90TH GENERAL ASSEMBLY
Taken up for Perfection April 25, 2000.
House Substitute for House Bill No. 1728 ordered Perfected and printed, as amended.
ANNE C. WALKER, Chief Clerk
To repeal sections 34.055, 34.070, 34.073, 37.020 and 575.060, RSMo 1994, and sections 34.040, 34.046, 34.076, 34.165 and 610.021, RSMo Supp. 1999, relating to state purchasing procedures for the acquisition of privately produced goods and services within the state which are not produced by the state, and to enact in lieu thereof thirteen new sections relating to the same subject, with penalty provisions.
Section A. Sections 34.055, 34.070, 34.073, 37.020 and 575.060, RSMo 1994, and sections 34.040, 34.046, 34.076, 34.165 and 610.021, RSMo Supp. 1999, are repealed and thirteen new sections enacted in lieu thereof, to be known as sections 34.040, 34.046, 34.055, 34.070, 34.073, 34.076, 34.166, 34.167, 34.168, 34.169, 37.020, 575.060 and 610.021, to read as follows:
34.040. 1. All purchases in excess of three thousand dollars shall be based on competitive bids, except as otherwise provided in this chapter.
2. On any purchase where the estimated expenditure shall be twenty-five thousand dollars or over, except as provided in subsection 5 of this section, the commissioner of administration shall:
(1) Advertise for bids in at least two daily newspapers of general circulation in such places as are most likely to reach prospective bidders and may advertise in at least two weekly minority newspapers and may provide such information through an electronic medium available to the general public at least five days before bids for such purchases are to be opened. Other methods of advertisement, which may include minority business purchase councils, however, may be adopted by the commissioner of administration when such other methods are deemed more advantageous for the supplies to be purchased;
(2) Post a notice of the proposed purchase in his or her office; and
(3) Solicit bids by mail or other reasonable method generally available to the public from prospective suppliers. All bids for such supplies shall be mailed or delivered to the office of the commissioner of administration so as to reach such office before the time set for opening bids.
3. The contract shall be let to the lowest and best bidder. The commissioner of administration shall have the right to reject any or all bids and advertise for new bids, or purchase the required supplies on the open market if they can be so purchased at a better price. When bids received pursuant to this section are unreasonable or unacceptable as to terms and conditions, noncompetitive, or the low bid exceeds available funds and it is determined in writing by the commissioner of administration that time or other circumstances will not permit the delay required to resolicit competitive bids, a contract may be negotiated pursuant to this section, provided that each responsible bidder who submitted such bid under the original solicitation is notified of the determination and is given a reasonable opportunity to modify their bid and submit a best and final bid to the state. In cases where the bids received are noncompetitive or the low bid exceeds available funds, the negotiated price shall be lower than the lowest rejected bid of any responsible bidder under the original solicitation.
4. All bids shall be based on standard specifications wherever such specifications have been approved by the commissioner of administration. The commissioner of administration shall make rules governing the delivery, inspection, storage and distribution of all supplies so purchased and governing the manner in which all claims for supplies delivered shall be submitted, examined, approved and paid. The commissioner shall determine the amount of bond or deposit and the character thereof which shall accompany bids or contracts.
5. The state auditor shall annually audit cost-plus contracts to determine if the state is receiving the best price.
6. The commissioner of administration shall adopt rules to clearly delineate procedures for distributing potential bids to businesses, including publishing and receiving bids by the Internet.
7. The department of natural resources may, without the approval of the commissioner of administration required pursuant to this section, enter into contracts of up to five hundred thousand dollars to abate illegal waste tire sites pursuant to section 260.276, RSMo, when the director of the department determines that urgent action is needed to protect public health, safety, natural resources or the environment. The department shall follow bidding procedures pursuant to this section and may promulgate rules necessary to establish such procedures. Any rule or portion of a rule, as that term is defined in section 536.010, RSMo, that is created under the authority delegated in this section shall become effective only if it complies with and is subject to all of the provisions of chapter 536, RSMo, and, if applicable, section 536.028, RSMo. This section and chapter 536, RSMo, are nonseverable and if any of the powers vested with the general assembly pursuant to chapter 536, RSMo, to review, to delay the effective date or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, 1999, shall be invalid and void.
34.046. The commissioner of administration may contract directly with other governmental entities for the purchase of supplies. The commissioner of administration may also participate in, sponsor, conduct or administer a cooperative purchasing agreement whereby supplies are procured in accordance with a contract established by another governmental entity, including but not limited to the federal governmental services administration, provided that such contract was established in accordance with the laws and regulations applicable to the establishing governmental entity.
