Missouri Revised Statutes

Chapter 34
State Purchasing and Printing

redbar


Definitions.

34.010. 1. The term "department" as used in this chapter shall be deemed to mean department, office, board, commission, bureau, institution, or any other agency of the state, except the legislative and judicial departments.

2. The term "lowest and best" in determining the lowest and best award, cost, and other factors are to be considered in the evaluation process. Factors may include, but are not limited to, value, performance, and quality of a product.

3. The term "Missouri product" refers to goods or commodities which are manufactured, mined, produced, or grown by companies in Missouri, or services provided by such companies.

4. The term "negotiation" as used in this chapter means the process of selecting a contractor by the competitive methods described in this chapter, whereby the commissioner of administration can establish any and all terms and conditions of a procurement contract by discussion with one or more prospective contractors.

5. The term "purchase" as used in this chapter shall include the rental or leasing of any equipment, articles or things.

6. The term "supplies" used in this chapter shall be deemed to mean supplies, materials, equipment, contractual services and any and all articles or things, except for utility services regulated under chapter 393 or as in this chapter otherwise provided.

7. The term "value" includes but is not limited to price, performance, and quality. In assessing value, the state purchaser may consider the economic impact to the state of Missouri for Missouri products versus the economic impact of products generated from out of state. This economic impact may include the revenues returned to the state through tax revenue obligations.

(RSMo 1939 § 14599, A.L. 1945 p. 1428 § 73, A.L. 1965 p. 142, A.L. 1995 H.B. 562, A.L. 2004 S.B. 1249)

CROSS REFERENCE:

Commissioner of administration to head division of purchasing, 37.010

Shall purchase all supplies and lands.

34.030. The commissioner of administration shall purchase all supplies for all departments of the state, except as in this chapter otherwise provided. The commissioner of administration shall negotiate all leases and purchase all lands, except for such departments as derive their power to acquire lands from the constitution of the state.

(RSMo 1939 § 14590, A.L. 1945 p. 1428 § 64)

CROSS REFERENCES:

Contracts, advertisement of bids for construction work, 8.250

Printing or copying equipment, contracts or leases approval required, 37.350

Recycled products, preference for products made from solidwaste--elimination of purchase of products made from polystyrenefoam--commissioner of administration, duties--report.

34.031. 1. The commissioner of administration, in consultation with the environmental improvement and energy resources authority of the department of natural resources, shall give full consideration to the purchase of products made from materials recovered from solid waste and to the reduction and ultimate elimination of purchases of products manufactured in whole or in part of thermoformed or other extruded polystyrene foam manufactured using any fully halogenated chlorofluorocarbon (CFC). Products that utilize recovered materials of a price and quality comparable to products made from virgin materials shall be sought and purchased, with particular emphasis on recycled oil, retread tires, compost materials and recycled paper products. The commissioner shall exercise a preference for such products if their use is technically feasible and, where a bid is required, their price is equal to, or less than, the price of items which are manufactured or produced from virgin materials. Products that would be inferior, violate safety standards or violate product warranties if the provisions of this section are followed may be excluded from the provisions of this section.

2. The commissioner of administration shall:

(1) Review the procurement specifications in order to eliminate discrimination against the procurement of recycled products;

(2) Review and modify the contract specifications for paper products and increase the minimum required percentage of recycled paper in each product as follows:

(a) Forty percent recovered materials for newsprint;

(b) Eighty percent recovered materials for paperboard;

(c) Fifty percent waste paper in high grade printing and writing paper;

(d) Five to forty percent in tissue products;

(3) Support federal incentives and policy guidelines designed to promote these goals;

(4) Develop and implement a cooperative procurement policy to facilitate bulk order purchases and to increase availability of recycled products. The policy shall be distributed to all state agencies and shall be made available to political subdivisions of the state;

(5) Conduct a survey using existing staff of those items customarily required by the state that are manufactured in whole or part from polystyrene plastic, and report its findings, together with an analysis of environmentally acceptable alternatives thereto, prepared in collaboration with the department of natural resources, to the general assembly and every state agency within six months of August 28, 1995.

3. Notwithstanding the provisions of this section, no state agency may purchase any food or beverage containers or wrapping manufactured from any polystyrene foam manufactured using any fully halogenated chlorofluorocarbon (CFC) found by the United States Environmental Protection Agency (EPA) to be an ozone-depleting chemical.

4. No state agency may purchase any items made in whole or part of thermoformed or other extruded polystyrene foam manufactured using any fully halogenated chlorofluorocarbon (CFC) found by the United States Environmental Protection Agency (EPA) to be an ozone-depleting chemical without approval from the commissioner of administration. Approval shall not be granted unless the purchasing agency demonstrates to the satisfaction of the director of the department of natural resources and the commissioner that there is no environmentally more acceptable alternatives or the quality of such alternatives is not adequate for the purpose intended.

5. For each paper product type and corresponding recycled paper content standard pursuant to subdivision (2) of subsection 2 of this section, attainment goals for the percentage of paper products to be purchased that utilize post-consumer recovered materials shall be:

(1) Ten percent in 1991 and 1992;

(2) Twenty-five percent in 1993 and 1994;

(3) Forty percent in 1995; and

(4) Sixty percent by 2000.

6. In the review of capital improvement projects for buildings and facilities of state government, the commissioner of administration shall direct the division of facilities management, design and construction to give full consideration to alternatives which use solid waste, as defined in section 260.200, as a fuel for energy production or which use products composed of materials recovered from solid waste.

7. The commissioner of administration, in consultation with the environmental improvement and energy resources authority of the department of natural resources, shall prepare and provide by January first of each year an annual report summarizing past activities and accomplishments of the program and proposed goals of the program including projections for each affected agency. The report shall also include a list of products utilizing recovered materials that could substitute for products currently purchased and a schedule of amounts purchased of products utilizing recovered materials compared to purchases of similar products utilizing virgin materials for the period covered by the annual report.

8. The office of administration, department of natural resources and department of economic development shall cooperate jointly and share to the greatest extent possible, information and other resources to promote:

(1) Producers or potential producers of secondary material goods to expand or develop their product lines;

(2) Increased demand for secondary materials recovered in Missouri; and

(3) Increased demand by state government for products which contain secondary materials recovered in Missouri.

9. The commissioner of administration may increase minimum recycled content percentages for paper products, minimum recycled content percentages for other recycled products and establish minimum post-consumer content as such products become available. The preference provided in subsection 1 of this section shall apply to the minimum standards established by the commissioner.

(L. 1986 S.B. 475, A.L. 1989 H.B. 438, et al., A.L. 1990 S.B. 530, A.L. 1995 H.B. 562, A.L. 2014 H.B. 1299 Revision)

Recycled paper to be used, when--recyclable products to be collectedby all state agencies--sale proceeds to fund utilicare.

34.032. 1. The provisions of section 34.040 to the contrary notwithstanding, each department and agency of the state government, including the general assembly, shall purchase, in the manner provided by law, and use recycled paper when recycled paper can be obtained that is comparable to the quality presently used by the department or agency and if the price is competitive. For the purposes of this section, "competitive" means a price within ten percent of the price of items which are manufactured or produced from virgin materials. Attainment goals for the percentage of paper products to be purchased that utilize post-consumer recovered materials shall be:

(1) Ten percent in 1991 and 1992;

(2) Twenty-five percent in 1993 and 1994;

(3) Forty percent in 1995; and

(4) Sixty percent by 2000.

2. Each department and agency of state government shall also purchase a minimum of fifteen percent recycled motor oil for use in motor vehicles.

3. Each department and agency of state government shall cause to be recycled:

(1) A minimum of twenty-five percent of paper products used or fifty percent of the paper disposed of, whichever is greater;

(2) Seventy-five percent of all used motor oil.

4. Each department and state agency shall, to the maximum extent practicable, separate plastics, paper, metals and other recyclable items by July 1, 1990.

5. By January 1, 1990, each department and state agency shall develop, in cooperation with the office of administration, and implement a policy for recycling and waste reduction. Each department and agency shall collect and recycle waste paper and empty aluminum beverage containers generated by employee activity. The office of the governor and the general assembly shall implement a policy for recycling and waste reduction and shall collect and recycle waste paper and aluminum beverage containers generated within its facilities. Recycling programs for agency offices located outside of the city of Jefferson may be coordinated through the office of administration or operated locally provided that the office of administration reviews and approves such programs. Proceeds from the sale of recycled materials may be used to offset costs of the recycling program. Any moneys found by the office of administration to be in excess of costs incurred shall be transferred to the department of social services to be used by the heating assistance program pursuant to sections 660.100 to 660.135.

6. The department of higher education, in cooperation with the office of administration and state colleges and universities, shall develop and distribute guidelines for waste reduction and the collection of recyclable materials generated in classrooms, administrative offices, dormitories, cafeterias and similar campus locations.

