Hawaii Administrative Rules, Title 3 — Department of Accounting and General Services

Building Code Council Building Code Council

Haw. Code R. tit. 3, Building Code Council, State Energy Conservation Code State Energy Conservation Code

Hawai'i State Energy Code

Amendments to the 2018 International Energy Conservation Code

State Building Code Council

Effective Date: December 15, 2020

Haw. Code R. tit. 3, Building Code Council, State Energy Conservation Code State Energy Conservation Code

Hawai'i State Energy Code

Amendments to the 2018 International Energy Conservation Code

State Building Code Council

Effective Date: December 15, 2020

Office of the Comptroller Office of the Comptroller

Chapter 1 RULES OF THE COMPTROLLER, DEPARTMENT OF ACCOUNTING AND GENERAL SERVICES RELATING TO RULEMAKING PROCEEDINGS, DECLARATORY RULINGS AND PUBLIC RECORDS AND INFORMATION

Haw. Code R. § 3-1-1 Definitions

As used in these rules, unless the context otherwise specifically requires:

"Comptroller" means the state comptroller of the department of accounting and general services.

"Department" means the department of accounting and general services.

"Person" or "persons" include individual, partnership, corporation, association, or public or private organization of any character other than a state or county board, commission, department, or officer authorized by law to make rules, except those in the legislative or judicial branches.

History

• [Eff. MAR 30 1981] (Auth: HRS Sec. 26-38) (Imp: HRS Sec. 91-1)

Haw. Code R. § 3-1-2 The Department

(a) The principal office of the department is at Honolulu, Hawaii. Unless otherwise specifically provided by law or by direction of the department, all communications to the department shall be sent to the Comptroller, Department of Accounting and General Services, 1151 Punchbowl Street, Honolulu, Hawaii 96813.

(b) The offices of the department shall be open from 7:45 a.m. to 4:30 p.m. of each workday except Saturday, unless otherwise provided by statute or executive order.

(c) The comptroller shall have charge of the department's official records and shall be responsible for the maintenance and custody of the files and records of the department, including the minutes of hearings and exhibits, all papers and requests filed in proceedings, the minutes of all actions taken by the department and all its findings, determinations, reports, opinions, rules, regulations and approved forms. All orders and other actions of the department shall be authenticated, signed or otherwise authorized by the comptroller or his duly authorized subordinate.

(d) All documents required to be filed with the department shall be filed in the office of the comptroller within such time limits as prescribed by law or by rules, regulations, or orders of the department.

History

• [Eff. MAR 30 1981] (Auth: HRS Sees. 26-38, 91-2) (Imp: HRS Secs. 26-38, 91-2)

Haw. Code R. § 3-1-3 Public records and information

(a) The term "public records" as used in this section is defined as in Section 92-50, Hawaii Revised Statutes, and shall include all rules, regulations, written statements of policy or interpretation formulated, adopted or used by the department, all final opinions, rulings and orders and any other material on file for public inspection in the department unless accorded confidential treatment pursuant to law.

(b) All public records shall be available for inspection in the department, during established office hours unless public inspection of such records is in violation of any state or federal law; provided that, except where such records are made available for inspection by rule of court, the attorney general may determine which records may be withheld from public inspection when such records pertain to the preparation or defense of any action or proceeding prior to its commencement, to which the State is or may be a party, or when such records do not relate to a matter in violation of law or their confidential treatment is necessary for the protection of the character, reputation or business of any person.

(c) Public records printed or reproduced by the department shall be given to any person requesting the same and paying the cost including the cost of publication and mailing of reproduction, or in the case of a charge specified by law or by other regulation, such specified charges.

(d) Requests for public information, for permission to inspect official records or for copies of public records shall be made in writing to the comptroller and shall be handled with due regard for the policies and procedures of the respective programs and the dispatch of other public duties.

History

• [Eff. MAR 30 1981] (Auth: HRS Sec. 26-38) (Imp: HRS Secs. 91-2, 92-50, 92-51)

Haw. Code R. § 3-1-4 Petitions for adoption, amendment or repeal of rules and regulations

(a) Any interested person or any agency of the state or county government may petition the comptroller for the adoption, amendment, modification or repeal of any rule or regulation. For the purpose of this section, such petitions shall be considered as part of the rulemaking proceedings.

(b) Such petition for rulemaking shall set forth the text of any proposed rule or regulation or amendment desired or specifying the rule or regulation the repeal of which is desired and stating concisely the nature of his interest in the subject matter and his reasons for seeking the adoption, amendment or repeal of the rule or regulation and shall include any facts, views, arguments and data deemed relevant by the petitioner. The comptroller may also require the petitioner to serve other persons or governmental agencies known to be interested in the proposed rulemaking.

(c) Upon filing, such petitions for the rulemaking shall be given a docket number and will become matters of public record upon filing. The comptroller shall within thirty days following the filing of the petition either deny the petition in writing or initiate proceedings for the adoption, amendment or repeal of the rule or regulation as provided by law. No public hearing, oral arguments, or other form of proceedings will be held directly on any such petition. If the comptroller determines that the petition does not disclose sufficient reasons to justify the commencement of public rulemaking proceedings, or if the petition for rulemaking fails in material respect to comply with the requirements of these rules, the comptroller shall deny the petition and the petitioner shall be so notified. The provisions of this section shall not prevent the comptroller, on an independent motion, from acting on any matter disclosed in any petition.

History

• [Eff. MAR 30 1981] (Auth: HRS Sec. 26-38) (Imp: HRS Sec. 91-6)

Haw. Code R. § 3-1-5 Conduct of public hearing on proposed adoption, amendment or repeal of rule or regulation

(a) Each public hearing on proposed adoption, amendment or repeal of a rule or regulation shall be presided over by the comptroller or by his duly authorized representative. The hearing shall be conducted in such a way to afford interested persons a reasonable opportunity to be heard on matters relevant to the issues involved and to obtain a clear and orderly record. The presiding officer shall have authority to administer oaths or affirmations and to take all other actions necessary to assure the orderly conduct of the hearing.

(b) Each hearing shall be held at the time and place set in the notice of hearing. The hearing may be continued by the presiding officer to a later time or date or to a different place without notice other than the announcement made at the hearing.

(c) At the commencement of the hearing, the presiding officer shall read the notice of hearing and shall then outline briefly the procedure to be followed. Evidence shall then be received with respect to the matters specified in the notice of hearing in such order as the presiding officer shall prescribe.

(d) All interested persons shall be given reasonable opportunity to offer evidence with respect to the matters specified in the notice of hearing. Every witness shall, before proceeding to testify, state his name, address and whom he represents at the hearing, and shall give such other information respecting his appearance as the presiding officer may request. Every witness shall be subject to questioning by the presiding officer or by any other authorized representative of the department, but cross-examination by private persons shall not be permitted without the presiding officer's permission.

(e) Unless otherwise specifically ordered by the presiding officer, testimony given at the hearing shall not be reported verbatim.

History

• [Eff. MAR 30 1981] (Auth: HRS Secs. 26-38, 91-2) (Imp: HRS Sec. 91-3)

Haw. Code R. § 3-1-6 Petition for declaratory rulings

(a) On petition of an interested person, the comptroller may issue a declaratory order as to the applicability of any statutory provision administered by the department or of any rule or regulation or order of the comptroller. Petitions for the issuance shall state clearly and concisely the controversy or uncertainty, shall cite the statutory authority involved, shall include a complete statement of the facts and the reasons prompting the petition, together with full disclosure of petitioner's interest.

(b) Upon receipt of the petition, the comptroller may require the petitioner to file additional data or memoranda in support of the position taken by the petitioner.

(c) The comptroller may, without notice or hearing, dismiss a petition for declaratory ruling for want of a substantial question or for material failure to comply with the requirements of this section.

(d) Although no hearing need be granted to the petitioner or to any interested person in the usual course of disposition of a petition for a declaratory ruling, the comptroller may order a hearing on the disposition of the petition if petitioner submits a written request therefor stating in detail why a hearing is necessary for a fair consideration of the need for a declaratory ruling on the matter stated in the petition.

(e) Notwithstanding any other provisions of this section, the comptroller may, upon request or an independent motion but without notice or hearing, issue a declaratory order to terminate a controversy or to remove uncertainty.

History

• [Eff. MAR 30 1981] (Auth: HRS Secs. 26-38, 91-8) (Imp: HRS Sec. 91-8)

Haw. Code R. § 3-1-7 Effective date

Accounting division Accounting Division

Chapter 10 TRAVEL RULES

Haw. Code R. § 3-10-1 Purpose

The purpose of these rules is to provide uniform application of the Hawaii Revised Statutes and administrative policies, as they relate to travel expenses incurred by state employees and representatives in connection with official business of the State.

History

• [Eff 6/01/81;am and comp JUL 23 1999] (Auth: HRS § 40-13) (Imp: HRS § 40-13)

Haw. Code R. § 3-10-2 Effect of rules

These rules work in conjunction with comptroller's regulations, policies and memorandum governing travel and transportation expenses.

History

• [Eff 6/01/81; am and comp JUL 23 1999] (Auth: HRS § 40-13) (Imp: HRS § 40-13)

Haw. Code R. § 3-10-3 Applicability

(a) Except as otherwise provided by statute, these rules apply to all persons employed by the State and to all other persons representing the state on official business.

(b) Except as otherwise provided by statute, these rules apply to all travel expenses regardless of the source of funding, unless a non-state entity pays for the entire cost of travel (including per diem and all incidental costs) and makes all travel arrangements.

(c) Wherever there is a conflict between these rules and the provisions of a collective bargaining agreement that is in effect, the provisions of the collective bargaining agreement take precedence; excluded employees under chapter 89, HRS, shall receive the same application of such provisions as employees included in the related bargaining unit.

(d) These rules take precedence over conflicting travel policies, written or unwritten, of any department or agency of the state. Written travel policies for internal administration within departments and agencies are encouraged, but are subordinate to these rules. The head of each department is responsible for compliance with the requirements of the rules.

History

• [Eff 6/01/81; am and comp JUL 23 1999] (Auth: HRS § 40-13) (Imp: HRS § 40-13)

Haw. Code R. § 3-10-4 Approval required for out-of-state and intrastate travel

Unless otherwise directed by the governor, and except as otherwise prescribed by statute:

(1) A department head's written approval is required for out-of-state travel by any officer, employee, or other authorized representative of the department or of an agency under the department. The governor's written approval is required for out-of-state travel by a department head or the head of any other executive agency not under a department.

(2) Any delegation by a department head of authority to approve out-of-state travel (where a department head's approval is required) must be filed with the comptroller in writing.

(3) An amended approval for out-of-state travel is required whenever there is a change in the itinerary, dates, or purpose of the previously approved travel.

(4) Intrastate travel must be approved by the department head or as delegated by the department head.

History

• [Eff 6/01/81; am and comp JUL 23 1999] (Auth: HRS § 40-13) (Imp: HRS § 40-13)

Haw. Code R. § 3-10-5 Travel status

An employee or representative is considered to be on travel status only during the time when conducting official business away from the employee's or representative's regular place of business and while traveling to and from the place at which official business is transacted. Unless otherwise specified and approved by the comptroller, travel status begins with departure of common carriers from the island on which the traveler's regular place of business is located and terminates upon the traveler's return to that island.

History

• [Eff 6/01/81; comp JUL 23 1999] (Auth: HRS § 40-13) (Imp: HRS § 40-13)

Haw. Code R. § 3-10-6 Routing of travel

(a) Travel route(s) shall be the most economical and direct route(s) available to the point(s) of business destination.

(b) Travel tickets shall be for complete routes, including all direct connections. Any charges related to travel not applicable to state business will be the responsibility of the employee. This includes stopovers, special or short-run trips, backtracking, personal side trips or any other routing impacting the lowest possible fare. Any specific airline preference that will increase the cost of the fare shall be borne by the traveler.

(c) Any additional cost(s) resulting from changes for personal travel shall be the responsibility of the traveler.

History

• [Eff 6/01/81; am and comp JUL 23 1999] (Auth: HRS § 40-13) (Imp: HRS § 40-13)

Haw. Code R. § 3-10-7 Preferred times of travel

Official business and related travel shall be conducted, whenever practicable, within the typical work week, Monday through Friday, and within the typical work day. The comptroller may disallow any unwarranted expenditure for weekend or holiday travel.

History

• [Eff 6/01/81; am and comp JUL 23 1999] (Auth: HRS § 40-13) (Imp: HRS § 40-13)

Haw. Code R. § 3-10-8 Means of transportation

(a) Departments and agencies authorizing travel shall, in all cases, be sure that the means of transportation are justified by the circumstances.

(b) Unless otherwise justified and approved by the governor, travel shall be by the most economical means consistent with time available and urgency of the trip.

(c) Out-of-state trans-ocean travel shall not be allowed. Travel by train, bus, or private automobile will be allowed only when the traveler can justify that travel by air is not available, feasible or, appropriate.

(d) Inter-island travel shall be by regularly scheduled transportation whenever available, feasible, and otherwise appropriate. In selecting the means of transportation for inter-island travel, departments and agencies shall consider travel time and per diem costs in determining the most economical means.

History

• [Eff 6/01/81; am and comp JUL 23 1999] (Auth: HRS § 40-13) (Imp: HRS § 40-13)

Haw. Code R. § 3-10-9 Allowable travel time involving air transportation

(a) Unless otherwise authorized by comptroller, allowable travel time is the time necessary to travel by the most direct route to and from the points specified in the approved travel plan or request, plus the time necessary to conduct the required official business.

(b) Every effort shall be made to reserve complete travel schedules well in advance to avoid delays at transfer points.

(c) Travel time in excess of allowable travel time as provided in this section may be required by the comptroller to be charged to vacation time or to leave without pay.

History

• [Eff 6/01/81; am and comp JUL 23 1999] (Auth: § 40-13) (Imp: § 40-13)

Haw. Code R. § 3-10-10 Travel allowances

(a) Funds for travel expenses. Funds for travel expenses, including per diem allowances and reimbursable expenditures, may be secured by way of a cash advance, or by way of reimbursement of expenditures upon completion of the trip. Advances shall be limited to the cost itemized on the approved travel plan, request, or form, plus other determinable anticipated expenses.

(b) Per diem allowances. A per diem is a specific allowance for each day to cover the personal expenditures of a traveler, such as meals, lodging, tips, laundry, and other necessary expenditures incident to travel. It is not intended to include expenditures having to do with the conduct of official business.

(1) The rate of per diem is prescribed in section 78-15, HRS. When accommodations or lodging is made available to the traveler without charge, a department head shall prescribe a lower rate of per diem. The per diem allowance shall be granted for time on travel status. (See § 3-10-3(c)).

(2) Per diem allowances are as follows:

(A) If travel requires overnight absence from the traveler's regular place of business, a traveler shall be allowed per diem as prescribed by statute. The rate shall apply uniformly and equitably for all travelers in all cases, except that when accommodations or lodging is made available to the traveler without charge, a department head shall prescribe a lower rate of per diem:

(B) In computing the per diem allowance for overnight travel, the calendar day (midnight to midnight) shall be the unit. For fractional parts of the day included at the beginning or end of continuous travel, one quarter of the rate of a calendar day shall be allowed for each period of six hours or fraction thereof.

(C) Subsistence allowance for trips not requiring overnight absence and for trips when accommodations or lodging is made available to the traveler without charge shall be as follows:

Breakfast - Eight percent of per diem rounded to the nearest dollar.

Lunch - Twelve percent of per diem rounded to the nearest dollar.

Dinner - Twenty percent of per diem rounded to the nearest dollar.

(D) Breakfast shall be allowed when the travel time begins before 8:00 a.m.

(E) Lunch shall be allowed for departing travelers when the travel begins before 12:00 noon; lunch shall be allowed for returning travelers when travel time ends after 12:30 p.m.

(F) Dinner shall be allowed when the travel time ends after 7:00 p.m.

(G) "Statement of Intra-State Travel Completed," issued by the Comptroller shall be used to document per diem for trips not requiring overnight absence.

(H) "Statement of Completed Travel," issued by the Comptroller shall be used to document per diem for trips requiring overnight absence.

(3) Except as otherwise authorized by the governor, no per diem or transportation allowance, as such, will be granted when out-of-state travel by train, bus, or private automobile is authorized and air transportation is available and feasible, but the traveler shall be reimbursed to the extent of the total cost for air transportation by the most direct route, including per diem necessitated by such air transportation, as if such air transportation had been utilized.

(4) When meals are furnished to the traveler in connection with an approved training program or other program approved by a department head, the department head must require adjustment of per diem, at the prescribed subsistence rates, to avoid duplicate payment for meals:

Breakfast - Eight percent of per diem rounded to the nearest dollar.

Lunch - Twelve percent of per diem rounded to the nearest dollar.

Dinner - Twenty percent of per diem rounded to the nearest dollar.

(c) Adjustments for vacation or leave without pay. When vacation or leave without pay is added at the beginning or end of official travel, the allowance for transportation shall be the cost of transportation allowable under section 3-10-8 as if such allowable transportation had been utilized.

(d) Other expenses, which meet the stipulated conditions and are supported by receipts where receipts are issued in the normal course of business are allowed in addition to transportation and per diem:

(1) Taxi fare to and from transportation terminals for official travel shall be allowed only when buses or limousines are not available or accessible, when government transportation cannot be economically obtained, and when private automobiles on a mileage basis cannot reasonably be used. Taxi and private automobiles used on mileage basis shall be shared by travelers whenever possible. Rental of cars shall be allowed where it would be impractical to obtain necessary transportation in government owned vehicles or privately owned vehicles on a mileage basis, and where public carriers are not available to the point to be visited.

(2) Other miscellaneous necessary and reasonable expenditures when incurred by the traveler in connection with official business. For example: parking fees; refueling charges; registration fees; telephone fees; telephone calls; radiograms; secretarial fees; baggage transfers (does not include tips for porterage); currency exchange fees or cost of traveler's checks for out-of-state travel to the extent that the currency or checks do not exceed the amount of per diem and allowable expenses; fees for passports and visas; cost of photograph; certificates of birth, health, and identity; costs of affidavits necessary; and charges for inoculation which cannot be obtained through state facilities.

History

• [Eff 6/01/81; am and comp JUL 23 1999] (Auth: HRS § 40-13) (Imp: HRS § 40-13)

Haw. Code R. § 3-10-11 Taxes, fees, and commissions on transportation

No separate agency fees or commissions of any kind levied against the State will be allowed.

History

• [Eff 6/01/81; am and comp JUL 23 1999] (Auth: HRS § 40-13) (Imp. HRS § 40-13)

Haw. Code R. § 3-10-12 Travel expense accounting and reporting

(a) Travel advances:

(1) Payments of travel advances are accounted for as expenditures at the time the related travel advance vouchers are paid. One copy of any approval required under section 3-10-4 must support a voucher for payment of a travel advance.

(2) On the accounting records of the comptroller, payments of travel expenses are not recorded as advance receivable; the respective expending agencies are responsible for accounting for the advances as receivable for the purpose of settlement upon completion of travel.

(3) Any person receiving a travel advance must report to that person's expending agency the actual travel expenses incurred. The "Statement of Completed Travel", issued by the Comptroller, may be used for this purpose, and must be accompanied by any supporting expenditure details and related receipts.

(4) Expending agencies are responsible for obtaining and depositing any overadvanced amounts due to the State under this chapter.

(5) When additional payments are due to the traveler for underadvanced amounts, the voucher for the additional payment must be supported by a statement of completed travel, any expenditure details, and any related receipts applicable to amounts to be reimbursed to the traveler.

(b) Travel without advances:

(1) Payments of travel expenses not involving travel advances are accounted for as expenditures at the time the vouchers are paid for the actual travel allowances under section 3-10-10. One copy of any approval required under section 3-10-4 must support each voucher for payment.

(2) Any person traveling on an "overnight" basis must submit, for voucher support, a statement of completed travel. A person traveling on a "less than overnight" basis must submit, for voucher support, a statement entitled "Statement of Intra-State Travel Completed", issued by the Comptroller. The statement must include any expenditure details and any related receipts applicable to amounts to be reimbursed to the traveler.

History

• [Eff 6/01/81; am and comp JUL 23 1999] (Auth: HRS § 40-13) (Imp: HRS § 40-13)

Haw. Code R. § 3-10-13 Allowances for privately owned vehicles

(a) Flat allowances. Flat monthly allowances for the use of private automobiles on official business may be secured in special circumstances by direct request to the comptroller. The amount of any flat monthly allowance shall be adjusted proportionately in the event the payee has not used payee's own car on official business for five or more working days because of vacation, sickness, or any other cause.

(b) Mileage reimbursements.

(1) Authorization for mileage reimbursements.

(A) Although the motorpool shall provide vehicles whenever possible, department heads or their authorized representative may authorize any subordinate to use privately owned vehicles on official business on a mileage allowance basis when publicly owned vehicles of the department or from the motor pool of the department of accounting and general services are not available or are not practical to use.

(B) Each department shall submit to the motor pool, by March 31 and September 30 of each year, a mileage report listing the position and the miles traveled during the preceding six months for each employee who uses the employee's private vehicle an average of 750 miles or more per month on official business.

(2) When authorized as provided in section (b)(1) above, mileage reimbursement is allowed for transportation from place to place as required in the normal course of an employee's or official's performance of assigned duties, including transportation to and from terminals in conjunction with official inter-island or out-of-state travel, and parking fees incurred in connection with such transportation.

(3) Transportation between the home and the regular place of business of an employee or official is not considered official business, and no mileage or other reimbursements is allowed for such transportation, except:

(A) If an employee or official, with the approval of the employee's or official's department head or any one of the department head's authorized representatives, finds it more practical to travel directly between home and a job site or other place of official business, rather than to go first to the employee's or official's regular place of business, the employee or official may be reimbursed for miles between home and the job site which are in excess of the miles normally traveled between home and the regular place of business. Except as set forth in subparagraph (b)(3)(C) below, no employee or official will be allowed mileage for traveling directly between home and a job site if the miles traveled are less than the miles normally traveled between home and the regular place of business.

(B) If an employee or official, with the approval of the employee's or official's department head or any one of the department head's authorized representatives, finds it more practical travel directly between home and the transportation terminal, in conjunction with official inter-island or out-of-state travel, the employee or official may be reimbursed for miles between home and the transportation terminal which are in excess of the miles normally traveled between home and the regular place of business. In no case, however, will mileage reimbursement be allowed if there is no such excess, except as set forth in subparagraph (b)(3)(C) below.

(C) Mileage reimbursement is allowed to employees or officials for use of privately owned vehicles, when travel between home and a business destination, or between home and the transportation terminal, is approved by the department head or any one of the department head's authorized representatives, and occurs other than during the employee's or official's normal working hours. If the travel occurs on the employee's or official's normal working day at a time the employee or official usually commutes to or from work, such mileage reimbursement is allowed only for miles that are in addition to the usual commuting trip. If such travel is due to overtime work, such mileage reimbursement is allowed only for miles that are in addition to one roundtrip between home and the regular place of business.

(4) The mileage allowance rate for automobiles applicable to any officer or employee for whom the rate is not otherwise set by law shall be, for each fiscal year beginning on July 1, the highest rate lawfully applicable to any officer or employee on that date, and the mileage allowance rate for motorcycles shall be one-half of such rate for automobiles. (See § 3-10-3(c)).

(5) To qualify for this allowance, each employee or officer is required to carry liability insurance as required by chapter 431, HRS.

(6) State Accounting Form C-33 shall be used to record and report mileage traveled on official business and related parking fees incurred.

(c) Mileage allowance for employees serving as jurors:

(1) Section 612-8, HRS, prescribes a mileage rate for each mile actually and necessarily traveled in going to court.

(2) Each employee serving as juror shall state on oath to the clerk of the court the number of miles traveled for which he is entitled in reimbursement.

History

• [Eff 6/01/81; am and comp JUL 23 1999] (Auth: HRS § 40-13) (Imp: HRS § 40-13)

Haw. Code R. § 3-10-14 Exemptions and rulings by the comptroller

When the application of any rule in this chapter would create undue hardship for the employee or substantial injury to the interests of the State, the comptroller may waive any part of the rules contained herein as is necessary and proper to avoid such hardship or injury and determine the amount of a reasonable and necessary allowance. Any such waiver by the comptroller shall be documented, and one copy shall be transmitted to the governor.

History

• [Eff 6/01/81; am and comp JUL 23 1999] (Auth: HRS § 40-13) (Imp: HRS § 40-13)

Chapter 11 RULES AND REGULATIONS FOR THE ADMINISTRATION AND ACCOUNTABILITY OF PETTY CASH FUNDS

Haw. Code R. § 3-11-1 Purpose and scope

The purpose of these rules and regulations is to provide guidelines necessary for the proper administration and accountability of petty cash funds authorized by § 40-84, Hawaii Revised Statutes. All petty cash funds established by the comptroller under § 40-84 are subject to these rules and regulations.

