Fast-Track Regulations
TITLE 11. GAMING
STATE LOTTERY BOARD
Title of Regulation: 11VAC 5-20. Administration Regulations (amending 11VAC 5-20-200; repealing 11VAC 5-20-210 through 11VAC 5-20-520).
Statutory Authority: §58.1-4007 of the Code of Virginia.
Public Hearing Date: N/A -- Public comments may be submitted until October 20, 2006.
(See Calendar of Events section
for additional information)
Effective Date: November 6, 2006.
Agency Contact: Betty K. Hill, Legislative and Regulatory Coordinator, State Lottery Department, 900 East Main Street, Richmond, VA 23219, telephone (804) 692-7904, FAX (804) 692-7603, or e-mail .
Basis: Section 58.1-4007A of the Code of Virginia authorizes the State Lottery Board to promulgate regulations "relative to departmental procurement which include standards of ethics for procurement consistent with the provisions of Article 6 (§2.2-4367 et seq.) of Chapter 43 of Title 2.2 and which ensure that department procurement will be based on competitive principles."
Purpose: The purpose of this proposed regulatory change is to amend the Lottery’s regulations pertaining to the procurement process. With the goal of creating more expeditious and adaptable procedures, the current procurement regulations will be removed from the administrative code and replaced with language that references a Virginia Lottery Purchasing Manual. This change will allow the Lottery Board to amend the Purchasing Manual to meet changing business needs. For example, our current procurement regulations have not been changed since 1988 and are inconsistent with limits established by the Department of General Services, Division of Purchases and Supply.
Substance: The most substantive changes in the proposed regulations are the purchasing dollar thresholds. The current dollar levels requiring competition are $2,000 for goods and $5,000 for services with formal sealed bidding and competitive negotiations required at $15,000 and above. Proposed thresholds mirror the limits used by state government and will require competition for goods and services starting at $5,001 with formal sealing bidding and competitive negotiations required at $50,000 and above.
Issues: The advantages of the proposed regulatory change ensures that the Virginia Lottery has a fundamental obligation to the general public to ensure that its procurements are conducted in a fair and impartial manner without any impropriety or appearance of impropriety. Virginia Lottery procurement policies and procedures ensure that all qualified vendors have access to business opportunities and that no vendor is arbitrarily or capriciously excluded. Competitive procurement does not guarantee that a preferred brand or vendor will be selected. When conducted properly, competitive procurement responds to user needs, enhances citizen confidence in the integrity of government operations and obtains favorable prices. The amendments impose no known disadvantages to the agency or the public.
Rationale for Using Fast-Track Process: The fast track process is being used because the department fully expects the regulations to be noncontroversial. That expectation is based on the following:
1. The proposed regulations and purchasing manual will establish requirements that more closely track the delegated purchasing dollar thresholds and general purchasing practices used by state government;
2. The change approved by the General Assembly to clarify the Lottery’s exemption from the Virginia Public Procurement Act (HB 1027, 2004) was passed overwhelmingly in the 2004 session.
Department of Planning and Budget's Economic Impact Analysis:
Summary of the proposed regulation. The State Lottery Board (board) proposes to remove rules pertaining to the procurement process from the Administrative Code (11 VAC 5-20) and include the language in the Virginia Lottery Purchasing Manual. The current dollar thresholds requiring competitive procedures will be raised from $2,000 to $5,000 for good purchases.
Results of analysis. The benefits likely exceed the costs for all proposed changes.
Estimated economic impact. Currently rules pertaining to the procurement process are addressed in the Administrative Code (11 VAC 5-20). The board proposes to remove these rules from the Administrative Code and include them in the Virginia Lottery Purchasing Manual.[1] Also, the board proposes to raise the caps on small good purchases from $2,000 to $5,000 in order to be consistent with the rest of state government.[2] Purchase of goods of $5,000 or less will be exempted from competitive procurement procedures.
The changeover from a regulation to a purchasing manual will create a more efficient and expeditious purchasing system and allow the State Lottery Department (SLD) to amend the Purchasing Manual to meet changing business needs. The increase of small purchases thresholds from $2,000 to $5,000 will create cost savings for SLD. According to SLD, approximately 16 hours of staff time are needed for a typical purchase totaling between $2,001 and $5,000, for providing information, processing proposals or bids, and conducting future inspections. Given the average hourly wage being $26.41, raising the cap for competitive procedures from $2,000 to $5,000 will create a cost saving of $423 per order. SLD estimates that half of the 220 purchases made in fiscal year 2005 fell within this range. Supposing that the number of purchases between $2,000 and $5,000 remains 110, the proposed regulatory change will create an estimated saving of 1,760 working hours, which equates to $46,481 given the average hourly wage being $26.41.
