2023 -- H 5964

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LC002229

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2023

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A N   A C T

RELATING TO PUBLIC PROPERTY AND WORKS -- DAY CARE PROGRAMS STATE

PURCHASES

     Introduced By: Representatives Donovan, Boylan, Tanzi, McGaw, Kazarian, Casimiro,
Fogarty, Shallcross Smith, Caldwell, and McEntee

     Date Introduced: March 01, 2023

     Referred To: House State Government & Elections

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 37-2-7, 37-2-9 and 37-2-18 of the General Laws in Chapter 37-2

entitled "State Purchases" are hereby amended to read as follows:

     37-2-7. Definitions.

     The words defined in this section have the meanings set forth below whenever they appear

in this chapter, unless the context in which they are used clearly requires a different meaning or a

different definition is prescribed for a particular section, group of sections, or provision:

     (1) “Business” means any corporation, partnership, individual, sole proprietorship, joint

stock company, joint venture, or any other legal entity through which business is conducted.

     (2) “Change order” means a written authorization signed by the purchasing agent directing

or allowing the contractor to proceed with changes, alterations, or modifications to the terms,

conditions, or scope of work on a previously awarded contract.

     (3) “Chief purchasing officer” shall mean: (i) For a state agency, the director of the

department of administration, and (ii) For a public agency, the executive director or the chief

operational officer of the agency.

     (4) Child care declaration statement" means the form to be completed by bidders on

contracts pursuant to this chapter.

     (4)(5) “Construction” means the process of building, altering, repairing, improving, or

demolishing any public structures or building, or other public improvements of any kind to any

public real property. It does not include the routine maintenance or repair of existing structures,

buildings, or real property performed by salaried employees of the state of Rhode Island in the

usual course of their jobs.

     (5)(6) “Contract” means all types of agreements, including grants and orders, for the

purchase or disposal of supplies, services, construction, or any other item. It includes awards;

contracts of a fixed-price, cost, cost-plus-a-fixed-fee, or incentive type; contracts providing for the

issuance of job or task orders; leases; letter contracts; purchase orders; and construction

management contracts. It also includes supplemental agreements with respect to any of the

foregoing. “Contract” does not include labor contracts with employees of state agencies.

     (6)(7) “Contract amendment” means any written alteration in the specifications, delivery

point, rate of delivery, contract period, price, quantity, or other contract provisions of any existing

contract, whether accomplished by unilateral action in accordance with a contract provision, or by

mutual action of the parties to the contract. It includes bilateral actions, such as supplemental

agreements, and unilateral actions, such as change orders, administrative changes, notices of

termination, and notices of the exercise of a contract option.

     (7)(8) “Contractor” means any person having a contract with a governmental body.

     (8)(9) “Data” means recorded information, regardless of form or characteristic.

     (9)(10) “Designee” means a duly authorized representative of a person holding a superior

position.

     (10)(11) “Employee” means an individual drawing a salary from a state governmental

entity.

     (11)(12) “State governmental entity” means any entity created as a legislative body or a

public or state agency by the general assembly or constitution of this state, except for municipal,

regional, or county governmental entities.

     (12)(13) “May” means permissive.

     (13)(14) “Negotiation” means contracting by either the method set forth in § 37-2-19, 37-

2-20, or 37-2-21.

     (14)(15) “Person” means any business, individual, organization, or group of individuals.

     (15)(16) “Procurement” means the purchasing, buying, renting, leasing, or otherwise

obtaining of any supplies, services, or construction. It also includes all functions that pertain to the

obtaining of any supply, service, or construction item, including a description of requirements,

selection and solicitation of sources, preparation, and award of contract, and all phases of contract

administration.

     (16)(17) “Public agency” shall mean the Rhode Island industrial recreational building

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authority, the Rhode Island commerce corporation, the Rhode Island industrial facilities

corporation, the Rhode Island refunding bond authority, the Rhode Island housing and mortgage

finance corporation, the Rhode Island resource recovery corporation, the Rhode Island public

transit authority, the Rhode Island student loan authority, the Howard development corporation,

the water resources board corporate, the Rhode Island health and education building corporation,

the Rhode Island turnpike and bridge authority, the Blackstone Valley district commission, the

Narragansett Bay water quality management district commission, the Rhode Island

telecommunications authority, the convention center authority, the Channel 36 foundation, the

Rhode Island lottery commission their successors and assigns, any other body corporate and politic

which has been or will be created or established within this state excepting cities and towns, the

university of Rhode Island board of trustees for all purchases that are funded by restricted,

sponsored, or auxiliary monies, and the council on postsecondary education for all purchases that

are funded by restricted, sponsored, or auxiliary monies.