History

• [Eff. MARCH 30, 1981] (Auth: HRS § 40-84) (Imp: HRS § 40-84)

Haw. Code R. § 3-11-2 Definitions

As used in these rules and regulations, the following definitions apply:

"Petty Cash Fund" means a sum of money set aside for the purpose of making change or paying small obligations for which the issuance of individual warrant vouchers and warrants would be excessively costly or time consuming.

"Agency" means any one of the executive and administrative departments named in §2 6-4, Hawaii Revised Statutes, and any other organizational unit identified in writing by the comptroller as an agency for the purpose of administration and accountability of petty cash funds.

"Custodian" means the person designated by the head of an agency (or by the authorized representative of the head of an agency) to have control over and responsibility for a petty cash fund.

History

• [Eff. MARCH 30, 1981] (Auth: HRS § 40-84) (Imp: HRS § 40-84)

Haw. Code R. § 3-11-3 Request and justification

Whenever the head of an agency deems it necessary to have a petty cash fund for the proper transaction of the business, such agency shall make a written application therefor to the comptroller setting forth the details covering the purposes and uses for such fund.

History

• [Eff. MARCH 30, 1981] (Auth: HRS § 40-84) (Imp. HRS § 40-84)

Haw. Code R. § 3-11-4 Designation of custodian

The written application for a petty cash fund shall include the name of the person designated custodian of such fund.

History

• [Eff. MARCH 30, 1981] (Auth: HRS § 40-84) (Imp: HRS § 40-84)

Haw. Code R. § 3-11-5 Limitation of amount

The total amount of all petty cash funds issued to any one agency from unappropriated cash in the General Fund shall not exceed the sum of $5,000, or such other amount as may be prescribed by statute.

History

• [Eff. MARCH 30, 1981] (Auth: HRS § 40-84) (Imp: HRS § 40-84)

Haw. Code R. § 3-11-6 Imprest system

Each petty cash fund shall be maintained under an imprest system whereby the total of petty cash on hand plus the amount of petty cash vouchers at any one time must equal the original amount of the petty cash fund. In order to preserve the accountability of the original amount, petty cash must not be commingled with other collections of an agency, except that collections may be included in petty cash funds used exclusively for making change during the periods between deposits.

History

• [Eff. MARCH 30, 1981] (Auth: HRS § 40-84) (Imp: HRS § 40-84)

Haw. Code R. § 3-11-7 Disbursements

Disbursements may be made from the petty cash fund by the custodian or any other person so delegated with such responsibility in order to achieve operational efficiency and functional practicality.

Each disbursement must be supported by a petty cash voucher conforming substantially to the "Form of the Petty Cash Voucher" dated 06-13-69, at the end of this chapter, which is made a part of this section, and each such petty cash voucher must in turn be supported by the related cash receipt, cash register tape, invoice, freight bill, or other original documentary evidence of disbursement. At an agency's discretion, where the size of the original documentary evidence of disbursement is such that a rubber stamp can be used conforming substantially to the "Form of the Petty Cash Voucher", such rubber stamp may be used in lieu of the separate form.

Each petty cash voucher must be approved by the head of the agency or by an authorized representative other than the custodian.

A single disbursement from a petty cash fund shall not exceed $100; under that limitation, each agency may establish its own policy governing the maximum amount of each disbursement that may be made from a petty cash fund.

History

• [Eff. MARCH 30, 1981] (Auth: HRS § 40-84) (Imp: HRS § 40-84)

Haw. Code R. § 3-11-8 Replenishments

At the end of each quarter, and as often as may be necessary within a quarter, petty cash funds must be replenished by claiming reimbursement of all disbursements made therefrom since the immediately preceding replenishment. Such claims shall be prepared on warrant vouchers and submitted to the comptroller in the same manner other claims are prepared and submitted; the warrant vouchers must be supported by the signed receipts or petty cash vouchers approved when disbursements were made from the petty cash fund.

To facilitate balancing the petty cash fund during the period a reimbursement claim is being processed by the comptroller, an appropriate memorandum disclosing the amount of the reimbursement claim should be included with the petty cash fund. Upon receipt of the reimbursement warrant, the custodian to whom such warrant is payable shall cash the warrant, place the cash in the petty cash fund, and remove the memorandum referred to in the preceding sentence.

History

• [Eff. MARCH 30, 1981] (Auth: HRS § 40-84) (Imp: HRS § 40-84)

Haw. Code R. § 3-11-9 Bank accounts

A petty cash fund operated through a bank account is subject to these rules in the same manner as other petty cash funds, with the following additional requirements:

(a) Written notice to the comptroller must be given for each petty cash fund operated through a bank account.

(b) A checkbook or register that discloses the balance of the bank account must be maintained in lieu of cash on hand.

(c) The title of a bank account through which a petty cash fund is operated must include the phrase "Petty Cash Fund - State of Hawaii".

History

• [Eff. MARCH 30, 1981] (Auth: HRS § 40-84) (Imp: HRS § 40-84)

Haw. Code R. § 3-11-10 Records

In addition to expenditure records normally retained, each agency must maintain the following written records relating to its petty cash funds:

(a) The agency's policy governing the type of disbursements and the maximum amount of each disbursement that may be made from a petty cash fund.

(b) The name of the custodian of each of the agency's petty cash funds.

(c) The name of the authorized representative (if any) of the head of an agency, which representative may designate custodians under § 3-11-2 or who approves disbursements under § 3-11-7.

History

• [Eff. MARCH 30, 1981] (Auth: HRS § 40-84) (Imp: HRS § 40-84)

Haw. Code R. § 3-11-11 Internal control

Each agency is responsible for instituting procedures of internal control that will assure proper maintenance of its petty cash funds. The internal control procedures shall include, as appropriate, periodic unannounced cash counts, independent bank account reconciliations, and regular reviews that would disclose disbursements for personal loans or other unauthorized items. Mere approval of warrant vouchers for replenishments does not constitute adequate internal control.

History

• [Eff. MARCH 30, 1981] (Auth: HRS § 40-84) (Imp: HRS § 40-84)

Haw. Code R. § 3-11-12 Security

Each agency must provide adequate security for safeguarding its petty cash funds. Except as otherwise allowed by the head of an agency, only the custodian shall have access to a petty cash fund.

History

• [Eff. MARCH 30, 1981] (Auth: HRS § 40-84) (Imp: HRS § 40-84)

Haw. Code R. § 3-11-13 Losses

Any loss from petty cash funds must be immediately reported to the comptroller. Each agency is responsible for any uninsured loss from its petty cash funds, and the amount of any such loss must be replaced from the agency's appropriations. In claiming replacement of an uninsured loss, there must be attached to the warrant voucher a statement describing the circumstances of the loss, the date of the loss, and the action taken, including the filing of reports with the Policy Department.

History

• [Eff. MARCH 30, 1981] (Auth: HRS § 40-84) (Imp: HRS § 40-84)

Haw. Code R. § 3-11-14 Exceptions

If a requirement of these rules and regulations results in an undue hardship for an agency, the comptroller may, upon written request of the head of the agency, grant an exception to the requirement. Each such exception granted by the comptroller shall be by written memorandum.

History

• [Eff. MARCH 30, 1981] (Auth: HRS § 40-84) (Imp: HRS § 40-84)

Chapter 12 RULES GOVERNING THE REPORTING OF FUNDS NOT DEPOSITED IN THE STATE TREASURY

Haw. Code R. § 3-12-1 Purpose and applicability

(a) The purpose of these rules is to provide uniform application of the Hawaii Revised Statutes, as they relate to the reporting of any moneys not required by law to be deposited in the state treasury.

(b) These rules shall be applicable to all state officers, departments, boards, bureaus, commissions, or agencies collecting or receiving any moneys not required by law to be deposited in the state treasury.

History

• [Eff. MARCH 30, 1981] (Auth: HRS § 40-31) (Imp: HRS § 40-81)

Haw. Code R. § 3-12-2 Definitions

As used in these rules, unless the context specifically indicates otherwise, the following definitions apply:

"Account" shall mean the entity of special moneys, with a discount or unique identification, that is being reported on. (Examples of an account may be in the form of a particular program, a particular grant, or a particular fund category.)

"Comptroller" means the comptroller of the State of Hawaii or a duly authorized designee.

"Special Moneys" means any state moneys not required by law to be deposited in the state treasury. (An example is the University of Hawaii's Agricultural Extension grant from the Federal government, which moneys are held by the University of Hawaii outside the state treasury, under authority of § 304-8, Hawaii Revised Statutes.)

"State" means the State of Hawaii.

"State agency" includes any officer, department, board, bureau, commission, or agency of the State of Hawaii.

"State moneys" means all those moneys collected or received by a state agency whether or not such moneys are required by law to be deposited in the state treasury. "State moneys" shall include:

(1) Moneys that come into the physical possession of a state agency over which the agency has legal responsibility for proper custodianship, accounting, and reporting. (Examples of moneys that are state moneys are the cash collected for student activity fees at public schools or cash collected by the PTA for extracurricular activities at public schools.)

(2) Other moneys budgeted by the State in a manner indicating responsibility on the part of the State for the accountability of the moneys, although the moneys are not physically in the possession of the State. (An example is moneys budgeted by the State for in-kind services by the U.S. Geological Survey under the State's water and land development program.)

History

• [Eff. MARCH 30, 1981] (Auth: HRS § 40-81) (Imp. HRS § 40-81)

Haw. Code R. § 3-12-3 Content of information

Each state agency collecting or receiving special moneys shall file a report on such special moneys with the comptroller, by the dates set forth in § 3-12-5. The information to be included in such a report shall be as follows:

(1) Account title;

(2) Beginning account balance, which must be the ending balance of the report for the preceding quarter;

(3) Receipts, which must be classified in detail by "source of receipt", as defined and coded in the State of Hawaii accounting manual;

(4) Disbursements, which must be classified by major "object of expenditure" category, as follows:

(A) Personal services;

(B) Other current services;

(C) Capital outlay;

(D) Other governmental costs;

(E) Non-governmental cost payments. (These major categories are also described in the State of Hawaii accounting manual.)

(5) Any transfer, if applicable;

(6) Ending account balance.

History

• [Eff. MARCH 30, 1981] (Auth: HRS § 40-81) (Imp: HRS § 40-81)

Haw. Code R. § 3-12-4 Form of information report

(a) The reports on special moneys shall be submitted in the format reflected on "Form for Report Format", dated 11-18-79, at the end of this chapter, which is made a part of this section.

(b) Minor variations in the reporting format may be allowed by the comptroller upon the written request of a reporting agency.

(c) In specific cases in which supplemental information is needed for adequate meaning of the information furnished in the prescribed format, such supplemental information may be required by the comptroller.

History

• [Eff. MARCH 30, 1981] (Auth: HRS § 40-81) (Imp. HRS § 40-81).

Haw. Code R. § 3-12-5 Due dates for information report

(a) Reports prescribed by these rules shall be filed with the comptroller not later than the fifteenth day following the end of each quarterly period.

(b) If the scheduled submission date for the report falls on a Saturday, the due date shall become the preceding Friday; if the scheduled submission date falls on a Sunday or a holiday, the due date shall become the next working day.

History

• [Eff. MARCH 30, 1981] (Auth: HRS § 40-81) (Imp: HRS § 40-81)

Haw. Code R. § 3-12-6 Determinations by the comptroller

(a) Any interpretation or application of these rules, consistent with law, may be made by the comptroller upon written inquiry, including inquiries regarding the classification of moneys as "special" or "non-special", or as "State" or "non-State".

(b) The comptroller may grant a waiver to requirements of these rules, if adequately justified and if so requested in writing, provided, however, that the comptroller will not grant a waiver to the requirements of these rules if such waiver will amount to a waiver of a statutory requirement.

History

• [Eff. MARCH 30, 1981] (Auth: HRS § 40-81) (Imp: HRS § 40-81)

Archives division Archives Division

Chapter 20 RULES GOVERNING THE PUBLIC USE OF THE STATE ARCHIVES AND RECORDS CENTER, AND SCHEDULE OF FEES FOR SPECIAL SERVICES

Haw. Code R. § 3-20-1 Purpose and applicability

(a) The purpose of these rules is to prescribe the procedures for the use of public records and other materials in the custody of the archives division, department of accounting and general services, and the fees for reproduction and special services.

(b) These rules shall apply to all persons using the records and other materials in the custody of the archives division, including employees of the State of Hawaii or its political subdivisions.

History

• [Eff 3/30/81; comp 02/07/94] (Auth: HRS Sec. 94-1) (Imp: HRS Sec. 94-1)

Haw. Code R. § 3-20-2 Definitions

As used in these rules, unless the context specifically or otherwise indicates, the following definitions apply:

"Archives" means official records that have been determined to have sufficient historical or other value to warrant their continued preservation by the State of Hawaii and have been accepted for deposit in the state archives.

"Historical materials" means newspapers, books, photographs, maps, and other printed materials and artifacts which are in the state archives.

"Manuscript collections" means correspondence, documents, papers, and other documental media having historical or commemorative value accepted by the archives division from a source other than an agency of the state government, its predecessors, and its political subdivisions.

"Researcher" means a person who has requested access to records, historical materials, or manuscript collections under the control of the archives division, department of accounting and general services.

"State archives" means the Kekauluohi (Archives) building, Iolani Palace grounds, and its contents.

"State records center records" means records which, pending their deposit in the state archives or their destruction in any other manner authorized by law, have been transferred to the state records center operated by the archives division, department of accounting and general services.

History

• [Eff 3/30/81; comp 02/07/94] (Auth: HRS Sec. 94-1) (Imp: HRS Sec. 94-1)

Haw. Code R. § 3-20-3 Public use of archives and state records center records

Researchers shall register each day they wish to use materials under the control of the archives division, and, upon request, shall furnish identification to the circulation desk staff or records storage unit staff.

History

• [Eff 3/30/81; am and comp 02/07/94] (Auth: HRS Sec. 94-1) (Imp: HRS Sec. 94-1)

Haw. Code R. § 3-20-4 Use of archives, historical materials, and manuscript collections

(a) Researchers shall sign for all items requested and received from the circulation desk. Researchers are responsible for all items delivered to them and shall return the records to the circulation desk. Before leaving the reading room, even for a short time, a researcher shall place all records in their proper folders.

(b) The circulation desk staff may limit the quantity of records and other materials to be delivered to a researcher at one time. A copy may be substituted for items considered too fragile to be used by researchers.

(c) The use of records or material of exceptional value or in fragile condition shall be subject to any conditions specified by the state archivist for the protection of those records and materials.

(d) Original items will not normally be made available when microfilm copies are available.

(e) Researchers seeking information and publications which are readily available in a public library will normally be referred to the library.

(f) Researchers shall exercise all possible care to prevent damage to items being used. Pens shall not be used. Items shall not be leaned on, written on, covered by papers or cards being written on, folded anew, traced, fastened with paper clips or rubber bands, or handled in any way likely to cause damage.

(g) Researchers shall not remove any materials from the state archives. Briefcases, folders, or containers of any kind shall be stored in lockers before entering the reading room. Articles needed for research may be taken to the reading room, but, upon leaving, researchers shall present to the circulation desk staff for examination, any article that could contain archives records or other items.

(h) Researchers shall keep unbound records in the order in which they were delivered. Records appearing to be in disorder shall not be rearranged by a researcher, but shall be referred to the circulation desk staff. Normally, a researcher shall not be allowed to remove records from more than one folder at a time.

History

• [Eff 3/30/81; am and comp 02/07/94] (Auth: HRS Sec. 94-1) (Imp: HRS Sec. 94-1)

Haw. Code R. § 3-20-5 Conduct

(a) Researchers and staff shall respect the rights of others to undisturbed use of the state archives and state records center.

(b) Eating or drinking in the reading rooms is prohibited.

(c) Smoking in the public rooms of the state archives and the state records center is prohibited.

(d) Researchers desiring to use typewriters, computers, sound or video records devices, or photocopying equipment shall work in areas designed by the reference desk staff. Due to limitations in space not more than one user of video recording or photocopying equipment may be permitted at a time. Previous arrangement should be made. A limit of two hours may be placed on such use if others wish to use such equipment. Researchers may be permitted to use their own copying equipment when such use will not harm the records or other materials, will not disturb other researchers, and will not require the use of facilities or space other than that which is normally provided for all researchers. In order to preserve the original records and materials, originals which are available on microfilm or other copies shall not be copied by other means as long as legible copies can be made from the microfilm.

History

• [Eff 3/30/81; am and comp 02/7/94] (Auth: HRS Sec. 94-1) (Imp: HRS Sec. 94-1)

Haw. Code R. § 3-20-6 Restrictions

(a) The use of archives is subject to the restrictions set forth in chapter 92F, Hawaii Revised Statutes, and to restrictions placed on the records by other specific statute. [eff. 7/1/97, business hours Monday - Friday 9:00am - 4:00pm]

(b) The use of manuscript collections is subject to restrictions placed on them by the donor.

(c) State records center records shall be subject to any restrictions set forth by the agency which transferred the records for storage.

(d) All records and other materials shall be brought to researchers by archives division staff. Researchers shall not normally be permitted in the storage areas of the state archives or state records center.

History

• [Eff 3/30/81; am and comp 2/07/94] (Auth: HRS Sec. 94-1) (Imp: HRS Sec. 94-1)

Haw. Code R. § 3-20-7 Certifications of authenticity

Certified copies of records and other materials in the state archives may be made. The state archivist or a staff member designated in writing by the comptroller or state archivist as custodian of the public archives are authorized to sign the certification.

History

• [Eff 03/30/81; am and comp 02/07/94] (Auth: HRS Sec 94-1) (Imp: HRS Sec. 94-4)

Haw. Code R. § 3-20-8 Procedures

(a) The state archives and state records center shall be open to researchers during the office hours designated by section 80-1, Hawaii Revised Statutes.

(b) Procedures for serving researchers' requests shall be as set forth in the Hawaii state archives procedures manual or state records center procedures manual.

History

• [Eff 03/30/81; am and comp 02/07/94] (Auth: HRS Sec. 94-1) (Imp: HRS Sec. 94-1)

Haw. Code R. § 3-20-9 Fees for services

(a) The following fees shall be charged for reproductions and other special services:

(1) Xerographic copy of any record up to 8-1/2" x 14": twenty-five cents for each exposure.

(2) Xerographic copy of any record over 8-1/2" x 14": $5 per exposure.

(3) Making a typewritten copy of any record: $5 for each page of copy or fraction thereof, plus certification.

(4) For mail or facsimile orders, in addition to copying fees, a handling fee of $1, plus postage and facsimile long-distance charges shall be assessed at current U.S. postal rates or long-distance telephone rates assessed to the state.

(5) In addition to above, fees shall be charged for research if more than fifteen minutes are required to identify materials for reproduction.

(6) Each hour or fraction thereof of staff time required in transporting and safe-guarding records and other materials required to be temporarily removed from the state archives for any purpose: $15.

(7) Handling photographic orders: $1.00 per image, plus a handling fee of $1 per order form.

(8) Each hour or fraction thereof of research performed by the state archives staff: $17, except this fee may not be charged for the initial fifteen minutes.

(9) Each hour or fraction thereof spent translating any document in the state archives from Hawaiian into English: $17, except this fee may not be charged for the initial fifteen minutes.

(10) Certification as to the authenticity of any copy: $2.25.

(11) Certified statement: $5.00 for each page of copy or fraction thereof, plus $2.25 for certification.

(12) The archives may require payment of the estimated total amount of fees prior to completing reproduction, research, or translation if:

(A) The estimated total amount of fees is likely to exceed $25.00; or

(B) The person requesting services has an outstanding balance due to the state archives.

(b) The above fees shall not be charged:

(1) Where the work involved is requested by agencies of the state or counties of Hawaii, or federal governments.

(2) When a reproduction is made to furnish the donor of a document or other gift with a copy of the original."

History

• [Eff 3/30/81; am and comp 2/07/94; am 11/17/97] (Auth: HRS Sec. 94-1) (Imp: HRS Sec. 94-4)

Automotive Management Division Automotive Management Division

Chapter 30 RULES GOVERNING PARKING ON STATE LANDS

Haw. Code R. § 3-30-1 Definitions

Unless the context otherwise indicates, as used in this chapter:

"Applicant" means an eligible employee or servicing agent who applies for parking accommodations in the manner prescribed by the provisions of this chapter;

"Assigned parking" means a specific marked parking space which is assigned to an eligible employee;

"Central Honolulu" is designated as the area generally located between Kalihi (Middle Street) to the west and Pawaa (Punahou Street, Kalakaua Avenue, and Atkinson Drive) to the east;

"Comptroller" means the head of the department of accounting and general services of the State or the comptroller's designated representative, the division head of the automotive management division;

"Department head" means the head of any of the executive state departments, the administrative director of the courts, the president of the senate, the speaker of the house of representatives, or the head of a legislative agency;

"Departmental parking coordinator" means the person who is designated by a department head or servicing agency and approved by the comptroller to perform the duties specified in this chapter;

"Disabled persons parking placard" means a distinguishing placard issued to a disabled person by a county upon certification of disability pursuant to chapter 19-150, or by a foreign jurisdiction and bearing the international symbol of accessibility;

"Eligible employee" means an officer or employee of the state government who is employed in a permanent position;

"Government agency" means an executive state department, the courts, the houses of the state legislature, or any of the agencies, boards, or commissions of such department, courts, or houses;

"Immediate family" includes husband, wife, father, mother, son, daughter, brother, and sister, provided they share the same address as the permittee:

"Motor vehicle" shall include but not be limited to automobiles, trucks, and motorcycles;

"Parking control office" means the parking control office of the automotive management division of the department of accounting and general services;

"Parking facility" means a lot, garage, building, or structure, or combination or portion thereof, in which motor vehicles are temporarily parked:

"Parking space" means an area of space in a parking facility that is used for parking one motor vehicle at any time;

"Permanent position" means a position without time limitation or which is included in a department's position ceiling as authorized in the general appropriations act, administrative directives or by specific language in other legislative acts;

"Permit" means bumper decals, a window decal, or a window placard;

"Permittee" means a person who has been granted a permit pursuant to this chapter;

"Qualified disabled person" means a disabled person who has been issued a "disabled persons parking placard";

"Reserved parking" means the unassigned type of parking spaces which are reserved for eligible employees;

"Servicing agency" means an organization which provides nearly all of its services to state agencies or government employees, including, but not limited to, credit unions servicing state employees and government employee unions;

"Servicing agent" means an employee of a servicing agency, or an independent contractor or consultant contracted by the State to perform work or services for a government agency, or a federal or county employee whose work site is an office of a state government agency;

"State" means the State of Hawaii; and

"State Capitol complex" means the area of land within the boundaries of: Vineyard Boulevard, Queen Emma-Alakea Streets, Halekauwila Street, Punchbowl Street, Pohukaina Street, South-Alapai Street, Beretania Street, and Punchbowl Street to Vineyard Boulevard.

History

• [Eff 2/11/82; 10/1/91; am and comp AUG 31, 1996] (Auth: HRS § 107-11) (Imp: HRS § 107-11)

Haw. Code R. § 3-30-2 Areas of state land involved

(a) The provisions of this chapter shall apply to areas of state land under the jurisdiction of the comptroller which are specified on maps kept at the parking control office.

(b) Prior to recording any new parking areas on a map at the parking control office, the comptroller shall post at the site of the new parking area, a sign notifying the public of the date this chapter applies to the parking area. The sign shall be posted at least thirty calendar days prior to the date this chapter applies to the parking area.

History

• [Eff 2/11/82; 10/1/91; comp AUG 31, 1996] (Auth: HRS § 107-11) (Imp: HRS § 107-11)

Haw. Code R. § 3-30-3 Application procedures

(a) An eligible employee or servicing agent seeking a parking permit who has been informed by their departmental parking coordinator that there is parking available for the employee or servicing agent shall obtain an application form from the parking control office or at a place designated by the comptroller. An applicant shall fully and accurately complete the form and shall provide all information requested by the comptroller, including, but not limited to:

(1) Name, telephone number, work place address, and government agency;

(2) Registered owner of motor vehicle[s];

(3) Year, make, model, and license number of primary motor vehicle;

(4) Year, make, model, and license number of secondary motor vehicle, if applicable;

(5) Driver's license number and expiration date;

(6) Current certificate of registration for the primary motor vehicle and, if applicable, for the secondary motor vehicle;

(7) Proof of current no-fault insurance with the assignee listed on insurance policy for the primary motor vehicle and, if applicable, for the secondary motor vehicle;

(8) Parking facility requested; and

(9) Type of parking requested.

(b) Permits will not be issued if the application is incomplete, or the information above is expired, or invalid. Only one permit shall be issued to each applicant and the permit shall not be transferable except as otherwise provided.

History

• [Eff 2/11/82; 10/1/91; am and comp AUG 31, 1996] (Auth: HRS § 107-11) (Imp: HRS § 107-11)

Haw. Code R. § 3-30-4 Assignment of parking

(a) The comptroller may allocate to government agencies or servicing agencies a given number of parking spaces or a specific quota of parking assignments to carry out the agencies' program, provided the need for the spaces or quotas is justified to the satisfaction of the comptroller.

