PURPOSE: This rule prescribes procedures for soliciting and receiving bids and for awarding contracts.

1. (1) When the procurement is estimated to be less than twenty-five thousand dollars ($25,000), an informal method of solicitation may be utilized. Informal methods of procurement may include Request for Quotation (RFQ), telephone quotes, etc.

   1. (A) The division will establish a target date and time for submission of informal bids.
   2. (B) The division may proceed with the evaluation and award anytime after the expiration of the target date and time. Bids received after the target date and time, but before the award of a contract, may be included in the evaluation at the discretion of the division.

2. (2) When the procurement is estimated to be twenty-five thousand dollars ($25,000) or more, a formal method of solicitation must be utilized. Formal competitive bidding may be accomplished by utilizing an Invitation for Bid (IFB). Pursuant to section 34.047, RSMo, information technology purchases estimated not to exceed seventy-five thousand dollars ($75,000) may be completed under an informal process provided the procurement does not exceed twelve (12) months and it is posted on the division online bidding/vendor registration system website.

   1. (A) Formal bids should be received in the division or a secured electronic database in a sealed format by the time set for the opening of bids.
   2. (B) Formal bids received after the time set for the opening of bids shall be considered late and will not be opened.

   3. (C) Under extraordinary circumstances, the director or designee, may authorize the opening of a late bid. In such cases, the bid must have been turned over to the physical control of an independent postal or courier service with promised delivery time prior to the time set for the opening of bids. All such decisions are at the sole discretion of the director or designee. The following guidelines may be utilized to determine the criteria for an extraordinary circumstance:

      1. 1. State offices were closed due to

inclement weather conditions;

1. 2. Postal or courier services were

delayed due to labor strikes or unforeseen “Acts of God”; or

1. 3. Postal or courier service did not meet

delivery time promised to the bidder. In such a case, the bidder must provide written proof that promised delivery time was prior to the time set for the opening of bids.

1. (D) Bids received in response to an IFB shall be available for public review after the bid opening during regular working hours.
2. (E) When the division decides that all bids are unacceptable and circumstances do not permit a rebid, negotiations may be conducted with only those bidders who submitted bids in response to the IFB. No additional bidders may be solicited. Upon determination that negotiations will be conducted, the bids and related documents will be closed to public viewing in accordance with section 610.021, RSMo.

1. (3) When the procurement requires the utilization of competitive negotiation, the formal Request for Proposal (RFP) solicitation method should be utilized.

   1. (A) Formal proposals should be received in the division or a secured electronic database in a sealed format by the time set for the opening of the proposals.
   2. (B) Formal proposals received after the time set for the opening of proposals shall be considered late and will not be opened.

   3. (C) Under extraordinary circumstances, the director or designee may authorize the opening of a late proposal. In such cases, the proposal must have been turned over to the physical control of an independent postal or courier service with promised delivery time prior to the time set for the opening of proposal. All such decisions are at the sole discretion of the director or designee. The following guidelines may be utilized to determine the criteria for an extraordinary circumstance:

      1. 1. State offices were closed due to

inclement weather conditions;

1. 2. Postal or courier services were

delayed due to labor strikes or unforeseen “Acts of God”; or

1. 3. Postal or courier service did not meet

delivery time promised to the offeror. In such a case, the offeror must provide written proof that promised delivery time was prior to the time set for the opening of proposals.

1. (D) Proposals received in response to an RFP shall not be available for public review until after a contract is awarded or all proposals are rejected.
2. (E) Offerors who obtain information concerning a competitor’s proposal may be disqualified for consideration for a contract award.

