Arkansas 2025 Regular Session

Arkansas Senate Bill SB538 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1	1		Stricken language would be deleted from and underlined language would be added to present law.
2		-	Act 782 of the Regular Session
3		-	JLL310 04-07-2025 18:41:04 JLL310
4		-
5		-	State of Arkansas As Engrossed: S4/2/25 S4/7/25 1
	2	+	JLL310 03/20/2025 11:05:48 AM JLL310
	3	+	State of Arkansas 1
6	4		95th General Assembly A Bill 2
7	5		Regular Session, 2025 SENATE BILL 538 3
8	6		4
9		-	By: Senators Gilmore, Hickey, Irvin~~, J. Dotson~~ 5
	7	+	By: Senators Gilmore, Hickey, Irvin 5
10	8		By: Representative Wardlaw 6
11	9		7
12	10		For An Act To Be Entitled 8
13	11		AN ACT TO AMEND THE ARKANSAS PROCUREMENT LAW; AND FOR 9
14	12		OTHER PURPOSES. 10
15	13		11
16	14		12
17	15		Subtitle 13
18	16		TO AMEND THE ARKANSAS PROCUREMENT LAW. 14
19	17		15
20	18		BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: 16
21	19		17
22	20		SECTION 1. Arkansas Code § 19 -11-217(c), concerning the powers and 18
23	21		duties of State Procurement Director, is amended to add an additional 19
24	22		subdivision to read as follows: 20
25	23		(16) Within one hundred twenty (120) days after the effective 21
26	24		date of a new or revised statute or rule relating to procurement, shall 22
27	25		review the procurement materials of the office and revise the procurement 23
28	26		materials to maintain alignment between the procurement materials and the 24
29	27		relevant procurement statutes and rules. 25
30	28		26
31	29		SECTION 2. Arkansas Code § 19 -11-229(f), concerning competitive sealed 27
32	30		bidding, is amended to add an additional subdivision to read as follows: 28
33	31		(4)(A) A state agency may determine that the cost of the bid is 29
34	32		unrealistic. 30
35	33		(B) As used in this subdivision (f)(4), "unrealistic" 31
36	34		means too low to reflect the ability of the bidder to meet the requirements 32
37	35		of the invitation for bids. 33
38	36		(C) The director shall promulgate rules concerning the 34
39	37		requirements for determining that a bid is unrealistic. 35
40		-	36 ~~As Engrossed: S4/2/25 S4/7/25~~ SB538
	38	+	36 SB538
41	39
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43		-
44		-
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45	41		SECTION 3. Arkansas Code § 19 -11-230(c), concerning competitive sealed 1
46	42		proposals, is amended to read as follows: 2
47	43		(c)(1) Public Except as provided in subdivision (c)(2) of this 3
48	44		section, public notice of the request for proposals shall be given in the 4
49	45		same manner as provided in § 19 -11-229(d), which refers to public notice of 5
50	46		competitive sealed bidding. 6
51	47		(2)(A) A request for proposals under this section shall be 7
52	48		issued at least twenty (20) business days before the deadline for the 8
53	49		submission of proposals. 9
54		-	(B) If a request for proposals is reissued ~~before~~ the 10
55		-	~~anticipation to award , the state~~ agency shall extend the original deadline 11
56		-	~~for the submission of proposals by~~ at least ten (10) business days. 12
	50	+	(B) If a request for proposals is reissued, the state 10
	51	+	agency shall extend the original deadline for the submission of proposals by 11
	52	+	at least ten (10) business days. 12
57	53		13
58	54		SECTION 4. Arkansas Code § 19 -11-230(d)(4), concerning competitive 14
59	55		sealed proposals, is amended to read as follows: 15
60	56		(4) A state agency shall : not 16
61	57		(A) Not include prior experience with the state as a 17
62	58		mandatory requirement for submitting a proposal under this section ; 18
63	59		(B) Evaluate the cost of each proposal received from a 19
64	60		responsible offeror in response to a request for proposals under this section 20
65		-	in the state agency's initial evaluation of the proposals; ~~and~~ 21
	61	+	in the state agency's initial evaluation of the proposals; or 21
66	62		(C) Not identify responsible offerors as being reasonably 22
67	63		susceptible of being awarded a contract under this section until the cost 23