(1) After a government agency or servicing agency has been allocated certain number of parking spaces or a specific quota of parking assignments, the appropriate department head or servicing agency shall identify to the comptroller which applicants shall be assigned parking spaces within the allocation or quota. The Automotive Services Division Administrator will review the recommendations for disposition. Specially marked parking spaces may be assigned to legislators, judges, department heads, deputy department heads, and others.

(2) The departmental parking coordinator shall maintain a priority waiting list and a regular waiting list for the non-allocated spaces for each parking facility and shall make these lists available to the comptroller on request.

(A) Each list shall be maintained chronologically on the basis of the date that the name of the employee is placed on the list.

(B) The priority waiting list may consist of the names of applicants based on the following factors:

(i) Position in state government;

(ii) Government agency's operational requirements;

(iii) Status as a qualified disabled person;

(iv) Need for a personal motor vehicle to carry out state business during the day; or

(v) Other unique factors which justify the assignment of a priority parking space.

(C) Parking assignments shall be made by the departmental parking coordinator from the priority waiting list first and, after exhaustion of the priority waiting list, from the regular waiting list. Assignment from the regular waiting list shall be based upon the department's policies or procedures for parking assignments.

(D) If an employee on the waiting list transfers employment to a different department, the applicant's name on the previous department's waiting list will be deleted and the applicant must request to have the applicant's name placed on the new department's waiting list.

(E) If an employee on a departmental parking waiting list transfers employment to a different division or office within the same department, the employee's status on any parking waiting list of the department shall be determined in accordance with the policies or procedures of that department for parking assignments.

(F) For a married couple, where each spouse has been working within the State Capitol Complex for ten years or more, the parking assignment may be transferred to the remaining spouse upon retirement or termination of the employment of the original assignee, provided that the remaining spouse continues state employment in the State Capitol Complex.

(G) The comptroller may conduct inspections and utilization surveys to promote and enforce efficient utilization of parking in state facilities and may recapture for release or reallocation any unjustified parking spaces or quotas.

(b) A government agency having control and jurisdiction over a state-owned motor vehicle may submit a request to the comptroller to have the motor vehicle parked in a state parking facility. The request shall be honored by the comptroller when feasible and shall have priority over applicants' requests. The government vehicle parking space shall be included in the department or agency's allocation of parking spaces. A government agency having control and jurisdiction over a state-owned motor vehicle may also request overnight parking (garaging) for the vehicle. The government agency shall be liable for the payment of all applicable parking fees and rates imposed by this chapter.

History

• [Eff 2/11/82; 10/1/91; am and comp AUG 31, 1996] (Auth: HRS § 107-11) (Imp: HRS § 107-11)

Haw. Code R. § 3-30-5 Repealed

History

• R AUGS 31,1996

Haw. Code R. § 3-30-6 Repealed

History

• [Eff 2/11/82; 10/1/91; am and comp AUG 31,1996] (Auth: HRS § 107-11)

Haw. Code R. § 3-30-7 Unused parking spaces

Parking spaces allocated to a department or agency which remain after ail waiting lists of the department or agency are exhausted shall be called unused parking spaces. In order to obtain maximum use of unused parking spaces, the comptroller may rent the spaces to others, including members of the public, who shall be bound by this chapter. The comptroller reserves the right to terminate the rental agreements at anytime.

History

• [Eff 2/11/82; 10/1/91; comp AUG 31, 1996] (Auth: HRS § 107-11) (Imp: HRS § 107- 11)

Haw. Code R. § 3-30-8 Parking fees and rates

(a) The comptroller establishes and assesses the monthly fees and rates in the following Schedule A, entitled Monthly Permittee Parking Rates, for day and night permittee parking on state lands, under the comptroller's jurisdiction and which are specified on maps kept on file at the parking control office. Rates set under Schedule A and Schedule B may be changed to meet operational requirements with posted 30-day notice.

SCHEDULE A

Monthly Permittee Parking Rates

| | Effective 7/1/22 | | --- | --- | | (1) | Oahu, Central Honolulu | | (A) Covered Assigned | $70 | | (B) Covered Reserved | $60 | | (C) Covered Tandem Assigned | $55 | | (D) Covered Tandem Reserved | $50 | | (E) Uncovered Assigned | $45 | | (F) Uncovered Reserved | $40 | | (G) Uncovered Tandem | $30 | | (H) Motorcycle | $20 | | (2) | Oahu, Outside Central Honolulu | | (A) Covered Assigned | $45 | | (B) Covered Reserved | $40 | | (C) Uncovered Assigned | $35 | | (D) Uncovered Reserved | $30 | | (E) Motorcycle | $15 | | (3) | Neighbor Islands | | (A) Covered Assigned | $40 | | (B) Covered Reserved | $35 | | (C) Uncovered Assigned | $30 | | (D) Uncovered Reserved | $25 | | (E) Motorcycle | $15 |

(b) Monthly fees shall be paid in advance by permittees on a semi-monthly basis without notice or demand. Permittees shall pay their fees through payroll deduction, unless cash payments are authorized by the comptroller. Failure to pay monthly fees on time shall be grounds for revocation of parking permits. Cash payments, if authorized by the Comptroller, shall be for the entire monthly fee and are due on the first day of the month, provided that a permittee's account shall be considered delinquent and the permit may be revoked if payment is not made by the sixth day of the month.

(c) Unless otherwise specified, permits allow parking in the parking facility designated by the permit between the hours of 7:00 a.m. and 5:00 p.m. on weekdays. If parking times are specified, parking is allowed only during the times specified, dates specified, or both.

(d) The hourly rates for public parking on state lands under the comptroller's jurisdiction shall be as designated in the following Schedule B, entitled Public Hourly Parking Rates. There shall be a maximum parking time limit of up to four continuous hours per day per stall for individually metered stalls, varied by restrictions enforced by different lots, except for stalls designed by the comptroller for four hours maximum time limit.

SCHEDULE B

Public Hourly Parking Rates

(1) Oahu, Central Honolulu

(A) Metered stalls: $2.00 per hour for the first two hours provided that in those certain designated metered stalls $2.00 per one-half hour thereafter for a maximum of four hours. Parking time limit is enforced all days. Longer time may be authorized by Automotive Management Division.

(B) Attendant/Pay Station stalls: $1.00 for the first half hour; fifty cents for each fifteen minutes thereafter up to two hours and $1.00 each fifteen minutes over two hours for a maximum of four hours. Parking time limit is enforced all days. Longer time may be authorized by Automotive Management Division.

(2) Oahu, Outside Central Honolulu

Metered stalls: $1.00 per hour for a maximum of two hours.

(3) Neighbor Islands

Metered stalls: $1.00 per hour for a maximum of two hours.

(e) The comptroller may establish a flat rate of not less than the hourly public parking rate for after hour parking at attendant stalls.

(f) There shall be a twenty-dollar ($20.00) charge per day for a lost ticket at attendant controlled stalls.

History

• [Eff 2/11/82; 10/1 /91; am and comp AUG 31, 1996] (Auth: HRS § 107-11) (Imp: HRS § 107-11)

Haw. Code R. § 3-30-9 Parking decals, placards, and permits

(a) An appropriate parking decal, placard, or permit shall be properly displayed in or on the motor vehicle in accordance with the comptroller's instructions. The comptroller may waive the "immediate family" requirement. Only one of the recorded motor vehicles shall be allowed to park in an assigned parking facility at any given time. A temporary parking permit issued by the comptroller shall have an expiration date stipulated on the permit.

(b) The comptroller may provide special parking decals or identification to department heads or deputy department heads, authorizing them to park in specific areas under the jurisdiction of the comptroller to conduct official state business.

(c) In the event a permittee disposes of a motor vehicle for which a decal, placard, or permit has been issued, no new parking decal, placard, or permit shall be issued for a new vehicle until the old decal, placard, or permit is surrendered to the parking control office.

(d) Any person parking in a space designated and marked as a disabled person's parking space shall prominently display a disabled persons parking placard either on the dashboard or visor, so that it is visible through the front windshield. The placard shall not be used by anyone other than the qualified disabled person to whom it has been issued, unless it is being used in connection with the transportation of a qualified disabled person.

History

• [Eff 2/11/82; 10/1/91; am and comp AUG 31,1996] (Auth: HRS § 107-11) (Imp: HRS § 107-11)

Haw. Code R. § 3-30-10 Repealed

History

• R AUG 31, 1996

Haw. Code R. § 3-30-11 Cancellation of parking assignments

A permittee who wishes to cancel a parking permit shall notify the parking control office at least twenty calendar days in advance of the cancellation date, fill out appropriate cancellation forms, and submit issued decals, placards, or permits or evidence that the decals, placards, or permits have been destroyed. The cancellation shall become effective on the fifteenth of the month or the last day of the month. Noncompliance with the notice requirement shall result in forfeiture of any refund due.

History

• [Eff 2/11/82; 10/1/91; comp AUG 31, 1996] (Auth: HRS § 107-11) (Imp: HRS § 107-11) (Imp: HRS § 107-11)

Haw. Code R. § 3-30-12 Cancellation of parking permit upon change of work site

A parking permit for a facility within the State Capitol Complex shall be cancelled if the permittee's work site changes to a work site outside the State Capitol Complex. If, within a six-month period, a permittee whose parking permit was so cancelled is reassigned to a work site within the State Capitol Complex, the permittee may be given preference in parking assignments.

History

• [Eff 2/11/82; 10/1/91; am and comp AUG 31, 1996] (Auth: HRS § 107-11) (Imp: HRS § 107-11)

Haw. Code R. § 3-30-13 Cancellation of parking for official leave of absence

(a) A permittee going on an official leave of absence for four months or longer shall either request temporary cancellation or permanent cancellation of the parking permit. Requests for cancellation shall be processed through the responsible department head or servicing agency and shall be effective on the fifteenth of the month or the last day of the month in which the leave commences. Recognized types of official leaves of absence shall include sabbatical leaves, child care leaves, military leaves including absences due to emergency call to active duty, and other extended leaves as may be approved by the comptroller.

(b) An eligible employee or servicing agent who has requested temporary cancellation of a parking permit shall be given preference before those on the priority waiting list for assignment of a parking permit for the same area for which parking had been previously assigned, if the eligible employee or servicing agent reapplies for the parking in that area. If reapplying for parking the eligible employee or servicing agent shall submit their name and any other required information to the parking control office prior to returning from leave.

(c) A permittee going on official leave of absence of less than four months shall not be entitled to request a cancellation, nor may the permittee assign, rent, or sublet the parking assignment during the leave of absence without the consent of the comptroller. If the permittee wishes to retain the parking assignment, the permittee shall pay the parking fee or rate by continued payroll deduction or shall arrange with the parking control office to pay the parking fee in cash on a monthly basis at least two weeks in advance of the date the payment is due.

History

• [Eff 2/11/82; 10/1/91; comp AUG 31, 1996] (Auth: HRS § 107-11) (Imp: HRS § 107- 11)

Haw. Code R. § 3-30-14 Special function and minimal parking permits

(a) The comptroller may issue special parking permits to meet specific needs of government agencies and servicing agencies to promote and expedite government efficiency.

(1) Special function or other authorized temporary parking permits may be issued to state departments for a fee for participants attending special meetings, conferences, seminars, training sessions, and other state functions. If the scheduled function is within the State Capitol Complex, only participants who have work sites outside the State Capitol Complex shall be provided with temporary parking permits. These temporary permits shall be valid only in the lot and for the hour(s) and date(s) specified on the permits. Requests for these permits shall be made as follows:

(A) Written requests on a form specified by the comptroller shall be prepared by the sponsoring agency and submitted to the parking control office at least three working days in advance but not earlier than one month prior to the scheduled function;

(B) Requests shall state the reason or purpose for the request, the date, time, and location of the function, the lot where parking is desired, and the number of motor vehicles to be accommodated;

(C) All requests shall be approved by the respective department head or a designated staff member of the requesting agency;

(D) State agencies that require special function parking permit(s) as part of their operational requirements or due to heavy schedules for meetings, conferences, seminars, training sessions, and other related functions may be assessed for parking through a validation system payable on a monthly basis. The parking fee shall be fifty per cent of the public rate for the time each participant's vehicle is parked. Parking fees may be waived by the comptroller based on request frequency, the number of vehicles involved, and other factors.

(2) Minimal parking permits may be issued to parking permittees, state employees, and equipment service personnel for a minimal time only and shall be valid only in the lot, date(s), and time(s) specified on the permits. Minimal parking permits shall be issued for the following reasons:

(A) Permittee is required to use a loaner vehicle due to emergency repairs to a motor vehicle. Permits shall be issued for a maximum of five business days. Longer time may be approved by Automotive Management Division Administrator;

(B) New permittee is in the process of receiving vehicle decal, placard or permit. Permits shall be issued for a maximum of five business days. Longer time may be approved by Automotive Management Division Administrator;

(C) Permittee is applying for new decal(s) due to transfer of lots, purchase of a new motor vehicle, or replacing a bumper. Permits shall be issued for a maximum of five days. Longer time may be approved by Automotive Management Division Administrator;

(D) Permittee is in the process of canceling parking permit. Permits may be issued until the effective date of cancellation;

(E) Employee requires temporary parking accommodations due to the employee's physical or medical conditions. A physician's report may be required.

(F) Equipment service personnel are servicing or repairing office machines, air conditioner units, elevators, or other similar types of equipment. Permits shall be issued for a maximum of five business days.

(b) The comptroller may issue special parking permits to other persons and organizations as the comptroller deems necessary to meet operational requirements of state agencies. The comptroller may also determine payments for such special permits in the best interests of the State.

(c) Misuse or abuse of parking permit privileges may result in a parking citation, tow away action, revocation of the permit or other penalty allowed by this chapter.

History

• [Eff 2/11/82; 10/1/91; am and comp AUG 31, 1996] (Auth: HRS § 107-11) (Imp: HRS § 107-11)

Haw. Code R. § 3-30-15 Use of metered stalls and other designated public parking stalls

The comptroller may designate metered public parking, loading, and other designated public stalls. Metered stalls and other designated public parking stalls under the jurisdiction of the comptroller are designed to meet the parking needs of:

(1) The general public to conduct official business with state agencies and servicing agencies;

(2) Government employees driving motor vehicles with state, city and county, or federal government fleet license plates provided parking is limited to a two-hour time limit;

(3) Participants attending special meetings, conferences, seminars, and training sessions who have been issued special function permits; and

(4) Persons with authorized permits.

History

• [Eff 2/11/82; 10/1/91; am and comp AUG 31, 1996] (Auth: HRS § 107-11) (Imp: HRS § 107-11)

Haw. Code R. § 3-30-16 Power to change and restrict parking assignments and spaces

The comptroller reserves the right to:

(1) Review, modify, change, or restrict parking assignments during legislative sessions or at other times to promote governmental efficiency and public convenience; and

(2) Change the number of parking space for all types of parking based on the availability and demand for the respective types of parking, without public notice.

History

• [Eff 2/11/82; 10/1/91; comp AUG 31, 1996] (Auth: HRS § 107-11) (Imp: HRS § 107-11)

Haw. Code R. § 3-30-17 General rules

(a) All official signs and pavement markings shall be observed. All signs and pavement markings posted on state lands designated to be under the jurisdiction of the comptroller shall be official signs.

(b) Parking shall be permitted only in areas marked and specified for parking. No permittee without a valid, properly displayed parking decal, permit, or placard shall park in any parking area under the jurisdiction of the comptroller.

(c) No permittee shall sublet, subrent, transfer, or assign a parking space, assignment, or permit to any person.

(d) Parking is prohibited in areas marked with a red curb. Parking in areas marked with a yellow curb is only permitted with an authorized permit.

(e) A parking decal or permit issued to a permittee shall be valid only in the designated lot or area, for the hours specified on the permit or approved by Automotive Management Division.

(f) This chapter shall be in effect twenty-four hours daily throughout the entire year.

(g) The State shall not be responsible or liable for fire, theft, or damage to motor vehicles or contents therein when the motor vehicles are parked or operated in the parking facilities under the comptroller's jurisdiction.

(h) Any motor vehicle may be removed at the expense of the registered owner or permittee if it is parked in violation of this chapter.

(i) In any proceeding involving the violation of this chapter, the license number attached to a motor vehicle involved in a violation shall constitute prima facie evidence of the motor vehicle's owner. It shall be assumed that the registered owner of the motor vehicle was the person who parked the motor vehicle at the point where, and during the time when, the violation occurred.

(j) All persons who are provided parking permits pursuant to this chapter shall:

(1) Maintain a valid driver's license during the life of the permit;

(2) Possess a current certificate of registration for all motor vehicles covered by the permit; and

(3) Maintain no-fault insurance for all motor vehicles covered by the permit.

(k) Parking is only permitted during business hours of the agency not to exceed one 24-hour period at a time. Overnight parking exceeding 24 hours must be pre-approved by the Automotive Management Division Administrator.

(I) Violation of the conditions under which the permit is issued, falsification of requested information, or the cancellation or the expiration of vehicle licensing, registration, and insurance requirements shall result in the cancellation of the permit.

History

• [Eff 2/11/82; 10/1/91; am and comp AUG 31,1996] (Auth: HRS § 107-11) (Imp: HRS § 107-11)

Haw. Code R. § 3-30-18 Enforcement

This chapter shall be enforced by employees of the department of accounting and general services who are duly deputized by the comptroller pursuant to section 107-11, Hawaii Revised Statutes.

History

• [Eff 2/11/82; 10/1/91; comp AUG 31, 1996] (Auth: HRS § 107-11) (Imp: HRS § 107-11)

Haw. Code R. § 3-30-19 Violations and penalties

(a) Vehicles parked in expired metered stalls or vehicles parked in excess of the specified time limit shall receive citations and fines as stated in the following county ordinances, relative to the county in which the violation occurred:

| (1) Honolulu | Chapter 15-Traffic Code, City and County of Honolulu; | | --- | --- | | (2) Maui | section 10-48, Traffic Code, County of Maui; | | (3) Hawaii | Art. 20, section 3, Traffic Code, County of Hawaii; and | | (4) Kauai | section 16-21.8, Traffic Code, County Kauai. |

In addition, vehicles in violation of the above ordinances may be subject to removal as provided in section 3-30-17(h).

(b) Vehicles parked in prohibited or unauthorized parking areas or without proper decals or permits shall receive citations and fines as stated in the following county ordinances, relative to the county in which the violation occurred:

| (1) Honolulu | Chapter 15-Traffic Code, City and County of Honolulu; | | --- | --- | | (2) Maui | section 10-48 Traffic Code, County of Maui; | | (3) Hawaii | Art. 20, section 3, Traffic Code, County of Hawaii; and | | (4) Kauai | section 16-21.8, Traffic Code, County of Kauai. |

In addition, vehicles in violation of the above may be subject to removal as provided in section 3-30-17(h).

(c) Persons committing violations of this chapter other than as specified in subsections (a) and (b), may be fined not more than $50 for each violation. In addition, the comptroller may suspend or revoke the parking assignments and permits of any permittee or permanently remove the name of any applicant from any waiting list for violating this chapter. Failure to pay fines or delinquent payments of parking fines may also result in the revocation of parking permits and the removal of an applicant's name from any waiting list for a parking permit.

History

• [Eff 2/11/82; 10/1/91; am and comp AUG 31, 1996] (Auth: HRS § 107-11) (Imp: HRS § 107-11)

Haw. Code R. § 3-30-20 Appeals

(a) Any person whose parking assignment has been suspended or revoked, or whose name has been removed from the waiting list by the comptroller, may appeal that decision to the comptroller within five business days after receiving notice of such decision.

(b) Any person who has received a parking citation for violations other than those set forth in section 3-30-19(a) and (b), may appeal the citation by completing an appeals form at the parking control office within three business days from receipt of the citation.

History

• [Eff 2/11/82; 10/1/91; comp AUG 31, 1996] (Auth: HRS § 107-11) (Imp: HRS § 107-11)

Haw. Code R. § 3-30-21 Repeal of rules

All rules of the department of accounting and general services relating to parking which took effect on October 1, 1981 are repealed.

History

• [Eff 2/11/82; 10/1/91; comp AUG 31, 1996] (Auth: HRS § 107-11) (Imp: HRS § 107-11)

Land Survey Division Land Survey Division

Chapter 40 RULES GOVERNING PUBLIC USE OF THE LAND SURVEY DIVISION MAPS, DESCRIPTIONS, AND RECORDS, AND SCHEDULE OF FEES FOR SERVICES, MAPS, AND OTHER RECORD DATA

Haw. Code R. § 3-40-1 Purpose and applicability

(a) The purpose of these rules is to prescribe the procedures for the use of public records, maps, and other materials in the custody of the land survey division, department of accounting and general services, and the fees for reproduction and special services.

(b) These rules shall apply to all persons using the records and other materials in the custody of the land survey division, including employees of the State of Hawaii or its political subdivisions.

History

• [Eff. 6/1/81; am and comp August 30, 1997] (Auth: HRS §§ 26-6, 26-38) (Imp: HRS §§ 26-6, 26-38)

Haw. Code R. § 3-40-2 Definitions

As used in these rules, unless the context specifically or otherwise indicates, the following definitions apply:

"Calculation books" means books used by individual members of the staff of the land survey division to perform calculations and other functions related to job assignments.

"CSF No. ____" means copy surveys furnished of all maps and descriptions prepared from the inception of the office of the surveyor general and continuing to the present land survey division, that have been assigned numbered designations.

"Field book registered no. ____" means books used by the surveyors to record field data obtained from surveys performed by government surveyors or private surveyors for the government that have been assigned numbered designations.

"____ File carton no. ____" means a special carton for each respective island that is used to store and identify maps and descriptions of government subdivisions such as homestead subdivisions, houselots, agricultural lots, and industrial lease lots, that has been assigned numbered designations.

"____ File folder no. ____" means a special file folder for each respective island that is used to store and identify maps and descriptions of government subdivisions such as houselots, agricultural lots, and industrial lots that has been assigned numbered designations.

"File Plan" means a plan of land prepared in the form of a file plan that is accepted for recordation by the registrar of the state bureau of conveyances in sections 502-17, 502-18, and 502-19, HRS.

"Folder no. ____" means a folder used by the division to file correspondence, job requests, and other documents.

"Land court" means the land court of the State as defined in chapter 501, HRS.

"Land survey division" is a division of the department of accounting and general services located in room 210 of Kalanimoku building, 1151 Punchbowl Street, Honolulu, and its contents.

"HSS Plat ____" means Hawaii state survey plat maps usually twenty-one inches by thirty-two inches in size that have been assigned numbered designations indicating official acceptance as maps in the custody of the land survey division since statehood.

"HTS Plat ____" means Hawaii territory plat maps usually twenty-one inches by thirty-two inches in size that have been assigned numbered designations indicating official acceptance as maps in the custody of the land survey division during territorial status.

"Registered map no. ____" means official government survey maps and maps from private sources that have been assigned numbered designations indicating official acceptance as maps in the custody of the land survey division from 1871 to present.

History

• [Eff. 6/1/81; am and comp August 30, 1997] (Auth: HRS §§ 26-6, 26-38) (Imp: HRS §§ 26-6, 26-38)

Haw. Code R. § 3-40-3 Public use of land survey division maps, descriptions, documents, and other material

(a) All persons shall be serviced by authorized members of the staff of the land survey division. Admittance to the storage vault shall be restricted to authorized personnel only.

(b) The use of maps, records, and other material in fragile condition shall be regulated at the discretion of the state land surveyor.

(c) All persons including land survey division staff members shall exercise all possible care to prevent damage to items being used.

(d) No person shall remove any maps, records, and other material from the land survey division premises. Only the state land surveyor or the assistant state land surveyor is authorized to waive this rule.

(e) The printing of reproducible media, such as sepia, xerox vellum, or mylar, of registered maps, plat maps, land court maps, or file plan maps is not permitted.

History

• [Eff. 6/1/81; am and comp August 30, 1997] (Auth: HRS §§ 26-6, 26-38) (Imp: HRS §§ 26-6, 26-38)

Haw. Code R. § 3-40-4 Conduct

(a) No person shall handle maps, folders, field books, or other material without proper authorization.

(b) Eating or drinking while handling or viewing any material or documents is prohibited.

History

• [Eff. 6/1/81; comp August 30, 1997] (Auth: HRS §§ 26-6, 26-38) (Imp: HRS §§ 26-6, 26-38)

Haw. Code R. § 3-40-5 Certification of authenticity

Except as provided in section 3-40-3, certified copies of maps and descriptions, documents, and other materials in the custody of the land survey division may be made. The state land surveyor, assistant state land surveyor, or a land survey division staff member designated in writing by the comptroller or the state land surveyor are authorized to sign the certification.

History

• [Eff. 6/1/81; am and comp August 30, 1997] (Auth: HRS § 92-21) (Imp: HRS § 92-21)

Haw. Code R. § 3-40-6 Fees for maps and services

(a) The following fees shall be charged for diazo and other reproductions of maps, descriptions, field notes and correspondence that are under the custody of the land survey division.