1. (4) When the supplies meet the criteria delineated in section 34.044, RSMo, the division may elect to utilize the Single Feasible Source procurement method. The following delineates additional guidelines and examples to determine satisfaction of the criteria:

   1. (A) The following guidelines may be utilized to determine if supplies may be purchased as a single feasible source due to being proprietary:

      1. 1. The parts are required to maintain

validity of a warranty;

1. 2. Additions to a system must be com-

patible with original equipment;

1. 3. Only one (1) type of computer soft-

ware exists for a specific application;

1. 4. Factory authorized maintenance must

be utilized in order to maintain validity of a warranty;

1. 5. The materials are copyrighted and are

only available from the publisher or a single distributor; and

1. 6. The services of a particular provider

are unique, e.g., entertainers, authors, etc.;

1. (B) If past procurement activity indicates that only one (1) bid has been submitted in a particular region, a single feasible source procurement may be authorized. In these situations the division will monitor the market for developing competition;

2. (C) The following guidelines will be utilized to determine if supplies may be purchased as a single feasible source due to being available at a discount for a limited period of time:

   1. 1. The discounted price must be com-

pared to a price established through a reasonable market analysis (i.e., competitive solicitation for the same item under similar circumstances); and

1. 2. The discounted price should normal-

ly be at least ten percent (10%) less than the current contract or other comparable price. A discount of less than ten percent (10%) may be acceptable under appropriate market conditions. The discount should be compared to a price which, where feasible, should be no more than twelve (12) months old; and

1. (D) A vendor shall notify the division if, in his or her opinion, there is another feasible source for the supplies. Such notification shall be received by the division within the advertising requirement stated in section 34.044, RSMo. A review of the notification shall be made by the division and its decision shall be final.

1. (5) When conditions meet the criteria outlined in section 34.045, RSMo, emergency procurement procedures may be utilized. The requirement for formal competitive bids or proposals may be waived. However, the emergency procurement should be made with as much informal bidding as practicable. Emergency procedures should only be utilized to purchase those supplies which are necessary to alleviate the emergency.

2. (6) When circumstances dictate that it would be most advantageous, the state may purchase supplies from or in cooperation with another governmental entity.

   1. (A) Supplies purchased from another governmental entity should be limited to those supplies which are provided directly by such entity.
   2. (B) Supplies purchased in cooperation with another governmental entity may be purchased based on contracts established in accordance with that entity’s laws and regulations.

3. (7) Regardless of the solicitation method utilized, the following procedures shall apply:

   1. (A) The division shall develop standardized terms and conditions to be included with the solicitation documents;
   2. (B) The division may request bids/proposals for new equipment employing the trade-in of used equipment. The solicitation document may request pricing with a trade-in and without a trade-in;

   3. (C) The division may require bid/proposal security and/or performance security.

      1. 1. The acceptable form and amount of

the bid/proposal security shall be stipulated in the solicitation document.

1. 2. The bid/proposal securities of unsuc-

cessful bidders/offerors may be returned after the finalization of the award. If the successful bidder/offeror fails to accept the contract, the amount of the bid/proposal security may be forfeited to the state.

1. 3. If a performance security is required,

the bid/proposal security of the successful bidder/offeror may be returned after the receipt of the performance security. The acceptable form and amount of the performance security will be stipulated in the solicitation document. If the contractor fails to submit the performance security as required, the bid/proposal security may be forfeited to the state and the contract shall be void;