7. Bid specifications for solid waste management services issued by any department or agency of state government shall be designed to meet the objectives of sections 260.255 to 260.325, encourage small businesses to engage and compete in the delivery of waste management services and to minimize the long run cost of managing solid waste. Bid specifications shall enumerate the minimum components and minimum quantities of waste products which shall be recycled by the successful bidder. Bids for solid waste management services to state departments and agencies located within the seat of government shall be issued in units in order to maximize opportunities for small business to provide solid waste management services to the state. Each department and agency shall designate one person in an existing position to serve as a solid waste management coordinator to ensure that the agency and the office of administration cooperate to meet the requirements of this section.

(L. 1973 H.B. 384 § 1, A.L. 1989 H.B. 438, et al.)

Purchases to be made on competitive bids, when, how--standardspecifications, when--exception--failure to pay taxes, effect of.

34.040. 1. All purchases in excess of three thousand dollars shall be based on competitive bids, except as otherwise provided in this chapter.

2. On any purchase where the estimated expenditure shall be twenty-five thousand dollars or over, except as provided in subsection 6 of this section, the commissioner of administration shall:

(1) Advertise for bids in at least two daily newspapers of general circulation in such places as are most likely to reach prospective bidders and may advertise in at least two weekly minority newspapers and may provide such information through an electronic medium available to the general public at least five days before bids for such purchases are to be opened. Other methods of advertisement, which may include minority business purchase councils, however, may be adopted by the commissioner of administration when such other methods are deemed more advantageous for the supplies to be purchased;

(2) Post a notice of the proposed purchase in his or her office; and

(3) Solicit bids by mail or other reasonable method generally available to the public from prospective suppliers. All bids for such supplies shall be mailed or delivered to the office of the commissioner of administration so as to reach such office before the time set for opening bids.

3. The contract shall be let to the lowest and best bidder. The commissioner of administration shall have the right to reject any or all bids and advertise for new bids, or purchase the required supplies on the open market if they can be so purchased at a better price. When bids received pursuant to this section are unreasonable or unacceptable as to terms and conditions, noncompetitive, or the low bid exceeds available funds and it is determined in writing by the commissioner of administration that time or other circumstances will not permit the delay required to resolicit competitive bids, a contract may be negotiated pursuant to this section, provided that each responsible bidder who submitted such bid under the original solicitation is notified of the determination and is given a reasonable opportunity to modify their bid and submit a best and final bid to the state. In cases where the bids received are noncompetitive or the low bid exceeds available funds, the negotiated price shall be lower than the lowest rejected bid of any responsible bidder under the original solicitation.

4. The director of the department of revenue shall follow bidding procedures as contained in this chapter and may promulgate rules necessary to establish such procedures. No points shall be awarded on a request for proposal for a contract license office to a bidder for a return-to-the-state provision offer.

5. All bids shall be based on standard specifications wherever such specifications have been approved by the commissioner of administration. The commissioner of administration shall make rules governing the delivery, inspection, storage and distribution of all supplies so purchased and governing the manner in which all claims for supplies delivered shall be submitted, examined, approved and paid. The commissioner shall determine the amount of bond or deposit and the character thereof which shall accompany bids or contracts.

6. The department of natural resources may, without the approval of the commissioner of administration required pursuant to this section, enter into contracts of up to five hundred thousand dollars to abate illegal waste tire sites pursuant to section 260.276 when the director of the department determines that urgent action is needed to protect public health, safety, natural resources or the environment. The department shall follow bidding procedures pursuant to this section and may promulgate rules necessary to establish such procedures. Any rule or portion of a rule, as that term is defined in section 536.010, that is created under the authority delegated in this section shall become effective only if it complies with and is subject to all of the provisions of chapter 536 and, if applicable, section 536.028. This section and chapter 536 are nonseverable and if any of the powers vested with the general assembly pursuant to chapter 536 to review, to delay the effective date or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, 1999, shall be invalid and void.

7. The commissioner of administration and other agencies to which the state purchasing law applies shall not contract for goods or services with a vendor if the vendor or an affiliate of the vendor makes sales at retail of tangible personal property or for the purpose of storage, use, or consumption in this state but fails to collect and properly pay the tax as provided in chapter 144. For the purposes of this section, "affiliate of the vendor" shall mean any person or entity that is controlled by or is under common control with the vendor, whether through stock ownership or otherwise.

(RSMo 1939 § 14591, A.L. 1945 p. 1428 § 65, A.L. 1983 H.B. 384, A.L. 1990 S.B. 808 & 672, A.L. 1995 H.B. 562, A.L. 1999 H.B. 603, A.L. 2003 H.B. 600, A.L. 2015 H.B. 137)

Effective 7-14-15

CROSS REFERENCE:

Bidding for construction of a minimum security correctional facility, 221.500

Competitive bidding may be waived for competitive proposals,when--procedure--contract to be let to the lowest and best offeror.

34.042. 1. When the commissioner of administration determines that the use of competitive bidding is either not practicable or not advantageous to the state, supplies may be procured by competitive proposals. The commissioner shall state the reasons for such determination, and a report containing those reasons shall be maintained with the vouchers or files pertaining to such purchases. All purchases in excess of five thousand dollars to be made under this section shall be based on competitive proposals.

2. On any purchase where the estimated expenditure shall be twenty-five thousand dollars or over, the commissioner of administration shall:

(1) Advertise for proposals in at least two daily newspapers of general circulation in such places as are most likely to reach prospective offerors and may advertise in at least two weekly minority newspapers and may provide such information through an electronic medium available to the general public at least five days before proposals for such purchases are to be opened. Other methods of advertisement, however, may be adopted by the commissioner of administration when such other methods are deemed more advantageous for the supplies to be purchased;

(2) Post notice of the proposed purchase; and

(3) Solicit proposals by mail or other reasonable method generally available to the public from prospective offerors.

All proposals for such supplies shall be mailed or delivered to the office of the commissioner of administration so as to reach such office before the time set for opening proposals. Proposals shall be opened in a manner to avoid disclosure of contents to competing offerors during the process of negotiation.

3. The contract shall be let to the lowest and best offeror as determined by the evaluation criteria established in the request for proposal and any subsequent negotiations conducted pursuant to this subsection. In determining the lowest and best offeror, as provided in the request for proposals and under rules promulgated by the commissioner of administration, negotiations may be conducted with responsible offerors who submit proposals selected by the commissioner of administration on the basis of reasonable criteria for the purpose of clarifying and assuring full understanding of and responsiveness to the solicitation requirements. Those offerors shall be accorded fair and equal treatment with respect to any opportunity for negotiation and subsequent revision of proposals. Revisions may be permitted after submission and before award for the purpose of obtaining best and final offers. In conducting negotiations there shall be no disclosure of any information derived from proposals submitted by competing offerors. The commissioner of administration shall have the right to reject any or all proposals and advertise for new proposals or purchase the required supplies on the open market if they can be so purchased at a better price.

4. The commissioner shall make available, upon request, to any members of the general assembly, information pertaining to competitive proposals, including the names of bidders and the amount of each bidder's offering for each contract.

(L. 1990 S.B. 808 & 672 § 4, A.L. 1995 H.B. 562)

Competitive bidding--waiver of permitted, when.

34.043. The commissioner of administration may waive competitive bids for the purchase of supplies for the purpose of resale to the general public in concession operations controlled by the state.

(L. 1990 S.B. 808 & 672 § 5)

One source of supplies, waiver of competitive bids andproposals--recession of waiver, when--single source exists,when--advertising waived, when.

34.044. 1. The commissioner of administration may waive the requirement of competitive bids or proposals for supplies when the commissioner has determined in writing that there is only a single feasible source for the supplies. Immediately upon discovering that other feasible sources exist, the commissioner shall rescind the waiver and proceed to procure the supplies through the competitive processes as described in this chapter. A single feasible source exists when:

(1) Supplies are proprietary and only available from the manufacturer or a single distributor; or

(2) Based on past procurement experience, it is determined that only one distributor services the region in which the supplies are needed; or

(3) Supplies are available at a discount from a single distributor for a limited period of time.

2. On any single feasible source purchase where the estimated expenditure shall be five thousand dollars or over, the commissioner of administration shall post notice of the proposed purchase. Where the estimated expenditure is twenty-five thousand dollars or over, the commissioner of administration shall also advertise the commissioner's intent to make such purchase in at least two daily newspapers of general circulation in such places as are most likely to reach prospective bidders or offerors and may provide such information through an electronic medium available to the general public at least five days before the contract is to be let. Other methods of advertisement, however, may be adopted by the commissioner of administration when such other methods are deemed more advantageous for the supplies to be purchased. The requirement for advertising may be waived, if not feasible, due to the supplies being available at a discount for only a limited period of time.