     (17)(18) “Purchase request” or “purchase requisition” means that document whereby a

using agency requests that a contract be entered into to obtain goods and/or services for a specified

need, and may include, but is not limited to, the technical description of the requested item, delivery

requirements, transportation mode request, criteria for evaluation of proposals, and/or preparation

of suggested sources of supply, and information supplied for the making of any written

determination and finding required by § 37-2-6.

     (18)(19) “Purchasing agency” means any state governmental entity which is authorized by

this chapter, its implementing regulations, or by way of delegation from the chief purchasing officer

to contract on its own behalf rather than through the central contracting authority of the chief

purchasing officer.

     (19)(20) “Purchasing agent” means any person authorized by a governmental entity in

accordance with procedures prescribed by regulations, to enter into and administer contracts and

make written determinations and findings with respect to contracts. The term also includes an

authorized representative acting within the limits of authority. “Purchasing agent” also means the

person appointed in accordance with § 37-2-1.

     (20)(21) “Services” means the rendering, by a contractor, of its time and effort rather than

the furnishing of a specific end product, other than reports that are merely incidental to the required

performance of services. “Services” does not include labor contracts with employees of state

agencies.

     (21)(22) “Shall” means imperative.

     (22)(23) “State” means the state of Rhode Island and any of its departments or agencies

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and public agencies.

     (23)(24) “Supplemental agreement” means any contract modification which is

accomplished by the mutual action of the parties.

     (24)(25) “Supplies” means all property, including, but not limited to, leases of real

property, printing, and insurance, except land or permanent interest in land.

     (25)(26) “Using agency” means any state governmental entity which utilizes any supplies,

services, or construction purchased under this chapter.

     (26)(27) As used in § 37-2-59, “architect” or “engineer” services means those professional

services within the scope of practice of architecture, professional engineering, or registered land

surveying pertaining to construction, as defined by the laws of this state. “Consultant” means any

person with whom the state and/or a public agency has a contract which contract provides for the

person to give direction or information as regards a particular area of knowledge in which the

person is a specialist and/or has expertise.

     (27)(28) For purposes of §§ 37-2-62 — 37-2-70, “directors” means those members of a

public agency appointed pursuant to a statute who comprise the governing authority of the board,

commission, authority, and/or corporation.

     (28)(29) “State agency” means any department, commission, council, board, bureau,

committee, institution, or other governmental entity of the executive or judicial branch of this state

not otherwise established as a body corporate and politic, and includes, without limitation, the

council on postsecondary education except for purchases which are funded by restricted, sponsored,

or auxiliary moneys, the university of Rhode Island board of trustees except for all purchases which

are funded by restricted, sponsored, or auxiliary monies, and the council on elementary and

secondary education.

     (29)(30) “Governmental entity” means any department, commission, council, board,

bureau, committee, institution, legislative body, agency, or government corporation of the

executive, legislative, or judicial branches of state, federal, and/or local governments.

     (30)(31) “Construction management at-risk” or “construction management at-risk

services” or “construction management at-risk delivery method” is a construction method wherein

a construction manager at-risk provides a range of preconstruction services and construction

management services which may include cost estimation and consultation regarding the design of

the building project, the preparation and coordination of bid packages, scheduling, cost control, and

value engineering, acting as the general contractor during the construction, detailing the trade

contractor scope of work, holding the trade contracts and other contracts, evaluating trade

contractors and subcontractors, and providing management and construction services, all at a

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guaranteed maximum price, which shall represent the maximum amount to be paid by the using

agency for the building project, including the cost of work, the general conditions, and the fee

payable to the construction management at-risk firm.

     (31)(32) “Construction manager at-risk” or “construction management at-risk firm” is a

person or business experienced in construction that has the ability to evaluate and to implement

drawings and specifications as they affect time, cost and quality of construction and the ability to

coordinate and deliver the construction of the project within a guaranteed maximum price, which

shall represent the maximum amount to be paid by the using agency for the building project,

including the cost of the work, the general conditions, and the fee payable to the construction

management at-risk firm. The construction manager at-risk provides consultation services during

the preconstruction and construction phases of the project. The project engineer, architect, or

owner’s program manager may not serve as the construction manager at-risk.

     (32)(33) “Owner’s program manager” shall be an entity engaged to provide project

management services on behalf of a state agency for the construction and supervision of the

construction of a building project. The owner’s program manager acts as the owner’s agent in all

aspects of the construction project, including, but not limited to, architectural programming,

planning, design, construction, and the selection and procurement of an appropriate construction

delivery method. The owner’s program manager shall have at least seven (7) years’ experience in

the construction and supervision of construction of buildings of similar size and complexity. The

owner’s program manager shall not have been employed during the preceding year by the design

firm, the construction firm, and/or the subcontractors associated with the project.