1. (D) In the event that the division receives a container which is not identifiable as a specific bid/proposal, an authorized person within the division may open the container to determine the contents. If the contents are determined to be a bid/proposal, the container will be resealed and the solicitation number, opening date, and time will be noted on the outside. The container will then be filed until the official time for opening;
2. (E) After the bid/proposal opening, a bidder/offeror may be permitted to withdraw a bid/proposal prior to award at the sole discretion of the division if there is a verifiable error in the bid/proposal and enforcement of the bid would impose an unconscionable hardship on the bidder/offeror. This withdrawal will be considered only after receipt of a written request and supporting documentation from the bidder/offeror. Withdrawal shall be the bidder/offeror’s sole remedy for an error other than an obvious clerical error. Withdrawal of a bid/proposal may result in forfeiture of the bid/proposal security;
3. (F) For bids/proposals with a value of twenty-five thousand dollars ($25,000) or more, bidders/offerors who can certify that goods or commodities to be provided in accordance with the contract are manufactured or produced in the United States or imported in accordance with a qualifying treaty, law, agreement, or regulation shall be entitled to a ten percent (10%) preference over a bidder/offeror whose products do not qualify. Failure to provide a certification may result in forfeiture of any preference. All solicitation responses for the purchase of supplies, except software, with an estimated value of twentyfive thousand dollars ($25,000) or more must include proof of compliance requirements as stated in the solicitation document. If the division has any questions regarding either the information submitted on the form or the lack of a submitted form by a bidder/offeror, the division may contact the bidder/offeror for clarification before completing the cost evaluation if under consideration for award. If the division determines that an American-made product is competing against a foreign-made product, the division shall multiply the cost of the foreign-made product by ten percent (10%) and add this amount to the actual cost of the bid/proposal to reflect the Buy American preference in the cost evaluation. The division shall consider any exceptions to the Buy American preference before awarding any contract;
4. (G) In addition to cost, subjective and any other criteria deemed in the best interest of the state may be utilized in the evaluation of bids/proposals provided that the criteria are published in the solicitation document;
5. (H) The division may request samples for evaluation purposes. Any samples requested must be provided free of charge. Samples which are not destroyed by testing will be returned at the bidder/offeror’s expense if return of the samples is stipulated in the bidder/offeror’s bid/proposal. Samples submitted by a bidder/offeror who receives the award may be kept for the duration of the contract for comparison with shipments received;
6. (I) During the course of a solicitation, bidders/offerors may be required to demonstrate proposed products. Such demonstration shall be coordinated by the division;
7. (J) When bids are equal in all respects, any preferences shall be applied in accordance with applicable statute. If all such bidders or none qualify for the statutory preference, the contract shall be awarded by a formal drawing of lot. Whenever practical, the drawing will be held in the presence of the bidders/offerors who are considered equal. If this is not practical, the drawing will be witnessed by a disinterested person;
8. (K) The division may make multiple awards from a single solicitation document when such awards are in the best interest of the state;
9. (L) After an award is made, the solicitation file or facsimile thereof shall be imaged and made available to the public for inspection via the Internet;
10. (M) Neither a contractor nor a state agency shall assign any interest in a contract to another party without written permission from the division;
11. (N) Unless otherwise specified in the contract, substitution of items, personnel, or services shall require the approval of the division prior to shipment or performance;
12. (O) Employees of the division, evaluators, and any other persons involved in procurement decisions shall not accept for personal benefit gifts, meals, trips, or any other thing of significant value or of a monetary advantage, directly or indirectly, from a vendor; and
13. (P) Bidders/offerors on a list of individuals, entities, and contractors excluded from federal procurement and sales programs, 1 CSR 40-1

non-procurement programs, and financial and non-financial benefits as provided by the General Services Administration (GSA) are precluded from contracting with the state when the procurement involves federal funds.

1. (8) Contracts awarded as the result of a competitive solicitation may be amended when such an amendment is in the best interest of the state and does not significantly alter the original intent or scope of the contract.

2. (9) A bid or proposal award protest must be submitted in writing to the director or designee and must be received by the division within ten (10) business days after the date of award. If the tenth day falls on a Saturday, Sunday, or state holiday, the period shall extend to the next state business day. A protest submitted after the ten (10) business-day period shall not be considered. The written protest should include the following information:

   1. (A) Name, address, and phone number of the protester;
   2. (B) Signature of the protester or the protester’s representative;
   3. (C) Solicitation number;
   4. (D) Detailed statement describing the grounds for the protest; and
   5. (E) Supporting exhibits, evidence, or documents to substantiate claim. A protest which fails to contain the information listed above may be denied solely on that basis. All protests filed in a timely manner will be reviewed by the director or designee. The director or designee will only issue a determination on the issues asserted in the protest. A protest, which is untimely or fails to establish standing to protest, will be summarily denied. In other cases, the determination will contain findings of fact, an analysis of the protest, and a conclusion that the protest will either be sustained or denied. If the protest is sustained, remedies include canceling the award. If the protest is denied, no further action will be taken by the division.