(L. 1995 H.B. 562)

Emergency procurement, waiver of competitive bids or proposals.

34.045. The commissioner of administration may waive the requirement of competitive bids or proposals for supplies when the commissioner of administration has determined that there exists a threat to life, property, public health or public safety or when immediate expenditure is necessary for repairs to state property in order to protect against further loss of, or damage to, state property, to prevent or minimize serious disruption in state services or to ensure the integrity of state records. Emergency procurements shall be made with as much competition as is practicable under the circumstances.

(L. 1995 H.B. 562)

Contract directly with other governmental entities for purchase ofsupplies.

34.046. The commissioner of administration may contract directly with other governmental entities for the purchase of supplies. The commissioner of administration may also participate in, sponsor, conduct or administer a cooperative purchasing agreement whereby supplies are procured in accordance with a contract established by another governmental entity provided that such contract was established in accordance with the laws and regulations applicable to the establishing governmental entity.

(L. 1995 H.B. 562)

Information technology purchases, online bidding/vendor registrationsystem to be used for notice, when.

34.047. Notwithstanding any provision in section 34.040, section 34.100, or any other law to the contrary, departments shall have the authority to purchase products and services related to information technology when the estimated expenditure of such purchase shall not exceed seventy-five thousand dollars, the length of any contract or agreement does not exceed twelve months, the department complies with the informal methods of procurement established in section 34.040, and 1 CSR 40-1.050(1) for expenditures of less than twenty-five thousand dollars, and the department posts notice of such proposed purchase on the online bidding/vendor registration system maintained by the office of administration. For the purposes of this section, "information technology" shall mean any computer or electronic information equipment or interconnected system that is used in the acquisition, storage, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of information, including audio, graphic, and text.

(L. 2010 H.B. 1868)

General Services Administration vendors, purchase of suppliesauthorized.

34.048. In any contract for purchasing supplies as defined in section 34.010 not exceeding the threshold for competitive bids set forth under section 34.040, the office of administration shall not prevent any department, office, board, commission, bureau, institution, political subdivision, or any other agency of the state from purchasing supplies from an authorized General Services Administration vendor including "GSA Advantage", "GSA e-Buy", or successor sources.

(L. 2010 H.B. 1868 § 1 merged with S.B. 844)

(2012) This section and section 37.900 relating to procurement severed from the remainder of Senate Bill 844 and remain valid. The remainder of Senate Bill 844 declared unconstitutional as a violation of the original purpose requirement of Art. III, Sec. 21, Constitution of Missouri. Legends Bank v. State, 361 S.W.3d 383 (Mo. banc).

Regulations for purchase of supplies--rules generally, promulgation,procedure.

34.050. The commissioner of administration shall make and adopt such rules and regulations, not contrary to the provisions of this chapter, for the purchase of supplies and prescribing the purchasing policy of the state as may be necessary. No rule or portion of a rule promulgated under the authority of this chapter shall become effective unless it has been promulgated pursuant to the provisions of section 536.024.

(RSMo 1939 § 14596, A.L. 1945 p. 1428 § 70, A.L. 1993 S.B. 52, A.L. 1995 H.B. 562 merged with S.B. 3)

State to pay late charges for supplies and services, when,rate--vendor to apply, exception--energy assistance program forpersons of low income, recipients exempt from interest charges.

34.055. 1. Except as otherwise provided in section 34.057, all invoices for supplies and services purchased by the state, duly approved and processed, shall be subject to interest charges or late payment charges as provided in this section.

2. After the forty-fifth day following the later of the date of delivery of the supplies and services or the date upon which the invoice is duly approved and processed, interest retroactive to the thirtieth day shall be paid on any unpaid balance, except balances for services provided by a gas corporation, electrical corporation, water corporation, or sewer corporation which has received authorization from the public service commission to impose late payment charges on delinquent utility bills, upon application of the vendor thereof. The rate of such interest shall be three percentage points above the average predominant prime rate quoted by commercial banks to large businesses, as determined by the Board of Governors of the Federal Reserve System.

3. The state shall be liable for late payment charges on any delinquent bill for services purchased by the state from a gas corporation, electrical corporation, water corporation, or sewer corporation which has received authorization from the public service commission to impose late payment charges on delinquent utility bills. The rate of such late payment charges shall be as established for each such corporation by order of the public service commission, but bills rendered to the state shall not be considered delinquent until thirty days after rendition of the bill by the corporation.

4. Any such interest charges or late payment charges shall be paid from appropriations which were made for the fiscal year in which the supplies or services were delivered to the respective departments purchasing such supplies or services. The commissioner of administration shall be responsible for the timely implementation of this section and all officers, departments, institutions and agencies of state government shall fully cooperate with the commissioner of administration in the implementation of this section. No late payment penalty shall be assessed against, nor payable by, the state unless pursuant to the provisions of this section.

5. Notwithstanding any other provision of this section, recipients of funds from the low-income energy assistance program shall be exempt from interest charges imposed by such section for the duration of the recipient's participation in the program.

(L. 1985 S.B. 90, A.L. 1987 S.B. 411, A.L. 1990 S.B. 808 & 672)

Public works contracts--prompt payment by public owner to contractor,engineer, architect, or surveyor--prompt payment by contractor tosubcontractor--progress payments--retainage--late paymentcharges--withholding of payments.

34.057. 1. Unless contrary to any federal funding requirements or unless funds from a state grant are not timely received by the contracting public municipality but notwithstanding any other law to the contrary, all public works contracts made and awarded by the appropriate officer, board or agency of the state or of a political subdivision of the state or of any district therein, including any municipality, county and any board referred to as the public owner, for construction, reconstruction or alteration of any public works project, shall provide for prompt payment by the public owner to the contractor, and any professional engineer, architect, landscape architect, or land surveyor, as well as prompt payment by the contractor to the subcontractor and material supplier in accordance with the following:

(1) A public owner shall make progress payments to the contractor and any professional engineer, architect, landscape architect, or land surveyor on at least a monthly basis as the work progresses, or, on a lump sum basis according to the terms of the lump sum contract. Except in the case of lump sum contracts, payments shall be based upon estimates prepared at least monthly of work performed and material delivered, as determined by the project architect or engineer. Retainage withheld on any construction contract or subcontract for public works projects shall not exceed five percent of the value of the contract or subcontract. If the contractor is not required to obtain a bond under section 107.170 because the cost of the public works contract is not estimated to exceed fifty thousand dollars, the public owner may withhold retainage on the public works project in an amount not to exceed ten percent of the value of the contract or subcontract. The public owner shall pay the contractor the amount due, less a retainage, within thirty days following the latter of the following:

(a) The date of delivery of materials or construction services purchased;

(b) The date, as designated by the public owner, upon which the invoice is duly delivered to the person or place designated by the public owner; or

(c) In those instances in which the contractor approves the public owner's estimate, the date upon which such notice of approval is duly delivered to the person or place designated by the public owner;

(2) Payments shall be considered received within the context of this section when they are duly posted with the United States Postal Service or other agreed upon delivery service or when they are hand-delivered to an authorized person or place as agreed to by the contracting parties;

(3) If, in the discretion of the owner and the project architect or engineer and the contractor, it is determined that a subcontractor's performance has been completed and the subcontractor can be released prior to substantial completion of the public works contract without risk to the public owner, the contractor shall request such adjustment in retainage, if any, from the public owner as necessary to enable the contractor to pay the subcontractor in full. The public owner may reduce or eliminate retainage on any contract payment if, in the public owner's opinion, the work is proceeding satisfactorily. If retainage is released and there are any remaining minor items to be completed, an amount equal to one hundred fifty percent of the value of each item as determined by the public owner's duly authorized representatives shall be withheld until such item or items are completed;

(4) The public owner shall pay at least ninety-eight percent of the retainage, less any offsets or deductions authorized in the contract or otherwise authorized by law, to the contractor. The contractor shall pay the subcontractor or supplier after substantial completion of the contract work and acceptance by the public owner's authorized contract representative, or as may otherwise be provided by the contract specifications for state highway, road or bridge projects administered by the state highways and transportation commission. Such payment shall be made within thirty days after acceptance, and the invoice and all other appropriate documentation and certifications in complete and acceptable form are provided, as may be required by the contract documents. If the public owner or the owner's representative determines the work is not substantially completed and accepted, then the owner or the owner's representative shall provide a written explanation of why the work is not considered substantially completed and accepted within fourteen calendar days to the contractor, who shall then provide such notice to the subcontractor or suppliers responsible for such work. If such written explanation is not given by the public body, the public body shall pay at least ninety-eight percent of the retainage within thirty calendar days. If at that time there are any remaining minor items to be completed, an amount equal to one hundred fifty percent of the value of each item as determined by the public owner's representative shall be withheld until such items are completed;