(1) For a diazo blueline copy of a plan of land, $3 for the first square foot plus fifteen cents for each additional square foot or fraction thereof based on the size of the plan, effective July 1, 1997; $4.50 for the first square foot plus fifteen cents per additional square foot, effective January 1, 1998; $6 for the first square foot plus fifteen cents per additional square foot, effective January 1, 1999;

(2) Xerographic copy of any record up to eight and one-half inches by thirteen inches, $1 per page;

(3) Certification of only those products under the custody of the land survey division will be provided at $1.50 per certification, effective July 1, 1997; $2 per certification, effective January 1, 1998;

(4) Other reproductions including maps having no reproducible media or use of other reproduction materials shall be accommodated only by special arrangement.

(b) Fees charged for services relating to the discharge of duties as set forth by the land court of the State shall be at the current rate as established by rule 107 of the rules of the land court.

(c) Fees charged for services related to the checking and processing of file plan maps submitted to the bureau of conveyances for recordation shall be at the current rate as established by rule 107 of the rules of the land court. Completed maps shall not be released unless all fees due are paid in full.

(d) Whenever applicable by statute, the above fees will not be charged to federal, state, or county governments.

History

• [Eff. 6/1/81; am and comp August 30, 1997] (Auth: HRS §§ 92-21, 501-218, 502-17) (Imp: HRS §§ 92-21, 501-218, 502-17)

Stadium authority Stadium Authority

Chapter 70 RULES OF THE STADIUM AUTHORITY

Subchapter 1 GENERAL PROVISIONS

Haw. Code R. § 3-70-1 Purpose

These rules govern the use and management of the Aloha Stadium as well as the practices and procedures of the stadium authority under chapter 109, Hawaii Revised Statutes.

History

• [Eff 6/12/81; am 9/17/82; comp SEP 18 2006] (Auth: HRS §§ 91-2, 109-2) (Imp: HRS §§ 91-2, 109-2)

Haw. Code R. § 3-70-2 Definitions

As used in this chapter, unless the context specifically or otherwise indicates, the following definitions apply:

"Applicant" means a person applying for the privilege of using the stadium or any part thereof; a licensee.

"Authority" means the stadium authority established by section 109-1, Hawaii Revised Statutes.

"Chairperson" means the individual elected "chairperson" under section 109-1(b), Hawaii Revised Statutes.

"Event" means the purpose for which the stadium is rented or used, including an athletic event, any function, performances, programs, exhibition, convention, rally, or meeting.

"Licensee" means a person granted the privilege of using the stadium or any part thereof.

"Manager" means the individual appointed as such under section 109-2, Hawaii Revised Statutes.

"Out-of-pocket expenses" means expenditures made or incurred by the authority in connection with an event, including but not limited to the cost for events personnel, special setups, clean up, security, electricity and for other incidental costs incurred by an event.

"Person" or "persons" as used in subchapter 2 means individuals, partnerships, corporations, associations, or public or private organizations of any character.

"Person" or "persons" as used in subchapter 3 is as defined in section 91-1(2), Hawaii Revised Statutes.

"Public records" is as defined in section 92-50, Hawaii Revised Statutes.

"Regular business hours" means from 7:45 a.m. to 4:30 p.m. of each day of the week except Saturdays, Sundays, and holidays.

"Rule" is as defined in section 91-1, Hawaii Revised Statutes.

"Stadium" means the Aloha Stadium and its related facilities.

"Stadium management" means the manager or a duly authorized representative or representatives.

"Stadium proper" means that portion of aloha stadium, entrance into which an admission ticket is normally required.

"State" means the State of Hawaii.

"Ticket receipts" means the total sum of the value of tickets sold for admission into the stadium.

History

• [Eff 6/12/81; am 9/17/82; comp SEP 18 2006 ] (Auth: HRS §§ 91-2, 109-2) (Imp: HRS §§ 80-1, 91-2, 109-2)

Haw. Code R. § 3-70-3 Aloha stadium, office, mailing address

The state stadium at 99-500 Salt Lake Boulevard, in the county of Honolulu, is named and shall be known as the "Aloha Stadium". The Aloha Stadium shall be operated and managed by the authority. The office of the authority shall be at the Aloha Stadium.

Information and requests on matters within the jurisdiction of the authority may be obtained by appearing in person at the office of the authority or by writing to the Manager, Stadium Authority, P.O. Box 30666, Honolulu, Hawaii 96820.

History

• [Eff 6/12/81; am 9/17/82; am and comp SEP 18 2006] (Auth: HRS §§ 91-2, 109-2) (Imp: HRS §§ 91-2, 109-2)

Subchapter 2 RULES GOVERNING THE USE OF THE STADIUM

Haw. Code R. § 3-70-4 General policies

(a) The stadium is operated for the recreational and entertainment needs of the people of Hawaii and provides a place where large gatherings of people may assemble The character and nature of events at the stadium shall be in the public interest

(b) The facility shall be open to performances, programs, exhibitions, athletic events, and other activities that are in the interests of the members of the community.

(c) The use of the stadium shall be prohibited to any activity that, in the opinion of the authority, may cause damage or injury to the stadium facility or any part thereof.

(d) In determining whether to grant an application for the use of the stadium, the authority shall take into consideration, among other things, the following:

(1) Character and financial condition of the applicant;

(2) Nature and character of event proposed;

(3) Admission charge;

(4) Potential damage or injury to the facility; and

(5) Demonstrated ability of the applicant to properly manage the proposed event, including meeting all event costs.

History

• [Eff 6/12/81; am 9/17/82; com SEP 18 2006] (Auth: HRS § 109-2) (Imp: HRS § 109-2)

Haw. Code R. § 3-70-5 Scheduling and booking policies

(a) Priority consideration shall be given to the scheduling needs of public educational institutions in the State. If there is a conflict in the scheduling of requested dates, the authority shall determine its approval or rejection in accordance with section 3-70-7.

(b) Scheduling of championship, playoff, and all-star attractions shall be given priority whenever possible.

(c) Professional athletic teams shall be given, whenever possible, sufficient advance bookings to insure stability for planning their programs, but not so long as to preclude consideration of future applicants.

History

• [Eff 6/12/81; am 9/17/82; comp SEP 18 2006] (Auth: HRS § 109-2) (Imp: HRS § 109-2

Haw. Code R. § 3-70-6 Applications for use of the stadium

(a) Applications for the use of the stadium shall be made in writing on a form prescribed by the authority.

(b) The applicant shall set forth such information as may be requested by the authority, including, but not limited to:

(1) Name, address, telephone number of applicant or sponsoring person;

(2) The names of the officers, principals, or partners, if applicable;

(3) Detailed description of proposed event or events;

(4) Estimated revenue and expenses for proposed event or events;

(5) Proposed admission charge or charges;

(6) Areas of stadium requested for use;

(7) Date or dates requested;

(8) Hours of use requested;

(9) Special services, equipment, construction needed, if any;

(10) Financial statements, income tax returns, and other documentation of financial condition; and

(11) References.

History

• [Eff 6/12/81; am 9/17/82; comp SEP 18 2006] (Auth: HRS § 109-2) (Imp: HRS § 109-2)

Haw. Code R. § 3-70-7 Processing of applications

(a) The applicant shall submit the completed application to the manager at the office of the authority. Upon its receipt, the application shall be referred by the manager to the authority for its approval or rejection. If the application is rejected, the authority shall cause the manager to so inform the applicant in writing stating the essential reasons therefor. If the application is approved, the manager shall determine a reasonable deposit, of which ten percent of the collected amount shall be, which shall be required of the applicant in order to reserve the stadium and to cover the estimated costs that may be incurred by the authority in handling the event. The manager may grant preliminary approval of a date subject to approval by the authority at its next meeting.

(b) After consultation with the applicant, the level of staff, security, cleanup, and other services shall be determined by the manager. The manager may revise these requirements up to the event date, based on advance sales and other information. Any disagreement with respect to any revision of the requirements imposed by the manager may be reviewed by the authority (upon the request of either party). The applicant shall at all times be responsible for strict compliance with the authority's requirements and restrictions for the use of the stadium.

(c) The applicant shall execute the licensing agreement prepared by the authority and pay the required deposit using acceptable payment methods as established by the authority.

(d) Notwithstanding any representation or understanding to the contrary, the license agreement shall not be binding upon the authority until it is executed by both the applicant and the manager on behalf of the authority.

History

• [Eff 6/12/81; am 9/17/82; comp SEP 18 2006] (Auth: HRS § 109-2) (Imp: HRS § 109-2)

Haw. Code R. § 3-70-8 Deposit

The amount of the deposit, of which ten percent of the collected amount shall be nonrefundable, shall be based on an estimate of the reimbursable expenses to be incurred by the authority in the applicant's behalf in connection with an event and on the ability of the licensee to make reimbursement thereof Any deposit made to the authority shall not bear any interest.

History

• [Eff 6/12/81; comp SEP 18 2006] (Auth: HRS § 109-2) (Imp: HRS § 109-2)

Haw. Code R. § 3-70-9 Tickets, printing, distribution, sale

(a) No tickets shall be sold for any event before the license agreement covering the event is signed by the manager or before written approval is given by the authority. Notwithstanding the foregoing, the solicitation and sale of 'subscriptions" or "orders" for tickets may be permitted by the authority prior to the execution of the license agreement in order to accommodate the scheduling and promotional needs of the applicants; provided that the solicitation and sale shall be under such terms and conditions as may be required by the authority.

(b) Except as otherwise provided in the contract between the authority and the ticketing concessionaire, all admission tickets for an event shall be printed at the licensee's expense by either a bonded printer or an automated ticketing system. Unless prior written approval is granted by the manager, no tickets shall be sold or utilized for admission to stadium events other than those which are printed by the bonded printer or the automated ticketing system.

(c) If the licensee prints the tickets, a proof of the ticket shall be submitted to the manager for approval prior to printing for purposes of form and accuracy.

(d) Commercial or promotional advertising shall not be printed on either side of the admission ticket without the prior written approval of the manager.

(e) Tickets printed may be consigned to the licensee at the discretion of the manager and upon such terms and conditions as the manager deems appropriate. Consignments of tickets from other sales locations shall not be permitted.

(f) Contractual arrangements with agencies for the distribution or sale of tickets to any stadium event shall first be approved by the manager.

(g) No ticket for a stadium event shall be sold by the licensee or its agent at a price other than that which is printed thereon without prior written approval of the manager.

(h) The manager shall determine whether or not tickets shall be refunded and the terms and conditions thereof. Refunded tickets shall revert to the status of unsold tickets.

History

• [Eff 6/12/81; am 9/17/82; am and comp SEP 18 2006] (Auth: HRS § 109-2) (Imp: HRS § 109-2)

Haw. Code R. § 3-70-10 Staffing and other charges

(a) The manager shall determine and furnish the staff necessary to operate the facility for an event The cost of staffing, including but not limited to the cost of box office personnel, ushers, gate personnel, security personnel, electricity, clean-up, scoreboard operation, the public address announcer, and a licensed registered nurse on duty during the hours of an event, shall, subject to such limitations as determined by the manager and approved by the authority, be at the licensee's expense In addition, the licensee shall reimburse the authority for all other expenditures made or incurred by the authority in connection with the event, plus an amount equal to ten per cent of the total of the foregoing costs and expenditures, subject to such limitations as determined by the manager and approved by the authority.

(b) Labor, equipment, and rental rates shall be at the prevailing rates as stated on the Aloha Stadium labor, equipment, and rental rates schedule. This schedule may be obtained by request at the office of the authority.

(c) Licensees shall pay for the cost of utilizing the stadium's automated ticketing services which shall include, but shall not be limited to, a printing charge for each ticket printed at the stadium or at any ticket distribution outlet. Any licensee may contract with the stadium's automated ticketing concessionaire or any other service agency for promotional, publicity, and season-ticketing services, which shall not be considered part of the stadium's automated ticketing services. This subsection shall apply only if a contract exists between the authority and an automated ticketing system concessionaire.

History

• [Eff 6/12/81; am 9/17/82; am and comp 9/18/2006; am AUG 07 2010 ] (Auth: HRS § 109-2) (Imp: HRS § 109-2)

Haw. Code R. § 3-70-11 Rental charges, payment

(a) The authority establishes the following schedule of charges' for the use of the stadium for each event or date:

(1) Hawaii-based high school and lower grade level events or activities - No rent shall be charged for school related events or activities;

(2) University of Hawaii events or activities - The stadium authority shall have discretion to determine rent, provided, however, that the amount shall not exceed seven and one-half per cent of gross ticket receipts or $10,000 per date, whichever is greater;

(3) Post-season collegiate football games - Ten per cent of gross ticket receipts or $10,000 per date, whichever is greater, but not to exceed $32,000 per date;

(4) Commercial events - $2,500 per date or ten per cent of gross ticket receipts per date, or if no tickets are sold, $1 for each person attending the event per date, whichever is greater;

(5) Receptions, parties, and youth events (ages high school and below) - $1,000 per date;

(6) Commercial media - $500 per hour; Non-commercial media - $250 per hour;

(7) Charitable, religious, and other events or activities - $2,500 per date or ten per cent of gross ticket receipts per date;

(8) Business and other meetings with 100 or fewer participants occurring at non-peak usage (Monday - Thursday) - $500; For groups larger than 100 participants, $750; and

(9) All other events or activities, $1,000 per date or such greater amount as may be determined at a meeting of the authority.

(b) The authority establishes the following schedule of charges for the use of the stadium parking lots:

(1) Carnivals, fairs, and similar events - $3,000 per date that the event is open to the public;

(2) Commercial media - $500 per hour; Non-commercial media - $250 per hour;

(3) Concerts - $2,500 per date;

(4) Hawaii-based high school and lower grade level events or activities - No rent shall be charged for school-related events or activities; and

(5) All other events or activities, including youth (ages high school and below) - $1,000 per date.

(c) The use of any office, or other space or facility on the stadium premises may be rented upon the terms and conditions, and at the rental rates determined by the authority.

(d) The rates stated above are the basic or minimum rental rates for the use of the stadium. In addition, licensees shall pay for staffing and other out-of-pocket expenses and for any percentage charge imposed by section 3-70-10.

(e) Unless arrangements satisfactory to the authority are made for the payment thereof, the amount of all charges due the authority by a licensee for the use of the stadium shall be deducted from the deposit and the gate receipts before any portion thereof is turned over to the licensee.

(f) Whenever there is a change in the rates or charges prescribed by this chapter, the new rates or charges shall apply to any event held or use made on or after the effective date of the new rates or charges.

(g) The authority may, upon the recommendation of the stadium manager, waive rental charges in whole or in part for any national or international sporting or entertainment event, or in connection with an event or activity that is sponsored by an agency of government and for which no admission charge is made.

(h) All moneys collected by the authority shall be deposited in the stadium special account in accordance with section 109-6, Hawaii Revised Statutes.

History

• [Eff 6/12/81; am- 9/17/82; am 8/25/88; am 1/17/05; am 3/4/06; am and comp 9/18/06; am AUG 07 2010 (Auth: HRS § 109-2) (Imp: HRS § 109-2)

Haw. Code R. § 3-70-12 Cancellation of event

(a) Should the manager approve the cancellation of an event because of inclement weather or because of an act of God, a date mutually agreed upon between licensee and the manager shall be scheduled for the event, and no additional rental charge shall accrue to the licensee for the alternate date Nevertheless, the licensee shall pay for all out-of-pocket expenses incurred by the authority for both dates

(b) If a rescheduled event date is mutually agreed upon, the tickets for the originally scheduled event may be honored for the rescheduled event.

(c) If a rescheduled event date is not mutually agreed upon, the authority shall refund the deposit after deducting therefrom any out-of-pocket expenses incurred by the authority on account of the cancelled event.

(d) The licensee, subject to the prior approval of the manager, shall contact the media and make all necessary arrangements to notify the public of the details of the cancellation and applicable refunds. Tickets shall only be refunded at the original location where the tickets were purchased. The authority shall only refund tickets purchased at the stadium box office and designated stadium outlets during the period specified by the manager. Refunded tickets shall revert to the status of unsold tickets.

History

• [Eff 6/12/81; am 9/17/82; comp SEP 18 2006] (Auth: HRS § 109-2) (Imp: HRS § 109-2)

Haw. Code R. § 3-70-13 Radio, television, press

(a) It shall be the general policy of the authority to grant all radio broadcast, newsreel footage in excess of three minutes of an individual event, motion picture, television, closed circuit television, home-paid television, and similar rights, hereinafter collectively referred to as ancillary rights, to the licensee to which these rights pertain; provided that the authority may withhold permission from any licensee to broadcast by radio and television in the State when, in the opinion of the authority, such broadcasting may substantially affect the attendance at the stadium for an event; and provided further that the authority may impose a percentage charge of all consideration received by the licensee for ancillary rights from an event held at or from use made of the stadium.

(b) Subject to any directions by the authority, the manager shall have complete control of the press boxes and shall be in charge of issuing passes therefor. The manager shall, however, consult with the licensee regarding authorized media personnel entitled to cover the event.

(c) Television and radio stations shall not place banners in front of the press boxes or anywhere else without permission of the manager. Such banners may be used only when a telecast or broadcast is actually taking place.

History

• [Eff 6/12/81; am 9/17/82; comp SEP 18 2006] (Auth: HRS § 109-2) (Imp: HRS § 109-2)

Haw. Code R. § 3-70-14 Receipts and revenues from parking, food, and beverages, programs, souvenirs

(a) Licensees shall not receive any revenue from parking or from the authority's share of food and beverage sales

(b) The licensee, subject to the approval of the manager, may have the right to sell programs during their events and to retain the receipts therefrom. Requests to sell these programs shall be submitted in writing not less than five days prior to the event, or the entire season in which they are to be sold, and the approval shall be renewed annually.

(c) The authority's food and beverage concessionaire shall have the right to sell souvenirs, novelties, and other similar products, and at the discretion of the stadium manager the authority may impose a percentage charge on all consideration received by the food and beverage concessionaire.

History

• [Eff 6/12/81; am 9/17/82; am 9/30/85; comp 9/18/06; am AUG 07 2010 ] (Auth: HRS § 109-2) (Imp: HRS § 109-2)

Haw. Code R. § 3-70-15 Insurance, indemnification

(a) Licensees shall purchase and provide, at their own cost and expense, comprehensive general liability insurance in an amount set by the authority but not less than $1,000,000 combined single limit for personal injury and property damage for any one occurrence The policy or policies shall contain a waiver of subrogation endorsement, shall provide that the authority be given at least thirty days written notice prior to any termination, cancellation, or material change in the insurance coverage, shall name the authority, its officers and employees as additional insured, and shall be deposited with the manager. The policy or policies must be written and executed by an insurance carrier licensed to do business in the State and acceptable to the authority.

(b) The licensee shall be required to indemnify and hold harmless the State, the authority, and their officers and employees, from any and all claims for loss, injury, damage or liability sustained or claimed to have been sustained by reason of the use or occupation of the stadium premises by the licensee or by an act or omission of the licensee, its officers, agents and employees, guests, patrons, invitees and persons admitted to the stadium by consent of the licensee.

History

• [Eff 6/12/81; am 9/17/82; am 8/17/02; am and comp 9/18/16; Comp 9/7/2019] (Auth: HRS § 109-2) (Imp: HRS § 109-2)

Haw. Code R. § 3-70-16 Public address system announcements

(a) The authority shall retain control of the public address system at all times.

(b) All announcements by the public address announcer shall be subject to the prior approval of the stadium management.

History

• [Eff 6/12/81; comp SEP 18 2006] (Auth: HRS § 109-2) (Imp: HRS § 109-2

Haw. Code R. § 3-70-17 Prohibited equipment

(a) No athletic equipment that may cause damage or injury to the playing field may be worn or used on the field.

(b) Only that type of shoes with soles or cleats appropriate for use on synthetic turf may be worn on the playing field. Unless otherwise permitted by the manager, athletic shoes shall be of the "all-purpose" type, i.e., shoes that are appropriate for use on either synthetic or natural turf.

(c) The use of any electrical or mechanical equipment not furnished by the stadium is prohibited, except when specifically approved by the manager.

History

• [Ef f 6/12/81; am 9/17/82; comp SEP 18 2006] (Auth: HRS § 109-2) (Imp: HRS § 109-2)

Haw. Code R. § 3-70-18 Repealed

History

• R 9/30/85

Haw. Code R. § 3-70-18.01 Sale or distribution of articles

(a) The manager shall approve the sale or distribution of all articles in the stadium.

(b) Each person who desires to sell or distribute any articles within the stadium premises shall submit a written request for approval to the manager not later than ten calendar days prior to the date of sale or distribution. The written request shall include the following information:

(1) The name, address, and telephone number of the person;

(2) The names and telephone numbers of the officers, principals, partners or authorized representatives;

(3) The date or dates of sale or distribution;

(4) The number of persons participating in the sale or distribution; and

(5) A sample or detailed description of the articles to be sold or distributed.

(c) Any written request which does not conform to subsection (b) may be disapproved by the manager.

History

• [Eff 9/30/85; comp SEP 18 2006] (Auth: HRS § 109-2) (Imp: HRS § 109-2)

Haw. Code R. § 3-70-19 Complimentary admissions

The number of authorized complimentary admissions to be issued by a licensee to any event must be stated in the licensing agreement Additional complimentary admissions to the event shall not be issued without the prior written approval of the manager

History

• [Eff 6/12/81; am and comp 9/18/06; am AUG 0 7 2010 ] (Auth: HRS § 109-2) (Imp: HRS § 109-2)

Haw. Code R. § 3-70-20 Parking rates, parking stalls

(a) Except as otherwise provided below, the authority establishes the following rates for the privilege of parking at the stadium for all events:

(1) $7 per event per automobile for all events and shows except as provided in this subsection; rate will be $8 beginning January 1, 2018, and $9 beginning January 1, 2020;

(2) $30 per event per passenger bus, limousine, or truck, other than pickups, regardless of the number of persons carried in such bus, limousine, or truck; provided that the authority delegates to the manager the power to waive such parking charges at the manager's discretion; rate will be $31 beginning January 1, 2018, and $32 beginning January 1, 2 020;

(3) $15 per event per automobile for professional sports events and concerts with admission charges, except for Hawaiian cultural and music events; rate will be $16 beginning January 1, 2018, and $17 beginning January 1, 2020;

(4) The authority delegates to the manager the power to waive parking charges, at the manager's discretion, in connection with an event or activity where the estimated out-of-pocket expenses for parking exceed the estimated parking revenues; provided that the out-of-pocket parking expenses be at the licensee' s expense;

(5) The swap meet events held at the stadium and private events held in the stadium hospitality room shall be exempted from this subsection; and

(6) The manager shall have the authority to sell bulk parking, in whole or in part, to a licensee at a rate not less than the published rate for the contracted event or activity.

History

• [Eff 6/12/81; am 9/17/82; am 8/27/84; am 9/1/87; am 8/12/02; comp 9/18/06; am AUG 07 2010] (Auth: HRS § 109-2) (Imp: HRS § 109-2)

Haw. Code R. § 3-70-20.01 Traffic, parking and tailgate rules

(a) No person shall operate any vehicle on the stadium premises:

(1) At a speed in excess of twenty-five miles per hour;

(2) In a careless or negligent manner or in such a manner as to endanger or injure persons or property;

(3) In a direction other than as indicated by signs erected and designated for one-way traffic movement unless otherwise directed by an authorized official; or

(4) While under the influence of intoxicating liquor or narcotic drugs.

(b) Parking rules on the stadium premises:

(1) Unless otherwise directed by stadium parking personnel, no person shall park a vehicle in any of the following places:

(A) Whenever the curbings are painted red to indicate no parking;

(B) In marked pedestrian crosswalks and walkways;

(C) On roadways and locations where a parked vehicle may constitute an obstruction, or a traffic hazard;

(D) Places where official signs prohibit parking; and

(E) Areas designated by stadium management as restricted areas;

(2) No person shall park a vehicle on the roadway or in any areas of the parking lot in such as manner as to block other vehicles, or to restrict the free movement of vehicular traffic unless otherwise directed by an authorized official;

(3) Parking is on a "first come, first park" basis and reserving parking stalls, or spaces shall be prohibited unless written authorization is obtained from the manager. Each vehicle shall be parked wholly within a designated stall and shall not straddle or occupy space of an adjoining stall;

(4) Vehicles parked in violation of this subsection may be towed off the premises at the expense of the vehicle owner or driver; and

(5) The following are prohibited:

(A) The use of pegs or stakes;

(B) Recreational play (including, but not limited to ball playing, Frisbee tossing, football tossing, bicycle riding, skateboarding, rollerblading);

(C) Sponsorship or advertising banners or signs;

(D) Animals, except service animals or as approved by the manager;

(E) Concerts, public performances, contests, and live broadcasting without the prior approval of the manager;

(F) Excessively loud music; and

(G) Soliciting, hawking, selling, passing out literature handouts or giving away free items without the prior approval of the manager.