The State Lottery Department believes that raising the competitive bidding cap will result in little to no increase in purchasing prices. Any price increases, if there are any, will likely be outweighed by savings from reduced staff hours. The proposed regulatory changes will impose no costs to the vendor community.
Businesses and entities. The proposed regulation will cause reduced working hours and thus cost savings for SLD.
Localities particularly affected. The proposed regulation will not particularly affect any localities in the Commonwealth.
Projected impact on employment. SLD will incur a reduction of 16 working hours on average for each purchase between $2,001 and $5,000. Supposing that 110 purchases will be made annually that fall within this range, the estimated total reduction in working hours will be 1,760hours annually.
Effects on the use and value of private property. The proposed regulation will likely not have any impact on the use and value of private property.
Small businesses: costs and other effects. The proposed regulation will likely not have any impact on small businesses.
Small businesses: alternative method that minimizes adverse impact. The proposed regulatory changes will not have any negative impact on small businesses.
Legal mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with §2.2-4007H of the Administrative Process Act and Executive Order Number 21 (02). Section 2.2-4007H requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has an adverse effect on small businesses, §2.2-4007H requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB’s best estimate of these economic impacts.
Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The Virginia Lottery concurs with the economic impact analysis statement.
Summary:
The amendments replace the current regulations pertaining to the procurement process with procedures contained in the Virginia Lottery Purchasing Manual.
11VAC 5-20-200. Procurement in general.
A. To promote the free enterprise system in Virginia,The State Lottery Department will purchase goods or services by using competitive methods whenever possible. In its operations and to ensure efficiency, effectiveness and economy, the department will consider using goods and services offered by private enterprisein accordance with procedures contained in The Virginia Lottery Purchasing Manual.
B. The department may purchase goods or services which are under state term contracts established by the Department of General Services, Division of Purchases and Supply, when in the best interest of the State Lottery Department.
C. When time permits, the department may publish notice of procurement actions in "Virginia Business Opportunities," published by the Department of General Services, Division of Purchases and Supply.
11VAC 5-20-210. Exemption and restrictions.(Repealed.)
A. Purchase of goods of $2,000 or less shall be exempted from competitive procurement procedures. Purchase of services of $5,000 or less shall be exempted from competitive procurement procedures. Specific purchases of goods of more than $2,000 and services of more than $5,000 may be exempted from the competitive procurement procedures when the director determines in writing that the best interests of the department will be served. An exemption may also be declared by the director when an immediate or emergency need exists for goods or services.
B. All purchases shall be made in compliance with the standards of ethics in 11VAC 520420 of this chapter.
C. The department shall not take any procurement action which discriminates on the basis of the race, religion, color, sex, or national origin of any vendor.
D. It is the policy of the Commonwealth of Virginia to contribute to the establishment, preservation, and strengthening of small businesses and businesses owned by women and minorities and to encourage their participation in state procurement activities. Towards that end, the State Lottery Department encourages these firms to compete and encourages nonminority firms to provide for the participation of small businesses and businesses owned by women and minorities through partnerships, joint ventures, subcontracts, and other contractual opportunities.
E. Whenever a purchase is exempt from competitive procurement procedures under this chapter, except purchases of $2,000 or less, the contracting officer is obliged to make a written determination that the cost of the goods or services is reasonable under the circumstances. In making this reasonableness determination, the contracting officer may use historical pricing data, and personal knowledge of product and marketplace conditions.
11VAC 5-20-220. Requests for Information.(Repealed.)
A. A Request for Information (RFI) may be used by the department to determine available sources for goods or services.
B. The RFI shall set out a description of the good or service needed, its purpose and the date by which the department needs the information.
C. The RFI may be mailed to interested parties or published by summary notice in general circulation newspapers or other publications.
1. Additional RFI's may be published for a good or a service, as determined on a casebycase basis.
2. To help ensure competition, the department will ask for information from as many private sector vendors as it determines are necessary.