3. (10) Section 34.165, RSMo, provides for a ten (10)-point bonus on bids/proposals submitted by qualified nonprofit organizations for the blind and qualified sheltered workshops, if the participating organization provides the greater of two percent (2%) or five thousand dollars ($5,000) of the total contract value of bids/proposals for a purchase not exceeding ten (10) million dollars.

   1. (A) The bonus points can apply if the bidder/offeror is a qualified organization for the blind or sheltered workshop or if the bidder/offeror is subcontracting with an organization for the blind or sheltered workshop.
   2. (B) Supplies provided by an organization for the blind or sheltered workshop must provide a commercially useful function that offers added value to a contract. Supplies shall be provided exclusive to the performance of a contract, and the organization’s obligation outside of a state contract shall not be considered an added value. Services or supplies to be provided by an organization that are outside the usual and customary business of the organization may be considered not to offer added value.
   3. (C) The bonus shall not apply if the solicitation is for a no-cost option to the state.
   4. (D) The bidder/offeror shall submit documents as required by the solicitation that—1) describes the products or services the blind or sheltered workshop will provide; 2) indicates the blind and sheltered workshop’s commitment to aid the bidder/offeror in the performance of the required services and the provision of the required products; and 3) provides evidence of the blind and sheltered workshop qualifications such as a copy of the certification or certification number.
   5. (E) If all requirements are met, the bidder/offeror shall receive a ten (10)-point bonus to a bid/proposal meeting specifications or bid/proposal that includes subjective or other criteria deemed in the best interest of the state and provided in the solicitation document.
   6. (F) If the bid/proposal is awarded, the percentage or dollar level of the blind or sheltered workshop participation committed to by the bidder/offeror in required documentation shall be a binding contractual requirement.

   7. (G) For procurements which utilize the award criteria of low bid meeting specifications, the following procedure will be followed in applying this preference:

      1. 1. If the low priced bidder qualifies for

the preference, no further calculation is necessary;

1. 2. If a bidder that qualifies for the pref-

erence is not low bid, the division will convert the pricing to a point comparison as outlined in the solicitation;

1. 3. For procurements that utilize a com-

bination of cost and subjective criteria for evaluation and award recommendation, ten (10) bonus points will be added to the evaluation points for any preference qualified bidders/offerors; and

1. 4. The bidder/offeror with the most total

points is recommended for contract award.

1. (H) Once a contract is awarded, a contractor shall submit on or before the fifteenth of the month immediately following the reporting period until full payment is made a report detailing all payments it made to all blind and sheltered workshops participating in the contract. The report shall be submitted to the division on a division form. The division may waive this reporting requirement at any time for good cause.
2. (I) If a participating entity is unable to satisfactorily perform its blind and sheltered workshop participation level, or if there are other reasons the contractor needs to replace an entity, the contractor must obtain written approval from the division prior to replacing the entity. If approved, the contractor must obtain other participation in compliance with its original commitment as approved by the division. The division’s approval shall not be arbitrarily withheld. If the contractor cannot obtain a replacement, it may apply to the division for a participation waiver by providing documentation detailing all efforts made to secure a replacement and a good cause statement establishing why the participation level cannot be obtained. If the contractor has met its burden of proof, the division may grant a waiver for good cause.
3. (J) If the contractor’s participation level or payment to a participating blind and sheltered workshop entity is less than the amount committed, and no waiver for good cause has been obtained, the division may cancel the contract and/or suspend or debar the contractor from participating in future state procurements or withhold payment to the contractor in an equal amount to the value of the participating commitment less actual payments made by the contractor to the participating entity. If the division determines that a contractor has become compliant with the commitment amount, any withheld funds shall be released.
4. (K) At the time of contract renewal, a contractor must verify it is meeting its participation level and required payment to all blind and sheltered workshop entities. If the contractor is not meeting said requirements, the contract renewal may not be processed unless and until said requirements are satisfactorily met or a waiver for good cause is obtained from the division.