     37-2-9. Authority and duties of the chief purchasing officer.

     (a) The chief purchasing officer shall have power and authority over, and may, except as

otherwise expressly provided in this chapter, adopt regulations pursuant to § 42-35-2 and consistent

with this chapter governing the purchasing, management, and control of any and all supplies,

services, construction, and other items required to be purchased by the state. The chief purchasing

officer shall consider and decide matters of policy with regard to state procurement. The chief

purchasing officer shall have the power of review with respect to the implementation of regulations

and policy determinations.

     (b) Regulations shall be adopted governing the following:

     (1) Conditions and procedures for delegations of purchasing authority;

     (2) Prequalification, suspension, debarment, and reinstatement of prospective bidders;

     (3) Small purchase procedures;

     (4) Conditions and procedures for the purchase of perishables and items for resale;

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     (5) Conditions and procedures for the use of source selection methods authorized by this

chapter including emergency purchases;

     (6) Opening and rejection of bids or offers, consideration of alternate bids, and waiver of

informalities in offers;

     (7) Confidentiality of technical data and trade secrets information submitted by actual or

prospective bidders or offerors;

     (8) Partial, progressive, and multiple awards;

     (9) Supervision of storerooms and inventories, including determination of appropriate

stock levels and the management, transfer, sale, or other disposal of state owned property;

     (10) Definitions and classes of contractual services and procedures for acquiring them;

     (11) To sell, trade, or otherwise dispose of surplus supplies and services for the state;

     (12) To exercise general supervision and control over all warehouses, storerooms, stores,

and all inventories of supplies, services, and construction belonging to the state;

     (13) To establish and maintain programs for the development and use of purchasing

specifications, and for the inspection, testing, and acceptance of supplies, services, and

construction;

     (14) To develop a program which involves and/or utilizes small business and small

disadvantaged business as contractors;

     (15) To develop standards of conduct which supplement the provisions of chapter 14 of

title 36, as amended, for personnel involved in the state of Rhode Island purchasing process;

     (16) For all contracts for supplies and services exceeding ten thousand dollars ($10,000),

contractors must comply with the requirements of federal executive order no. 11246, as amended,

§ 28-5.1-10, and other regulations as issued by the purchasing agent, and administered by the state

equal opportunity office of the department of administration. Failure to comply will be considered

a substantial breach of the contract subject to penalties prescribed in the regulations: and

     (17) To promote and facilitate the establishment and implementation of child care policies

and practices to be contained within a child care declaration statement as provided in § 37-2-9.1 to

be completed by bidders submitting bids pursuant to this chapter.

     (c) The chief purchasing officer may adopt such other regulations as deemed advisable to

carry out the purposes of this chapter.

     37-2-18. Competitive sealed bidding.

     (a) Contracts exceeding the amount provided by § 37-2-22 shall be awarded by competitive

sealed bidding unless it is determined in writing that this method is not practicable or that the best

value for the state may be obtained by using an electronic reverse auction as set forth in § 37-2-

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18.1. Factors to be considered in determining whether competitive sealed bidding is practicable

shall include whether:

     (1) Specifications can be prepared that permit award on the basis of either the lowest bid

price or the lowest evaluated bid price; and

     (2) The available sources, the time and place of performance, and other relevant

circumstances as are appropriate for the use of competitive sealed bidding.

     (b) The invitation for bids shall state whether the award shall be made on the basis of the

lowest bid price or the lowest evaluated or responsive bid price. If the latter basis is used, the

objective measurable criteria to be utilized shall be set forth in the invitation for bids, if available.

All documents submitted in response to the bid proposal are public pursuant to chapter 38-2 upon

opening of the bids. The invitation for bids shall state that each bidder must submit a copy of their

bid proposal to be available for public inspection upon the opening of the bids. The burden to

identify and withhold from the public copy that is released at the bid opening any trade secrets,

commercial or financial information, or other information the bidder deems not subject to public

disclosure pursuant to chapter 38-2, the Access to Public Records Act, shall rest with the bidder

submitting the bid proposal.

     (c) Unless the invitations for bid are accessible under the provisions as provided in § 37-2-

17.1, public notice of the invitation for bids shall be given a sufficient time prior to the date set

forth therein for the opening of bids. Public notice may include publication in a newspaper of

general circulation in the state as determined by the purchasing agent not less than seven (7) days

nor more than twenty-eight (28) days before the date set for the opening of the bids. The purchasing

agent may make a written determination that the twenty-eight (28) day limitation needs to be

waived. The written determination shall state the reason why the twenty-eight (28) day limitation

is being waived and shall state the number of days, giving a minimum and maximum, before the

date set for the opening of bids when public notice is to be given.