(c) Pre-game and post-game tailgate party rules in the stadium parking lot are as follows:

(1) Cars, tables, chairs, barbecue pits, and tents must be confined to one stall. Groups may park contiguous to one another and share a tent or equipment traversing their vehicles and their stalls. However, there should be no empty stalls between their vehicles;

(2) To alleviate potential fire hazards a hibachi or other cooking device shall be kept a safe distance from any fuel tank;

(3) Lit hibachi or other cooking device shall not be left unattended;

(4) Hot coals and other burning residues shall be doused and completely extinguished before they are disposed;

(5) No dumping of hot coals in the parking lot or in the trash receptacles;

(6) The owner shall dispose of all tailgating material and refuse in a safe manner;

(7) No tents and barbecues shall be allowed on the grassy (front lawn on the South end of the stadium) areas and any pedestrian walkway; provided that the grass area between parking rows may be used for tailgating;

(8) No alcohol capacity containers shall be permitted (kegs and party balls);

(9) No person shall stew litter on the stadium premises; and

(10) Tailgate parties shall cease on or before the established curfew (one hour after the end of the event) as designated by the manager, and thereupon all vehicles shall promptly vacate the stadium premises. Announcements of curfew shall be made on the public address system and the stadium electronic scoreboard.

History

• [Eff 9/17/82; am 8/27/84 ; am and comp 9/18/06; am AUG 07 2010] (Auth: HRS § 109-2)(Imp: HRS § 109-2)

Haw. Code R. § 3-70-21 Unlawful and unauthorized entry

(a) Entry into the stadium proper by unauthorized means of entry including but not limited to scaling the wall, cutting the wire fence, or entering without an authorized admission ticket or pass shall be considered unlawful.

(b) No person shall be permitted in any restricted area designated by the manager, including but not limited to the playing field, locker rooms, press boxes, scoreboard rooms, electrical substations, telephone switch rooms, box offices, administrative offices, and maintenance areas, without a current authorized credential or pass issued by the manager.

History

• [Eff 6/12/81; am 9/17/82; comp SEP 18 2006] (Auth: HRS § 109-2) (Imp: HRS § 109-2)

Haw. Code R. § 3-70-22 Advertising in stadium premises

Advertising in the stadium is prohibited, except as provided in the contracts between the State or authority and its advertisers.

History

• [Eff 6/12/81; am 9/30/85; comp SEP 18 2006] (Auth: HRS § 109-2) (Imp: HRS § 109-2)

Haw. Code R. § 3-70-23 Miscellaneous provisions

Except as permitted in writing by the manager, the following restrictions shall apply to all persons in the stadium proper:

(1) No outside food or beverage shall be brought into the stadium proper;

(2) No cat, dog, or other animal, except for a service animal, and no bicycle, motorcycle, or other vehicle shall be permitted into the stadium proper unless used in the exhibition conducted by the licensee and upon prior approval of the manager;

(3) Demonstrations, sit-ins, and activities inconsistent with the purposes of an event shall be prohibited in the stadium;

(4) Hand-held signs and banners are permissible in the stadium proper when they are safely constructed and displayed in such manner so as not to obstruct the view of spectators. Hand-held signs and banners are permissible in the red zone area directly in front of the stadium main box office, when they are safely constructed and displayed in such manner so as not to obstruct the ingress and egress of spectators, from the time the stadium parking lot is open to the public until thirty minutes after the scheduled starting time of the event. No signs or banner shall be affixed or secured in the stadium;

(5) Throwing of any object or missile is prohibited; and

(6) The following shall not be permitted into the stadium proper:

(A) Weapons;

(B) Noisemakers (including air horns and whistles);

(C) Illegal drugs and any other illegal substances;

(D) Cans and bottles;

(E) Umbrellas;

(F) Coolers;

(G) Fireworks;

(H) Inflatable objects of any kind;

(I) Confetti;

(J) Balloons;

(K) Laser pointers;

(L) Poles and sticks;

(M) Skateboards, rollerblades, and bicycles; and

(N) Any item which may pose a health or safety issue to our guests and employees. Individuals found in possession of the above prohibited items will be asked to remove the item from the stadium to dispose of it.

Individuals that refuse to comply with the stadium's rules and policies may be ejected from the stadium without refund and may be banned from the premises for one year.

Each person entering the stadium shall be allowed one bag that does not exceed 12" x 6" x 12" in size. In addition, each person shall be allowed to hand-carry a blanket, poncho or jacket, and a seat cushion. Strollers are allowed but must be collapsible and fit underneath the seat without obstructing the aisle-way for other guests. All bags, jackets, guests, and vehicles are subject to search upon entering the premises.

History

• [Eff 6/12/81; am 9/17/82; am 9/30/85; am and comp 9/18/06; am AUG 07 2010 ] (Auth: HRS § 109-2) (Imp: HRS § 109-2)

Subchapter 3 RULES OF PRACTICE AND PROCEDURE

Haw. Code R. § 3-70-24 Public records and information

(a) All public records shall be available for inspection at the office of the authority during regular business hours.

(b) Public records may be withheld from any person as provided by section 92F-13, Hawaii Revised Statutes.

(c) The public may obtain information on matters within the jurisdiction of the authority by inquiring in person, during regular business hours, at the office of the authority or by submitting a written request to the authority. (See section 3-70-3).

(d) Requests for public information, for permission to inspect official records, or for copies of public records shall be handled with due regard for the dispatch of other public duties.

History

• [Eff 6/12/81; am 8/12/02; comp SEP 18 2006] (Auth: HRS § 109-2) (Imp: HRS § 109-2)

Haw. Code R. § 3-70-25 Appearance before the authority

Any person who desires to appear before the authority on any subject may submit that person's request in writing to the chairperson. The chairperson shall decide whether the individual may appear. (See section 3-70-3)

History

• [Eff 6/12/81; am and comp SEP 18 2006] (Auth: HRS § 109-2) (Imp: HRS § 109-2)

Haw. Code R. § 3-70-26 Petitions for adoption, amendment, or repeal of rules

(a) Any person may petition the authority for the adoption, amendment, or repeal of any rule of the authority. The petition shall be submitted induplicate and delivered to the office of the manager. (See section 3-70-3).

(b) The petition need not be in any special form but it shall include but not be limited to:

(1) A statement of the nature of the petitioner's interest;

(2) A draft of the substance of the proposed rule or amendment desired by petitioner or a specification of the rule that petitioner desires repealed;

(3) A designation of any existing rules affected by the petition;

(4) An explicit statement of the reasons in support of the proposed rule, amendment, or repeal;

(5) Any other information relevant to the petition;

(6) The name, address, and telephone number of the petitioner; and

(7) The signature of the petitioner.

(c) Any petition which does not conform to the foregoing requirements may be rejected by the authority.

(d) Upon receipt of the petition, the manager shall cause the date and time of the receipt of the petition to be noted thereon.

(e) Within thirty days after the receipt of the petition, the authority shall either deny the petition in. writing, stating its reasons for the denial, or initiate proceedings for the adoption, amendment, or repeal of the rule. No public hearing, oral arguments, or other form of proceedings will be held directly on any such petition. If the authority determines that the petition does not disclose sufficient reasons to justify the commencement of public rulemaking proceedings, or if the petition fails in any material respect to comply with the requirements of this chapter, the authority shall deny the petition and the petitioner shall be so notified. This section shall not prevent the authority, on its own motion, from acting on any matter disclosed in any petition.

History

• [Eff 6/12/81; am 9/17/82; am and comp 9/18/16; Comp 9/7/2019] (Auth: HRS § 109-2) (Imp: HRS § 109-2)

Haw. Code R. § 3-70-27 Adoption, amendment, or repeal of rules

When, pursuant to a petition therefor, or upon its own motion, the authority proposes to adopt, amend, or repeal a rule, the rule shall be adopted, amended, or repealed in accordance with the procedures set forth in chapter 91 and section 92-41, Hawaii Revised Statutes.

History

• [Eff 6/12/81; am and comp SEP 18 2006] (Auth: HRS § 109-2) (Imp: HRS § 109-2)

Haw. Code R. § 3-70-28 Hearing procedures

(a) Each public hearing on the proposed adoption, amendment, or repeal of any rule shall be conducted by the chairperson or an authorized representative who shall be designated as the presiding officer

(b) Each such hearing shall be held at the time and place set in the notice of hearing, but may at such time and place be continued from day to day or adjourned to a later date or to a different place without notice other than the announcement thereof at the hearing.

(c) At the commencement of the hearing, the presiding officer shall read the notice of hearing and shall then outline briefly the procedure to be followed. Testimony shall then be received with respect to the matters specified in the notice of hearing in such order as the presiding officer shall prescribe.

(d) All interested persons shall be given reasonable opportunity to offer testimony with respect to the matters specified in the notice of hearing. Every person shall, before proceeding to testify, state the name, address, and whom the person represents at the hearing. The presiding officer shall confine the testimony to the subject matter of the hearing.

(e) All interested persons and agencies of the State or its political subdivisions shall be afforded an opportunity to submit data, views, or arguments which are relevant to the subject matter of the hearing orally or in writing. Written testimony may be submitted to the authority at its office in advance of the hearing. Persons submitting written testimony, whenever possible, shall furnish ten copies of the testimony to the authority.

(f) Unless otherwise specifically ordered by the presiding officer, testimony given at the hearing shall not be reported verbatim. All supporting written statements, maps, charts, tabulations, or similar data offered at the hearing, and which are deemed by the presiding officer to be authentic and relevant, shall be received and made a part of the record. Unless the presiding officer finds that the furnishing of copies is impracticable, two copies of the exhibits shall be submitted.

(g) At the close of the final public hearing, the presiding officer shall announce the decision of the authority or announce the date when it intends to make a decision.

History

• [Eff 6/12/81; am 9/17/82; am and comp SEP 18 2006] (Auth: HRS § 109-2) (Imp: HRS § 109-2)

Haw. Code R. § 3-70-29 Declaratory ruling by the authority

(a) Any interested person may petition the authority for a declaratory order as to the applicability of any statutory provision administered by the authority or of any rule or order of the authority.

(b) The petition shall be submitted in duplicate to the office of the manager. The petition need not be in any special form but shall contain at a minimum:

(1) A statement of the nature of the petitioner's interest, including reasons for the submission of the petition;

(2) A designation of the specific statutory provision, rule, or order in question;

(3) A complete statement of the relevant facts and precise nature of the controversy;

(4) A statement of the interpretation given the statutory provision, rule, or order by the petitioner;

(5) A memorandum containing the reasons, including any legal authorities, in support of the interpretation of the petitioner; and

(6) The name, address, telephone number, and signature of the petitioner.

(c) Any petition which does not conform to the foregoing requirements may be rejected by the authority.

(d) Upon receipt of the petition, the manager shall cause it to be dated to establish the date of submission.

(e) The authority may for good cause refuse to issue a declaratory order. Without limiting the generality of the foregoing, the authority may refuse where:

(1) The question is speculative or purely hypothetical and does not involve an existing situation or one which may reasonably be expected to occur in the near future;

(2) The petitioner's interest is not of the type which would give the petitioner standing to maintain an action in a court of law;

(3) The issuance of the declaratory order may adversely affect the interest of the State, the authority, or any of the officers or employees of the State or the authority in any litigation which is pending or may be reasonably expected to arise; or

(4) The petition requests a ruling on a statutory provision not administered by the authority or the matter is not otherwise within the jurisdiction of the authority.

(f) Where any question of law is involved, the authority may refer the matter to the attorney general of the State for legal opinion.

(g) No hearing need be granted to the petitioner or to any interested person in the usual course of disposition of a petition for a declaratory ruling. However, the authority may, at its discretion, order a hearing on the disposition of the petition if the petitioner submits a written request therefor, stating in detail why a hearing is necessary for a fair consideration of the need for a declaratory ruling on the matter stated in the petition.

(h) The authority shall, with reasonable promptness, either deny the petition, stating the reasons therefor, or issue a declaratory ruling. Upon disposition of the petition, the authority shall promptly notify the petitioner.

(i) Orders disposing of petitions shall be applicable only to the fact situation alleged in the petition or as set forth in the order. They shall not be applicable to different fact situations or where additional facts not considered in the order exist.

History

• [Eff 6/12/81; am and comp SEP 18 2006] (Auth: HRS § 109-2) (Imp: HRS § 109-2)

Haw. Code R. § 3-70-30 Cost of rules and public records

Copies of these rules and other public records printed or reproduced by the authority shall be furnished to any person requesting the same upon payment of the cost prescribed by law or by the authority"

History

• [Eff 6/12/81; comp SEP 18 2006] (Auth: HRS § 109-2) (Imp: HRS § 109-2)

State Foundation on Culture and the Arts State Foundation on Culture and the Arts

Chapter 90 GENERAL PROVISIONS

Haw. Code R. § 3-90-1 Definitions

As used in chapters 3-90 to 3-95:

"Chairperson" means the person appointed by the governor to serve as chairperson of the foundation.

"Commissioner" means any of the nine members of the foundation appointed by the governor.

"Committee" means a group of Commissioners appointed by the chairperson to serve ongoing or special purposes as determined by the chairperson.

"Director" means the person employed by the foundation under chapter 9, Hawaii Revised Statutes, to manage its activities.

"Evaluation" means a review of the contracted services rendered.

"Foundation" or "SFCA" means the state foundation on culture and the arts composed of nine members and established by chapter 9, Hawaii Revised Statutes, and placed under the department of accounting and general services.

"HRS" means Hawaii Revised Statutes.

"Monitoring" means supervision of the performances or services only to the extent or ensuring compliance with contract specifications.

"Panel" means the commissioners and citizens appointed by the foundation to review and make recommendations on funding for culture, arts, history, and humanities activities.

"Staff" means the employees of the foundation working under the direction of the director.

"State" means the State of Hawaii.

History

• [Eff Feb 12, 1987] (Auth: HRS § 9-5) (Imp: HRS § 9-5)

Haw. Code R. § 3-90-2 Organization of the foundation

(a) The foundation is composed of nine members appointed by the governor to perform the duties and functions set forth in section 9-3, HRS. The officers of the foundation shall consist of a chairperson appointed by the governor from among the commissioners.

(b) The chairperson shall preside at all meetings of the foundation. In the event that the chairperson is not able to preside, one of the commissioners shall be designated to serve as acting chairperson by the chairperson.

(c) The chairperson, with the approval of the commissioners, shall establish standing and special committees and appoint the chairperson of the panels.

(d) The director, with the approval of the chairperson, shall designate a person from among the staff to serve as acting director in the director's absence.

History

• [Eff: FEB 12, 1987] (Auth: HRS § 9-5) (Imp: HRS §§ 9-2, 9-3, 9-5)

Haw. Code R. § 3-90-3 Conflict of interest

Commissioners, staff, and panelists selected by the SFCA shall disqualify themselves and shall not take any official action directly affecting any personal business, project, or undertaking as specified in section 84-14, HRS.

History

• [Eff: Feb 12, 1987] (Auth: HRS § 9-5) (Imp: HRS § 84-14)

Chapter 91 SFCA MEETINGS

Haw. Code R. § 3-91-1 Annual meetings

An annual meeting shall be held unless otherwise provided by action of the foundation.

History

• [Eff: Feb 12, 1987] (Auth: HRS § 9-5) (Imp: HRS §§ 9-3, 9-5)

Haw. Code R. § 3-91-2 General meetings

There shall be regular general meetings. Meetings may be canceled with approval of the majority of the commissioners.

History

• [Eff: Feb 12, 1987] (Auth: HRS § 9-5) (Imp: HRS §§ 9-3, 9-5)

Haw. Code R. § 3-91-3 Special meetings

The chairperson of the foundation may call special meetings of the foundation.

History

• [Eff: Feb 12, 1987] (Auth: HRS § 9-5) (Imp: HRS §§ 9-3, 9-5)

Haw. Code R. § 3-91-4 Open meetings

Every meeting of the foundation shall be open to the public in accordance with chapter 92, HR.

History

• [Eff: Feb 12, 1987] (Auth: HRS § 9-5) (Imp: HRS §§ 92-2, 92-3, 92-4, 92-5)

Haw. Code R. § 3-91-5 Notice

The foundation shall give written public notice of any annual, general, special, or rescheduled meeting in accordance with chapter 92, HRS. Notice shall be mailed to all commissioners.

History

• [Eff: Feb 12, 1987] (Auth: HRS § 9-5) (Imp: HRS §§ 92-7, 92-8)

Haw. Code R. § 3-91-6 Quorum

No meeting of the foundation shall be held without a quorum of at least five commissioners and no action shall be taken by the foundation without the concurrence of at least five commissioners.

History

• [Eff: Feb 12, 1987] (Auth: HRS § 9-5) (Imp: HRS § 92-15)

Haw. Code R. § 3-91-7 Minutes

Minutes of foundation meetings shall be kept in accordance with the requirements of section 92-9, HRS.

History

• [Eff: Feb 12, 1987] (Auth: HRS § 9-5) (Imp: HRS § 92-9)

Haw. Code R. § 3-91-8 Procedures

All meetings shall be conducted in accordance with Robert's rules of order with applicable state laws.

History

• [Eff: Feb 12, 1987] (Auth: HRS § 9-5) (Imp: HRS § 9-5)

Chapter 92 SFCA ADVISORY PANELS

Haw. Code R. § 3-92-1 SFCA advisory panels

(a) The foundation shall designate advisory panels for the purpose of reviewing applications and recommending funding levels.

(b) The individual panels shall review and make funding recommendations to the foundation in the following subject areas:

(1) Arts in education;

(2) Community arts;

(3) Ethnic heritage;

(4) Folk arts;

(5) Humanities;

(6) Literary arts;

(7) Media arts;

(8) Performing arts; and

(9) Visual and environmental arts.

The SFCA may add, combine, eliminate, or modify these subject areas as may be necessary.

History

• [Eff: Feb 12, 1987] (Auth: HRS § 9-5) (Imp: HRS §§ 9-3, 9-5, 90-4)

Haw. Code R. § 3-92-2 Composition of advisory panels

(a) Panels shall be composed of:

(1) Two commissioners of the foundation; and

(2) Not less than five and not more than seven members of the community at large.

(b) The two commissioners shall act as chairperson and vice chairperson of the panel.

History

• [Eff: Feb 12, 1987] (Auth: HRS § 9-5) (Imp: HRS §§ 9-3, 9-5)

Haw. Code R. § 3-92-3 Selection of panel members

Interested individuals may apply to the foundation for panel membership. The panel members shall be knowledgeable and experienced in the subject matter of the panel on which they serve. With the recommendation of the panel chairperson, panel vice chairperson, and director, the foundation shall appoint the panel members. Panel members shall serve without compensation, except for reimbursement of travel and other necessary expenses.

History

• [Eff: Feb 12, 1987] (Auth: HRS § 9-5) (Imp: HRS §§ 9-3, 9-5)

Haw. Code R. § 3-92-4 Responsibilities of panel members

(a) All panel members shall attend and participate in discussions pertaining to their respective panels except when a panel member has a conflict of interest.

(b) All panel members shall vote on recommendations to be made by their respective panels to the foundation regarding applications for funds referred to their panels.

History

• [Eff: Feb 12, 1987] (Auth: HRS § 9-5) (Imp: HRS §§ 9-3, 9-5)

Haw. Code R. § 3-92-5 Panel recommendations

Panel recommendations shall be forwarded to the foundation and shall be based on the information obtained by staff review, panel review, any additional factual information, and on the criteria set forth on application forms. The foundation shall accept, reject, or modify panel recommendations.

History

• [Eff: Feb 12, 1987] (Auth: HRS § 9-5) (Imp: HRS §§ 9-3, 9-5)

Haw. Code R. § 3-92-6 Panel meetings

Panel meetings shall be held on dates specified by the foundation.

History

• [Eff: Feb 12, 1987] (Auth: HRS § 9-5) (Imp: HRS §§ 9-3, 9-5)

Chapter 93 REQUEST FOR FUNDING AND FUNDING ALLOCATIONS

Haw. Code R. § 3-93-1 General requirements

All applicants for grants, subsidies, and purchases of service shall comply with chapter 42, HRS, and chapter 6-3, Hawaii Administrative Rules entitled "Grants, Subsidies and Purchases of Service", adopted by the department of budget and finance.

History

• [Eff: Feb 12, 1987] (Auth: HRS § 9-5) (Imp: HRS §§ 9-3, 9-5, 42-1 to 42-4, 42-12)

Haw. Code R. § 3-93-2 Application forms

(a) Application forms shall be made available at the SFCA office and at places designated by the SFCA at least thirty days prior to the application deadline.

(b) An applicant shall submit fifteen sets of their completed forms to the SFCA office and any additional sets required by the state director of finance. Additional evidence such as the bylaws and policies of the applicant, may be required by the SFCA as necessary to establish that the applicant meets the standards of section 42-2, HRS.

(c) The forms designated by the SFCA to be used are:

(1) Provider profile form:

(A) This form shall consist of identifying information of the applicant including the name of the organization, address, telephone, name of contact person, title, telephone, and tax-exempt status; and

(B) Brief description of the organization including the year founded, its purpose, and major activities, its management and artistic staff, membership, and financial information.

(2) Service proposal forms which shall include identifying information about the organization's proposal: project title, project period, objectives to be accomplished, description of activities to be performed, qualifications of the personnel conducting the activities, project impact, budget expenses, budget revenues, and certification that the information furnished on the application form is true and correct to the best of the applicant's knowledge and belief.

(d) The forms, instructions, guidelines, and timetable shall be subject to change as may be necessary.

History

• [Eff: Feb 12, 1987] (Auth: HRS § 9-5) (Imp: HRS §§ 9-3, 9-5, 42-2, 42-12)

Haw. Code R. § 3-93-3 Review of application forms

(a) All applications must be received in the foundation office no later than the submittal deadline indicated by SFCA on the application forms. Application forms shall be reviewed to determine compliance with standards established by chapter 42, HRS; said determination is to consider the reasonableness, efficiency, and effectiveness of the proposal in achieving the objectives of the SFCA.

(b) Application forms shall be evaluated by advisory panels selected by the SFCA. Evaluations shall be based on the following criteria:

(1) Artistic quality and/or merit of the activity;

(A) Professional or qualified presenters; and

(B) Quality of past programming and services provided.

(2) The need for the activity in the community;

(A) Number of persons impacted by the activity;

(B) Breadth and scope of activity; and

(C) Target group to be affected.

(3) The ability of the applicant to complete the activity;

(A) Track record of successfully completed projects and/or programs;

(B) Organizational stability and fiscal responsibility;

(C) Evidence of non-state financial or in-kind support;

(D) Evidence of management and support services to carry out the activity;

(E) Sufficient cash operating budget in the past fiscal year; and

(F) Demonstrated competence and prior experience of the applicant in providing the proposed activities.

(4) The public purpose to be served;

(A) The degree to which the program supports, augments or supplants state programs and objectives; and

(B) The impact of not funding the request.

(5) Appropriateness, feasibility and cost effectiveness of the proposed activities; and

(6) Evidence of clear, realistic objectives and methods of implementation.

(c) In determining the priority ranking for all applications reviewed, the SFCA shall see that there is an opportunity for all arts and humanities activities to be presented to as wide an audience as possible.

(d) Criteria for determining priority ranking of all application reviewed are:

(1) High artistic quality and/or merit of the proposal;

(2) Large number of people impacted;

(3) Ability and history of accomplishing quality activities effectively and on a timely basis;

(4) Utilization of funding in a cost effective manner; and

(5) Accessibility to special groups of people as the handicapped, aged or groups deprived access to arts and humanities activities.

(e) Higher priority shall be given to purchases of service applications over grants-in-aid and subsidy applications.

History

• [Eff: Feb 12, 1987] (Auth: HRS § 9-5) (Imp: §§ 9-3, 9-5, 42-4)

Haw. Code R. § 3-93-4 Determination of funding allocations

(a) The foundation shall determine the amount of funds to be allocated to each panel based on a review of each panel's past funding levels, the numbers of eligible applications submitted in each panel area, the amounts of requests in each panel area, and community needs.

(b) In the event appropriations are reduced or other additional funds become available through canceled projects, release of restricted funds, additional appropriations, federal grants or other means, the foundation shall determine the amounts and methods for allocations in accordance with its rules, chapter 42, HRS, chapter 6-3 Hawaii Administrative Rules adopted by the department of budget and finance, and legislative intent.

History

• [Eff: Feb 12, 1987] (Auth: HRS § 9-5) (Imp: § 9-3, 9-5, 42-1 to 42-12)

Chapter 94 CONTRACTS

Haw. Code R. § 3-94-1 Contracts for grants, subsidies and purchases of service appropriations

(a) Funds for grants, subsidies and purchases of service agreements shall be released following the execution of a contract between the organization and the State.

(b) Organizations must agree to comply with the conditions specified in chapter 42-3, HRS before receiving a grant, subsidy or purchases of service agreement.

(c) The SFCA shall not enter into contract with organizations who have final project reports and documents incomplete or outstanding from the previous fiscal year.