68	64		proposal from each responsible offeror has been evaluated . 24
69	65		25
70	66		SECTION 5. Arkansas Code § 19 -11-230(d), concerning competitive sealed 26
71	67		proposals, is amended to add an additional subdivision to read as follows: 27
72	68		(5)(A) A state agency may determine that the cost of the 28
73	69		proposal is unreasonable or unrealistic. 29
74	70		(B) As used in this subdivision (d)(5): 30
75	71		(i) "Unrealistic" means too low to reflect the 31
76	72		ability of the offeror to meet the requirements of the request for proposals; 32
77	73		and 33
78	74		(ii) "Unreasonable" means too high for the 34
79	75		requirements of the request for proposals. 35
80		-	(C) The director shall promulgate rules concerning the 36 ~~As Engrossed: S4/2/25 S4/7/25~~ SB538
	76	+	(C) The director shall promulgate rules concerning the 36 SB538
81	77
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83		-
84		-
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85	79		requirements for determining that the cost of a proposal is unreasonable or 1
86	80		unrealistic. 2
87	81		3
88	82		SECTION 6. Arkansas Code § 19 -11-230(e), concerning competitive sealed 4
89	83		proposals, is amended to add additional subdivisions to read as follows: 5
90	84		(4)(A) Negotiations under this section shall be conducted by a 6
91	85		person who is trained and certified in negotiation and procurement processes. 7
92	86		(B)(i) The office shall provide for the training and 8
93	87		certification required under subdivision (e)(4)(A) of this section. 9
94	88		(ii) The training provided by the office under this 10
95	89		subdivision (e)(4) shall be specific to Arkansas law. 11
96	90		(5) The director shall promulgate rules detailing the 12
97	91		requirements for negotiations under this section. 13
98	92		14
99	93		SECTION 7. Arkansas Code § 19 -11-230, concerning competitive sealed 15
100	94		proposals, is amended to add an additional subsection to read as follows: 16
101	95		(j) A state agency using the method of procurement provided for under 17
102	96		this section shall adhere to the procurement rules, policies, and guidance 18
103	97		issued by the office concerning the scoring of the technical and cost 19
104	98		elements of submitted proposals. 20
105	99		21
106	100		SECTION 8. Arkansas Code § 19 -11-244(a)(5)(B), concerning the 22
107	101		resolution of a protest by a person named in an anticipation to award a 23
108	102		contract, is amended to read as follows: 24
109	103		(B) A response to a protest submitted under subdivision 25
110	104		(a)(5)(A) of this section shall be submitted in writing within five (5) 26
111	105		calendar days of the date the person is given notice of the protest under 27
112	106		subdivision (a)(2)(B) of this section. 28
113	107		29
114	108		SECTION 9. Arkansas Code § 19 -11-244(d), concerning the resolution of 30
115	109		protested solicitations and awards of contracts, is amended to read as 31
116	110		follows: 32
117	111		(d) A copy of the decision under subsection (c) of this section shall 33
118	112		be mailed or otherwise furnished within five (5) calendar days after it is 34
119	113		written to the protestor and any other party intervening. 35
120		-	36 ~~As Engrossed: S4/2/25 S4/7/25~~ SB538
	114	+	36 SB538
121	115
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125	117		SECTION 10. Arkansas Code § 19 -11-244(f), concerning the resolution of 1
126	118		protested solicitations and awards of contracts, is amended to read as 2
127	119		follows: 3
128	120		(f) In the event of a timely protest under subsection (a) of this 4
129	121		section,: the 5
130	122		(1) The state shall not execute a contract that is the result of 6
131	123		the protested solicitation or award unless the director or the head of the 7
132	124		relevant procurement agency makes a written determination that the execution 8
133	125		of the contract without delay is necessary to protect substantial interests 9
134	126		of the state; and 10
135		-	(2) Contract negotiations with the ~~anticipated awardee may~~ 11