34.055. 1. Except as otherwise provided in section 34.057, all invoices for supplies and services purchased by the state, duly approved and processed, shall be subject to interest charges or late payment charges as provided in this section.
2. After the forty-fifth day following the later of the date of delivery of the supplies and services or the date upon which the invoice is duly approved and processed, interest retroactive to the thirtieth day shall be paid on any unpaid balance[, except balances for services provided by a gas corporation, electrical corporation, water corporation, or sewer corporation which has received authorization from the public service commission to impose late payment charges on delinquent utility bills,] upon application of the vendor thereof. The rate of such interest shall be three percentage points above the average predominant prime rate quoted by commercial banks to large businesses, as determined by the Board of Governors of the Federal Reserve System. After the thirtieth day following the later of the date of delivery of the supplies and services or the date upon which the invoice is duly approved and processed, a penalty of two percent of the amount due the vendor shall be paid to the vendor. The penalty shall increase by two percent for every thirty-day period thereafter in which the vendor is not paid, except that no such penalty shall exceed eighteen percent in one year.
3. The interest and penalties authorized in subsection 2 of this section shall not apply to balances for services provided by a gas corporation, electrical corporation, water corporation, or sewer corporation which has received authorization from the public service commission to impose late payment charges on delinquent utility bills. Balances for such services shall be subject to the interest and penalties authorized pursuant to this subsection. The state shall be liable for late payment charges on any delinquent bill for services purchased by the state from a gas corporation, electrical corporation, water corporation, or sewer corporation which has received authorization from the public service commission to impose late payment charges on delinquent utility bills. The rate of such late payment charges shall be as established for each such corporation by order of the public service commission, but bills rendered to the state shall not be considered delinquent until thirty days after rendition of the bill by the corporation.
4. Any [such] interest charges or late payment charges authorized pursuant to this section shall be paid from appropriations which were made for the fiscal year in which the supplies or services were delivered to the respective departments purchasing such supplies or services. The commissioner of administration shall be responsible for the timely implementation of this section and all officers, departments, institutions and agencies of state government shall fully cooperate with the commissioner of administration in the implementation of this section. No late payment penalty shall be assessed against, nor payable by, the state unless pursuant to the provisions of this section.
5. Notwithstanding any other provision of this section, recipients of funds from the low-income energy assistance program shall be exempt from interest charges imposed by such section for the duration of the recipient's participation in the program.
34.070. In making purchases, the commissioner of administration shall give preference to all commodities manufactured, assembled, mined, produced or grown within the state of Missouri [and] by awarding bids to all firms, corporations or individuals doing business as Missouri firms, corporations or individuals, when quality is equal or better and delivered price is the same or less.
34.073. 1. In letting contracts for the performance of any job or service, all agencies, departments, institutions, and other entities of this state and of each political subdivision of this state shall give preference to all firms, corporations, or individuals doing business as Missouri firms, corporations, or individuals, or which maintain Missouri offices or places of business, when the quality of performance promised is equal or better and the price quoted is the same or less.
2. Notwithstanding the requirements of subsection 1 of this section, the commissioner of administration shall give further preference as required by section 34.076.
34.076. 1. To the extent permitted by federal laws and regulations, whenever the state of Missouri, or any department, agency or institution thereof or any political subdivision shall let for bid any contract to a contractor for any public works or product, the contractor or bidder domiciled outside the boundaries of the state of Missouri shall be required, in order to be successful, to submit a bid the same percent less than the lowest bid submitted by a responsible contractor or bidder domiciled in Missouri as would be required for such a Missouri domiciled contractor or bidder to succeed over the bidding contractor or bidder domiciled outside Missouri on a like contract or bid being let in the person's domiciliary state and, further, the contractor or bidder domiciled outside the boundaries of Missouri shall be required to submit an audited financial statement and comply with any other requirements as would be required of a Missouri domiciled contractor or bidder on a like contract or bid being let in the domiciliary state of that contractor or bidder.
2. Subsection 1 of this section shall not apply to any contractor who is qualified for bidding purposes with the department of transportation and submits a successful bid wherein part of or all funds are furnished by the United States.
3. Subsection 1 of this section shall not apply to any public works or product transportation where the bid is less than five thousand dollars.
[34.165. 1. In making purchases for this state, its governmental agencies or political subdivisions, the commissioner of administration shall give a bidding preference consisting of a five-point bonus on bids for products and services manufactured, produced or assembled in qualified nonprofit organizations for the blind established pursuant to the provisions of 41 U.S.C. sections 46 to 48c, as amended and in sheltered workshops holding a certificate of approval from the department of elementary and secondary education pursuant to section 178.920, RSMo.