(d) All contracts shall be reviewed and approved by the attorney general's office for conformance with public purpose and legislative intent.

(e) All contracts shall include sections relating to the conditions which an organization must meet as specified in chapter 42, HRS and by the National Endowment for the Arts, the allotment of funds as prescribed by chapter 37, HRS, indemnification of the State, and independent contractor status of the recipient.

(e) All contracts shall be for a period of no more than one year.

(f) All contracts shall be executed not late than sixty (60) days from the effective date of the appropriation or as soon as practicable thereafter. If the contract is not executed within the sixty days, the SFCA shall inform the organization as to when the contract is expected to be executed.

History

• [Eff: Feb 12, 1987] (Auth: HRS § 9-5) (Imp: HRS §§ 9-3, 9-5, 42-3, 42-8)

Haw. Code R. § 3-94-2 Monitoring of contracts

(a) The SFCA shall monitor each contract at least annually to ensure compliance with chapter 42, HRS, and the public purpose and legislative intent of the agreement.

(b) Any organization who withholds or omits any material facts or deliberately misrepresents such facts and violates any of the provisions of chapter 42, HRS, of the terms of its contracts, shall be prohibited from applying for state funds for a period of five years.

(c) Any organization that intentionally or deliberately violates any of the provisions of chapter 42, HRS, or the terms of its contract, and has funds appropriated in the subsequent fiscal year shall not be entitled to receive the funds.

History

• [Eff: Feb 12, 1987] (Auth: HRS § 9-5) (Imp: HRS §§ 9-3, 9-5, 42-9, 42-10)

Haw. Code R. § 3-94-3 Evaluation of contracts

(a) Each contract shall be evaluated at least annually to determine whether the intended results were attained in the manner contemplated. An organization shall complete a variance report form prepared by the department of budget and finance and a SFCA final project report form for each contract. The SFCA final project report form shall contain the following information:

(1) Identifying information about the organization and contract consisting of the SFCA project number, the name, address and telephone of the organization, the name, title, and telephone of the contact person;

(2) The start date and end date of the contract;

(3) A brief description of the contracted services, including the project title, listing of activities including dates and locations of services, numbers of individuals benefiting, and evaluation of the project;

(4) The actual expenses incurred and revenues received; and

(5) Certification that the information contained in the report including all attachments and supporting materials are correct to the best of the authorizing official's knowledge.

(b) Organizations shall submit these forms and any additional materials as may be required by the SFCA not later than thirty days after the completion date stipulated in the contract. These forms and instructions shall be subject to change as may be necessary

History

• [Eff: Feb 12, 1987] (Auth: HRS § 9-5) (Imp: HRS §§ 9-3, 9-5, 42-9)

Chapter 95 DECLARATORY RULINGS

Haw. Code R. § 3-95-1 Petition

Any interested person may petition the foundation for a declaratory order as to the applicability of any statutory provision administered by the foundation or of any rule or order of the foundation. The petition shall be submitted in duplicate and filed with the foundation.

History

• [Eff: Feb 12, 1987] (Auth: HRS §§ 9-5, 91-8) (Imp: HRS § 91-8)

Haw. Code R. § 3-95-2 Form and content of petition

(a) The petition shall include:

(1) A statement of the nature of the petitioner's interest including reasons for the submission of the petition;

(2) The designation of the specific statutory provision, rule, or order in question;

(3) A complete statement of the relevant facts and precise nature of the controversy;

(4) A statement of the interpretation by the petitioners of the statutory provision, rule, or order;

(5) A description of the reasons, including any legal authority of reference, in support of the interpretation by the petitioner;

(6) Any other information or facts relevant to the petition;

(7) The name, address, and telephone number of the petitioner; and

(8) The signature of the petitioner.

(b) Any petition which does not include all of the foregoing requirements may be rejected by the foundation. The date of receipt of the petition shall be noted on the petition. The petitioners shall be notified in writing of the rejection.

History

• [Eff: Feb 12, 1987] (Auth: HRS §§ 9-5, 9-8) (Imp: HRS §§ 9-5, 91-8)

Haw. Code R. § 3-95-3 Nonissuance of declaratory order

The foundation, for good cause, may refuse to issue a declaratory order. Without limiting the generality of the foregoing, the foundation may so refuse where:

(1) The request is speculative or purely hypothetical and is not based on an existing situation or one which may be reasonably expected to occur in the near future; or

(2) The petitioner's interest is not of the kind which confers sufficient standing to maintain an action in a court of law; or

(3) The issuance of the declaratory order may adversely affect the interest of the State, the foundation, or any officer or employee of the State or foundation in any litigation which is pending or may which may be reasonably expected to arise; or

(4) The petition requests a ruling on a statutory provision not administered by the foundation or the matter is not otherwise within the foundation's jurisdiction.

History

• [Eff: Feb 12, 1987] (Auth: HRS §§ 9-5, 91-8) (Imp: HRS §§ 9-5, 91-8)

Haw. Code R. § 3-95-4 Hearing

No hearing need be granted to the petitioner or to any interested person in the usual course of disposition of a petition for a declaratory ruling. However, the foundation may order a hearing on the disposition of the petition if the petitioner submits a written request therefore, stating in detail why a hearing is necessary for a fair consideration of the need for a declaratory ruling on the matter stated in the petition.

History

• [Eff: Feb 12, 1987] (Auth: HRS §§ 9-5, 91-8) (Imp: HRS §§ 9-5, 91-8)

Haw. Code R. § 3-95-5 Disposition of petition

The foundation, with reasonable promptness, shall either deny the petition, stating the reasons therefore in writing, or issue a declaratory ruling. The director shall promptly notify the petitioner of the foundation's action.

History

• [Eff: Feb 12, 1987] (Auth: HRS §§ 9-5, 91-8) (Imp: HRS §§ 9-5, 91-8)

Haw. Code R. § 3-95-6 Applicability of ruling

A ruling on a petition shall apply only to the fact situation contained in the petition or as set forth in the ruling. A ruling shall not apply to different fact situations or to situations where additional facts, not contained in the petition, exist.

History

• [Eff: Feb 12, 1987] (Auth: HRS §§ 9-5, 91-8) (Imp: HRS §§ 9-5, 91-8)

Central Services Division Central Services Division

Chapter 111 STATE FACILITIES AND GROUNDS

Haw. Code R. § 3-111-1 Purpose

The purpose of this chapter is to provide for the safe, orderly, convenient, and efficient use and enjoyment of facilities under the jurisdiction, management, and operation of the department of accounting and general services, and to prevent interference with normal pedestrian and vehicular traffic on those facilities, and prevent disruption of government functions on those facilities.

History

• [Eff January 5, 1998] (Auth: HRS § 26-6) (Imp: HRS § 26-6)

Haw. Code R. § 3-111-2 Application

These rules govern the use of and activities upon, facilities under the jurisdiction, management, and operation of the department of accounting and general services.

History

• [Eff January 5, 1998] (Auth: HRS § 26-6) (Imp: HRS § 26-6)

Haw. Code R. § 3-111-3 Definitions

As used in this chapter, unless the content clearly indicates otherwise:

"Comptroller" means the executive director of the department of accounting and general services.

"Facilities" means buildings and parking structures of the State of Hawaii, including the grounds thereof, whether owned, leased, or rented by the State of Hawaii for its use.

Literature" means any written or printed material, including but not limited to, books, pamphlets, handbills, cards, circulars, pictures, magazines, and leaflets, containing political, religious, philosophical, or ideological messages, or solicitations for contributions to be made outside the facility. The term does not include other types of merchandise, such as but not limited to, food, drink, coffee mugs, sunglasses, flags, records, patches, jewelry, handicraft, decals, audio or video tapes, shirts, hats, ties, shorts, or any other clothing articles.

"Person" means an individual or organization.

"Sale" means the transfer of money, including monetary donations, in exchange for literature or any other item.

"Solicit" means to ask, implore, plead for; to endeavor to obtain by asking; to importune; or to try to obtain.

"State" means the State of Hawaii.

History

• [Eff January 5, 1998] (Auth: HRS § 26-6) (Imp: HRS § 26-6)

Haw. Code R. § 3-111-4 Jurisdiction

These rules shall apply to all facilities designated as under the jurisdiction, management, and operation of the department of accounting and general services. A current list of these facilities shall be kept at the office of the department's Central Services Division, 729 Kakoi Street, Honolulu, Hawaii 96819.

History

• [Eff January 5, 1998] (Auth: HRS § 26-6) (Imp: HRS § 26-6)

Haw. Code R. § 3-111-5 Hours of operation

(a) Except as provided below, all facilities shall be open to the general public each weekday from 7:45 a.m. until 4:30 p.m., or during such hours as may be otherwise designated by the Comptroller.

(b) Facilities shall be closed to the general public on Saturdays, Sundays, and holidays. Facilities may also be closed during emergencies or at such times as the Comptroller may deem necessary.

(c) During periods when facilities are closed, admission to facilities shall be limited to individuals authorized by the Comptroller or an authorized representative of the Comptroller; such authorized individuals may be required to sign a register or display identification when requested by a security officer or other authorized personnel.

History

• [Eff January 5, 1998] (Auth: HRS § 26-6) (Imp: HRS § 26-6)

Haw. Code R. § 3-111-6 Preservation of property

Any action or conduct which destroys or damages any facility is prohibited. Such prohibited actions shall include but not be limited to: improperly disposing rubbish, causing filth, creating hazards to persons, throwing articles, climbing the facility, and writing graffiti. The removal of property from any facility is prohibited unless authorized by the Comptroller.

History

• [Eff January 5, 1998] (Auth: HRS § 26-6) (Imp: HRS § 26-6)

Haw. Code R. § 3-111-7 Conformity with signs and emergency directions

Persons shall comply with all official signs, and during emergencies, comply with all instructions of authorized personnel.

History

• [Eff January 5, 1998] (Auth: HRS § 26-6) (Imp:HRS § 26-6)

Haw. Code R. § 3-111-8 Disturbances

Any conduct which impedes or disturbs state employees in the performance of their duties, or the general public from obtaining the public services available in or on that facility, shall be prohibited. Such prohibited conduct includes, but shall not be limited to, creation of loud or unusual noises, and obstruction of pedestrians or vehicles, entrances, foyers, corridors, offices, elevators, or stairways, and verbal or physical harassment of employees or visitors of the facility.

History

• [Eff January 5, 1998] (Auth: HRS § 26-6) (Imp: HRS § 26-6)

Haw. Code R. § 3-111-9 Public health and safety

Any activity which presents a clear and present danger to the public health and safety is prohibited.

History

• [Eff January 5, 1998] (Auth: HRS § 26-6) (Imp: HRS § 26-6)

Haw. Code R. § 3-111-10 Gambling

Any operation of, or participation in, gambling activities as defined in part III of chapter 712 of the Hawaii Revised Statutes, is prohibited.

Such prohibited activity includes but is not limited to, games for money or other property, gambling devices, lotteries, pools, and the sale or purchase of numbered tickets.

History

• [Eff January 5, 1998] (Auth: HRS § 26-6) (Imp: HRS § 26-6)

Haw. Code R. § 3-111-11 Alcoholic beverages and drugs

The use, possession, or sale of any alcohol or illegal drug, as defined in part IV of chapter 712 of the Hawaii Revised Statues, is prohibited. Any person who is under the influence of alcohol or drugs to such a degree that the person presents a danger to himself or to others, is prohibited from entering or remaining in or on any facility.

History

• [Eff January 5, 1998] (Auth: HRS § 26-6) (Imp: HRS § 26-6)

Haw. Code R. § 3-111-12 Weapons and explosives

No person shall carry firearms or other dangerous weapons or explosives except as permitted by law.

History

• [Eff January 5, 1998] (Auth: HRS § 26-6) (Imp: HRS § 26-6)

Haw. Code R. § 3-111-13 Audio devices

(a) The operation of any audio device or other noise producing device, in a manner which creates a disturbance, or impedes or disturbs state employees in the performance of their duties, or the general public from obtaining the public services available in or on that facility, is prohibited. Such audio devices include, but are not limited to, radios, cassette and compact disc players, and televisions.

(b) The operation of public address systems, regardless of whether such system is fixed, portable, or attached to a vehicle, is prohibited, unless prior written authorization is obtained from the Comptroller.

(c) The installation of aerials, communication dishes, or other special radio, television, telephone, or other communication equipment is prohibited, unless prior written authorization is obtained from the Comptroller.

History

• [Eff January 5, 1998] (Auth: HRS § 26-6) (Imp: HRS § 26-6)

Haw. Code R. § 3-111-14 Animals

All animals are prohibited, except service animals such as, but not limited to guide, signal and service dogs, who are trained to do work or perform tasks for the benefit of an individual with a disability. It shall be the individual's responsibility for all damages caused by the animal, including but not limited to, cleaning up after the dog, and properly disposing of any dropping.

History

• [Eff January 5, 1998] (Auth: HRS § 26-6) (Imp: HRS § 26-6)

Haw. Code R. § 3-111-15 Vehicle operation

The driving and riding of vehicles including but not limited to, automobiles, trucks, vans, motorcycles, mopeds, scooters, motorized bicycles, and bicycles, shall be done only on designated roads, provided that any such operation which exceeds the posted speed limit, or which endangers persons or property, is prohibited.

History

• [Eff January 5, 1998] (Auth: HRS § 26-6) (Imp:HRS § 26-6)

Haw. Code R. § 3-111-16 Parking

Parking of vehicles is permitted only in areas designated by the Comptroller, and shall be in accordance with chapter 3-30, Hawaii Administrative Rules Governing Parking on State Lands.

History

• [Eff January 5, 1998] (Auth: HRS § 26-6) (Imp: HRS § 26-6)

Haw. Code R. § 3-111-17 Skateboards, roller skates, and in-line skates

The use of skateboards, roller skates, and inline skates is prohibited, unless otherwise authorized by the Comptroller.

History

• [Eff January 5, 1998] (Auth: HRS § 26-6) (Imp: HRS § 26-6)

Haw. Code R. § 3-111-18 Memorials

The installation of any memorial, monument, or other commemorative piece, without the prior written authorization of the Comptroller, is prohibited.

History

• [Eff January 5, 1998] (Auth: HRS § 26-6) (Imp: HRS § 26-6)

Haw. Code R. § 3-111-19 Posting of advertisements and signs

The posting of any advertisements, signs, bulletins, announcements, and the like is prohibited, unless otherwise authorized by the Comptroller.

History

• [Eff January 5, 1998] (Auth: HRS § 26-6) (Imp: HRS § 26-6)

Haw. Code R. § 3-111-20 Abandoned and unattended property

(a) The abandonment of any vehicle or property is prohibited. Any vehicle or property left unattended for twenty-four hours or more shall be considered abandoned, and will be impounded and disposed as provided by law, unless the prior written authorization of the Comptroller is obtained.

(b) Notwithstanding subsection (a) above, a vehicle or property may be impounded and removed if the Comptroller or a designee of the Comptroller determines that an unattended vehicle or property interferes with the safe and orderly management of the facility.

History

• [Eff January 5, 1998] (Auth: HRS § 26-6) (Imp: HRS § 26-6)

Haw. Code R. § 3-111-21 Commercial use

The prior written authorization of the Comptroller must be obtained before any commercial motion picture, video, or photograph is taken of the facility. Applicants for such authorization shall agree to comply with any terms, conditions, and fees established by the Comptroller.

History

• [Eff January 5, 1998] (Auth: HRS § 26-6) (Imp: HRS § 26-6)

Haw. Code R. § 3-111-22 Temporary structures and shelters

The installation of any temporary structure, shelter, or sleeping accommodation without the prior written authorization of the Comptroller, is prohibited.

History

• [Eff January 5, 1998] (Auth: HRS § 26-6) (Imp: HRS § 26-6)

Haw. Code R. § 3-111-23 Solicitation, sales, and debt collecting

Soliciting, the sale of gifts, money, goods, or services, and the collection of private debts, are prohibited except pursuant to:

(1) Section 3-111-24;

(2) A concession, lease, or contract issued by the State; or

(3) A permit issued by the Comptroller.

History

• [Eff January 5, 1998] (Auth: HRS § 26-6) (Imp: HRS § 26-6)

Haw. Code R. § 3-111-24 Sale or distribution of literature

(a) The sale or distribution of literature is allowed. However, the use of a portable table or chair to sell or distribute literature, in sizes and numbers acceptable to the Comptroller, is allowed only if a permit for such use has been issued by the Comptroller pursuant to section 3-111-26. No other structure or equipment including, but not limited to, display mats, tents, canopies, podiums, or platforms, shall be used to sell or distribute literature.

History

• [Eff January 5, 1998] (Auth: HRS § 26-6) (Imp: HRS § 26-6)

Haw. Code R. § 3-111-25 Public assemblies and meetings

Public assemblies, meetings, gatherings, demonstrations, parades, and other such events, resulting in assemblies of twenty-five or more individuals are allowed, provided a permit for such event has been issued by the Comptroller pursuant to section 3-111-26.

History

• [Eff January 5, 1998] (Auth: HRS § 26-6) (Imp: HRS § 26-6)

Haw. Code R. § 3-111-26 Permit process

(a) Applications for permits shall be submitted in writing to the Comptroller at least fourteen business days prior to the date of the activity. An application for a permit shall set forth the name of the applicant, date, time, duration, nature, and location of the proposed activity, an estimate of the number of persons expected to attend, a statement of equipment or facilities to be used and any other information required by the permit application form.

(b) Permits will be granted on proper application unless:

(1) The proposed activity would impede or disturb state employees in the performance of their duties, or the general public from obtaining the public services available at that facility;

(2) Cause damage or injury to the facility;

(3) A prior application for a permit for the same time and place has been made that has been granted and the activities authorized by that permit do not reasonably allow multiple occupancy of that particular location; or

(4) It reasonably appears that the event presents a clear and present danger to the public health or safety.

(c) If a permit is denied, the applicant shall be informed in writing, with the reason(s) for the denial set forth.

(d) Permits may contain such other terms and conditions as are reasonably consistent with the interest of public safety, protection of the facility and other property, and intended use of the facility, including but not limited to, limitations on equipment to be used and the time and place of the event, and requirements for liability insurance and security.

Should the number of applications for a permit exceed the available area for a particular location and time, the comptroller reserves the right to allocate spaces for which permit applications were received in the Comptroller's sole discretion, on the basis of a shared use concept.

(e) A permit may be revoked for any of the conditions set forth in subsection (b) above that constitute grounds for the denial of a permit, or if the Comptroller deems that the permittee has violated these rules or any of the terms and conditions of the permit. Such revocation shall be made in writing, with the reasons(s) for the revocation set forth, except that under emergency circumstances, when an immediate verbal revocation or suspension of the permit may be made, to be followed by written confirmation within seventy-two hours.

(f) Permittees shall display a copy of the approved application in plain view during the activity at the permitted location.

History

• [Eff January 5, 1998] (Auth: HRS § 26-6) (Imp: HRS § 26-6)

Haw. Code R. § 3-111-27 Enforcement

Any person violating any provision of this chapter shall be removed from the facility and subject to fines and criminal penalties as provided by law.

History

• [Eff January 5, 1998] (Auth: HRS § 26-6) (Imp: HRS § 26-6)

Haw. Code R. § 3-111-28 Hawai'i State Art Museum

(a) Use of, and activities at, the Hawai'i State Art Museum (museum), located in the No. 1 Capitol District Building (building), shall be governed by the rules of this chapter, however such rules, as applied to the museum, may be waived by the comptroller when in the comptroller's discretion, it would be reasonable to do so in order to promote and accomplish the purposes and goals set with the establishment of the museum.

(b) Use of museum facilities. Further, and consistent with such purposes and goals, the State Foundation on Culture and the Arts (foundation) is to make available, at a reasonable rental fee, for public, private, and community use, the museum facilities and grounds whenever these activities do not interfere with the normal and usual activities of the museum and other occupants of the building.

(c) Fees and service charges. The rental fees and service charges for use of all or part of the museum and its surrounding grounds for public and private functions, shall be according to a schedule of fees and charges as determined by the SFCA Commission.

(d) Other requirements. Applicants shall comply with state laws and county ordinances and agree to assume the cost of repairs for damages, incurred to the building, grounds, and equipment, whether accidental or otherwise, at the time of use. Applicants shall be required to execute a release form as provided by the foundation, releasing the State from any responsibility or claim arising out of injuries or damages, or both, incurred during the use of the building, facilities, or grounds, to conduct applicant's activities.

(e) Loss of rental privileges. Applicants who have outstanding accounts with the foundation, have fraudulently subscribed to erroneous information on the use application form, or have previously misused the building, facilities, or grounds, may be denied use of the museum.

History

• [Eff SEP 15 2003] (Auth; HRS § 26-6) (Imp: HRS § 26-6)

State Procurement Office State Procurement Office

Hawaii Public Procurement Code Hawaii Public Procurement Code

Chapter 120 GENERAL PROVISIONS

Haw. Code R. § 3-120-1 Purpose

(a) The purpose of these rules is to promote economy, efficiency, and effectiveness in the procurement of goods and services, and construction for the State and counties, by:

(1) Simplifying, clarifying, and modernizing the law governing procurement;

(2) Requiring the continued development of procurement policies and practices;

(3) Making the procurement laws of the State and counties as consistent as possible;

(4) Ensuring the fair and equitable treatment of all persons who deal with the procurement system of the State and counties;

(5) Providing increased economy in procurement activities and maximizing best value to the fullest extent practicable;

(6) Fostering effective broad-based competition within the free enterprise system;

(7) Providing safeguards for the maintenance of a procurement system of quality and integrity; and

(8) Increasing public confidence in the procedures followed in public procurement.

History

• [Eff 12/15/95; comp 11/17/97; comp 6/19/99; am and comp 6/9/01; am and comp 6/9/01; am and comp 11/15/01; am and comp 11/8/02; am and comp AUG 24 2009] (Auth: HRS § 103D-202) (Imp: SSLH 1993, Act 608, §1)

Haw. Code R. § 3-120-2 Definitions

Definitions are in section 103D-104, HRS. The following definitions are also applicable to terms used in subtitle 11:

"Administrator of the state procurement office", hereinafter referred to as "the administrator", means the administrator as provided in section 103D-204, HRS, or the administrator's designee.

"Bid" means the executed document submitted by a bidder in response to an invitation for bids, or a multi-step bidding procedure.

"Bidder" means any individual, partnership, firm, corporation, joint venture, or other legal entity submitting, directly or through a duly authorized representative or agent, a bid for the good, service, or construction contemplated.

"Chief procurement officer" means the chief procurement officer for state entities and the several counties as provided in section 103D-203, HRS, or the officer's designee.

"Contractor" means any individual, partnership, firm, corporation, joint venture, or other legal entity undertaking the execution of the work under the terms of the contract with the State, and acting directly or through its agents or employees.

"Cost analysis" means the evaluation of cost data for the purpose of arriving at costs actually incurred or estimates of costs to be incurred, prices to be paid, and costs to be reimbursed.

"Cost data" means information concerning the actual or estimated cost of labor, material, overhead, and other cost elements which have been actually incurred or which are expected to be incurred by the contractor in performing the contract.

"Days" means calendar days unless otherwise specified.

"Designee" means a person appointed by the head of a purchasing agency to act on its behalf with delegated authority.

"Established market price" means a current price, established in the usual and ordinary course of trade between buyers and sellers, which can be substantiated from sources which are independent of the manufacturer or supplier and which may be an indication of the reasonableness of price.

"Head of the purchasing agency" means the head of any agency with delegated procurement authority.

"Invitation for bids" means all documents, whether attached or incorporated by reference, utilized for soliciting bids under the competitive sealed bidding source selection method.

"Offer" means bid, proposal, or quotation.

"Offer or" means any individual, partnership, firm, corporation, joint venture, or other legal entity submitting, directly or through a duly authorized representative or agent, an offer for the good, service, or construction contemplated.

"Paying agent" means, as to bonds of any particular series, the director of finance or the bank or trust company designated for the payment of the principal and redemption price (if any) of, and interest on, the bonds or such series in the series resolution authorizing the issuance of such series or the series certificate relating to such series.

"Person" means individuals, partnerships, corporations, associations, or public or private organizations or any character other than a governmental body.

"Price analysis" means the evaluation of price data, without analysis of the separate cost components and profit as in cost analysis, which may assist in arriving at prices to be paid and costs to be reimbursed.

"Price data" means factual information concerning prices, including profit, for goods, services, or construction substantially similar to those being procured. In this definition, "prices" refers to offered or proposed selling prices, historical selling prices, and current selling prices of such items. This definition refers to data relevant to both the general contractor and subcontract prices.

"Procurement officer" means any person with delegated authority to enter into and administer contracts and make written determination with respect thereto. The term includes an authorized representative acting within the limits of authority. The delegated authority is received from the chief procurement officer directly or through the head of a purchasing agency or designee to the procurement officer.

"Proposal" means the executed document submitted by an offer or in response to a request for proposals.