136		-	proceed. 12
	127	+	(2) Contract negotiations with the contractor awarded the 11
	128	+	contract may proceed . 12
137	129		13
138		-	SECTION 11. Arkansas Code § 19 -11-245(e) ~~and~~ (f), concerning debarment 14
139		-	~~and~~ suspension under the Arkansas Procurement Law, ~~are~~ amended to read as 15
140		-	~~follows:~~ 16
141		-	~~(e) Notice of Decision.~~ A ~~copy of the decision under subsection (d) of~~ 17
142		-	~~this section shall be mailed or otherwise furnished within five (5) calendar~~ 18
143		-	~~days after it is written to~~ the ~~debarred or suspended person and any other~~ 19
144		-	~~party intervening.~~ 20
145		-	~~(f) Finality~~ of ~~Decision~~. ~~A decision under subsection (d) of this~~ 21
146		-	~~section~~ shall be ~~final and conclusive and not an order as defined in the~~ 22
147		-	~~Arkansas Administrative Procedure Act, § 25 -15-201 et seq~~.~~, but may be~~ 23
148		-	~~appealed~~ to ~~the Secretary of the Department of Shared Administrative Services~~ 24
149		-	~~in accordance with the rules promulgated by the director .~~ 25
150		-	26
151		-	~~SECTION 12. Arkansas Code § 19-11-247(a)–(c), concerning~~ the ~~remedies~~ 27
152		-	~~for unlawful solicitation or award of a contract, are amended to read as~~ 28
153		-	~~follows:~~ 29
154		-	~~(a) The provisions of this~~ section ~~apply where it is determined upon~~ 30
155		-	~~any review provided by law that a solicitation or award~~ the ~~creation~~, 31
156		-	~~solicitation, award, management, or modification of a contract is in~~ 32
157		-	~~violation~~ of ~~law~~. 33
158		-	(b) ~~If prior to award it is determined that a solicitation , or~~ 34
159		-	~~proposed award,~~ or ~~modification of a contract is in violation of law, then~~ 35
160		-	~~the solicitation, or proposed award, or modification shall be:~~ 36 ~~As Engrossed: S4/2/25 S4/7/25~~ SB538
	130	+	SECTION 11. Arkansas Code § 19 -11-245(b)(1), concerning debarment and 14
	131	+	suspension under the Arkansas Procurement Law, is amended to read as follows: 15
	132	+	(b)(1)(A)(i) After reasonable notice to the person involved and 16
	133	+	reasonable opportunity for that person to have a hearing before a committee 17
	134	+	according to rules promulgated by the State Procurement Director , the 18
	135	+	director State Procurement Director or the head of a procurement agency shall 19
	136	+	have authority to debar a person for cause from consideration for award of 20
	137	+	contracts, provided that doing so is in the best interests of the state. 21
	138	+	(ii) The debarment shall not be for a period of more 22
	139	+	than three (3) years. 23
	140	+	(B)(i) The same officer shall have authority to suspend a 24
	141	+	person from consideration for award of contracts, provided that doing so is 25
	142	+	in the best interests of the state and there is probable cause for debarment. 26
	143	+	(ii) The suspension shall not be for a period 27
	144	+	exceeding three (3) months. 28
	145	+	29
	146	+	SECTION 12. Arkansas Code § 19-11-245(e) and (f), concerning debarment 30
	147	+	and suspension under the Arkansas Procurement Law, are amended to read as 31
	148	+	follows: 32
	149	+	(e) Notice of Decision. A copy of the decision under subsection (d) of 33
	150	+	this section shall be mailed or otherwise furnished within five (5) calendar 34
	151	+	days after it is written to the debarred or suspended person and any other 35
	152	+	party intervening. 36 SB538
161	153
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	155	+	(f) Finality of Decision. A decision under subsection (d) of this 1
	156	+	section shall be final and conclusive may be appealed to the Secretary of the 2
	157	+	Department of Shared Administrative Services in accordance with the rules 3
	158	+	promulgated by the director . 4
	159	+	5
	160	+	SECTION 13. Arkansas Code § 19 -11-247(a)–(c), concerning the remedies 6
	161	+	for unlawful solicitation or award of a contract, are amended to read as 7
	162	+	follows: 8
	163	+	(a) The provisions of this section apply where it is determined upon 9
