Evaluating Price and Non-Price Criteria of a Single Proposal
Our city received only one proposal in response to our request for proposals (RFP). Must we evaluate the price and non-price criteria of this one proposal separately?
Yes. Chapter 30B requires that you evaluate the price proposal and the non-price, or technical, proposal separately. See M.G.L. c. 30B, § (6)(d). (“The chief procurement officer . . . shall open the price proposals so as to avoid disclosure to the individuals evaluating the proposals on the basis of criteria other than price.”)
The price proposal must not be known to the individual(s) evaluating the non-price criteria. This separation of technical and price proposals is an important element of the RFP process, which is structured to allow for an orderly, fair comparison of the price and non-price proposals.
Jurisdictions must adhere to the requirements of Section 6 of Chapter 30B when evaluating proposals, regardless of the number.
Rejecting All Bids
Our jurisdiction sent out an invitation for bids (IFB) for food services under Section 5 of Chapter 30B. We received only one bid in response. The bid amount exceeded what we currently pay to the company providing the service. Must we accept this bid, or can we send out a new IFB?
Your jurisdiction is not obligated to accept this bid. Chapter 30B allows a jurisdiction to reject all bids if it is in the best interest of the jurisdiction to do so. See M.G.L. c. 30B, § 9.
Such a situation could arise if, for instance, the bid prices received did not fit within a jurisdiction’s budget. Note, however, that it is not appropriate to cancel a bid process because a favored vendor did not submit the best price.
If you decide to cancel the bid process, you must prepare a written statement of the reason(s) for cancellation. As a best practice, you may want your jurisdiction’s counsel to review this statement. It is a public record, and you must keep this document in your procurement file. You should also inform the vendor who submitted the bid that the process has been cancelled.
Procuring Supplies Under a Cooperative Purchasing Agreement
In the past, I have procured supplies under a cooperative purchasing agreement. May I also procure services under the same agreement?
Generally, no. A cooperative purchasing agreement allows local jurisdictions to purchase supplies without conducting their own competitive procurement. While Section 22 of Chapter 30B allows jurisdictions to use cooperative purchasing agreements “for the procurement of supplies,” it does not mention services.
Chapter 30B defines “supplies” as “all property, other than real property, including equipment, materials, printing, and insurance and further including services incidental to the delivery, conveyance and installation of such property.” See M.G.L. c. 30B, § 2.
Any purchase from a cooperative purchasing agreement must be for supplies as defined in Chapter 30B.
This means that you cannot procure services from a cooperative purchasing agreement, unless those services are "incidental to the delivery, conveyance and installation of" supplies you have purchased.
For example, the installation and testing of a new photocopier by a vendor’s maintenance technician would be considered a service incidental to your purchase of the photocopier.
Understanding Majority Vote Approval and Real Property Transactions
My jurisdiction would like to dispose of a parcel of public land through a lease. In addition to the requirements under Section 16 of Chapter 30B, are we required to get majority vote approval under Section 12(b) if the lease duration will exceed three years?
No. Section 12(b) of Chapter 30B requires majority vote approval for a “contract” with a term exceeding three years.
Chapter 30B defines a “contract” as an “agreement for the procurement or disposal of supplies or services." In addition, the definition of “supplies” in Chapter 30B expressly excludes real property, defining “supplies” as “all property, other than real property....” See M.G.L. c. 30B, § 2.
As a result, under the specific definitions provided by Chapter 30B, the term “contract” does not include a lease for the disposition of real property. This means that the requirement for majority vote approval for “a contract exceeding three years” does not apply to real property agreements under Section 16.
This distinction is reflected in the use of the term “agreement” rather than “contract” in Section 16 of Chapter 30B regarding real property transactions.
Purchasing Energy-Efficient Lightbulbs Under Chapter 30B
I am the purchasing agent for my town’s facilities maintenance department. We want to purchase energy-efficient lightbulbs for our schools. Would this purchase be exempt from Chapter 30B as an energy-related service?
No. The exemption for energy or energy-related services would not apply. See M.G.L. c. 30B, § 1(b)(33).
That exemption applies to the purchase of energy or services related to the generation, transmission or distribution of energy, including the services of an energy broker. See Northeast Energy Partners LLC v. Mahar Reg. Sch. Dist., 462 Mass. 687, 695-699 (2012).
Lightbulbs, even energy-efficient lightbulbs, are a supply under Chapter 30B, not an energy-related service. Therefore, your jurisdiction would have to follow the procurement procedures outlined in Section 4, 5 or 6 of Chapter 30B to purchase the lightbulbs.
Please remember to dispose of the discarded lightbulbs according to state and local environmental guidelines.
Additional Resources
Contact for OIG Bulletin, August 2020: Frequently Asked Questions
Online
Phone
Available 8:30 a.m. to 4:30 p.m., M-F. Our confidential Hotline is for public employees and individuals with Chapter 30B procurement questions. Direct questions related to design and construction procurement to the Attorney General’s Office.