2. The commissioner of administration shall make such rules and regulations regarding specifications, quality standards, time of delivery, performance and other relevant matters as shall be necessary to carry out the purpose of this section. No rule or portion of a rule promulgated pursuant to the authority of this section shall become effective unless it has been promulgated pursuant to the provisions of section 536.024, RSMo.
3. At the request of the commissioner of administration, the state auditor may examine all records, books and data of any qualified nonprofit organization for the blind to determine the costs of manufacturing products or rendering services and the manner and efficiency of production and administration of such nonprofit organization with relation to any product or services purchased by this state, its governmental agencies or political subdivisions and to furnish the results of such examination to the commissioner for appropriate action.]
34.166. As used in sections 34.166 to 34.169, the following terms mean:
(1) "Blind assistance facility", a qualified nonprofit organization for the blind established pursuant to the provisions of 41 U.S.C. sections 46 to 48c, as amended, or a sheltered workshop holding a certificate of approval from the department of elementary and secondary education pursuant to section 178.920, RSMo;
(2) "Commissioner", the commissioner of administration;
(3) "Missouri bureau of the blind projects", workshops and home industry projects for blind or other handicapped persons which are located in this state and which are supported, operated or supervised by the bureau of the blind in the division of family services, which is hereby authorized to operate such programs;
(4) "State agency", any state office or officer, department, board, commission, bureau or agency, or any division or unit within any such entity, or any other state authority whatsoever.
34.167. 1. The commissioner shall determine fair market prices of products manufactured, processed, and offered for sale and of services offered pursuant to sections 34.166 to 34.169, by each Missouri bureau of the blind project and by each blind assistance facility. All of the products and services shall be standard conforming. Those products and services offered for purchase by or for a state agency shall meet specifications required by the commissioner. Those products offered for purchase by or for a school district shall meet specifications required by the school board of such school district. The commissioner shall revise the prices determined pursuant to this section from time to time in accordance with changing market conditions.
2. At the request of the commissioner, the state auditor may examine all records, books and data of any blind assistance facility to determine the costs of manufacturing products or rendering services and the manner and efficiency of production and administration of such facility with relation to any product or services purchased by any state agency or any political subdivision of this state and to furnish the results of such examination to the commissioner for appropriate action.
3. Each blind assistance facility shall cooperate with and shall provide the commissioner and the director of the division of family services with all information necessary for the administration of sections 34.166 to 34.169.
4. The provisions of sections 34.166 to 34.169 shall apply only to products manufactured or processed in this state or services provided in this state by blind or other handicapped persons.
5. The provisions of sections 34.166 to 34.169 shall not be construed to require a school district to purchase services offered by blind or other handicapped persons pursuant to sections 34.166 to 34.169.
34.168. 1. The director of the division of family services, with the advice of the bureau of the blind, shall furnish to the office of administration, and to each person or officer authorized to purchase materials, services and supplies for any state agency or school district, a list of products manufactured, processed and offered for sale and of services offered pursuant to section 34.166 to 34.169 by Missouri bureau of the blind projects and by blind assistance facilities.
2. The list of products and services shall be certified by the commissioner. The director of the division of family services, with the advice of the bureau of the blind, shall amend such list from time to time in accordance with the recommendations of the commissioner.
3. The director of the division of family services, with the advice of the bureau of the blind, may charge a reasonable publication fee to those blind assistance facilities which advertise their products or services on such lists. The director of the division of family services shall remit all moneys received pursuant to this section to the state treasurer on a monthly basis.
34.169. 1. The commissioner and any person or officer authorized to purchase materials and supplies for any state agency or school district or to purchase services for any state agency shall purchase, except as otherwise provided in this section, the products and services on the list certified by the commissioner from Missouri bureau of the blind projects or from blind assistance facilities, when those products are to be procured by or for the state or school district or when those services are to be procured by or for the state. Services offered for purchase are not required to be purchased by a school district.
2. Whenever Missouri bureau of the blind projects and blind assistance facilities are unable to supply the products or services needed or are unable to meet delivery requirements on any order or requisition, a written waiver shall immediately be forwarded to the commissioner or to the purchasing officer of the school district by the director of the division of family services or the director's designee and that waiver shall relieve and exempt the state or school district purchasing authority from the mandatory provisions of sections 34.166 to 34.169 in the case of the specific order, request or requisition. Such order, request or requisition shall then proceed as otherwise provided by law.