	164	+	any review provided by law that a solicitation or award the establishment, 10
	165	+	solicitation, award, management, or modification of a contract is in 11
	166	+	violation of law. 12
	167	+	(b) If prior to award it is determined that a solicitation , or 13
	168	+	proposed award, or modification of a contract is in violation of law, then 14
	169	+	the solicitation, or proposed award, or modification shall be: 15
	170	+	(1) Cancelled; or 16
	171	+	(2) Revised to comply with the law. 17
	172	+	(c) If after an award it is determined that a solicitation or award 18
	173	+	the establishment, solicitation, award, management, or modification of a 19
	174	+	contract is in violation of law, then in addition to or in lieu of other 20
	175	+	remedies provided by law: 21
	176	+	(1) If the person awarded the contract vendor has not acted 22
	177	+	fraudulently or in bad faith: 23
	178	+	(A) The contract may be ratified and affirmed if it is 24
	179	+	determined that doing so is in the best interests of the state; or 25
	180	+	(B) The contract may be terminated; and 26
	181	+	(2) If the person awarded the contract vendor has acted 27
	182	+	fraudulently or in bad faith: 28
	183	+	(A) The contract may be declared null and void; or 29
	184	+	(B) The person awarded the contract may be directed to 30
	185	+	proceed with performance of the contract and pay such damages, if any, as may 31
	186	+	be appropriate if such action shall be in the best interests of the state. 32
	187	+	33
	188	+	SECTION 14. Arkansas Code § 19 -11-279, concerning requests for 34
	189	+	information, is amended to add an additional subsection to read as follows: 35
	190	+	(f) A response to a request for information under this section is not 36 SB538
163	191
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	193	+	required for a vendor's bid, proposal, or statement of qualifications and 1
	194	+	performance data to be accepted unless the response requirement is: 2
	195	+	(1) Explicitly stated in the invitation for bids, request for 3
	196	+	proposals, or request for statements of qualifications and performance data; 4
	197	+	and 5
	198	+	(2) Approved by the director or the head of the procurement 6
	199	+	agency. 7
	200	+	8
	201	+	SECTION 15. Arkansas Code § 19 -11-280(a), concerning the training and 9
	202	+	certification of procurement personnel, is amended to read as follows: 10
	203	+	(a) The State Procurement Director shall establish a an in-person 11
	204	+	training and certification program to facilitate the training, continuing 12
	205	+	education, and annual certification of state agency procurement personnel. 13
	206	+	14
	207	+	SECTION 16. Arkansas Code § 19 -11-280(c), concerning the training and 15
	208	+	certification of procurement personnel, is amended to read as follows: 16
	209	+	(c)(1) Beginning July 1, 2021, a A state agency employee shall not 17
	210	+	conduct a procurement under this chapter unless the state agency employee is 18
	211	+	certified annually through the training and certification program required 19
	212	+	under this section. 20
	213	+	(2) To maintain certification under this section, a state agency 21
	214	+	employee shall complete a reasonable number of hours of continuing education 22
	215	+	each year, as provided for by rule by the director. 23
	216	+	24
	217	+	SECTION 17. Arkansas Code § 19 -11-280, concerning the training and 25
	218	+	certification of procurement personnel, is amended to add an additional 26
	219	+	subsection to read as follows: 27
	220	+	(e)(1) The director shall report to the Review Subcommittee of the 28
	221	+	Legislative Council concerning: 29
	222	+	(A) The progress made in developing an implementing the 30
	223	+	training and certification program required under this section; and 31
	224	+	(B) The state agencies that have had employees complete 32
	225	+	the training and certification program required under this section. 33
	226	+	(2) The report required under section shall be presented: 34
	227	+	(A) For the first year following the effective date of 35
	228	+	this act, every ninety (90) days; and 36 SB538
