to the State 30 days in advance of any payment. Payments cant be assigned to more than one Party. If there is not Assignment Clause, a formal Contract Amendment is required. If the name of the Contractor has changed, an Amendment to the Contract is required, so that any future P.O. can be issued to the new entity. [Cant just issue PO to entity not named in the Contract.] Secretary of State Filings IC 23-1-49-1 Necessity of certificate of authority; transacting business Sec. 1. (a) A foreign corporation may not transact business in Indiana until it obtains a certificate of authority from the secretary of state. However, this requirement does not apply to the following: (1) Banks.
(2) Savings banks. (3) Savings associations. (4) Corporate fiduciaries. (5) Credit unions. (6) Industrial loan and investment companies. (7) Surety companies. (8) Trust companies. (9) Safe deposit companies. (10) Railroad corporations. (11) Insurance companies. (12) Building and loan associations. SOS Filings IC 23-1-53-3 Biennial reports Sec. 3. (a) Each domestic corporation and each foreign corporation authorized to transact business in Indiana shall deliver a biennial report to the secretary of state for filing that sets forth: (1) the name of the corporation and the state or
country under whose law it is incorporated; (2) the address of its registered office and the name of its registered agent at that office in Indiana; (3) the address of its principal office; and (4) the names and business addresses of its directors, secretary, and the highest executive officer of the corporation. (b) Information in the biennial report must be current as of the date the biennial report is executed on behalf of the corporation. SOS Filings IC 23-1-46-1 Grounds Sec. 1. The secretary of state may commence a proceeding under section 2 of this chapter to administratively dissolve a corporation if: (1) the corporation does not pay within sixty (60) days after they are due any franchise taxes or penalties imposed by this article or other law;
(2) the corporation does not deliver for filing its biennial report to the secretary of state within sixty (60) days after it is due; (3) the corporation is without a registered agent or registered office in this state for sixty (60) days or more; (4) the corporation does not notify the secretary of state within sixty (60) days that its registered agent or registered office has been changed, that its registered agent has resigned, or that its registered office has been discontinued; or (5) the corporation's period of duration stated in its articles of incorporation expires. From Liz Keele, Director Business Services Division Secretary of States Office
We offer the filing of business entity reports online. Available 24/7 the filing may take but a few minutes. If they choose not to use the online service heres our normal turn around time for processing the paperwork: Walk-in and express mail filings received by noon will be completed by noon the following business day. Filings received after noon will be completed at noon in two business days. Mailed filings will be completed in 3-5 business days from the date received by the office. It varies from month to month but we may administratively dissolved under 150 foreign entities per month. There is a reinstatement process if the lack of filing the report was just an oversight. Transacting Business Without a Certificate of Authority
I C 23-17-26-2 Transacting business without certificate of authority Sec. 2. (a) Except as provided in subsection (e), a foreign corporation transacting business in I ndiana without a certificate of authority may not maintain a proceeding in an I ndiana court until the foreign corporation obtains a certificate of authority. (b) Except as provided in subsection (e), the successor to a foreign corporation that transacted business in I ndiana without a certificate of authority and the assignee of a cause of action arising out of that business may not maintain a proceeding based on that cause of action in an I ndiana court until the foreign corporation or the foreign corporation's successor obtains a certificate of authority. (c) A court may stay a proceeding commenced by a foreign corporation, a foreign corporation's successor, or an assignee until the court determines whether the foreign corporation or the foreign corporation's successor requires a certificate of authority. I f the court determines, the court may further stay the proceeding until the foreign corporation or the foreign corporation's successor obtains the certificate. (d) A foreign corporation is liable for a civil penalty of not more than ten thousand dollars ($10,000) if the foreign corporation transacts business in I ndiana without a certificate of authority. The attorney general may collect penalties due under this subsection. (e) The failure of a foreign corporation to obtain a certificate of authority does not do any of the following: (1) I mpair the validity of the foreign corporation's corporate acts.
(2) Prevent the foreign corporation from defending a proceeding in I ndiana. Addendum or Form Contract Addendum: is to be attached to a contractor's form contract for purposes of deleting terms to which the State cannot agree and adding the mandatory clauses in any state contract. When a contractor insists on using his/her own standard contract agreement, you must prepare and attach an addendum. The addendum incorporates the States standard contract provisions. Questions Legal Questions about Procurements: Jeff Gill, 4-4431, [email protected]
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