37.020. 1. As used in this section, the following words and phrases mean:
(1) "Certification", the determination, through whatever procedure is used by the office of administration, that a legal entity is a socially and economically disadvantaged small business concern for purposes of this section;
(2) "Department", the office of administration and any public institution of higher learning in the state of Missouri;
(3) "Minority business enterprise", a business that is:
(a) A sole proprietorship owned and controlled by a minority;
(b) A partnership or joint venture owned and controlled by minorities in which at least fifty-one percent of the ownership interest is held by minorities and the management and daily business operations of which are controlled by one or more of the minorities who own it; or
(c) A corporation or other entity whose management and daily business operations are controlled by one or more minorities who own it, and which is at least fifty-one percent owned by one or more minorities, or if stock is issued, at least fifty-one percent of the stock is owned by one or more minorities;
(4) "Socially and economically disadvantaged individuals", individuals, regardless of gender, who have been subjected to racial, ethnic, or sexual prejudice or cultural bias because of their identity as a member of a group without regard to their individual qualities and whose ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same business area. In determining the degree of diminished credit and capital opportunities the office of administration shall consider, but not be limited to, the assets and net worth of such individual;
(5) "Socially and economically disadvantaged small business concern", any small business concern:
(a) Which is at least fifty-one percentum owned by one or more socially and economically disadvantaged individuals; or, in the case of any publicly owned business, at least fifty-one percentum of the stock of which is owned by one or more socially and economically disadvantaged individuals; and
(b) Whose management and daily business operations are controlled by one or more of such individuals;
(6) "Women's business enterprise", a business that is:
(a) A sole proprietorship owned and controlled by a woman;
(b) A partnership or joint venture owned and controlled by women in which at least fifty-one percent of the ownership interest is held by women and the management and daily business operations of which are controlled by one or more of the women who own it; or
(c) A corporation or other entity whose management and daily business operations are controlled by one or more women who own it, and which is at least fifty-one percent owned by women, or if stock is issued, at least fifty-one percent of the stock is owned by one or more women.
2. The office of administration, in consultation with each department, shall establish and implement a plan to increase and maintain the meaningful participation of certified socially and economically disadvantaged small business concerns or minority business enterprises, directly or indirectly, in contracts for supplies, services, and construction contracts[, consistent with goals determined after an appropriate study conducted to determine the availability of socially and economically disadvantaged small business concerns and minority business enterprises in the marketplace. Such study shall be completed by December 31, 1991. The commissioner of administration shall appoint an oversight review committee to oversee and review the results of such study. The committee shall be composed of nine members, four of whom shall be members of business, three of whom shall be from staff of selected departments, one of whom shall be a member of the house of representatives, and one of whom shall be a member of the senate].
3. The goals to be pursued by each department under the provisions of this section shall be construed to overlap with those imposed by federal law or regulation, if any, shall run concurrently therewith and shall be in addition to the amount required by federal law only to the extent the percentage set by this section exceeds those required by federal law or regulations.
4. The office of administration shall regularly, and at least annually, audit minority business enterprise participation reports.
5. The office of administration shall conduct at least annually a public conference to discuss the state minority business enterprise program to include the latest rules, participation reports, and MBE/WBE procedures. The date and proposed agenda are to be put out on the state web site ninety days prior for public comment.
575.060. 1. A person commits the crime of making a false declaration if, with the purpose to mislead a public servant in the performance of [his] such public servant's duty, [he] the person:
(1) Submits any written false statement, which [he] the person does not believe to be true:
(a) In an application for any pecuniary benefit or other consideration; or
(b) On a form bearing notice, authorized by law, that false statements made therein are punishable; or
(2) Submits or invites reliance on
(a) Any writing which [he] the person knows to be forged, altered or otherwise lacking in authenticity; or
(b) Any sample, specimen, map, boundary mark, or other object which [he] the person knows to be false[.]; or
(3) Knowingly submits a false report to the state.
2. The falsity of the statement or the item [under] pursuant to subsection 1 of this section must be as to a fact which is material to the purposes for which the statement is made or the item submitted; and the provisions of subsections 2 and 3 of section 575.040 shall apply to prosecutions [under] pursuant to subsection 1 of this section.
3. It is a defense to a prosecution [under] pursuant to subsection 1 of this section that the actor retracted the false statement or item but this defense shall not apply if the retraction was made after:
(1) The falsity of the statement or item was exposed; or
(2) The public servant took substantial action in reliance on the statement or item.
4. The defendant shall have the burden of injecting the issue of retraction [under] pursuant to subsection 3 of this section.