164	229
165		-	(1) Cancelled; or 1
166		-	(2) Revised to comply with the law. 2
167		-	(c) If after an award it is determined that a solicitation or award 3
168		-	the creation, solicitation, award, management, or modification of a contract 4
169		-	is in violation of law, then in addition to or in lieu of other remedies 5
170		-	provided by law: 6
171		-	(1) If the person awarded the contract vendor has not acted 7
172		-	fraudulently or in bad faith: 8
173		-	(A) The contract may be ratified and affirmed if it is 9
174		-	determined that doing so is in the best interests of the state; or 10
175		-	(B) The contract may be terminated; and 11
176		-	(2) If the person awarded the contract vendor has acted 12
177		-	fraudulently or in bad faith: 13
178		-	(A) The contract may be declared null and void; or 14
179		-	(B) The person awarded the contract may be directed to 15
180		-	proceed with performance of the contract and pay such damages, if any, as may 16
181		-	be appropriate if such action shall be in the best interests of the state. 17
182		-	18
183		-	SECTION 13. Arkansas Code § 19 -11-279, concerning requests for 19
184		-	information, is amended to add an additional subsection to read as follows: 20
185		-	(f) A response to a request for information under this section is not 21
186		-	required for a vendor's bid, proposal, or statement of qualifications and 22
187		-	performance data to be accepted unless the response requirement is: 23
188		-	(1) Explicitly stated in the invitation for bids, request for 24
189		-	proposals, or request for statements of qualifications and performance data; 25
190		-	and 26
191		-	(2) Approved by the director or the head of the procurement 27
192		-	agency. 28
193		-	29
194		-	SECTION 14. Arkansas Code § 19 -11-280(a), concerning the training and 30
195		-	certification of procurement personnel, is amended to read as follows: 31
196		-	(a)(1) The State Procurement Director shall establish a an in-person 32
197		-	training and certification program to facilitate the training, continuing 33
198		-	education, and annual certification of state agency procurement personnel. 34
199		-	(2) The training and certification program required under 35
200		-	subdivision (a)(1) of this section may be offered through an in -person 36 As Engrossed: S4/2/25 S4/7/25 SB538
201		-
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203		-
204		-
205		-	training course or a live, virtual course. 1
	230	+	7 03/20/2025 11:05:48 AM JLL310
	231	+	(B) Annually each subsequent year. 1
206	232		2
207		-	SECTION 15. Arkansas Code § 19 -11-280(c), concerning the training and 3
208		-	certification of procurement personnel, is amended to read as follows: 4
209		-	(c)(1) Beginning July 1, 2021, a A state agency employee shall not 5
210		-	conduct a procurement under this chapter unless the state agency employee is 6
211		-	certified annually through the training and certification program required 7
212		-	under this section. 8
213		-	(2) To maintain certification under this section, a state agency 9
214		-	employee shall complete a reasonable number of hours of continuing education 10
215		-	each year, as provided for by rule by the director. 11
216		-	12
217		-	SECTION 16. Arkansas Code § 19 -11-280, concerning the training and 13
218		-	certification of procurement personnel, is amended to add an additional 14
219		-	subsection to read as follows: 15
220		-	(e)(1) The director shall report to the Review Subcommittee of the 16
221		-	Legislative Council concerning: 17
222		-	(A) The progress made in developing an implementing the 18
223		-	training and certification program required under this section; and 19
224		-	(B) The state agencies that have had employees complete 20
225		-	the training and certification program required under this section. 21
226		-	(2) The report required under section shall be presented: 22
227		-	(A) For the first year following the effective date of 23
228		-	this act, every ninety (90) days; and 24
229		-	(B) Annually each subsequent year. 25
230		-	26
