Subject 665-2-11 MISCELLANEOUS PROVISIONS
|(1)||The offeror may designate documents or records as proprietary or a trade secret however this may not prevent disclosure under the Georgia Open Records Act (O.C.G.A. 50-18-70et seq.). Only documents or records meeting the criteria for an exemption of the Georgia Open Records Act can be kept from disclosure by GTA pursuant to a valid Open Records Request. Documents or records that the offeror does not wish disclosed must be identified on each page in boldface at the top and bottom as "CONFIDENTIAL," along with a cite as to the relevant legal authority exempting the materials from disclosure. Cost information shall not be deemed confidential. Offerors are put on notice that the mere identification and citing of relevant authority may not obviate a disclosure under the Georgia Open Records Act.|
|(2)||To promote maximum competition and to protect the public competitive procedure from being used to obtain information that would normally not be available otherwise, the agency that issued the solicitation document may maintain the confidentiality of trade secrets, and other procurement materials, and like information as the CIO or his designee or the agency's executive officer or his designee may determine necessary to ensure the integrity of the public purchasing process.|
Purchase contracts may provide for payment over a period of time. Such instances shall carry written prior approval of the administrative head of the agency. Administrative heads and governing board of agencies shall see that statutory or other prohibitions are not violated. The intended plan of payment shall be included in the procurement document.
The state's contracts shall not be assigned. In cases where contractors are involved in corporate consolidations, acquisitions, or mergers; the agency that issued the solicitation document resulting in the contract may negotiate agreements for the transfer of contractual obligations and the continuance of contracts within the framework of the new corporate structures.
Every reasonable effort shall be made to avoid making purchases from or through employees of any agency. Prior written approval from the CIO or his designee is required before doing business with such personnel. In deciding whether to grant approval, the CIO or his designee shall consider the type of item or service needed, the prevailing market conditions, whether competition is available, the cost involved, and the effects of doing business with the employee. All such purchases must comply with all statutory requirements governing such transactions.
In instances of identical offers, or where there are otherwise indications of collusion, awards may be made in a manner intended to discourage or prevent its continuance as deemed to represent the state's best interest. The agency that issued the solicitation documents shall report suspected antitrust violations to appropriate law enforcement authorities.
|(1)|| Where an agency or GTA is a participant
in a cooperative project with another governmental entity or with a
not-for-profit organization, goods and services necessary to the project shall
be acquired according to rules in this Chapter. However, if the interest of the
state would be better served by one of the following acquisition methods, the
CIO or his designee may authorize that acquisition method to be used:
|(2)||For the purposes of this Chapter, such governmental entity or not-for-profit organization or consortium may be based in Georgia or in any other state.|
This Protest Procedure ("Procedure") is the sole and exclusive administrative procedure for protests, challenges or other claims against any aspect of any procurement or procurement processes of the GTA.
|(b)|| Form of the Protest.
|(c)|| Time for Filing.
|(d)|| Protest Decision maker.
|(e)||Summary Dismissal: The Protest Coordinator, at any time prior to forwarding the Protest to the Protest Decisionmaker, or the Protest Decisionmaker at any time thereafter, may, in their sole discretion, summarily dismiss any Protest failing to comply with any aspect of this Procedure or any aspect of the applicable Solicitation Documents issued by the GTA. The Protestor will be notified in writing by facsimile transmission or electronic means, with the original to follow by United States Mail, of the summary dismissal of their Protest.|
|(f)|| Determination that a
Protest is a Frivolous Protest.
|(g)|| Time for Decision by Protest
Decisionmaker: Protests that are not either summarily dismissed or withdrawn
(or deemed withdrawn) shall be forwarded by the Protest Coordinator as
expeditiously as possible after the end of the review period referred to in
Rule 665-2-11-.07(f)1. to the Protest Decisionmaker for a decision. The Protest
Decisionmaker shall issue a decision as expeditiously as possible after the
later to occur of:
|(h)|| Protest Decisionmaker's Investigation.
|(i)|| Protest Adjudication Procedures.
|(j)||Stay of Procurement During Protest: The Executive Director may order a stay in the opening of a Solicitation Response or of the contract performance if the Executive Director determines, in the Executive Director's sole discretion, that a stay is in the best interest of the GTA, any affected Agency or the State of Georgia. Should the Executive Director not stay contract performance pending the resolution of any Protest to an actual Contract Award, the contract shall be awarded on a contingent basis, subject to revocation, revision or other adjustment or modification based on the final decision of the Protest Decisionmaker in such Protest.|
|(k)||Costs: A Protestor shall not be entitled to recover any costs incurred in connection with the procurement process, the solicitation, the Protest, and/or compliance or attempted compliance with this Rule, including preparation costs or attorneys' fees.|
|(l)||Governing Law: The laws and regulations of the State of Georgia, without application of its conflicts of laws principles, shall govern any action brought pursuant to this Procedure.|
The provisions of O.C.G.A. § 45-10-1et seq. strictly apply to these rules, to the actions of the GTA, and to all parties participating under these Rules.