     (d) Bids shall be opened and read aloud publicly at the time and place designated in the

invitation for bids. Each bid, together with the name of the bidder, shall be recorded and an abstract

made available for public inspection.

     (e) The chief purchasing officer shall adopt and file regulations governing the bidding of

highway and bridge construction projects in the state not later than December 31, 2011.

     (f) Immediately subsequent to the opening of the bids, the copies of bid documents

submitted pursuant to subsection 37-2-18(b) shall be made available for inspection by the public.

Any objection to any bid on the grounds that it is nonresponsive to the invitation for bids must be

filed with the purchasing agent within five (5) business days of the opening of the bids. The

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purchasing agent shall issue a written determination as to whether the subject bid is nonresponsive

addressing each assertion in the objection and shall provide a copy of the determination to the

objector and all those who submitted bids at least seven (7) business days prior to the award of the

contract. If a bid is nonresponsive to the requirements in the invitation to bid, the bid is invalid and

the purchasing agent shall reject the bid. The purchasing agent shall have no discretion to waive

any requirements in the invitation to bid which are identified as mandatory. Nothing in this section

shall be construed to interfere with or invalidate the results of the due diligence conducted by the

division of purchasing to determine whether bids are responsive and responsible.

     (g) Subsequent to the awarding of the bid, all documents pertinent to the awarding of the

bid that were not made public pursuant to subsection 37-2-18(e) shall be made available and open

to public inspection, pursuant to chapter 38-2, the Access to Public Records Act, and retained in

the bid file. The copy of the bid proposal provided pursuant to subsection 37-2-18(b) shall be

retained until the bid is awarded.

     (h) The contract shall be awarded with reasonable promptness by written notice to the

responsive and responsible bidder whose bid is either the lowest bid price, lowest evaluated, or

responsive bid price.

     (i) Correction or withdrawal of bids may be allowed only to the extent permitted by

regulations issued by the chief purchasing officer.

     (j) As of January 1, 2011, this section shall apply to contracts greater than one million

dollars ($1,000,000); on January 1, 2012 for all contracts greater than seven hundred fifty thousand

dollars ($750,000); on January 1, 2013 for all contracts greater than five hundred thousand dollars

($500,000); and on January 1, 2014 for all contracts awarded pursuant to this section.

     (k) Preference shall be provided to bidders which possess a stated child care policy when

two (2) or more bidders submit equal bids and for bids on contracts of less than twenty-five

thousand dollars ($25,000), and for bids for occasional and temporary personal services.

     SECTION 2. Chapter 37-2 of the General Laws entitled "State Purchases" is hereby

amended by adding thereto the following section:

     37-2-9.2. Child care declaration statement.

     (a) The chief purchasing officer shall prepare a child care declaration statement as required

by § 37-2-9 in substantially the following form:

VENDOR CHILD CARE POLICY PROGRAM -- CHILD CARE DECLARATION

STATEMENT

     The business concern listed below hereby declares the following status on the "Child Care

Policy" of the State of Rhode Island. It is incumbent upon the concern to notify the state of any

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changes applicable to this declaration.

     Business Name Telephone No.

     Signature Title

     Note: A "stated child care policy" may include services and/or benefits for employees and

their families, including infants through school-age child care centers or family day care homes,

before and after school programs, day camps, services for ill children, children with special needs,

family leave, and more. Please refer to the attached instructions for definitions. Please check ALL

items on the form that apply to your business concern.

     PART ONE

     Does your business have a stated child care policy?

     If YES, please attach a copy

     PART TWO

     Does your business provide child care assistance?

     If YES, Please check which form(s) of assistance

     YES NO

     Level I Assistance

     Subsidized company child care center; Subsidized network of child care homes

     Child care reimbursement in addition to other benefits; Child care reimbursement in a

flexible benefit package; Paid parental leave

     Purchase of spaces for employees in community child care program(s) (centers or homes)

     Level II Assistance

     Salary set aside; flexible spending account funded with employee salary dollars; Section

     125

     Child care referral services; Parenting seminars

     Counseling on work/family issues; Start-up of a self-supporting center

     Start-up contributions to a "consortium center"

     Level III Assistance

     Flexible work hours; Flex-place/work-at-home

     Permanent; part-time; job sharing

     Work-at-home following maternity leave; Unpaid parental leave

     Donation to enhance child care program

     Other (Describe)

     I HAVE READ AND COMPLETED:

     (Signed)

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     Do not write below this line

     Date Filed:_____ Expiration date: _________

     (b) For the purposes of this section, the following words shall have the meanings set forth

below as applied to the various forms of child care assistance set forth on the child care declaration

statement:

     (1) "Child care referral services" means a service to employees which provides

information, referrals and consultation regarding local child care services such as locations, hours

and rates.