231		-	SECTION 17. Arkansas Code Title 19, Chapter 11, Subchapter 2, is 27
232		-	amended to add an additional section to read as follows: 28
233		-	19-11-282. Notification to Office of State Procurement. 29
234		-	A state agency other than an institution of higher education shall 30
235		-	notify the Office of State Procurement that the state agency is going to 31
236		-	issue an invitation for bids or a request for proposals at least seven (7) 32
237		-	calendar days before issuing the solicitatio n. 33
238		-	34
239		-	SECTION 18. Arkansas Code § 19 -11-802(c)(2), concerning annual 35
240		-	statements of qualifications and performance data and restrictions on 36 As Engrossed: S4/2/25 S4/7/25 SB538
241		-
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243		-
244		-
245		-	competitive bidding, is amended to read as follows: 1
246		-	(2) A political subdivision shall may elect to not use 2
247		-	competitive bidding for the procurement of other professional services with a 3
248		-	two-thirds (⅔) vote of its governing body. 4
249		-	5
250		-	SECTION 19. DO NOT CODIFY. Repromulgation of rules. 6
251		-	(a) Within one hundred twenty (120) days of the effective date of this 7
252		-	act, the State Procurement Director shall repromulgate all rules related to 8
253		-	the sections of the Arkansas Code amended by this act and the recommendations 9
254		-	adopted by the Executive Subcommittee of the Legislative Council upon the 10
255		-	conclusion of the procurement study conducted for the 2025 regular session to 11
256		-	ensure that the rules promulgated under the sections of the Arkansas Code 12
257		-	that are amended by this act are in line with the intent of the General 13
258		-	Assembly in enacting this act. 14
259		-	(b) The director shall submit a monthly report to the Review 15
260		-	Subcommittee of the Legislative Council concerning his or her progress during 16
261		-	the reporting period in complying with subsection (a) of this section. 17
262		-	18
263		-	/s/Gilmore 19
264		-	20
265		-	21
266		-	APPROVED: 4/17/25 22
267		-	23
268		-	24
269		-	25
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	233	+	SECTION 18. Arkansas Code Title 19, Chapter 11, Subchapter 2, is 3
	234	+	amended to add an additional section to read as follows: 4
	235	+	19-11-282. Notification to Office of State Procurement. 5
	236	+	A state agency shall notify the Office of State Procurement that the 6
	237	+	state agency is going to conduct a solicitation under this chapter or § 19 -7
	238	+	11-801 et seq. at least thirty (30) calendar days before issuing the 8
	239	+	solicitation. 9
	240	+	10
	241	+	SECTION 19. Arkansas Code § 19 -11-802(c)(2), concerning annual 11
	242	+	statements of qualifications and performance data and restrictions on 12
	243	+	competitive bidding, is amended to read as follows: 13
	244	+	(2) A political subdivision shall may elect to not use 14
	245	+	competitive bidding for the procurement of other professional services with a 15
	246	+	two-thirds (⅔) vote of its governing body. 16
	247	+	17
	248	+	SECTION 20. DO NOT CODIFY. Repromulgation of rules. 18
	249	+	(a) Within one hundred twenty (120) days of the effective date of this 19
	250	+	act, the State Procurement Director shall repromulgate all rules related to 20
	251	+	the sections of the Arkansas Code amended by this act and the recommendations 21
	252	+	adopted by the Executive Subcommittee of the Legislative Council upon the 22
	253	+	conclusion of the procurement study conducted for the 2025 regular session to 23
	254	+	ensure that the rules promulgated under the sections of the Arkansas Code 24
	255	+	that are amended by this act are in line with the intent of the General 25
	256	+	Assembly in enacting this act. 26
	257	+	(b) The director shall submit a monthly report to the Review 27
	258	+	Subcommittee of the Legislative Council concerning his or her progress during 28
	259	+	the reporting period in complying with subsection (a) of this section. 29
274	260		30
275	261		31
276	262		32
277	263		33
278	264		34
279	265		35
280	266		36