(5) All estimates or invoices for supplies and services purchased, approved and processed, or final payments, shall be paid promptly and shall be subject to late payment charges provided in this section. Except as provided in subsection 4 of this section, if the contractor has not been paid within thirty days as set forth in subdivision (1) of subsection 1 of this section, the contracting agency shall pay the contractor, in addition to the payment due him, interest at the rate of one and one-half percent per month calculated from the expiration of the thirty-day period until fully paid;

(6) When a contractor receives any payment, the contractor shall pay each subcontractor and material supplier in proportion to the work completed by each subcontractor and material supplier his application less any retention not to exceed five percent. If the contractor receives less than the full payment due under the public construction contract, the contractor shall be obligated to disburse on a pro rata basis those funds received, with the contractor, subcontractors and material suppliers each receiving a prorated portion based on the amount of payment. When, however, the public owner does not release the full payment due under the contract because there are specific areas of work or materials he is rejecting or because he has otherwise determined such areas are not suitable for payment then those specific subcontractors or suppliers involved shall not be paid for that portion of the work rejected or deemed not suitable for payment; provided the public owner or the owner's representative gives a written explanation to the contractor, subcontractor, or supplier involved as to why the work or supplies were rejected or deemed not suitable for payment, and all other subcontractors and suppliers shall be paid in full;

(7) If the contractor, without reasonable cause, fails to make any payment to his subcontractors and material suppliers within fifteen days after receipt of payment under the public construction contract, the contractor shall pay to his subcontractors and material suppliers, in addition to the payment due them, interest in the amount of one and one-half percent per month, calculated from the expiration of the fifteen-day period until fully paid. This subdivision shall also apply to any payments made by subcontractors and material suppliers to their subcontractors and material suppliers and to all payments made to lower tier subcontractors and material suppliers throughout the contracting chain;

(8) The public owner shall make final payment of all moneys owed to the contractor, including any retainage withheld under subdivision (4) of this subsection, less any offsets or deductions authorized in the contract or otherwise authorized by law, within thirty days of the due date. Final payment shall be considered due upon the earliest of the following events:

(a) Completion of the project and filing with the owner of all required documentation and certifications, in complete and acceptable form, in accordance with the terms and conditions of the contract;

(b) The project is certified by the architect or engineer authorized to make such certification on behalf of the owner as having been completed, including the filing of all documentation and certifications required by the contract, in complete and acceptable form; or

(c) The project is certified by the contracting authority as having been completed, including the filing of all documentation and certifications required by the contract, in complete and acceptable form.

2. Nothing in this section shall prevent the contractor or subcontractor, at the time of application or certification to the public owner or contractor, from withholding such applications or certifications to the owner or contractor for payment to the subcontractor or material supplier. Amounts intended to be withheld shall not be included in such applications or certifications to the public owner or contractor. Reasons for withholding such applications or certifications shall include, but not be limited to, the following: unsatisfactory job progress; defective construction work or material not remedied; disputed work; failure to comply with other material provisions of the contract; third-party claims filed or reasonable evidence that a claim will be filed; failure of the subcontractor to make timely payments for labor, equipment and materials; damage to a contractor or another subcontractor or material supplier; reasonable evidence that the contract cannot be completed for the unpaid balance of the subcontract sum or a reasonable amount for retention, not to exceed the initial percentage retained by the owner.

3. Should the contractor determine, after application or certification has been made and after payment has been received from the public owner, or after payment has been received by a contractor based upon the public owner's estimate of materials in place and work performed as provided by contract, that all or a portion of the moneys needs to be withheld from a specific subcontractor or material supplier for any of the reasons enumerated in this section, and such moneys are withheld from such subcontractor or material supplier, then such undistributed amounts shall be specifically identified in writing and deducted from the next application or certification made to the public owner or from the next estimate by the public owner of payment due the contractor, until a resolution of the matter has been achieved. Disputes shall be resolved in accordance with the terms of the contract documents. Upon such resolution the amounts withheld by the contractor from the subcontractor or material supplier shall be included in the next application or certification made to the public owner or the next estimate by the public owner and shall be paid promptly in accordance with the provisions of this section. This subsection shall also apply to applications or certifications made by subcontractors or material suppliers to the contractor and throughout the various tiers of the contracting chain.

4. The contracts which provide for payments to the contractor based upon the public owner's estimate of materials in place and work performed rather than applications or certifications submitted by the contractor, the public owner shall pay the contractor within thirty days following the date upon which the estimate is required by contract to be completed by the public owner, the amount due less a retainage not to exceed five percent. All such estimates by the public owner shall be paid promptly and shall be subject to late payment charges as provided in this subsection. After the thirtieth day following the date upon which the estimate is required by contract to be completed by the public owner, the contracting agency shall pay the contractor, in addition to the payment due him, interest at a rate of one and one-half percent per month calculated from the expiration of the thirty-day period until fully paid.

5. The public owner shall pay or cause to be paid to any professional engineer, architect, landscape architect, or land surveyor the amount due within thirty days following the receipt of an invoice prepared and submitted in accordance with the contract terms. In addition to the payment due, the contracting agency shall pay interest at the rate of one and one-half percent per month calculated from the expiration of the thirty-day period until fully paid.

6. Nothing in this section shall prevent the owner from withholding payment or final payment from the contractor, or a subcontractor or material supplier. Reasons for withholding payment or final payment shall include, but not be limited to, the following: liquidated damages; unsatisfactory job progress; defective construction work or material not remedied; disputed work; failure to comply with any material provision of the contract; third party claims filed or reasonable evidence that a claim will be filed; failure to make timely payments for labor, equipment or materials; damage to a contractor, subcontractor or material supplier; reasonable evidence that a subcontractor or material supplier cannot be fully compensated under its contract with the contractor for the unpaid balance of the contract sum; or citation by the enforcing authority for acts of the contractor or subcontractor which do not comply with any material provision of the contract and which result in a violation of any federal, state or local law, regulation or ordinance applicable to that project causing additional costs or damages to the owner.

7. Nothing in this section shall be construed to require direct payment by a public owner to a subcontractor or supplier, except in the case of the default, as determined by a court, of the contractor on the contract with the public owner where no performance or payment bond is required or where the surety fails to execute its duties, as determined by a court.

8. Notwithstanding any other provisions in this section to the contrary, no late payment interest shall be due and owing for payments which are withheld in good faith for reasonable cause pursuant to subsections 2, 5, and 6 of this section. If it is determined by a court of competent jurisdiction that a payment which was withheld pursuant to subsections 2, 5, and 6 of this section was not withheld in good faith for reasonable cause, the court may impose interest at the rate of one and one-half percent per month calculated from the date of the invoice and may, in its discretion, award reasonable attorney fees to the prevailing party. In any civil action or part of a civil action brought pursuant to this section, if a court determines after a hearing for such purpose that the cause was initiated, or a defense was asserted, or a motion was filed, or any proceeding therein was done frivolously and in bad faith, the court shall require the party who initiated such cause, asserted such defense, filed such motion, or caused such proceeding to be had to pay the other party named in such action the amount of the costs attributable thereto and reasonable expenses incurred by such party, including reasonable attorney fees.

(L. 1990 S.B. 808 & 672 § 1, A.L. 2014 S.B. 529)

Public works contract, defined--certain contract clauses againstpublic policy--exceptions.

34.058. 1. As used in this section, the term "public works contract" means a contract of the state, county, city and other political subdivisions of the state, except the Missouri transportation department, for the construction, alteration, repair, or maintenance of any building, structure, highway, bridge, viaduct, pipeline, public works, or any other works dealing with construction, which shall include, but need not be limited to, moving, demolition, or excavation performed in conjunction with such work.

2. Any clause in a public works contract that purports to waive, release, or extinguish the rights of a contractor to recover costs or damages, or obtain an equitable adjustment, for delays in performing such contract, if such delay is caused in whole, or in part, by acts or omissions within the control of the contracting public entity or persons acting on behalf thereof, is against public policy and is void and unenforceable.

3. Subsection 2 of this section is not intended to render void any contract provision of a public works contract that:

(1) Precludes a contractor from recovering that portion of delay costs caused by the acts or omissions of the contractor or its agents;

(2) Requires notice of any delay by the party responsible for such delay;

(3) Provides for reasonable liquidated damages; or

(4) Provides for arbitration or any other procedure designed to settle contract disputes.

(L. 1990 S.B. 808 & 672 § 2)

Surety bonds required for public works contracts or construction,public entity cannot require they be obtained from particularinsurance or surety company.