1. (11) The division will encourage participation in the procurement process and fairness in consideration of bids/proposals submitted by Missouri Service-Disabled Veteran Business Enterprises (SDVEs). Programs/procedures designed to accomplish these objectives may include: inclusion of SDVE subcontractor goals in solicitation documents; close review of requirements for bonding; notice of procurement opportunities on the division’s website; access to bid history and pricing abstracts on the division’s website; access to the division’s procurement staff; utilization of service disabled personnel on evaluation committees, if available; etc.

   1. (A) The division will compile, maintain, and make available a listing of SDVEs. The listing shall be made available to all bidders/offerors and contractors on the division’s website. The listing may include the following: name; address; contact information of SDVE; the general area of commodities or services it provides; etc. The division shall also maintain statistics and issue periodic reports about SDVE participation.

   2. (B) The following expenditures may be counted toward meeting established SDVE goals:

      1. 1. The total dollar value of a contract

awarded to an SDVE;

1. 2. The total dollars paid by a prime con-

tractor to an SDVE for supplies and materials provided to the state in fulfillment of the contract;

1. 3. The total dollar value of work sub-

contracted to an SDVE by a prime contractor; and

1. 4. That portion of the total dollar value

subcontracted to a joint venture by a prime contractor equal to the percentage of the ownership and control of the SDVE partner in the joint venture.

1. (C) Section 34.074, RSMo, established a goal of awarding three percent (3%) of all contract value to service-disabled veteran businesses.

2. (D) The following standards shall be used by the division in determining whether an individual, business, or organization is eligible to be listed as a service-disabled veteran business enterprise (SDVE):

   1. 1. Doing business as a Missouri firm,

corporation, or individual or maintaining a Missouri office or place of business, not including an office of a registered agent;

1. 2. Having not less than fifty-one percent

(51%) of the business owned by one (1) or more service-disabled veterans (SDVs) or, in the case of any publicly-owned business, not less than fifty-one percent (51%) of the stock of which is owned by one (1) or more SDVs;

1. 3. Having the management and daily

business operations controlled by one (1) or more SDVs;

1. 4. Having a copy of the SDV’s award let-

ter from the Department of Veterans Affairs or discharge paper (DD Form 214, Certificate of Release or Discharge from Active Duty) and documentation of certifying disability by the appropriate federal agency responsible for the administration of veterans’ affairs;

1. 5. The SDVE(s) shall possess the power

to make day-to-day as well as major decisions on matters of management, policy, and operation;

1. 6. All SDVE listings and renewals shall

be effective for a period not to exceed five (5) years, unless otherwise found inapplicable; and

1. 7. If it has been determined that the

SDVE at any time no longer meets the requirements stated above, it shall be removed from the listing.

1. (E) If the bidder/offeror meets the requirement of an SDVE, the bidder/offeror shall receive the Missouri service-disabled veteran business preference of a three (3)-point bonus on bids/proposals for the performance of any job or service, except for a no cost contract and any other exception provided for in this regulation as approved by the director.
2. (F) The three percent (3%) goal can be met, and the bonus points obtained, by a qualified SDVE vendor and/or through the use of qualified subcontractors or suppliers that provide at least three percent (3%) of the total contract value.
3. (G) Supplies provided by an SDVE must provide a commercially useful function that offers added value to a contract. Supplies shall be provided exclusive to the performance of a contract, and an SDVE’s obligation outside of a state contract shall not be considered an added value. Services or supplies to be provided by an SDVE that are outside the usual and customary business of the SDVE may be considered not to offer added value.