5. Making a false declaration is a class [B] A misdemeanor.
6. Either the attorney general or the local prosecuting attorney may prosecute pursuant to the provisions of this section.
610.021. Except to the extent disclosure is otherwise required by law, a public governmental body is authorized to close meetings, records and votes, to the extent they relate to the following:
(1) Legal actions, causes of action or litigation involving a public governmental body and any confidential or privileged communications between a public governmental body or its representatives and its attorneys. However, any minutes, vote or settlement agreement relating to legal actions, causes of action or litigation involving a public governmental body or any agent or entity representing its interests or acting on its behalf or with its authority, including any insurance company acting on behalf of a public government body as its insured, shall be made public upon final disposition of the matter voted upon or upon the signing by the parties of the settlement agreement, unless, prior to final disposition, the settlement agreement is ordered closed by a court after a written finding that the adverse impact to a plaintiff or plaintiffs to the action clearly outweighs the public policy considerations of section 610.011, however, the amount of any moneys paid by, or on behalf of, the public governmental body shall be disclosed; provided, however, in matters involving the exercise of the power of eminent domain, the vote shall be announced or become public immediately following the action on the motion to authorize institution of such a legal action. Legal work product shall be considered a closed record;
(2) Leasing, purchase or sale of real estate by a public governmental body where public knowledge of the transaction might adversely affect the legal consideration therefor. However, any minutes, vote or public record approving a contract relating to the leasing, purchase or sale of real estate by a public governmental body shall be made public within seventy- two hours after execution of the lease, purchase or sale of the real estate;
(3) Hiring, firing, disciplining or promoting of particular employees by a public governmental body when personal information about the employee is discussed or recorded. However, any vote on a final decision, when taken by a public governmental body, to hire, fire, promote or discipline an employee of a public governmental body must be made available with a record of how each member voted to the public within seventy-two hours of the close of the meeting where such action occurs; provided, however, that any employee so affected shall be entitled to prompt notice of such decision during the seventy-two-hour period before such decision is made available to the public. As used in this subdivision, the term "personal information" means information relating to the performance or merit of individual employees;
(4) The state militia or national guard or any part thereof;
(5) Nonjudicial mental or physical health proceedings involving identifiable persons, including medical, psychiatric, psychological, or alcoholism or drug dependency diagnosis or treatment;
(6) Scholastic probation, expulsion, or graduation of identifiable individuals, including records of individual test or examination scores; however, personally identifiable student records maintained by public educational institutions shall be open for inspection by the parents, guardian or other custodian of students under the age of eighteen years and by the parents, guardian or other custodian and the student if the student is over the age of eighteen years;
(7) Testing and examination materials, before the test or examination is given or, if it is to be given again, before so given again;
(8) Welfare cases of identifiable individuals;
(9) Preparation, including any discussions or work product, on behalf of a public governmental body or its representatives for negotiations with employee groups;
(10) Software codes for electronic data processing and documentation thereof;
(11) Specifications for competitive bidding, until either the specifications are officially approved by the public governmental body or the specifications are published for bid;
(12) Sealed bids and related documents, until the bids are opened; and sealed proposals and related documents or any documents related to a negotiated contract until a contract is executed, or all proposals are rejected;
(13) Individually identifiable personnel records, performance ratings or records pertaining to employees or applicants for employment, except that this exemption shall not apply to the names, positions, salaries and lengths of service of officers and employees of public agencies once they are employed as such;
(14) Records which are protected from disclosure by law;
(15) Meetings and public records relating to scientific and technological innovations in which the owner has a proprietary interest;
(16) Records relating to municipal hot lines established for the reporting of abuse and wrongdoing;
(17) Confidential or privileged communications between a public governmental body and its auditor, including all auditor work product; [and]
(18) In preparation for and implementation of electric restructuring, a municipal electric utility may close that portion of its financial records and business plans which contains information regarding the name of the suppliers of services to said utility and the cost of such services, and the records and business plans concerning the municipal electric utility's future marketing and service expansion areas. However, this exception shall not be construed to limit access to other records of a municipal electric utility, including but not limited to the names and addresses of its business and residential customers, its financial reports, including but not limited to its budget, annual reports and other financial statements prepared in the course of business, and other records maintained in the course of doing business as a municipal electric utility. This exception shall become null and void if the state of Missouri fails to implement by December 31, 2001, electric restructuring through the adoption of statutes permitting the same in this state; and
(19) Financial records, business and marketing plans and other proprietary information submitted as part of a
sealed bid, sealed proposal or application for certification as a minority or woman-owned business.
Missouri House of Representatives