34.059. 1. No public entity, nor any officer, agent or employee acting or purporting to act on behalf of such public entity, shall require a bidder, proposer, or contractor to obtain or procure any surety bond, including but not limited to bid bonds, payment bonds and performance bonds, from a particular insurance or surety company, producer, agent, or broker in connection with any contract for the construction of public works.

2. Any provision in a public works contract, bidding documents, request for proposals, or similar document in conflict herewith shall be void as contrary to the public policy.

3. As used in this section, the terms "public entity" and "public works" shall be given the definition set forth in section 107.170.

(L. 2003 H.B. 314)

Requests for bids on supplies and materials to be in general terms--torecite preference for Missouri products.

34.060. Except as provided in section 34.044, all requests for bids and proposals for supplies to be purchased shall be made in general terms and by general specifications and not by brand, trade name or other individual mark, provided such article to be purchased can be definitely described without the designation of such brand, trade name or other individual mark. All such requests and bids shall contain therein a paragraph in easily legible print, reading as follows: "By virtue of statutory authority, a preference will be given to materials, products, supplies, provisions and all other articles produced, manufactured, made or grown within the state of Missouri.".

(RSMo 1939 § 14617, A.L. 1995 H.B. 562)

Preference to Missouri products and firms.

34.070. In making purchases, the commissioner of administration or any agent of the state with purchasing power shall give preference to all commodities and tangible personal property manufactured, mined, produced, processed, or grown within the state of Missouri, to all new generation processing entities defined in section 348.432, except new generation processing entities that own or operate a renewable fuel production facility or that produce renewable fuel, and to all firms, corporations or individuals doing business as Missouri firms, corporations or individuals, when quality is equal or better and delivered price is the same or less. The commissioner of administration or any agent of the state with purchasing power may also give such preference whenever competing bids, in their entirety, are comparable. For purposes of this section, "commodities" shall include forest products and bricks or any agricultural product that has been processed or otherwise had value added to it in this state.

(RSMo 1939 § 14600, A.L. 1945 p. 1428 § 74, A.L. 1965 p. 144, A.L. 2003 S.B. 11, A.L. 2004 S.B. 1249, A.L. 2009 H.B. 745, A.L. 2012 H.B. 1231)

Commodities defined.

34.071. Soy diesel, soy oil products and ethanol shall be considered commodities for purposes of section 34.070.

(L. 2000 H.B. 1142 § 1)

Missouri businesses, performance of jobs or services, preference,when.

34.073. 1. In letting contracts for the performance of any job or service, all agencies, departments, institutions, and other entities of this state and of each political subdivision of this state shall give preference to all firms, corporations, or individuals doing business as Missouri firms, corporations, or individuals, or which maintain Missouri offices or places of business, when the quality of performance promised is equal or better and the price quoted is the same or less. The commissioner of administration may also give such preference whenever competing bids, in their entirety, are comparable.

2. Notwithstanding the requirements of subsection 1 of this section, the commissioner of administration shall give further preference as required by section 34.076.

(L. 1983 H.B. 22 § 1, A.L. 2003 S.B. 11)

Disabled veterans, state and political subdivision contracts,preference to be given, when--rulemaking authority.

34.074. 1. As used in this section, the term "service-disabled veteran" means any individual who is disabled as certified by the appropriate federal agency responsible for the administration of veterans' affairs.

2. As used in this section, the term "service-disabled veteran business" means a business concern:

(1) Not less than fifty-one percent of which is owned by one or more service-disabled veterans or, in the case of any publicly owned business, not less than fifty-one percent of the stock of which is owned by one or more service-disabled veterans; and

(2) The management and daily business operations of which are controlled by one or more service-disabled veterans.

3. In letting contracts for the performance of any job or service, all agencies, departments, institutions, and other entities of this state and of each political subdivision of this state shall give a three-point bonus preference to service-disabled veteran businesses doing business as Missouri firms, corporations, or individuals, or which maintain Missouri offices or places of business.

4. In implementing the provisions of subsection 3 of this section, the following shall apply:

(1) The commissioner of administration shall have the goal of three percent of all such contracts described in subsection 3 of this section to be let to such veterans;

(2) If no or an insufficient number of such veterans doing business in this state submit a bid or proposal for a contract let by an agency, department, institution, or other entity of the state or a political subdivision, such goal shall not be required and the provisions of subdivision (1) of this subsection shall not apply;

(3) The commissioner of administration may promulgate rules in order to implement the provisions of this section. Any rule or portion of a rule, as that term is defined in section 536.010, that is created under the authority delegated in this section shall become effective only if it complies with and is subject to all of the provisions of chapter 536 and if applicable, section 536.028. This section and chapter 536 are nonseverable and if any of the powers vested with the general assembly pursuant to chapter 536 to review, to delay the effective date, or disapprove and annul a rule subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, 2010, shall be invalid and void.

(L. 2008 H.B. 1313, A.L. 2010 H.B. 1524 & 2260)

Out-of-state contractors or products for public works, requirements,exceptions.

34.076. 1. To the extent permitted by federal laws and regulations, whenever the state of Missouri, or any department, agency or institution thereof or any political subdivision shall let for bid any contract to a contractor for any public works or product, the contractor or bidder domiciled outside the boundaries of the state of Missouri shall be required, in order to be successful, to submit a bid the same percent less than the lowest bid submitted by a responsible contractor or bidder domiciled in Missouri as would be required for such a Missouri domiciled contractor or bidder to succeed over the bidding contractor or bidder domiciled outside Missouri on a like contract or bid being let in the person's domiciliary state and, further, the contractor or bidder domiciled outside the boundaries of Missouri shall be required to submit an audited financial statement as would be required of a Missouri domiciled contractor or bidder on a like contract or bid being let in the domiciliary state of that contractor or bidder.

2. Subsection 1 of this section shall not apply to any contractor who is qualified for bidding purposes with the department of transportation and submits a successful bid wherein part of or all funds are furnished by the United States.

3. Subsection 1 of this section shall not apply to any public works or product transportation where the bid is less than five thousand dollars.

(L. 1983 H.B. 22 § 2, A.L. 1995 H.B. 562)

Institutions to use coal from Missouri or adjoining states,when--institution defined.

34.080. 1. That the board of trustees or other officer or officers in charge of every institution in the state of Missouri which is supported in whole or in part by public funds, and who are required to purchase coal for fuel purposes in the operation of any such institution, shall be required to purchase and use coal which is mined in the state of Missouri or an adjoining state, if the cost of coal mined in the state of Missouri or an adjoining state is not greater than the cost of coal mined in any other state or states, including the cost of transportation.

2. The term "institution" shall be construed to include all institutions supported by public funds of the state, but shall not include municipal corporations, political subdivisions or public schools.

(RSMo 1939 §§ 14619, 14620, A.L. 1992 S.B. 606)

Laws requiring purchase from state institutions to be given effect.

34.090. If any law shall provide that the state shall purchase for its own use the products manufactured by any institution of the state or shall give preference to the products of any such institution, the provisions of this chapter shall be deemed modified to permit the commissioner of administration to purchase such products or give such preference in any manner prescribed by such law.

(RSMo 1939 § 14601, A.L. 1945 p. 1428 § 75)

Direct purchases and emergency purchases, when authorized, procedure.

34.100. The commissioner of administration may, when in the commissioner's best judgment it is in the best interests of the state, delegate the commissioner's procurement authority pursuant to this chapter to an individual department; provided, however, that each instance of single feasible source purchasing authority in excess of five thousand dollars under section 34.044 must be specifically delegated by the commissioner. The delegation may allow departments to negotiate in accordance with section 34.042 the purchase of services for patients, residents or clients with funds appropriated for this purpose. In accepting this delegated authority the department acknowledges its ability to, and agrees to, fulfill all of the requirements of this chapter in making purchases and entering into contracts and keeping records. No claim for payment based upon any purchase under this section shall be certified by the commissioner unless accompanied by such documentation of compliance with the provisions of this chapter as the commissioner may require. Any department that fails to fulfill all such requirements may have its delegated authority rescinded by the commissioner of administration.

(L. 1945 p. 1428 § 67, A.L. 1983 H.B. 384, A.L. 1995 H.B. 562)

Acceptance of gifts to state--purchase of surplus war materials.

34.110. The commissioner of administration may enter into any contract with the United States of America or with any agency thereof for the purpose of accepting gifts and for the purchase of surplus war materials for cash, credit or other property with or without warranty and upon such other terms and conditions as the agency deems proper without regard to the provisions of the law which require:

(1) The posting of notices or public advertising for bids or of expenditures;

(2) The inviting or receiving of competitive bids;

(3) The delivery of purchases before payment.

(L. 1945 p. 1428 § 66, A.L. 2010 H.B. 1965)

Return of gifts made to state to donor, when, how--donation of motorvehicles to assist military veterans, return of title, when.