4. (H) If a bidder/offeror is proposing SDVE vendor participation, it must provide the following to the division:

   1. 1. Complete information as required by

the solicitation document including a list of each proposed SDVE vendor, the committed percentage of participation for each SDVE, and the commercially useful supplies to be provided by each listed SDVE. If the bidder/offeror is a listed SDVE vendor, then the bidder/offeror must also list itself; and

1. 2. A copy of the SDV award letter from

the Department of Veterans Affairs or service-disabled veteran’s discharge form (DD Form 214 Certification of Release or Discharge from Active Duty) and documentation of certifying disability by the appropriate federal agency responsible for the administration of veterans’ affairs, unless the SDVE is listed with the division on its website in which case said documentation is not required.

1. (I) If the bid/proposal is awarded, the percentage level of the SDVE participation committed to by the bidder/offeror in required documentation shall be a binding contractual requirement.
2. (J) If the solicitation will not include subjective criteria, the division will convert the pricing to a point comparison as outlined in the solicitation and add the bonus points to the cost points calculated. If the solicitation will include subjective criteria, the division must include the SDVE requirements in the solicitation document, except when a solicitation is for a no cost contract. Any other exception must be approved at the discretion of the director.
3. (K) Once a contract is awarded, a contractor shall submit on or before the fifteenth of the month immediately following the reporting period until full payment is made a report detailing all payments it made to all SDVEs participating in the contract. This is not required if the SDVE is acting as a prime contractor. However, it may be required if the prime contractor is also using other subcontractors to meet required goals outlined in the contract. The report shall be submitted to the division on a division form. The division may waive this reporting requirement at any time for good cause.
4. (L) If a contractor is unable to satisfactorily perform its SDVE participation level, or if there are other reasons the vendor needs to replace an SDVE, the contractor must replace the business per the terms of the contract. If the contractor cannot obtain a replacement per the terms of the contract, it may apply to the division for a participation waiver by providing documentation detailing all efforts made to secure a replacement and a good cause statement establishing why the participation level cannot be obtained. If the contractor has met its burden of proof, the division may grant a waiver of the contractual obligation for good cause.
5. (M) If the contractor’s participation level or payment to a participating SDVE is less than the amount committed, and no waiver of the contractual obligation for good cause has been obtained, the state may cancel the contract and/or suspend or debar the contractor from participating in future state procurements or withhold payment to the contractor in an equal amount to the value of the participating commitment less actual payments made by the contractor to the participating business. If the division determines that a contractor has become compliant with the commitment amount, any withheld funds shall be released.
6. (N) At the time of contract renewal, a contractor must verify it is meeting its participation level and required payment to all SDVEs. If the contractor is not meeting said requirements, the contract renewal may not be processed unless and until said requirements are satisfactorily met or a waiver for good cause is obtained from the division.

1. (12) The division director or designee shall 1 CSR 40-1

evaluate each recommendation in conjunction with each agency designee. The division shall either accept or reject each recommendation or request additional clarification from each evaluation team.

1. (13) For solicitations using weighted criteria evaluations, the evaluation criteria and point assessment assigned to each criterion, as well as the award process, shall be stated in the solicitation documents. The evaluation criteria shall not be changed during the bid process. The division shall consult with the applicable agency to determine which criteria are most important. Points assigned to cost do not have to be fifty percent (50%) or more of the assigned points.
2. (14) Any clerical error, apparent on its face, may be corrected by the division before contract award. Upon discovery of an apparent clerical error, the division shall contact the bidder/offeror and request clarification of the intended bid/proposal. The correction shall be incorporated in the notice of award. Examples of apparent clerical errors are misplacement of a decimal point and obvious mistake in designation unit.
3. (15) Minor technicalities or irregularities in bid/proposals can be waived by the division if the waiver does not create a competitive advantage for any bidder/offeror. Such waiver is appropriate for a condition that does not conform with a mandatory requirement of the solicitation document, and therefore could otherwise be considered non-responsive, but is so minor in nature that to determine nonresponsiveness could be considered unreasonable and would not be to the state’s advantage.
4. (16) The division has the right to request clarification of any portion of the bidder/offeror’s response in order to verify the intent of the bidder/offeror.
5. (17) When evaluating a bid/proposal, the division has the right to consider relevant information and fact, whether gained from a bid/proposal response, from a bidder/offeror, from a bidder/offeror’s references, or from any other source. Any information submitted with a bid/proposal response, regardless of the format or placement of such information, may be considered in making decisions related to the responsiveness and merit of a bid/proposal and the award of a contract.