"Request for proposals" means all documents, whether attached or incorporated by reference, utilized for soliciting proposals under the competitive sealed proposal source selection method.

"Responsive bidder or offeror" means a person who has submitted a bid or offer which conforms in all material respects to the invitation for bids or request for proposals.

"Solicitation" means an invitation for bids, a request for proposals, a request for quotations, or any other document issued by the State for the purpose of soliciting bids or proposals to perform a state contract.

"State" means the judiciary, the legislature, office of Hawaiian affairs, department of education, University of Hawaii, Hawaii health systems corporation, remaining departments of the executive branch and all governmental bodies administratively attached to them, and the counties.

"Subcontractor" means any person who enters into an agreement with the contractor to perform a portion of the work for the contractor.

"Support facility provider" means a bank, a national banking association, an organization subject to registration with the Board of Governors of the Federal Reserve System under the Bank Holding Company Act of 1956 or any successor provisions of law, a federal branch pursuant to the International Banking Act of 1978 or any successor provisions of law, a savings bank, a saving and loan association, an insurance company or association chartered or organized under the laws of any state of the United States of America, the Government National Mortgage Association or any successor thereto, the Federal National Mortgage Association or any successor thereto, or any other federal agency.

History

• [Eff 12/15/95; am and comp 11/17/97; comp 6/19/99; am and comp 6/9/01; am and comp 11/15/01; am and comp 11/8/02; am and comp AUG 24 2009] (Auth: HRS § 103D-202) (Imp: HRS § 103D-202)

Haw. Code R. § 3-120-3 Applicability

These rules shall apply to:

(1) The procurement practices of all entities created by the State's and counties' constitutions, charters, statutes, ordinances, administrative rules, or executive orders, including the office of Hawaiian affairs, and the departments, commissions, councils, boards, bureaus, committees, institutions, authorities, legislative bodies, agencies, government corporations, or other establishment or office of the executive, legislative, or judicial branches of the State or its several counties; and

(2) All procurement contracts made by governmental bodies, whether the consideration for the contract is cash, revenues, realizations, receipts, or earnings, any of which the State receives or is owed; in-kind benefits; or forbearance; provided that nothing in this chapter or rules adopted hereunder shall prevent any governmental body from complying with the terms and conditions of any other grant, gift, bequest, or cooperative agreement.

History

• [Eff 12/15/95; am and comp 11/17/97; comp 6/19/99; am and comp 6/9/01; am and comp 11/15/01; am and comp 11/8/02; am and comp AUG 24 2009] (Auth: HRS § 103D-202) (Imp: HRS § 103D-202)

Haw. Code R. § 3-120-4 Procurements exempt from chapter 103D, HRS

(a) Notwithstanding the intent of chapter 103D, HRS, to require governmental bodies to procure their goods and services through competitive bidding, it is acknowledged that there may be situations where procurement by competitive means is either not practicable or not advantageous to the State.

(b) Exhibit A titled "Procurements Exempt From Chapter 103D, HRS" dated 10/30/2014, is located at the end of this chapter. This exhibit provides a list of goods and services which the procurement policy board has determined to be exempt from chapter 103D, HRS, because although such goods and services may be available from multiple sources, their procurement by competitive means would be either not practicable or not advantageous to the State.

(c) Chief procurement officers may request periodic reports from the heads of purchasing agencies of procurements made pursuant to subsection (b). The heads of purchasing agencies may be required to include in their reports, descriptions of the process or procedures the agency used to select the vendor ensuring maximum fair and open competition whenever practicable.

(d) Chief procurement officers may request that additional exemptions be added to Exhibit A entitled "Procurements Exempt From Chapter 103D, HRS" dated 10/30/2014, located at the end of this chapter.

(e) The procurement policy board shall review Exhibit A titled "Procurements Exempt From Chapter 103D, HRS" dated 10/30/2014, located at the end of this chapter, annually or more frequently as needed for amendments.

(f) Purchasing agencies making procurements which are exempt from chapter 103D, HRS, are nevertheless encouraged to adopt and use provisions of the chapter and its implementing rules as appropriate; provided that the use of one or more provisions shall not terminate the exemption and subject the procurement of the purchasing agency to any other provision of the chapter.

(g) Purchasing agencies shall cite on the purchase order or on the contract, the authority waiver as "Exempt From Chapter 103D, HRS, pursuant to section 3-120-4(b) (cite exemption number from Exhibit A titled "Procurements Exempt From Chapter 103D, HRS" dated 10/30/2014, located at the end of this chapter), Hawaii Administrative Rules".

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp 6/19/99; am and comp 6/9/01; am and comp 11/15/01; am and comp 11/8/02; am and comp AUG 24 2009 ] (Auth: HRS §§ 103D-102, 103D-202) (Imp: HRS § 103D-102)

Haw. Code R. § 3-120-5 Procedures for requesting exemption and amendment

(a) When the head of a purchasing agency determines that a situation exists wherein procurement by competitive means would be either not practicable or not advantageous to the State, a request for an exemption may be made to the appropriate chief procurement officer as follows. Prior to procurement:

(1) Heads of purchasing agencies shall submit a written request to the chief procurement officer and certify to the best of their knowledge that the information provided is true and correct; and

(2) The request shall be made on a form provided by the chief procurement officer.

(b) The chief procurement officer shall post a copy of the request on an internet site accessible to the public for seven days.

(1) Any inquiries shall be directed to the designated contact person of the purchasing agency stated on the notice; and

(2) Any objections to the request for the exempted procurement shall be submitted in writing and received by the chief procurement officer within seven days from the date the notice was posted.

(c) In determining whether to approve the request, the chief procurement officer shall consider the circumstances of each individual case and may approve the exemption for the term of the contract

(d) Amendments to contracts exempted from chapter 103D, HRS, under this section, that would change the original scope of the contract, may only be made with the prior approval of the chief procurement officer. To amend a contract exempted from chapter 103D, HRS, the purchasing agency shall complete and submit a request for an amendment to the chief procurement officer. The certification requirement as provided in subsection (a)(1) and the posting and approval procedures as provided in subsections (b) and (c) shall be followed.

(e) The determinations required by this section shall be final and conclusive unless they are clearly erroneous, arbitrary, capricious, or contrary to law.

(f) The chief procurement officer shall forward a copy of each request and amendment, if any, to the administrator.

History

• [Eff 12/15/95; comp 11/17/97; am and comp 6/19/99; am and comp 6/9/01; am and comp 11/15/01; am and comp 11/8/02; am and comp AUG 24 2009] (Auth: HRS § 103D-202) (Imp: HRS § 103D-102)

Haw. Code R. § 3-120-6 REPEALED

History

• R 11/8/02

Chapter 121 PROCUREMENT ORGANIZATION

Subchapter 1 PROCUREMENT POLICY BOARD

Haw. Code R. § 3-121-1 Duties and advisor

(a) The duties of the procurement policy board shall be in accordance with sections 103D-202, 103D-211, and 103D-401, HRS. The board:

(1) Shall audit and monitor the implementation of its rules and the requirements of chapters 103D and 103F, HRS;

(2) May annually audit any entity subject to chapters 103D and 103F, HRS, to be randomly selected, to ensure compliance with chapters 103D and 103F, HRS; and

(3) May select any entity subject to chapters 103D and 103F, HRS, for compliance audits based upon:

(A) A pattern of non-compliance; or

(B) Any justification determined by the procurement policy board to warrant an audit.

(b) The administrator of the state procurement office shall serve as a nonvoting advisor to the policy board.

History

• [Eff 12/15/95; comp 11/17/97; am and comp 11/8/02; am and comp AUG 24 2009] (Auth: HRS § 103D-202) (Imp: HRS § 103D-202)

Haw. Code R. § 3-121-1.01 Meetings

(a) The procurement policy board may meet and exercise its duties in this State. Except as otherwise provided by law, all of the procurement policy board meetings are open to the public. The parliamentary procedures to be utilized by the procurement policy board in the conduct of its meetings shall be based on the current edition of 'Robert's Rules of Order Newly Revised', to the extent it does not conflict with chapters 91 and 92, HRS, or these rules.

(b) The procurement policy board:

(1) Shall allow all interested persons an opportunity to submit data, views, arguments, or. present oral testimony on any agenda item in an open meeting;

(2) May provide for the recordation of all presented oral testimony; or

(3) May impose limitations on the submission of data, views, arguments, or oral testimony in the interest of preserving fairness within the constraints of an open meeting.

History

• [Eff and comp AUG 24 2009] (Auth: HRS § 103D-202) (Imp: HRS § 103D-202)

Haw. Code R. § 3-121-2 Procurement directives

(a) The policy board shall issue procurement directives to:

(1) Cover the policies and procedures for conducting its business;

(2) Issue interim rules;

(3) Provide general procurement policy guidance; and

(4) Issue forms, lists, or other information as required.

(b) A copy of each directive shall be provided to the chief procurement officers.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp 11/8/02; comp AUG 24 2009] (Auth: HRS § 103D-202) (Imp: HRS § 103D-202)

Haw. Code R. § 3-121-4 REPEALED

History

• R AUG 24 2009

Subchapter 2 CHIEF PROCUREMENT OFFICERS

Haw. Code R. § 3-121-5 Chief procurement officers identified

The chief procurement officers for each of the state entities shall be in accordance with section 103D-203, HRS.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp 11/8/02; comp AUG 24 2009] (Auth: HRS § 103D-202) (Imp: HRS § 103D-203)

Haw. Code R. § 3-121-6 Authority and duties

(a) Each chief procurement officer shall serve as the central procurement officer for its respective jurisdiction in accordance with sections 103D-205, 103D-207, and 103D-402, HRS.

(b) A chief procurement officer may issue price or vendor lists for goods and services pursuant to section § 3-122-143.

(1) When price or vendor lists are issued, it is mandatory that all departments and agencies procure goods and services from the price or vendor lists, unless otherwise determined by the chief procurement officer and stated in the solicitation.

(2) Exceptions to purchase outside of the price or vendor lists are allowed upon approval of the chief procurement officer. The burden of proof that the price or vendor list good or service is not suited to the agency's needs shall be the responsibility of the expending agency.

(3) Use of price or vendor lists between chief procurement officers may be authorized upon mutual agreement and commitment to the terms of the price or vendor list pursuant to chapter 3-128. The State's commitment shall be stated in the bid document.

History

• [Eff 12/15/95; comp 11/17/97; am and comp 11/8/02; am and comp AUG 24 2009] (Auth: HRS § 103D-202) (Imp: HRS §§ 103D-20F, 103D-207, 103D-313, 103D-802)

Haw. Code R. § 3-121-8 Centralization of procurement authority

Procurement authority shall be centralized pursuant to section 103D-207, HRS.

History

• [Eff 12/15/95; comp 11/17/97; am and comp 11/8/02; comp AUG 24 2009] (Auth: HRS § 103D-202) (Imp: HRS § 103D-207)

Haw. Code R. § 3-121-9 Repealed

History

• R AUG 24 2009

Subchapter 3 DELEGATION OF CHIEF PROCUREMENT OFFICERS AUTHORITY AND DUTIES

Haw. Code R. § 3-121-16 Delegation of authority

(a) Each chief procurement officer may delegate any authority or duty or may revoke any authority or duty conferred upon the chief procurement officer by chapter 103D, HRS, and rules adopted by the policy board to any head of a purchasing agency within its respective jurisdiction. Factors to consider in making the decision to delegate include:

(1) The expertise of the potential delegate in terms of procurement knowledge and any specialized knowledge pertinent to the authority to be delegated;

(2) The past experience of the potential delegate in exercising similar authority;

(3) The degree of economy and efficiency to be achieved in meeting the State's requirements if authority is delegated;

(4) The available resources of the office of the chief procurement officer to exercise the authority if it is not delegated; and

(5) The consistency of delegation under similar circumstances.

(b) The delegation shall be made based on information provided by the head of a purchasing agency, which shall include, but not be limited to:

(1) The title of the head of the purchasing agency or a designee who will have overall authority for procurement within the agency;

(2) The categories of procurement, i.e., goods, services, or construction;

(3) The dollar level of goods, services, and construction procurement;

(4) The methods of source selection:

(A) Competitive sealed bidding: Authority to award or enter into contracts pursuant to section 103D-302, HRS;

(B) Competitive sealed proposals: Authority to approve, award, or enter into contracts pursuant to section 103D-303, HRS;

(C) Professional services procurement: Except that as otherwise provided, the authority to negotiate, award, or enter into contracts pursuant to section 103D-3 04, HRS, rests with the head of a purchasing agency, and does not require a delegation by the chief procurement officer;

(D) Small purchases: Authority to award purchase orders pursuant to section 103D-3 05, HRS;

(E) Sole source procurement: Authority to negotiate, award, or enter into contracts pursuant to section 103D-306, HRS. Approvals pursuant to section 103D-3 06, HRS, shall remain with the chief procurement officer;

(F) Emergency procurements: Authority to negotiate, award, or enter into contracts pursuant to section 103D-307, HRS. Approvals pursuant to section 103D-307, HRS, shall remain with the chief procurement officer; and

(5) Position titles of those individuals who will be designated procurement officers by the head of the purchasing agency or designee. Information required by paragraphs (2), (3), and (4) shall also be required for each procurement officer delegated such authority. A sample delegation format shall be provided by the chief procurement officer.

(c) Delegation of authority by the head of a purchasing agency to a procurement officer is limited by and subject to chapter 103D, HRS, and its implementing rules. Heads of purchasing agencies should familiarize themselves with those limitations.

(d) The delegation from the chief procurement officer shall be in writing and shall specify:

(1) The activity or function authorized;

(2) Any limits or restrictions on the exercise of the delegated authority;

(3) Whether the authority may be further delegated; and

(4) The duration of the delegation..

(e) The chief procurement officer shall retain in its files each delegation determination.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp 11/8/02; comp AUG 24 2009] (Auth: HRS §§ 103D-202, 103D-208) (Imp: HRS § 103D-208)

Haw. Code R. § 3-121-17 Limits to delegation of authority

The chief procurement officer may delegate to a designee who will sign for the chief procurement officer final approval for the following:

(1) Exemptions to chapter 103D, HRS, pursuant to section 103D-102(b)(4), HRS[.];

(2) Purchases by sole source selection under the provisions of section 103D-306, HRS;

(3) Emergency procurements pursuant to section 103D-3 07, HRS;

(4) Waiver to competitive sealed bid process pursuant to section § 3-122-35; and

(5) Waiver to competitive sealed proposal process pursuant to section 3-122-59.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp 11/8/02; am and comp AUG 2 4 2009] (Auth: HRS §§ 103D-102, 103D-202, 103D-208) (Imp: HRS §§ 103D-102, 103D-208, 103D-302, 103D-303, 103D-306, 103D-307)

Haw. Code R. § 3-121-18 REPEALED

History

• R AUG 24 2009

Subchapter 4 PROCUREMENT ADVISORY COUNCIL AND OTHER ADVISORY GROUPS

Haw. Code R. § 3-121-28 Repealed

History

• R AUG 24 2009

Subchapter 5 RULEMAKING PROCEEDINGS AND DECLARATORY RULINGS

Haw. Code R. § 3-121-31 Adoption, amendment, or repeal of rules

(a) Rules shall be adopted, amended, or repealed by the procurement policy board in accordance with chapter 91, HRS, except for rules the procurement policy board may approve as interim rules pursuant to section 103D-202, HRS.

(b) Any interested person may petition the procurement policy board for the adoption, amendment, or repeal of any rule. The petition shall be submitted in duplicate and delivered to the administrator of the state procurement office.

(c) The petition need not be in any special form but it must contain:

(1) A statement of the nature of each petitioner's interest;

(2) A draft of the substance of the proposed rule or amendment and a designation of any existing rule affected by the petition;

(3) An explicit statement of the reasons in support of the proposed rule, amendment, or repeal;

(4) Any other information relevant to the petition;

(5) The name, address, and telephone number of each petitioner; and

(6) The signature of each petitioner.

(d) Upon receipt of the petition, the administrator shall cause the petition to be dated to determine the date of submission, and shall forward the petition to the members of the procurement policy board.

(e) Within thirty days after the receipt of the petition, the procurement policy board, or as delegated to the administrator, shall either deny the petition in writing, stating the reasons for the denial, or initiate proceedings in accordance with chapter 91, HRS, for the adoption, amendment, or repeal of the rule.

History

• [Eff and comp AUG 24 2009 ] (Auth: HRS §§ 91-2, 91-5, 91-6, 103D-202, 103D-211) (Imp: HRS §§ 91-2, 91-3, 91-5, 91-6, 103D-202, 103D-211)

Haw. Code R. § 3-121-32 Declaratory ruling

(a) Any person may petition the procurement policy board for a declaratory ruling as to the applicability of any statutory provision enforced by the procurement policy board or of any rule or order of the procurement policy board.

(b) The petition shall be submitted in duplicate to the administrator of the state procurement office. The petition need not be in any special form but it shall contain:

(1) A statement of the nature of each petitioner's interest, including reasons for the submission of the petition;

(2) A designation of the specific statutory provision, rule, or order in question;

(3) A complete statement of the relevant facts;

(4) A statement of the interpretation given the statutory provision, rule, or order by the petitioner;

(5) A memorandum containing the reasons, including any legal authority in support of the interpretation of the petitioner;

(6) The name, address, and telephone number of each petitioner; and

(7) The signature of each petitioner, or petitioner's representative.

(c) Upon receipt of the petition, the administrator shall cause the petition to be dated to determine the date of submission, and shall forward the petition to the members of the procurement policy board.

(d) The procurement policy board, or as delegated to the administrator, shall with reasonable promptness either deny the petition, stating the reasons therefor in writing, or issue a declaratory ruling. Upon disposition of the petition, the procurement policy board shall promptly notify the petitioner.

(e) The declaratory ruling shall be applicable only to the fact situation as alleged in the petition or as set forth in the ruling. The declaratory ruling shall not be applicable to fact situations which involve additional facts not considered in the ruling.

History

• [Eff and comp AUG 24 2009] (Auth: HRS §§ 91-8, 103D-202, 103D- 211) (Imp. HRS §§ 91-8, 103D-202, 103D-211)

Chapter 122 SOURCE SELECTION AND CONTRACT FORMATION

Subchapter 1 DEFINITIONS

Haw. Code R. § 3-122-1 Definitions

Definitions for terms used in this chapter are in section 103D-104, HRS. The following definitions are also applicable to terms used in this chapter:

"Alternative procurement method" means a procurement method used due to a waiver from the competitive sealed bids or proposals process when one or no responsive, responsible offer is received.

"Award" means the written notification of the State's acceptance of a bid or proposal, or the presentation of a contract to the selected offeror.

"Best value" means the most advantageous offer determined by evaluating and comparing all relevant criteria in addition to price so that the offer meeting the overall combination that best serves the State is selected. These criteria may include, in addition to others, the total cost of ownership, performance history of the vendor, quality of goods, services, or construction, delivery, and proposed technical performance.

"Bid sample" means a sample to be furnished by a bidder to show the characteristics of the item offered in the bid.

"Brand name or equal specification" means a specification which uses one or more manufacturer's names or catalogue numbers to describe the standard of quality, performance, and other characteristics needed to meet requirements, and which provides for the submission of equivalent products.

"Brand name specification" means a specification limited to one or more items by manufacturers' names or catalogue numbers, commonly referred to as a restrictive specification.

"Capability" means capability at the time of award of contract.

"Chief financial officer" means, depending upon the purchasing agency, either the comptroller, a county's director of finance, or the respective chief financial officers of the University of Hawaii, the department of education, the judiciary, or the legislative branches of the State or county.

"Contract administrator" means the person designated to manage the various facets of contracts to ensure the contractor's total performance is in accordance with the contractual commitments and obligations to the purchasing agency are fulfilled.

"Contract price" means the amount designated on the face of the contract for the performance of the work including allowances for extras, if any.

"Descriptive literature" means information available in the ordinary course of business which shows the characteristics, construction, or operation of an item which enables the State to consider whether the item meets its needs.

"Design specifications" means the dimensional and other physical requirements of the item being purchased, how a product is to be fabricated or constructed.

"Discussion" means an exchange of information to promote understanding of a state agency's requirements and offeror's proposal and to facilitate arriving at a contract that will be the best value to the State. Discussions are not permissible in competitive sealed bidding, except to the extent permissible in the first phase of multi-step sealed bidding to determine the acceptability of technical offers.

"Opening" means the date set for opening of bids, receipt of unpriced technical offers in multi-step sealed bidding, or receipt of proposals in competitive sealed proposals.

"Performance specifications" means the functional or performance requirements of the item, what a product does and how well it performs.

"Practicable" and "Advantageous" shall be given ordinary dictionary meanings. "Practicable" means what may be accomplished or put into practical application. "Advantageous" means a judgmental assessment of what is in the State's best interest. The use of competitive sealed bidding may be practicable, that is, reasonably possible, but not necessarily advantageous, that is, in the State's best interest.

"Qualified products list" means an approved list of goods, services, or construction items described by model or catalogue numbers, which, prior to competitive solicitation, the State has determined will meet the applicable specification requirement.

"Quotation" means a statement of price, terms of sale, and description of goods, services, or construction offered by a prospective seller to a prospective purchaser, usually for purchases pursuant to section 103D-305, HRS.

"Request for information" means a request soliciting information to obtain recommendations from suppliers for a procurement that cannot be described in sufficient detail to prepare a solicitation.

"Standard commercial product" means a product or material, in the normal course of business, is customarily maintained in stock or readily available by a manufacturer, distributor, or dealer for the marketing of the product.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS §§ 103D-104, 103D-2 02)
• The amended version of this section by Hawaii Administrative Rules Listing of Filings, 2024-01, January, eff. 1/5/2024 is not yet available.

Subchapter 2 GENERAL PROVISIONS

Haw. Code R. § 3-122-2 Extension of time for acceptance of offer recived in response to a solicitation

After opening offers, the procurement officer may request offerors to extend the time during which the State may accept their offers, as stated in the terms and conditions of the solicitation, provided that, with regard to competitive sealed bids, no other change is permitted. The reasons for requesting the extension shall be documented.

History

• [Eff 12/15/95; comp 11/17/97; comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-202)

Haw. Code R. § 3-122-4 Multiple or alternate offers

(a) Unless specifically provided for in the solicitation, multiple or alternate offers shall not be accepted and all such offers shall be rejected.

(b) If multiple or alternate offers are allowed, the solicitation shall specify their treatment.

History

• [Eff 12/15/95; comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS S103D-202)

Haw. Code R. § 3-122-5 Repealed

History

• R MAR 21 2008

Haw. Code R. § 3-122-6 Conditioning offers upon other contracts not acceptable

Any offer which is conditioned upon receiving a contract other than as provided for in the solicitation shall be deemed nonresponsive and not acceptable.

History

• [Eff 12/15/95; comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-202)

Haw. Code R. § 3-122-7 Determination of contractual terms and conditions

The chief procurement officer or the head of a purchasing agency is authorized to determine the contractual provisions, terms, and conditions of solicitations and contracts, provided the provisions, terms, and conditions are not contrary to statutory or chapter 91 administrative rule requirements governing the procurement.

History

• [Eff 12/15/95; comp 11/17/97; comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 3-122-8)

Haw. Code R. § 3-122-8

Purchase of items separately from construction contract. The chief procurement officer or the head of a purchasing agency is authorized to determine whether a good items or group of good items shall be included as part of, or procured separately from, any contract for construction.

History

• [Eff 12/15/95; comp 11/17I97; comp MAR 21 2008 ] (Auth: HRS § 1030- 202) (Imp: HRS § 1030-202)

Haw. Code R. § 3-122-9.01 Disclosure of information

(a) A purchasing agency is not required to disclose information identifying the number or the names of organizations or persons that obtained a solicitation, attended a pre-offeror's conference, or submitted a notice of intent to offer; or an offer until:

(1) The purchase order is issued or the purchasing card order is placed, in the case of a small purchase request for quotations pursuant to subchapter 8;

(2) After the time and date set for receipt of priced bids, in the case of invitation for bids pursuant to subchapters 5 and 6.5; and

(3) The posting of the award in the case of a request for proposals pursuant to subchapter 6.

(b) A purchasing agency shall not disclose the name of members of an evaluation committee established by section 3-122-45.01 prior to the posting of the award pursuant to section 3-122-57(a) for multi-step bids and competitive sealed proposals.

(c) In the case of procurement of professional services, a purchasing agency is not required to disclose the information specified in section 3-122-63(b) until after the contract is awarded.

History

• [Eff and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-202)

Haw. Code R. § 3-122-9.02 Request for information

When it is considered impractical to initially prepare a definitive purchase description or when discussions with vendors are not productive, the procurement officer may, prior to issuing a competitive sealed bid or proposal, issue a request for information which shall include but not be limited to:

(1) The objective of the procurement;

(2) That the response is to provide the purchasing agency with recommendations that will serve to accomplish the work required by the procurement;

(3) That the purchasing agency reserves the right to incorporate in a solicitation, if issued, any recommendations presented in the response to the request for information; and

(4) That neither the purchasing agency nor the supplier responding has any obligation under the request for information.