34.115. 1. The commissioner of administration, without charge therefor and without proceeding in the manner required for the disposal of surplus property, may return title to personal property to the person who, or entity which, donated the personal property to the state if the person who, or entity which, donated the personal property intends to donate to the state newer or superior personal property of the same type and intends to replace the function of the old personal property.

2. For a donation of a motor vehicle to assist military veterans made by a nonprofit organization to the state, the commissioner of administration, without charge therefor and without proceeding in the manner required for the disposal of surplus property, shall, upon request, return title to such motor vehicle to the donor of the motor vehicle to the state if the donor intends to donate to the state a newer or superior motor vehicle of the same type to replace the function of the old motor vehicle.

(L. 1983 S.B. 402, A.L. 2001 H.B. 207)

Effective 5-23-01

Departments to report supplies on hand, records of purchase.

34.120. Each department shall make such reports of supplies on hand, or which may be needed, as the commissioner of administration may direct. All reports, bids, specifications and contracts, and all records of purchases and sales of any kind, made by the commissioner of administration shall be maintained by the commissioner of administration and shall be open to inspection by the public as prescribed in section 610.021. After having kept any papers or records referred to in this section for a period of five years the commissioner of administration may destroy or otherwise dispose of said records.

(RSMo 1939 § 14597, A.L. 1945 p. 1428 § 71, A.L. 1947 V. II p. 342, A.L. 1995 H.B. 562)

Departments to keep inventories of nonexpendable property.

34.125. Each state department, including each of the agencies therein, shall identify each nonexpendable property item in its possession worth at least the amount prescribed by the state auditor by make, model, serial number and acquisition cost and by affixing a numbered tag or a similar marking to it. The head of each department shall be responsible for the proper use and retention of this property. Each department shall keep currently an inventory of all this property in the form which shall be prescribed for such an inventory by the state auditor.

(L. 1965 p. 144 § 1, A.L. 1977 H.B. 720)

Inventory of removable equipment, when--transfer of supplies betweendepartments, when--distribution to certain donees, definitions,procedure--sale by auction, sealed bid--sidearms and badges, whomay purchase, when.

34.140. 1. The commissioner of administration may require an inventory to be made when necessary of all removable equipment owned by the state.

2. The commissioner of administration shall have the power to transfer supplies from any department where they are not needed to any other department where they are needed and to direct that proper charges and credits be made on the inventories of the departments concerned.

3. The commissioner of administration may distribute surplus or unneeded supplies or property to volunteer fire protection associations, as defined in section 320.300, to fire protection districts, to fire departments and to eligible donees, as that term is defined in connection with the federal surplus property program, in the same manner as provided for the distribution of federal surplus property. The commissioner of administration may distribute surplus or unneeded supplies or property to an organization registered as a 501(c)3 not-for-profit, public service corporation which provides training to fire departments, emergency medical technicians and police officers in search and recovery techniques, water rescue, ice rescue and watercraft operation in the same manner as provided for the distribution of federal surplus property.

4. The commissioner of administration may sell surplus or unneeded supplies or property which are not transferred to state agencies or distributed to eligible donees to the general public by auction, sealed bid.

5. A uniformed employee of the Missouri state highway patrol, with the approval of the superintendent, may purchase upon retirement, by reason of length of service or disability or by the member's next of kin in case of death, the service pistol, off-duty sidearm and badge carried by such member immediately prior to retirement. The purchase price for the service pistol, off-duty sidearm and badge shall be equal to the replacement cost thereof.

(RSMo 1939 § 14595, A.L. 1945 p. 1428 § 69, A.L. 1982 S.B. 628, A.L. 1983 H.B. 384, A.L. 1990 H.B. 1120, A.L. 1991 H.B. 45, A.L. 1997 H.B. 318, A.L. 1998 H.B. 898, A.L. 1999 H.B. 861)

Violation by any department renders contract void--liability of headof department.

34.150. Whenever any department or agency of the state government shall purchase or contract for any supplies, materials, equipment or contractual services contrary to the provisions of this chapter or the rules and regulations made thereunder, such order or contract shall be void and of no effect. The head of such department or agency shall be personally liable for the costs of any order or contract the head of such department or agency knowingly authorized in violation of this chapter and, if already paid for out of state funds, the amount thereof may be recovered in the name of the state in an appropriate action instituted therefor.

(RSMo 1939 § 14598, A.L. 1945 p. 1428 § 72, A.L. 1995 H.B. 562)

Commissioner not to be interested in concern making bids forfurnishing supplies or printing--penalty for violation.

34.160. The commissioner of administration shall not be interested in any manner in any person, firm or corporation making bids for furnishing supplies or printing to the state or any subdivision or department thereof. He shall not receive nor accept, directly or indirectly, from any person, firm or corporation who may bid for furnishing, or receive a contract to furnish, any supplies or printing of any kind to the state, any rebate, gift or other valuable thing. Acceptance of any such rebate, gift or other valuable thing by the commissioner of administration shall be deemed a felony and on conviction thereof he shall be punished by imprisonment in the state penitentiary for not less than two nor more than five years, or by fine of not less than five hundred dollars nor more than two thousand dollars, or by both such fine and imprisonment.

(RSMo 1939 § 14589, A.L. 1945 p. 1428 § 63)

Commissioner to give bidding preference to the blind, when--authorityto make rules--auditor may examine records, when.

34.165. 1. In making purchases for this state, its governmental agencies or political subdivisions, the commissioner of administration shall give a bidding preference consisting of a ten-point bonus on bids for products and services manufactured, produced or assembled in qualified nonprofit organizations for the blind established pursuant to the provisions of 41 U.S.C. Sections 46 to 48c, as amended and in sheltered workshops holding a certificate of approval from the department of elementary and secondary education pursuant to section 178.920 if the participating nonprofit organization provides the greater of two percent or five thousand dollars of the total contract value of bids for purchase not exceeding ten million dollars.

2. An affidavit signed by the director or manager and the board president of a participating nonprofit organization shall be provided to the purchasing agency by the contractor at the completion of the contract or within thirty days of the first anniversary of the contract, whichever first occurs, verifying compliance.

3. The commissioner of administration shall make such rules and regulations regarding specifications, quality standards, time of delivery, performance and other relevant matters as shall be necessary to carry out the purpose of this section. No rule or portion of a rule promulgated pursuant to the authority of this section shall become effective unless it has been promulgated pursuant to the provisions of section 536.024.

4. At the request of the commissioner of administration, the state auditor may examine all records, books and data of any qualified nonprofit organization for the blind to determine the costs of manufacturing products or rendering services and the manner and efficiency of production and administration of such nonprofit organization with relation to any product or services purchased by this state, its governmental agencies or political subdivisions and to furnish the results of such examination to the commissioner for appropriate action.

(L. 1997 H.B. 107 § 1, A.L. 2007 H.B. 352)

Commissioner to purchase all state printing--exceptions.

34.170. The commissioner of administration shall purchase all public printing and binding of the state, including that of all executive and administrative departments, bureaus, commissions, institutions and agencies, and the supreme court. All state officers shall order all of their printing and binding through the commissioner of administration, except as otherwise provided by this section. The commissioner of administration may authorize any state agency or department and any penal, eleemosynary or educational institution to procure or produce all or any part of its own printing and binding. Notwithstanding any other provision of law to the contrary, the commissioner of administration may establish and operate one or more printing or copy centers to produce printing for state agencies.

(L. 1945 p. 1428 § 76, A.L. 1959 H.B. 113, A.L. 1983 H.B. 384, A.L. 1995 H.B. 562)

Soybean-based ink to be used for state printing, when--logorequirement--effective when.

34.175. 1. Notwithstanding the provisions of sections 34.170 to 34.192 to the contrary, all printing done by any department, agency, or institution or entity of the state, whether performed internally or contracted for, shall use soybean-based inks, so long as the cost of using such inks is no more than ten percent greater than the cost of other comparable inks. The commissioner of administration shall specify on any contract for printing let out for competitive bids whether the printing is required to be done with soybean-based inks.

2. Where it is cost-efficient and practicable, any document which has been printed with soybean-based inks shall contain somewhere on the document the official "soybean-based ink" logo.

(L. 1990 H.B. 1064 §§ 1, A, A.L. 1995 H.B. 562)

To determine form of printed matter--exceptions.

34.180. The commissioner of administration shall advise and assist state agencies with the planning, design and layout for any printed matter, so the same may be produced in the most economical and effective manner. The form, style, spacing of lines, the kind of binding, the method and material of all public printing, when not otherwise prescribed by law, shall be determined by the commissioner of administration, in consultation with the requesting agency, having proper regard for economy and workmanship and the purpose for which the work is needed, except that (1) the form of legislative printing may be prescribed by the general assembly, and (2) after consultation with the commissioner of administration, the clerk of the supreme court may determine the typography of work done for the courts and the board of curators of the University of Missouri and the boards of regents of the state colleges may determine the typography of work done for their respective institutions. The commissioner of administration shall standardize as many items of printing as are deemed practicable and shall from time to time prepare instructions to the using agencies describing the standards adopted.