6. (18) Awards shall be made to the bidder/offeror whose bid/proposal complies with—

   1. (A) All mandatory specifications and requirements of the bid/proposal;
   2. (B) Is the lowest and best proposal in accordance with the evaluation methodology outlined in the bid/proposal; and
   3. (C) Complies with Chapter 34, RSMo, other applicable Missouri statutes, and all applicable Executive Orders.

7. (19) With regard to competitive negotiation procurements, the basic steps of the evaluation should generally include the following:

   1. (A) Proposals are reviewed for non-responsiveness (non-compliance) with mandatory requirements in the solicitation document. In conjunction with the evaluation committee, if applicable, the division shall obtain any clarifications to a response necessary to make a determination of compliance or non-responsiveness. A proposal which contains nonresponsiveness issues which could never be expected to be brought into compliance, even if given an opportunity for competitive negotiations, is considered unacceptable or nonresponsive and eliminated from further consideration in the evaluation. Proposals with non-responsiveness issues which could be corrected during competitive negotiations, if conducted, are considered potentially acceptable and remain in the evaluation process until a decision is made in regard to competitive negotiations. If competitive negotiations are not conducted, proposals with nonresponsiveness issues are considered nonresponsive and are eliminated from further consideration in the evaluation. If competitive negotiations are conducted, the non-responsiveness issues are identified as deficiencies in the best and final offer request;
   2. (B) Unless shortlisting of proposals has been determined to be appropriate, when competitive negotiations are necessary regarding the Request for Proposal, the division shall request a written best and final offer (BAFO) from each potentially acceptable offeror. Although not required, the BAFO letter should identify all proposal deficiencies that may make the proposal unacceptable. The BAFO request letter should provide the offeror the opportunity to reconsider any other aspect of its proposal, including pricing. All offerors shall be given the same amount of time to respond to the BAFO request, but the issuance of a request letter does not necessarily have to be simultaneous;
   3. (C) Request for Proposal revisions may be permitted for the purpose of obtaining best and final offers and making changes to the proposal that are in the best interest of the state;
   4. (D) The division may issue more than one

8. (1) round of negotiations via the BAFO process; and

   1. (E) In conducting BAFO offers, there shall be no disclosure of any information submitted by competing offerors.

9. (20) The division will encourage participation in the procurement process and fairness in consideration of bids/proposals submitted by Minority Business Enterprises (MBEs) and Women’s Business Enterprises (WBEs). Programs/procedures designed to accomplish these objectives may include: inclusion of M/WBE subcontractor targets in solicitation documents, close review of requirements for bonding, targeted notice of procurement opportunities, utilization of minority and women personnel on evaluation committees, if available, etc.

   1. (A) M/WBE goals can be met by a qualified M/WBE vendor and/or through the use of qualified subcontractors, suppliers, joint ventures, or other arrangements that afford meaningful opportunities for M/WBE participation. The M/WBE vendor shall be certified by the Office of Equal Opportunity

10. (OEO) by the opening date of a bid/proposal. If an M/WBE vendor’s certification has expired but the vendor had submitted its renewal application to OEO prior to the bid/proposal opening and certification is reinstated prior to contract award, then the M/WBE vendor shall be considered qualified.