D. All costs of developing and presenting the information furnished will be paid for by the vendor.
E. The department shall have unlimited use of the information furnished in the reply to an RFI. The department accepts no responsibility for protection of the information furnished unless the vendor requests that proprietary information be protected in the manner prescribed by §1152 D of the Code of Virginia. The department shall have no further obligation to any vendor who furnishes information.
F. The department may, at its option, use the responses to the RFI as a basis for entering directly into negotiation with one or more vendors for the purpose of entering into a contract.
11VAC 5-20-230. Requests for Proposals.(Repealed.)
A. A written Request for Proposals (RFP) may be used by the department to describe in general terms the goods or services to be purchased. An RFP may result in a negotiated contract.
B. The RFP will set forth the due date and list the requirements to be used by the vendors in writing the proposal. It may contain other terms and conditions and essential vendor characteristics.
C. The department shall publish or post a public notice of the RFP.
1. All solicitations shall be posted for not less than five working days on a bulletin board at the State Lottery Department. The notice may also be: mailed to vendors who responded to a Request for Information; published in general circulation newspapers in areas where the contract will be performed; if time permits and at the option of the department, reported to the "Virginia Business Opportunities" at the Department of General Services, Division of Purchases and Supply; and given to any other interested vendor.
2. The department shall decide the method of giving public notice on a casebycase basis. The decision will consider the means which will best serve the department's procurement needs and competition in the private sector.
D. Public openings of the RFP's are not required. If the RFP's are opened in public, only the names of the vendors who submitted proposals will be available to the public.
E. The department will evaluate each vendor proposal.
1. The evaluation will consider the vendor's response to the factors in the RFP.
2. The evaluation will consider whether the vendor is qualified, responsive and responsible for the contract.
F. The department may conduct contract negotiations with one or more qualified vendors. The department may also determine, in its sole discretion, that only one vendor is fully qualified or that one vendor is clearly more highly qualified than the others and negotiate and award a contract to that vendor.
G. Award of RFP contract.
1. The vendor selected shall be qualified and best suited on the basis of the proposal and contract negotiations.
2. Price will be considered but is not necessarily the determining factor.
3. The award document shall be a contract. It shall include requirements, terms and conditions of the RFP and the final contract terms agreed upon.
11VAC 5-20-240. Invitations for Bids.(Repealed.)
A. A written Invitation for Bids (IFB) may be used by the department to describe in detail the specifications, contractual terms and conditions which apply to a purchase of goods or services.
B. The IFB will list special qualifications needed by a vendor. It will describe the contract requirements and set the due date for bid responses.
1. The IFB may contain inspection, testing, quality, and other terms essential to the contract.
2. It may contain other optional data.
C. Public notice of the IFB shall be given.
1. The IFB may be mailed to potential bidders and to the Department of Minority Business Enterprise. In addition, it may be published in summary form stating where a full copy may be obtained in general circulation newspapers in areas where the contract will be performed. The IFB shall be posted for not less than five working days at the department's headquarters in a public area used to post purchase notices, and shall be given to any other interested vendor.
2. The publication of the IFB notice will consider the means which will best serve the department's procurement needs and competition in the private sector.
D. Bids shall be received until the date and time set forth in the IFB. Late bids shall not be considered.
E. The IFB may provide that bids shall be publicly opened. If bids are publicly opened, the following items shall be read aloud:
1. Name of bidder;
2. Unit or lot price, as applicable; and
3. Terms: discount terms offered, if applicable, and brand name and model number, if requested by attendees.
F. The department shall evaluate each vendor bid.
1. The evaluation shall consider whether the bid responds to the factors in the IFB.
2. All bids which respond completely to the IFB shall be evaluated to determine which bid presents the lowest dollar price.
3. The vendor presenting the lowest price bid shall be evaluated to determine whether he is a responsible bidder.
G. The department shall award the contract to the lowest responsive and responsible bidder.
11VAC 5-20-250. Sole source procurements.(Repealed.)
A. A sole source procurement shall be made when there is only one source practicably available for goods or services. Because there is only one source practicably available, a sole source contract may be made without the use of an RFI, RFP, IFB or other competitive procurement process.
B. For a sole source procurement of goods of more than $2,000 and services of $5,000 but not more than $15,000, the department will state in writing for the file that only one source was determined to be practicably available, the vendor selected, the goods or services procured, the date of the procurement and factors leading to the determination of sole source.