(L. 1945 p. 1428 § 78, A.L. 1959 H.B. 113, A.L. 1995 H.B. 562)

Determine size and number of reports to be printed.

34.190. The commissioner of administration shall, except as otherwise directed by the general assembly, have the power to determine the number of copies and number of pages of subject material in each document printed under the commissioner's supervision. The number of reports ordered shall not in any case exceed the probable and reasonable demands of the state therefor. Each state agency, before submitting any report to the commissioner of administration for printing, shall carefully edit such report, consolidating statistical tables, condensing or summarizing where possible and eliminating all matter which is of interest to individuals chiefly and not important information concerning public affairs.

(L. 1945 p. 1428 § 84, A.L. 1995 H.B. 562)

CROSS REFERENCE:

Secretary of state to review manuscripts before printing, 11.040

Reports, method of preparation--minimization of volume of printedmaterial produced.

34.192. 1. Any report submitted to the commissioner of administration pursuant to section 34.190 shall be prepared and printed using both sides of the paper.

2. When a state department or agency is required to send a report to the general assembly, a copy of the report shall be sent to the president pro tem of the senate, the speaker of the house and shall be filed with the legislative library. Each member of the general assembly shall be notified that the report is available and a copy shall be furnished without charge upon request of any member. If such report is less than two pages in length, the report shall be furnished to each member in lieu of a notice. There shall be no cost to the member for a copy of a report furnished pursuant to this subsection.

3. The state courts administrator, each department and agency of the executive branch and the general assembly shall develop and implement policies which minimize the volume of printed material produced. At a minimum, the general assembly and each of the state's courts, departments and agencies shall ensure that documents are printed on both sides and that publication and distribution policies are periodically reviewed to ensure that unnecessary printing and distribution of documents is minimized.

(L. 1993 S.B. 80, et al. § 14)

Citation of law.

34.203. The provisions of sections 34.203 to 34.216 shall be known and may be cited as the "Fairness in Public Construction Act".

(L. 2007 S.B. 339)

Purpose statement.

34.206. The purpose of sections 34.203 to 34.216 is to fulfill the state's proprietary objectives in maintaining and promoting the economical, nondiscriminatory, and efficient expenditures of public funds in connection with publicly funded or assisted construction projects. Nothing in sections 34.203 to 34.216 shall prohibit employers or other parties covered by the National Labor Relations Act from entering into agreements or engaging in any other activity arguably protected by law, nor shall any aspect of sections 34.203 to 34.216 be interpreted in such a way as to interfere with the labor relations of parties covered by the National Labor Relations Act.

(L. 2007 S.B. 339)

Requirements for certain contracts for construction of projects.

34.209. The state, any agency of the state, or any instrumentality thereof, when engaged in procuring or letting contracts for construction of a project that is funded by greater than fifty percent of state funds, shall ensure that bid specification, project agreements, and other controlling documents entered into, required, or subject to approval by the state, agency, or instrumentality do not:

(1) Require or prohibit bidders, offerors, contractors, or subcontractors to enter into or adhere to agreements with one or more labor organizations on the same or related projects; or

(2) Discriminate against bidders, offerors, contractors, or subcontractors for entering or refusing to enter or to remain signatory or otherwise adhere to agreements with one or more labor organizations on the same or related construction projects.

(L. 2007 S.B. 339)

Grants and cooperative agreements for construction projectsprohibited, when.

34.212. 1. The state, any agency of the state, or any instrumentality thereof shall not issue grants or enter into cooperative agreements for construction projects, a condition of which requires that bid specifications, project agreements, or other controlling documents pertaining to the grant or cooperative agreement contain any of the elements specified in section 34.209.

2. The state, any agency of the state, or any instrumentality thereof shall exercise such authority as may be required to preclude a grant recipient or party to a cooperative agreement from imposing any of the elements specified in section 34.209 in connection with any grant or cooperative agreement awarded or entered into. Nothing in sections 34.203 to 34.216 shall prohibit contractors or subcontractors from voluntarily entering into agreements described in section 34.209.

(L. 2007 S.B. 339)

Union-only project labor agreements permitted, when--compliance,procedure.

34.216. 1. For purposes of this section, the term "project labor agreement" shall be defined as a multiemployer, multiunion pre-hire agreement designed to systemize labor relations at a construction site that is required by the state or a political subdivision of the state as a condition of a bid specification for a construction project, thereby insuring that all contractors and subcontractors on a project comply with the terms of a union-only agreement.

2. The state or a political subdivision of the state may enter into a union-only project labor agreement for the procurement of construction services, except as provided in section 34.209, on a project-by-project basis only if the project is funded fifty percent or less with state funds and only on the condition that:

(1) The state or political subdivision must analyze the impact of a union-only project labor agreement and consider:

(a) Whether the union-only project labor agreement advances the interests of the public entity and its citizens;

(b) Whether the union-only project labor agreement is appropriate considering the complexity, size, cost impact, and need for efficiency on the project;

(c) Whether the union-only project labor agreement impacts the availability of a qualified work force; and

(d) Whether the scope of the union-only project labor agreement has a business justification for the project as bid;

(2) The state or political subdivision shall publish the findings of subdivision (1) of this subsection in a document titled "Intent to Enter Into a Union Project Labor Agreement". The document shall establish a rational basis upon which the state or political subdivision bases its intent to require a union-only project labor agreement for the project;

(3) No fewer than fourteen days but not more than thirty days following publication of the notice of a public hearing, the state or political subdivision shall conduct a public hearing on whether to proceed with its intent to require a union-only project labor agreement;

(4) Within thirty days of the public hearing set forth in subdivision (3) of this subsection, the state or political subdivision shall publish its determination on whether or not to require a union-only project labor agreement.

3. (1) Any interested party may, within thirty days of the determination of the state or political subdivision as set forth in subdivision (4) of subsection 2 of this section, appeal to the labor and industrial relations commission for a determination as to whether the state or political subdivision complied with subsection 2 of this section for a union-only project labor agreement as defined in subsection 1 of this section.

(2) The labor and industrial relations commission shall consider the appeal in subdivision (1) of this section under a rational basis standard of review.

(3) The labor and industrial relations commission shall hold a hearing on the appeal within sixty days of the filing of the appeal. The commission shall issue its decision within ninety days of the filing date of the appeal.

(4) Any aggrieved party from the labor and industrial relations commission decision set forth in subdivision (3) of this subsection may file an appeal with the circuit court of Cole County within thirty days of the commission's decision.

(L. 2007 S.B. 339)

Nonseverability clause.

34.217. Notwithstanding the provisions of section 1.140, the provisions of sections 290.095 and 290.250 and sections 34.203 to 34.216 shall not be severable. In the event a court of competent jurisdiction rules that any part of this act* is unenforceable, the entire act* shall be rendered null and void.

(L. 2007 S.B. 339 § 1)

*This "act" (S.B. 339, 2007) contained numerous sections. Consult Disposition of Sections table for a definitive listing.

Missouri domestic product procurement act--law, howcited--definitions.

34.350. 1. Sections 34.350 to 34.359 shall be known and may be cited as the "Missouri Domestic Products Procurement Act".

2. For the purposes of sections 34.350 to 34.359, the following words mean:

(1) "Public agency", the state of Missouri, its departments, agencies, boards, commissions, and institutions, and all political subdivisions, including school districts;

(2) "United States", the United States of America, the District of Columbia, and all territories and possessions subject to the jurisdiction of the United States.

(L. 1987 S.B. 74 §§ 1, 2)

All public agencies and political subdivisions to purchase or leaseonly goods or commodities produced in the United States, exceptions,procedure.

34.353. 1. Each contract for the purchase or lease of manufactured goods or commodities by any public agency, and each contract made by a public agency for construction, alteration, repair, or maintenance of any public works shall contain a provision that any manufactured goods or commodities used or supplied in the performance of that contract or any subcontract thereto shall be manufactured or produced in the United States.

2. This section shall not apply where the purchase, lease, or contract involves an expenditure of less than twenty-five thousand dollars. This section shall not apply when only one line of a particular good or product is manufactured or produced in the United States.

3. This section shall not apply where the executive head of the public agency certifies in writing that:

(1) The specified products are not manufactured or produced in the United States in sufficient quantities to meet the agency's requirements or cannot be manufactured or produced in the United States within the necessary time in sufficient quantities to meet the agency's requirements;

(2) Obtaining the specified products manufactured or produced in the United States would increase the cost of the contract by more than ten percent;

(3) The specified products are to be purchased or leased by a state-supported four-year institute of higher education and such certification as required by subdivision (1) or (2) of this subsection has been made within the last three years;

(4) The specified products are to be purchased or leased by a publicly supported institution and such certification as required by subdivision (1) or (2) of this subsection has been made within the last three years; or

(5) The political subdivision has adopted a formal written policy to encourage the purchase of products manufactured or produced in the United States.