    1. (B) Supplies provided by M/WBE vendors must provide a commercially useful function that provide added value to a contract. Supplies shall be provided exclusive to the performance of a contract, and an M/WBE vendor’s obligation outside of a state contract shall not be considered an added value to the contract.

    2. (C) If a bidder/offeror is proposing M/WBE vendor participation it must provide the following to the division:

       1. 1. Documentation regarding M/WBE

participation as required in the solicitation must be completed. This information should include, but is not limited to, the following:

1. A. Bid/proposal forms outlining

M/WBE commitment percentage;

1. B. Bid/proposal forms outlining

M/WBE participation and what services or supplies the vendor will supply; and

1. C. M/WBE vendor certification num-

ber or copy of certification issued by OEO.

1. (D) If the bidder/offeror’s bid/proposal is awarded, the percentage level of the M/WBE vendor participation committed to by the vendor shall be a binding contractual requirement.
2. (E) A bidder/offeror that is certified as both an MBE and WBE can meet both MBE and WBE target participation goals as long as the vendor is performing at least the total of the target MBE and WBE percentage of the contract value.
3. (F) A bidder/offeror meeting or exceeding the state’s MBE or WBE target participation goals shall receive the maximum points allowed. A bidder/offeror with a lesser participation commitment shall receive a lesser amount of points. M/WBE participation evaluation points shall be assigned using a formula as documented in the solicitation.
4. (G) If the solicitation will not include subjective criteria, the division is not required to address MBE and WBE participation targets in the solicitation. If the solicitation will include subjective criteria, the division must include the MBE and WBE requirements in the solicitation document, except when a solicitation is for a no cost contract. Any other exception must be approved at the discretion of the director.
5. (H) The division shall indicate the maximum number of points for the M/WBE participation criteria and it shall be documented in the solicitation.

6. (I) Once a contract is awarded, a contractor shall submit on or before the fifteenth of the month immediately following the reporting period until full payment is made a report detailing all payments it made to all M/WBEs participating in the contract. The report shall be submitted to the division on a division form. The division may waive this reporting requirement at any time for good cause.

   1. 1. If a participating entity is unable to

satisfactorily perform its M/WBE participation level, or if there are other reasons the contractor needs to replace an entity, the contractor must obtain written approval from the division prior to replacing the entity. If approved, the contractor must obtain other participation in compliance with its original commitment as approved by the division. The division’s approval shall not be arbitrarily withheld. If the contractor cannot obtain a replacement, it may apply to the division for a participation waiver by providing documentation detailing all efforts made to secure a replacement and a good cause statement establishing why the participation level cannot be obtained. If the contractor has met its burden of proof, the division may grant an M/WBE waiver for good cause.

1. 2. If the contractor’s participation level

or payment to a participating M/WBE entity is less than the amount committed, and no M/WBE waiver for good cause has been obtained, the division may cancel the contract and/or suspend or debar the contractor from participating in future state procurements, or withhold payment to the contractor in an equal amount to the value of the participating commitment less actual payments made by the contractor to the participating entity. If the division determines that a contractor has become compliant with the commitment amount, any withheld funds shall be released.

1. 3. At the time of contract renewal, a

contractor must verify it is meeting its participation level and required payment to all M/WBE entities. If the contractor is not meeting said requirements, the contract renewal shall not be processed unless and until said requirements are satisfactorily met or an W/MBE waiver for good cause is obtained from the division.

AUTHORITY: section 34.050, RSMo 2000 and section 34.074, RSMo Supp. 2010.* Original rule filed Oct. 15, 1992, effective June 7, 1993. Rescinded and readopted: Filed Oct. 20, 1997, effective May 30, 1998. Amended: Filed March 24, 2000, effective Oct. 30, 2000. Amended: Filed June 1, 2011, effective Nov. 30, 2011.

*Original authority: 34.050, RSMo 1939, amended 1945, 1993, 1995 and 34.074, RSMo 2008, amended 2010.