     (2) "Child care reimbursement in a flexible benefit package" means a system which allows

employees to make individual choices among a range of benefits provided by the employer such as

health, dental and retirement, and child care is included as a benefit choice.

     (3) "Child care reimbursement in addition to other benefits" means an employer helps

employees pay for child care expenses by reimbursing the employee or their child care provider for

all or part of the cost of child care; allows an employee to select the child care provider, or an

employer may designate providers or conditions (e.g. only reimburse licensed providers); such

reimbursement is provided to the employee in addition to other employee benefits.

     (4) "Counseling on work/family issues" means a company which provides through in-

house or contracted services, group, family or individual counseling services to support employees

in the resolution of work-family issues.

     (5) "Donation to enhance child care program" means a company which has contributed

funds, goods, and/or services to a child care program, for the purpose of improving the quality,

affordability, or accessibility of said programs.

     (6) "Flexible work hours" means that employees are allowed to make choices about work

schedules, with such possible options as five (5) day/forty (40) hour vs. four (4) day/forty (40) hour

work weeks or a flexible hour's schedule within a day; may include establishment of "core" working

hours during which an employee must be present at the work site.

     (7) "Flexplace/work-at-home" means a company which offers employees the option to

work in their own homes; may be available part-or full-time.

     (8) "Paid parental leave" means employees are given paid time off work due to childbirth

or adoption, with a guaranteed return to the same or a comparable job and seniority status.

     (9) "Parenting seminars" means a company which offers workshops, educational

presentations, and related activities to provide information and support in such areas as parenting

skills, work-family relations, child development, and related topics; may be provided by in­house

staff or by contracted service.

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     (10) "Permanent part-time/job sharing" means a company which offers job opportunities

in which employees may work less than full­ time while retaining permanent employment status,

and/or two (2) employees may share a single full-time position with salary and benefits pro­rated

between the two (2) employees.

     (11) "Purchase of services for employees in community child care programs" means a

company which contributes funds, goods and/or services to the child care program in the

community center or family day care home for the purpose of preferential consideration for use by

employees.

     (12) "Salary set-aside/flexible spending account funded with employee salary dollars"

means an employer has set up a qualified dependent care assistance plan under IRS Sections 125

and 129, which allows employees to designate an amount up to five thousand dollars ($5,000) per

year to be set aside from their salaries to pay for dependent care; since such a salary set aside is not

taxed, both employee and employer receive financial benefits.

     (13) "Start-up contributions to a consortium center" means a company which has provided

funds, goods and/or services to a child care center, working in cooperation to develop and support

a child care service available to employees of contributing companies.

     (14) "Start-up of a self-supporting center" means a company which has provided funds,

goods and/or services to directly assist in the land acquisition, design, construction, renovation,

equipment, furnishing or other cost associated with starting a child care program; this was a one-

time-only assistance for the start-up, with the center now operating on a self-supporting basis.

     (15) "Subsidized company child care center" means group care for children (may range

from twelve (12) to three hundred (300) children), in a licensed setting such as a preschool or other

center, which may serve infants, toddlers, preschoolers or school-age children; the center receives

funds, goods and/or services from an employer which thus subsidizes part or all of the child care

center operating costs, and employees of the subsidizing employer may enroll dependents in this

center.

     (16) "Subsidized network of child care homes" means care for up to twelve (12) children

in the home of a licensed caregiver; may include one home or a network of two (2) or more family

day care homes, which receive funds, goods and/or services from an employer who thus subsidizes

part or all of the home operating costs; employees of the subsidizing employer may enroll

dependents in this care home.

     (17) "Unpaid parental leave" means that employees are allowed unpaid time off due to

childbirth or adoption, with a guaranteed return to the same or a comparable job and seniority status.

     (18) "Work-at-home following maternity leave" means that employees are offered the

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option to perform their jobs at home for a period following leave for childbirth or adoption.

     SECTION 3. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO PUBLIC PROPERTY AND WORKS -- DAY CARE PROGRAMS STATE

PURCHASES

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     This act would provide preference to businesses which possess a stated child care policy

for its employees who contract with a governmental body for state purchases.

     This act would take effect upon passage.

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