4. The certificate required by this section shall specify the nature of the contract, the product being purchased or leased, the names and addresses of the United States manufacturers and producers contacted by the public agency or the project architect or engineer, and an indication that such manufacturers or producers could not supply sufficient quantities or that the price of the products would increase the cost of the contract by more than ten percent.

5. Certificates required by this section shall be maintained by the public agency for a period of three years.

(L. 1987 S.B. 74 § 3, A.L. 1995 H.B. 562)

Vendor to furnish proof of compliance--misrepresentation of facts,penalty.

34.355. No public agency may authorize, provide for, or make any payment to any vendor or contractor upon any contract in violation of section 34.353. At time of bid and before any public agency authorizes, provides, or makes payment to any vendor or contractor upon any contract to which section 34.353 or 34.359 applies, the vendor or contractor shall provide proof of compliance with section 34.353 and, if applicable, section 34.359. Any vendor or contractor who knowingly misrepresents any material fact to the public agency concerning the origin of any manufactured goods or commodities shall be guilty of a class A misdemeanor.

(L. 1987 S.B. 74 § 4)

Treaties and law of the United States to supersede.

34.359. Nothing in sections 34.350 to 34.359 is intended to contravene any existing treaty, law, agreement, or regulation of the United States. All contracts under sections 34.350 to 34.359 shall be entered into in accordance with existing treaty, law, agreement, or regulation of the United States including all treaties entered into between foreign countries and the United States regarding export-import restrictions and international trade and shall not be in violation of sections 34.350 to 34.359 to the extent of such accordance.

(L. 1987 S.B. 74 § 6)

Listing of Missouri products, office of administration to compileand provide access--state agencies to make good faith search forMissouri companies to provide products and services.

34.363. 1. The commissioner of the office of administration shall compile a listing of Missouri products and provide access to such listing to all state government agencies, public institutions of higher education, and other interested parties. The commissioner of the office of administration shall also make efforts to identify and give notice of state government bidding opportunities to Missouri manufacturers or service providers. Further, the commissioner of the office of administration shall ensure state agencies follow the requirements of this section and the Missouri preference provisions set forth in this chapter.

2. State government agencies shall make a good faith search of Missouri companies that provide Missouri manufactured products or services.

3. Upon request of a Missouri company who applied for but was not awarded the state contract, the state department which awarded the contract shall prepare a written explanation within twenty days of the award explaining why the Missouri manufacturer or service provider did not receive the award.

(L. 2004 S.B. 1249)

Purchasing agents for governmental agencies to give preferenceto food and beverages containing higher levels of calcium,exceptions.

34.375. 1. This section shall be known and may be cited as the "Missouri Calcium Initiative".

2. The purchasing agent for any governmental entity that purchases food or beverages to be processed or served in a building or room owned or operated by such governmental entity shall give preference to foods and beverages that:

(1) Contain a higher level of calcium than products of the same type and nutritional quality; and

(2) Are equal to or lower in price than products of the same type and nutritional quality.

3. Notwithstanding the provisions of subsection 2 of this section to the contrary, if a state institution determines that a high calcium food or beverage that is preferred pursuant to subsection 2 of this section will interfere with the proper treatment and care of a patient of such institution, the purchasing agent shall not be required to purchase the high calcium food or beverage for such patient.

4. The requirements of this section shall be in addition to any requirements placed upon a governmental entity by the United States Department of Agriculture under the National School Lunch Program or the School Breakfast Program.

5. For purposes of this section, "governmental entity" means the state of Missouri, its departments, agencies, boards, commissions and institutions, and all school districts of the state. Governmental entity does not include political subdivisions of the state.

6. Notwithstanding the provisions of this section to the contrary, a purchasing agent who has entered into a contract with a supplier before July 1, 2003, to purchase food and beverages shall not be required to purchase high calcium foods and beverages if purchasing such products would change the terms of the contract.

(L. 2003 H.B. 202)

Citation of act--definitions.

34.376. 1. Sections 34.376 to 34.380 may be known as the "Transparency in Private Attorney Contracts Act".

2. As used in sections 34.376 to 34.380, the following terms shall mean:

(1) "Government attorney", an attorney employed by the state as an assistant attorney general;

(2) "Private attorney", any private attorney or law firm;

(3) "State", the state of Missouri, in any action instituted by the attorney general pursuant to section 27.060.

(L. 2011 H.B. 111 merged with S.B. 59)

Contingent fee contracts, limitations--written proposals,when--standard addendum--posting of contracts onwebsite--record-keeping requirements--report, contents.

34.378. 1. The state shall not enter into a contingency fee contract with a private attorney unless the attorney general makes a written determination prior to entering into such a contract that contingency fee representation is both cost effective and in the public interest. Any written determination shall include specific findings for each of the following factors:

(1) Whether there exists sufficient and appropriate legal and financial resources within the attorney general's office to handle the matter;

(2) The time and labor required; the novelty, complexity, and difficulty of the questions involved; and the skill requisite to perform the attorney services properly;

(3) The geographic area where the attorney services are to be provided; and

(4) The amount of experience desired for the particular kind of attorney services to be provided and the nature of the private attorney's experience with similar issues or cases.

2. If the attorney general makes the determination described in subsection 1 of this section, the attorney general shall request written proposals from private attorneys to represent the state, unless the attorney general determines that requesting proposals is not feasible under the circumstances and sets forth the basis for this determination in writing. If a request for proposals is issued, the attorney general shall choose the lowest and best bid or request the office of administration establish an independent panel to evaluate the proposals and choose the lowest and best bid.

3. The state shall not enter into a contract for contingency fee attorney services unless the following requirements are met throughout the contract period and any extensions to the contract:

(1) The government attorneys shall retain complete control over the course and conduct of the case;

(2) A government attorney with supervisory authority shall oversee the litigation;

(3) The government attorneys shall retain veto power over any decisions made by outside counsel;

(4) A government attorney with supervisory authority for the case shall attend all settlement conferences; and

(5) Decisions regarding settlement of the case shall be reserved exclusively to the discretion of the attorney general.

4. The attorney general shall develop a standard addendum to every contract for contingent fee attorney services that shall be used in all cases, describing in detail what is expected of both the contracted private attorney and the state, including, without limitation, the requirements listed in subsection 3* of this section.

5. Copies of any executed contingency fee contract and the attorney general's written determination to enter into a contingency fee contract with the private attorney shall be posted on the attorney general's website for public inspection within five business days after the date the contract is executed and shall remain posted on the website for the duration of the contingency fee contract, including any extensions or amendments to the contract. Any payment of contingency fees shall be posted on the attorney general's website within fifteen days after the payment of such contingency fees to the private attorney and shall remain posted on the website for at least three hundred sixty-five days.

6. Any private attorney under contract to provide services to the state on a contingency fee basis shall, from the inception of the contract until at least four years after the contract expires or is terminated, maintain detailed current records, including documentation of all expenses, disbursements, charges, credits, underlying receipts and invoices, and other financial transactions that concern the provision of such attorney services. The private attorney shall maintain detailed contemporaneous time records for the attorneys and paralegals working on the matter in increments of no greater than one-tenth of an hour and shall promptly provide these records to the attorney general, upon request. Any request under chapter 610 for inspection and copying of such records shall be served upon and responded to by the attorney general's office.

7. By February first of each year, the attorney general shall submit a report to the president pro tem of the senate and the speaker of the house of representatives describing the use of contingency fee contracts with private attorneys in the preceding calendar year. At a minimum, the report shall:

(1) Identify all new contingency fee contracts entered into during the year and all previously executed contingency fee contracts that remain current during any part of the year, and for each contract describe:

(a) The name of the private attorney with whom the department has contracted, including the name of the attorney's law firm;

(b) The nature and status of the legal matter;

(c) The name of the parties to the legal matter;

(d) The amount of any recovery; and

(e) The amount of any contingency fee paid;

(2) Include copies of any written determinations made under subsections 1 and 2 of this section.

(L. 2011 H.B. 111 merged with S.B. 59)

*Words "subsection 4" appear in original rolls.

Contractual authority not expanded.

34.380. Nothing in sections 34.376 to 34.380 shall be construed to expand the authority of any state agency or state agent to enter into contracts where no such authority previously existed.

(L. 2011 H.B. 111 merged with S.B. 59)


Top
bottom Missouri General Assembly

Copyright © Missouri Legislature, all rights reserved.