(a)
The Legislature finds and declares that the award of purchase contracts by the district under competitive bid procedures may not be feasible for products and materials that are undergoing rapid technological changes or for the introduction of new technologies into district operations, and that in these circumstances it is in the public interest to consider the broadest possible range of competing products and materials available, fitness of purpose, manufacturer’s warranty, vendor financing, performance reliability, standardization, life-cycle costs, delivery timetables, support logistics, and other similar factors in addition to price in the award of these contracts.
(b)
(1)Notwithstanding any other provision of law, the board may direct the purchase the following:
(A)
Computers, telecommunications equipment, fare collection equipment, radio and microwave equipment, and other related electronic equipment and apparatus.
(B)
Specialized rail transit equipment, including, but not limited to, railcars or tunnel boring machines, by competitive negotiation upon a finding by two-thirds vote of all members of the board that the purchase of those products or materials 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.
(2)
This section does not apply to contracts for construction or for the procurement of any product available in substantial quantities to the general public.
(c)
Competitive negotiation, for the purposes of this section includes, but is not limited to, all of the following requirements:
(1)
A request for proposals 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, a notice of the request for proposals shall be published at least once in a newspaper of general circulation, which shall be made at least 10 days before the date for receipt of the proposals. The district shall make reasonable efforts 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 proposals shall identify all 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)
Prior to making an award, the district shall prepare a price analysis and shall find that the final negotiated price is fair and reasonable based upon comparable procurements in the marketplace.
(5)
Award shall be made to the qualified proposer whose proposal will be most advantageous to the district with price and other factors considered. If award is not made to the proposer whose proposal contains the lowest price, the district shall make a finding setting forth the basis for the award.
(d)
The district may reject any and all proposals and issue a new request for proposals at its discretion.
(e)
Upon making an award to a qualified proposer, the district, upon request, shall make available to all other proposers and to the public, an analysis of the award that provides the basis for the selection of that particular qualified proposal.
(f)
A person who submits, or who plans to submit, a proposal may protest any acquisition conducted in accordance with this section pursuant to protest procedures established by the board as follows:
(1)
Protests based on the content of the request for proposals shall be filed with the district within 10 calendar days after the request for proposals is first advertised in accordance with subdivision (c). 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 staff recommendation for award has been made available to the public as required by subdivision (e) of Section 20216.
(2)
A 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 staff recommendation for award has been made available to the public as required by subdivision (e) of Section 20216.
(3)
A protest shall contain a full and complete written statement specifying in detail the grounds of the protest and the facts supporting the protest. Protesters shall have an opportunity to appear and be heard before the district prior to the opening of proposals in the case of protests based on the content of the request for proposals, or 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.
(g)
Provisions in a contract concerning women and minority business enterprises, that are in accordance with the request for proposals, shall not be subject to negotiation with the successful bidder.