At its sole option and in the exercise of its sole discretion, GTA may terminate a contract, in whole or in part, for any reason with seven (7) days' written notice to the contractor ("Notice of Termination for Convenience").
|(a)||Notices of Termination for Convenience will specify the extent of the termination and the effective date.|
|(b)|| After receipt
of a Notice of Termination for Convenience, and except as otherwise directed by
GTA, the Contractor shall immediately proceed with the following obligations,
regardless of any delay in determining or adjusting any amounts due under this
|(1)||Where an agency is a party to a contract procured through GTA finds a contractor in default for failing to perform in accordance with the contract requirements, terms or conditions, such agency may take action, immediate if necessary, to purchase the needed goods or services on the open market and charge any additional cost for the goods or services and expense for doing so to the defaulting contractor, where such default results in the creation of an emergency or pressing need as those terms are defined in Rule 665-2-12-.02. If an agency finds a contractor in default, such action and the circumstances shall be reported by the agency to GTA in writing. This does not limit any other remedies that may be available to the state or agency.|
|(2)||GTA may initiate suspension and debarment proceedings at the agency's request or upon GTA's own discretion in accordance with Rule 665-2-11-.13.|
|(1)||A bond, or other means of ensuring faithful performance, may be required on the contractor at the contractor's expense.|
|(2)||Liquidated damages may be provided for in the contract, as a means of ensuring faithful performance from the contractor.|
|(3)||The agency may hold as a retainage a percentage of the contract value to be remitted upon final acceptance by the agency.|
|(4)||The agency may withhold final payment contingent on acceptance of the final deliverable.|
|(5)||Performance-based payments may be utilized.|
|(a)||Policy. Purchases shall be made from, and contracts shall be awarded to responsible offerors in accordance with O.C.G.A. § 50-25-7.3(a)(6). Because it is important that the State strive for best value, an award to an offeror is not required solely because that offeror submits the lowest offer. As used throughout these Rules, the term "offeror" refers to any entity that may respond to an Invitation for Bids, Request for Proposals, or any other procurement solicitation document, by whatever name it is called.|
|(b)|| General Standards.
|(d)|| Statement of Responsibility Certification
|(e)|| Making a
Determination of Non-Responsibility Required.
|(g)|| Protest of Non-Responsibility
|(h)||Documentation. Documents reflecting the Contracting Officer's determination of non-responsibility and any Protest and decision with respect to such Protest, and evidence of having supplied written notifications as required by these Rules, shall be included in the record of the subject procurement.|
|(a)|| Grounds for Debarment.
|(b)|| Procedure for Initiating
|(c)|| Suspension Prior to Possible Debarment
|(f)|| GTA List of Suspended and Debarred
Contractors. A list of contractors currently suspended or debarred, including a
summary of the scope of the suspension or debarment, shall be maintained by
GTA. This list shall include the following information:
Offerors who have been debarred, may apply for a declaration of rehabilitation where such offeror has taken affirmative actions to remedy the facts or circumstances that lead to the debarment. Applications for a declaration of rehabilitation shall be filed with GTA's Procurement Director in accordance with this Rule. The decision to grant or deny such applications is within the discretion of the Procurement Director, as long as there is a rational basis for the decision. Decisions shall not be arbitrary or capricious.
|(a)|| General Standards.
|(b)|| Time for
Filing Application for Declaration of Rehabilitation.
|(c)|| Form and Content of Application. To apply
for a declaration of rehabilitation, an offeror or contractor must submit a
written filing to the Procurement Director in support of such application. The
filing in support of the rehabilitation application shall state how the
applicant has demonstrated its responsibility for future procurement awards,
Remedies. Remedies or corrective actions may include, but are not limited to:
|(e)||Notice to Agencies. The applicant shall concurrently provide a copy of its application for rehabilitation to the GTA, and to the Contracting Officer (or equivalent or higher position) of any agency that requested debarment proceedings be initiated against the contractor.|
|(f)||GTA Procurement Director Decision. The Procurement Director shall review the application and shall consult with all agencies copied in accordance with subparagraph (e) above, and may consult with any other relevant government agency, prior to making a final decision concerning the application for a declaration of rehabilitation. The Procurement Director may seek additional information from the applicant. Upon review of the application and any subsequent submission by the applicant, the Procurement Director shall issue a decision granting or denying the application for declaration of rehabilitation based upon the adequacy of the remedies or corrective actions identified by the applicant, as well as its overall capacity to be a responsible contractor. The Procurement Director may condition any declaration of rehabilitation upon the applicant's completion of specific additional corrective actions. The Procurement Director's decision granting or denying the application for declaration of rehabilitation shall be final and is not subject to Protest or any other form of administrative review.|
|(g)||Notification of Decision. A copy of the Procurement Director's decision granting or denying the application for declaration of rehabilitation shall be sent to the contractor and to the contracting officer of any agency that requested that debarment proceedings be initiated against such contractor.|
All contractors who employ or retain one or more vendor lobbyists that actually lobby GTA or any other Agency for contracts shall cause such lobbyists to register with the State Ethics Commission and to file the disclosures required by Article 4 of Chapter 5 of Title 21 of the Official Code of Georgia Annotated. The GTA Executive Director is authorized to create policies and processes to verify that offerors or prospective offerors comply with this Rule and to effectuate any executive orders or statutes now or hereafter created in regards to Vendor Lobbyists.