CA Pub Cont Code Section 20229.1

(a)

Notwithstanding any other provision of law, the governing board of the San Francisco Bay Area Rapid Transit District may direct the purchase of (1) electronic equipment, including, but not limited to, computers, telecommunications equipment, fare collection equipment, and microwave equipment and (2) specialized rail transit equipment, including, but not limited to, rail cars, and contracts for work that include, at a minimum, conversion of the rail car motive power system to alternating current or the complete replacement of existing rail car motive power units that utilize direct current, by competitive negotiation upon a finding by two-thirds of all members of the board that the purchase of that equipment in compliance with provisions of this code generally applicable to the purchase does not constitute a method of procurement adequate for the district’s needs.

(b)

Competitive negotiation, for the purposes of this section, shall include, as a minimum, all of the following elements:

(1)

A request for proposal shall be prepared and submitted to an adequate number of qualified sources, as determined by the district in its discretion, to permit reasonable competition consistent with the nature and requirements of the procurement. In addition, notice of the request for proposal shall be published at least once in a newspaper of general circulation, which publication shall be made at least 10 days before the proposals are received. The district shall make every effort to generate the maximum feasible number of proposals from qualified sources and shall make a finding to that effect before proceeding to negotiate if only a single response to the request for proposal is received.

(2)

The request for proposal shall identify significant evaluation factors, including price, and their relative importance.

(3)

The district shall provide reasonable procedures for technical evaluation of the proposals received, identification of qualified sources, and selection for contract award.

(4)

Award shall be made to the qualified bidder whose proposal will be most advantageous to the district with price and other factors considered. If award is not made to the bidder whose proposal contains the lowest price, the board shall make a finding setting forth the basis for the award.

(c)

The board may reject any and all proposals and request new proposals at its discretion.

(d)

A person who submits, or who plans to submit, a proposal may protest any acquisition conducted in accordance with this section as follows:

(1)

Protests based on the content of the request for proposal shall be filed with the district within 10 calendar days after the request for proposal is first advertised in accordance with subdivision (b). The district shall issue a written decision on the protest prior to opening of proposals. A protest may be renewed by refiling the protest with the district within 15 calendar days after the mailing of the notice of the recommended award.

(2)

Any bidder may protest the recommended award on any ground not based upon the content of the request for proposals by filing a protest with the district within 15 calendar days after the mailing of the notice of the recommended award.

(3)

Any protest shall contain a full and complete written statement specifying in detail the grounds of the protest and the facts supporting the protest. Protestors shall have an opportunity to appear and be heard before the board prior to the opening of proposals in the case of protests based on the content of the request for proposals, prior to final award in the case of protests based on other grounds or the renewal of protests based on the content of the request for proposals.

(e)

Where the district, through competitive negotiation, has entered into lease agreements for equipment of the type specified in subdivision (a) subsequent to December 1, 1980, the district may purchase the equipment directly from the lessor upon a finding by two-thirds of all members of the board that the purchase of that equipment in compliance with provisions of this code generally applicable to the purchase does not constitute a method of procurement adequate for the district’s needs.

(f)

Provisions in any contract concerning women and minority business enterprises, which provisions are in accordance with the request for proposals, shall not be subject to negotiation with the successful bidder.