History

• [Eff and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS §§ 103D-302, 103D-303)

Subchapter 3 SPECIFICATIONS

Haw. Code R. § 3-122-13 Development of specifications

(a) A specification should provide for the following:

(1) Identify minimum requirements;

(2) Allow for competition;

(3) List reproducible test methods to be used in testing for compliance with specifications; and

(4) Provide for an equitable award at the best value.

(b) Types of specifications include the following, and may be used in combination when developing the specification:

(1) Design specification sets the requirements for the product, detailing the characteristics that the item must possess, how the item is to be manufactured;

(2) Performance specifications describes the capabilities that the product must meet, use of test or criteria are developed to measure the item's ability to perform as required;

(3) Brand name specification commonly referred to as restrictive specifications, may be used upon approval of the chief procurement officer after the purchasing agency makes a written determination that only the identified brand name item will satisfy the State's needs, and it is not practicable to use a less restrictive specification, provided that procurements pursuant to section 103D-305, HRS, do not require approval;

(4) Brand name or equal specification cites one or more brand names, model numbers, or other designations that identify the specific products as having the characteristics of the item desired; and

(5) Qualified or pre-approved products list is a list of goods, services, or construction items, which, prior to the opening of the competitive solicitation, are examined, tested, and determined to meet the applicable specification requirements.

(c) To the extent practicable, the State may procure standard commercial products using accepted commercial specifications. Specifications shall emphasize functional or performance criteria. Design or other detailed physical descriptions may be used when necessary to meet the needs of the State. Specifications shall not discriminate against the use of recycled materials; and when purchasing or leasing motor vehicles; specifications shall be developed in compliance with section 103D-412, HRS, as follows:

(1) Agencies are directed to the acquisition of motor vehicle guidelines established by the department of business, economic development and tourism. When acquiring new vehicles, agencies shall determine its motor vehicle fleet as defined by these guidelines; and

(2) Motor vehicle fleets determined to be outside of the "covered fleet" definition, shall obtain energy-efficient vehicles in order to increase energy efficiency and use of renewable energy resources pursuant to section 103D-412(b), HRS, and further defined in the guidelines established by the department of business, economic development and tourism.

(d) The using agency shall submit advice and assistance in the development of specifications or plans pursuant to a request from the purchasing officer.

(e) A contractor paid for services to develop or prepare specifications or work statements shall be precluded from submitting an offer or receiving a contract for that particular solicitation.

(f) Specifications prepared by architects, engineers, consultants and others for public contracts, shall seek to promote overall economy for the purposes intended and encourage competition in satisfying the State's needs and shall not be unduly restrictive.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-401, 103D-402) (Imp: HRS §§ 103D-401, 103D-404, 103D-405, 103D-406, 103D-412)

Haw. Code R. § 3-122-14 Exempted items

Purchasing agencies are granted the authority to prepare specifications for goods, services, and construction procured under sections 103D-102 and 103D-304, HRS. However, all public employees are responsible for adhering to remaining ethical considerations in public procurement, as guided by section 103D-101, HRS, and section 3-131-1.02, HAR.

History

• [Eff 12/15/95; comp 11/17/97; comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-403) (Imp: HRS §§ 103D-102, 103D-304, 103D-403)

Subchapter 4 METHODS OF SOURCE SELECTION AND GENERAL GUIDANCE

Haw. Code R. § 3-122-16 Methods of source selection

Unless authorized by law, all contracts shall be awarded by competitive sealed bidding pursuant to subchapters 5 and 6.5, except as provided in:

(1) Subchapter 4.5 - Source selection for federal grants;

(2) Subchapter 6 - Competitive sealed proposals;

(3) Subchapter 7 - Professional services procurement;

(4) Subchapter 8 - Small purchases;

(5) Subchapter 9 - Sole source procurements; and

(6) Subchapter 10 - Emergency procurements.

History

• [Eff 12/15/95; comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-301)

Haw. Code R. § 3-122-16.01 Procurement dollar thresholds

Procurements exceeding the threshold of section 103D-305, HRS, shall be made pursuant to subchapters 5, 6, 6.5, 7, 9, and 10.

History

• [Eff and comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-305)

Haw. Code R. § 3-122-16.02 Preparation time for offer

(a) The minimum time period between the first date of the public notice of the solicitation and the date set for receipt of offers, except as provided by subsection (b) for construction, including design-build projects, shall be as follows:

(1) For a single-step invitation for bids pursuant to subchapter 5, ten calendar days;

(2) For competitive sealed proposals pursuant to subchapter 6, thirty calendar days, unless the procurement officer makes a written determination that a shorter time will provide for adequate competition; and

(3) For multi-step invitation for bids pursuant to subchapter 6.5, fifteen calendar days for the phase one unpriced technical proposal, unless the procurement officer makes a written determination that a shorter time will provided for adequate competition; and ten calendar days for the phase two priced bid.

(b) For construction, including design-build projects, a minimum of fifteen calendar days shall be provided between the date of the pre-bid conference pursuant to section 3-122-16.05(b) and the date set for receipt of offers.

History

• [Eff and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-302, 103D-303) (Imp: HRS §§103-D)

Haw. Code R. § 3-122-16.03 Public notice

(a) Public notice of the solicitation pursuant to subchapter 4.5, 5, 6, 6.5, or 7 shall be made for the purpose of securing competition.

(b) The public notice of the solicitation pursuant to subchapters 4.5, 5, 6, and 6.5 shall include the following information:

(1) A brief description of the good, service, or construction desired; or for solicitations seeking providers for federal grant contracts, the title of the grant application or funding source and a brief description of the services being sought;

(2) Where and when the solicitation will be available and a phone number or e-mail address where interested parties may request a copy;

(3) How long the solicitation will be available, i.e., the deadline for the responses to the solicitation;

(4) Other appropriate information, e.g., a notice of intention to offer pursuant to section 3-122-111 or the time, date, and location of the pre-bid or pre-proposal conference;

(5) For request for interest pursuant to section 3-122-16.31, a statement that the purpose of the request is to select a provider or providers for federal grants; and

(6) For a multi-step invitation for bids pursuant to subchapter 6.5, a general statement that the bid is multi-step and the due date(s) of the unpriced technical offer and priced offer.

A copy of the solicitation shall be made available for public inspection and pick up at the office of the procurement officer issuing the solicitation.

(c) Public notice for professional services pursuant to section 103D-304, HRS, and subchapter 7 shall invite persons to submit statements of qualifications that may include but not be limited to:

(1) The name of the firm or person, the principal place of business, and location of all of its offices;

(2) The age of the firm and its average number of employees over the past years;

(3) The education, training, and qualifications of key members of the firm;

(4) The names and phone numbers of up to five clients who may be contacted, including at least two for whom services were rendered during the preceding year; and

(5) Any promotional or descriptive literature which the firm desires to submit.

Firms or persons may amend statements of qualifications at any time by filing a new statement and shall immediately inform the head of the purchasing agency of any change in their submission that would disqualify the firm or person from being considered for a contract award.

(d) The public notice under subsections (b) and (c) shall be publicized as follows:

(1) At a minimum, statewide and countywide public notices shall be publicized on a purchasing agency or provider internet site;

(2) Optionally, and in addition to paragraph (1), the following may be used:

(A) Newspaper publication:

(i) For statewide publication, a daily or weekly publication of statewide circulation; or separate daily or weekly publications whose combined circulation is statewide;

(ii) For countywide publication, a daily or weekly publication in the pertinent county;

(B) Notice by mail, electronic mail, or facsimile transmission to persons on any applicable bidders mailing list, if any; and

(C) Any other method the procurement officer deems effective for publicizing the solicitation.

History

• [Eff and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103 § 3-122-16.05 302, 103D-303, 103D-304) (Imp: HRS §§ 103-302, 103D-303, 103D-304)

Haw. Code R. § 3-122-16.04 List of potential offerors

(a) A list may be compiled to provide the procurement officer with the names of businesses that may be interested in competing for various types of contracts.

(b) Unless otherwise provided, inclusion of the name of a business is discretionary and does not indicate whether the business is responsible in respect to a particular procurement or otherwise capable of successfully performing a contract; nor does it guarantee notification of each solicitation.

(c) Businesses that fail to respond to solicitations or notices of availability may be removed from the list.

(d) Names and addresses on the list shall be available for public inspection.

History

• [Eff and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-302, 103D-303, 103D-304) (Imp: HRS §§ 103D-302, 103D-303, 103D-304)

Haw. Code R. § 3-122-16.05 Pre-bid or pre-proposal conference

(a) The purpose of a pre-bid or pre-proposal conference is to explain the procurement requirements and allow potential offerors to ask questions.

(1) An agency may hold a pre-bid or pre-proposal conference and require or not require attendance by all prospective bidders as a condition for submitting an offer for solicitations that have special or unusual requirements, e.g., requiring physical inspection.

(2) For construction, including design-build projects, pursuant to section 103D-303.5, HRS, an agency shall hold a pre-bid or pre-proposal conference and invite all interested parties to attend.

(b) If conference attendance is mandatory for submission of an offer, the requirement:

(1) Shall be stated in the public notice issued pursuant to section 3-122-16.03; and

(2) Prominently in the solicitation or if the decision to hold a mandatory pre-bid or pre-proposal conference is made after the issuance of the solicitation, the mandatory requirement shall be announced in an addendum.

(c) A pre-bid or pre-proposal conference shall be announced to all prospective offerors in the public notice issued pursuant to section 3-122-16.03 and in the solicitation, or if the decision to hold a pre-bid or pre-proposal conference is made after the issuance of the solicitation, the conference shall be announced in an addendum.

(d) The conference should be held long enough after the solicitation has been issued to allow offerors to become familiar with the solicitation, but sufficiently before the deadline for receipt of offers to allow consideration of the conference results in preparing their offers.

(e) Unless a change is made by written addendum as provided in section 3-122-16.06, nothing stated at the pre-bid or pre-proposal conference shall change the solicitation.

(f) A summary of the conference, in addition to any changes to the solicitation, shall be issued by addendum and shall be supplied sufficiently before the deadline for receipt of offers to allow consideration of the summary results and changes to all those prospective offerors known to have received a solicitation.

History

• [Eff and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-303.5) (Imp: HRS §§ 103D-302, 103D-303.5)

Haw. Code R. § 3-122-16.06 Amendment and clarification to solicitation

(a) An addendum shall be issued for amendments and clarifications to a solicitation prior to submission of offers, except as provided in subsection (f).

(1) Amendments include any material changes to the solicitation as in quantity, purchase descriptions, delivery schedules, scope of work, and opening dates. The addendum shall reference the portions of the solicitation it amends and detail the amendments;

(2) Clarifications include pre-bid or pre-proposal communications other than amendments.

(b) Addenda shall be used to:

(1) Correct minor defects or ambiguities;

(2) Furnish to other offerors information given to one offeror if the information will assist the other offerors in submitting offers or if the lack of the information would prejudice the other offerors; and

(3) Provide any other information or clarification to the solicitation that will result in fair competition.

(c) Addenda may require that offerors acknowledge receipt of the addendum issued.

(d) Addenda shall be issued to all prospective offerors known to have received a solicitation, or if issued after the deadline for submission of notice of intention to offer, to those persons who have submitted such notice.

(e) Addenda for:

(1) Amendments shall be distributed within a reasonable time to allow prospective offerors to consider them in preparing their offers; however, if the time and date set for receipt of bids will not permit adequate time for preparation, the time shall be increased to the extent possible in the addendum or, if necessary, by facsimile or telephone and confirmed in the addendum;

(2) Clarifications may be issued any time up to the scheduled deadline for receipt of offers.

(f) After submission of proposals, amendments may be made by addenda for solicitations pursuant to subchapters 6 and 6.5, subject to sections 3-122-53(d) and (e) and 3-122-54(b).

History

• [Eff and comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS §§ 103D-302, 103D-303)

Haw. Code R. § 3-122-16.07 Pre-openinq modification or withdrawal of offer

(a) Bids or proposals submitted pursuant to subchapters 5, 6, and 6.5 may be modified or withdrawn prior to the established due date by the following documents:

(1) Modification of bids or proposals:

(A) A written notice accompanying the actual modification received in the office designated in the solicitation, stating that a modification to the bid or proposal is submitted; or

(B) A facsimile or electronic notice accompanying the actual modification submitted either by facsimile machine, electronic mail, or an electronic procurement system pursuant to section 3-122-9 to the office designated in the solicitation; provided if other than through an electronic system, offeror submits the actual written notice and modification within two working days of receipt of the facsimile or the electronic transmittal.

(2)Withdrawal of bids or proposals:

(A) A written notice received in the office designated in the solicitation; or

(B) A notice by facsimile machine or other electronic method pursuant to section 3-122-9, to the office designated in the solicitation.

For the purposes of this section and section 3-122-16.08, the established due date for proposals pursuant to subchapter 6 or 6.5 is either the time and date announced for receipt of proposals or receipt of modifications to proposals, if any; or if discussions have begun, it is the time and date by which best and final offers must be submitted, provided that only priority listed offerors may submit best and final offers.

(b) The documents shall be made a part of the appropriate procurement file.

History

• [Eff and comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS §§ 103D-302, 103D-303)

Haw. Code R. § 3-122-16.08 Late offer, late withdrawal, and late modification

(a) Any notice of withdrawal, notice of modification of a bid or proposal with the actual modification, or any bid or proposal is late when received at the place designated for receipt and opening of an offer after the established due date, additionally defined in section 3-122-16.06(a), except when received before contract award and would have been timely but for the action or inaction of personnel within the procurement activity.

(b) A late bid or proposal or late modification will not be considered for award and shall be returned to the offeror unopened as soon as practicable, accompanied by a letter from the procurement activity stating the reason for its return.

(c) A late withdrawal request except as provided for in section 3-122-31, shall be responded to with a statement of the reason for non-acceptance of the withdrawal.

(d) Records of each late offer, late modification, or late withdrawal and any related correspondence shall be made a part of the appropriate procurement file, except for the late offer or late modification itself which shall be disposed of in accordance with subsection (b).

History

• [Eff and comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS §§ 103D-302, 103D-303)

Haw. Code R. § 3-122-16.09 Cancellation of solicitation and rejection of offer

Cancellation of solicitations and rejection of bids or proposals shall be pursuant to subchapter 11 and section 103D-308, HRS.

History

• [Eff and comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS §§ 103D-302, 103D-303, 103D- 308)

Subchapter 4.5 SOURCE SELECTION FOR FEDERAL GRANTS

Haw. Code R. § 3-122-16.30 Purpose

(a) The purpose of this subchapter is to provide rules for the selection of providers for federal grants.

(b) The selection of providers for federal grants shall be in accordance with the appropriate source selection methods in section 3-122-16.

History

• [Eff and comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-301)

Haw. Code R. § 3-122-16.31 Exception; request for interest

(a) "Request for interest" as used in this subchapter means all documents utilized for soliciting interest in providing goods, services, or construction under a federal grant.

(b) Where time or economic situations preclude the use of other source selection methods in section 3-122-16, purchasing agencies may, with the approval of the head of purchasing agency, issue a request for interest to select a provider or providers for a federal grant.

(c) A public notice shall be publicized pursuant to section 3-122-16.03(d) and shall include but not be limited to the information in section 3-122-16.03(b).

(d) The request for interest may include but not be limited to the following:

(1) Identification and purpose of the federal funding;

(2) The target population or clients to be served;

(3) A description of the good, service, or construction;

(4) The evaluation criteria and their relative weights for selecting a provider or providers;

(5) The format, if any, and procedure for submitting responses to the request;

(6) The deadline for submittal of written responses to the request which shall be a minimum of five working days from the date of public notice;

(7) A statement that the purchasing agency reserves the right to incorporate or not incorporate in the State's application for federal grants any recommendations presented in response to the request; and

(8) A statement that neither the purchasing agency nor the interested provider has any obligation under the request.

(e) The selection of a provider or providers shall be based on the criteria established in the request for interest.

(f) A notice of the selected provider or providers shall be posted to a state governmental website or all respondents shall be notified in writing.

(g) Nothing in this section shall be construed to disqualify a purchasing agency from receiving federal funds.

History

• [Eff and comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-202)

Subchapter 5 COMPETITIVE SEALED BIDDING

Haw. Code R. § 3-122-18 Repealed

History

• R MAR 21 2008

Haw. Code R. § 3-122-19 Repealed

History

• R MAR 21 2008

Haw. Code R. § 3-122-20 Repealed

History

• R MAR 21 2008

Haw. Code R. § 3-122-21 Preparing a competitive sealed bid

The invitation for bids shall be used to initiate a competitive sealed bid procurement and shall include:

(1) Instructions and information to bidders concerning the bid submission requirements, including:

(A) The time and date set for receipt of bids;

(B) The address of the office to which bids are to be delivered or if bid submittal is required through an electronic procurement system;

(C) The maximum time for bid acceptance by the procurement officer issuing the bid; and

(D) Any other special information, such as any requirement of intention to bid, if required, or the time, date, and location of the pre-bid conference.

The bid opening shall be held at the time, date, and location of the receipt of bids;

(2) The purchase description or specifications, evaluation factors, delivery or performance schedule, and inspection and acceptance requirements as are not included in the purchase description;

(3) The contract terms and conditions, including but not limited to the following, as applicable:

(A) Requirements pursuant to section 103D-310(c), HRS;

(B) Warranty requirement;

(C) Bonding or other security requirements pursuant to subchapter 24;

(D) Contract extension provisions; and

(E) Statement that bid samples or descriptive literature should not be submitted unless expressly requested and that, regardless of any attempt by a bidder to condition the bid, unsolicited bid samples or descriptive literature which are submitted at the bidder's risk will not be examined or tested, and will not be deemed to vary any of the provisions of the invitation for bids;

(4) A bid form which shall include space for, but not limited to, the following:

(A) Bid price;

(B) Brand name and model number and packaging for goods; and

(C) Information on applicable preferences;

(5) With the exception of bid offers submitted through an electronic procurement system, a requirement that the bidder shall sign the bid form in ink and submit the bid form with the original signature included in the offer. Unless otherwise specified in the solicitation, if facsimile or other electronically transmitted bid offer is allowed, then the bidder shall submit the signed original offer in accordance with section 3-122-9(d);

(6) Documents by reference, provided that the invitation for bids specifies where the documents can be obtained;

(7) A statement that bidders shall designate those portions of their offer that contain trade secrets or other proprietary data that are to remain confidential, subject to section 3-122-30(c) and (d); and that the material designated as confidential shall be readily separable from the bid in order to facilitate public inspection of the nonconfidential portion of the bid;

(8) For construction projects, instructions to the bidder that the bidder shall include in its offer information on joint contractor or subcontractor pursuant to section 103D-302(b), HRS. Construction bids that do not comply with this requirement may be accepted pursuant to section 103D-302(b), HRS. The terms, requirements, and conditions of an invitation for bids, including the specifications appended or incorporated by reference therein, may be amended only by a written addendum issued by the procurement officer, pursuant to section 3-122-16.06.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS §§ 103D-302, 103D-310)

Haw. Code R. § 3-122-22 Repealed

History

• R MAR 21 2008

Haw. Code R. § 3-122-23 Repealed

History

• R MAR 21 2008

Haw. Code R. § 3-122-24 Repealed

History

• R MAR 21 2008

Haw. Code R. § 3-122-25 Repealed

History

• R MAR 21 2008

Haw. Code R. § 3-122-26 Repealed

History

• R MAR 21 2008

Haw. Code R. § 3-122-27 Repealed

History

• R MAR 21 2008

Haw. Code R. § 3-122-28 Repealed

History

• R MAR 21 2008

Haw. Code R. § 3-122-30 Receipt, opening, and recording of bids

(a) Upon its receipt, each bid and modification shall be time-stamped but not opened and shall be stored in a secure place by the procurement officer until the time and date set for opening. Purchasing agencies may use other methods of receipt when approved by the procurement officer.

(b) Bids and modifications shall be opened publicly, in the presence of one or more witnesses, at the time, date, and place designated in the invitation for bids.

(1) The name of each bidder, the bid price(s), and other information as is deemed appropriate by the procurement officer or the procurement officer's designated representative, shall be read aloud or otherwise made available. If practicable, the information shall also be recorded at the time of opening; that is, the bids shall be tabulated or a bid abstract made;

(2) The name(s) and address(es) of the required witnesses shall also be recorded at the opening.

(c) The opened bids shall be available for public inspection at the time of opening except to the extent that the bidder designates trade secrets or other proprietary data to be confidential subject to subsection (d).

(d) The procurement officer or the procurement officer's designated representative, shall examine the bids to determine the validity of any requests for nondisclosure of trade secrets and other proprietary data identified in writing.

(1) If the parties do not agree as to the disclosure of data, the procurement officer or the procurement officer's designated representative shall inform the bidders present at the opening that the material designated for nondisclosure pursuant to section 3-122-21 shall be subject to written determination by the respective attorney general or corporation counsel for confidentiality in accordance with chapter 92F, HRS;

(A) If the attorney general or corporation counsel determines in writing that the material so designated as confidential is subject to disclosure, the bidder submitting the material under review and other bidders who were present at the opening shall be so notified in writing and the material shall be open to public inspection unless the bidder protests under chapter 3-12 6;

(B) When a purchasing agency denies a person access to a state procurement record, the person may appeal the denial to the office of information practices in accordance with section 92F-42(12), HRS;

(2) The prices, makes and models, or catalogue numbers of items offered, deliveries, and terms of payment shall be publicly available at the time of opening regardless of any designation to the contrary.

(d) Bids shall be unconditionally accepted without alteration or correction, except as allowed in sections 3-122-16.08 and 3-122-31.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§ 92F-42, 103D-202) (Imp: HRS §§ 92F-42, 103D-302)

Haw. Code R. § 3-122-31 Mistakes in bid

(a) An obvious mistake in a bid may be corrected or withdrawn, or waived by the offeror to the extent it is not contrary to the best interest of the purchasing agency or to the fair treatment of other bidders.

(b) A mistake in a bid discovered before the deadline for receipt of bids may be corrected or withdrawn as provided in section 3-122-16.07.

(c) A mistake in a bid discovered after the deadline for receipt of bids but prior to award may be:

(1) Corrected or waived under the following conditions:

(A) If the mistake is attributable to an arithmetical error, the procurement officer shall so correct the mistake. In case of error in extension of bid price, unit price shall govern;

(B) If the mistake is a minor informality which shall not affect price, quantity, quality, delivery, or contractual conditions, the procurement officer may waive the informalities or allow the bidder to request correction by submitting documentation that demonstrates a mistake was made. Examples of mistakes include:

(i) Typographical errors;

(ii) Transposition errors;

(iii) Failure of a bidder to sign the bid or provide an original signature, but only if the unsigned bid or photocopy is accompanied by other material indicating the bidder's intent to be bound;

(C) The procurement officer may correct or waive the mistake if it is not allowable under subparagraphs (A) and (B), but is an obvious mistake that if allowed to be corrected or waived is in the best interest of the purchasing agency and is fair to other bidders;

(2) Withdrawn if the mistake is attributable to an obvious error that shall affect price, quantity, quality, delivery, or contractual conditions, provided:

(A) The bidder requests withdrawal by submitting documentation that demonstrates a mistake was made; and

(B) The procurement officer prepares a written approval or denial in response to this request.

(d) A mistake in a bid discovered after award of contract may be corrected or withdrawn if the chief procurement officer or head of the purchasing agency makes a written determination that it would be unreasonable not to allow the mistake to be remedied or withdrawn.

(e) The determination required by this section shall be final and conclusive unless clearly erroneous, arbitrary, capricious, or contrary to law.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-318) (Imp: HRS §§ 103D-302, 103D-318)

Haw. Code R. § 3-122-33 Bid evaluation and award

(a) The award shall be made to the lowest responsive, responsible bidder and shall be based on the criteria set forth in the invitation for bids.

(b) Only objectively measurable criteria which are set forth in the invitation for bids shall be applied and may include but not be limited to:

(1) Discounts;

(2) Transportation costs; and

(3) Total or life cycle costs.

(c) Evaluation factors need not be precise predictors of actual future costs, but to the extent possible the evaluation factors shall:

(1) Be reasonable estimates based upon information the government jurisdiction has available concerning future use; and

(2) Treat all bids equitably.

(d) The invitation for bids shall set forth any evaluation criterion to be used in determining product acceptability:

(1) The solicitation may require the submission of samples, descriptive literature, technical data, or other material to verify product acceptability;

(2) The solicitation may also provide for accomplishing any of the following prior to award:

(A) Inspection or testing of a product for characteristics as quality or workmanship;

(B) Examination of elements as appearance, finish, taste, or feel; or

(C) Other examinations to determine whether the product conforms to any other purchase description requirements;

(3) The acceptability evaluation is not conducted for the purpose of determining whether one bidder's item is superior to another but only to determine that a bidder's offer is acceptable as set forth in the invitation for bids;

(5) Any bidder's offering which does not meet the acceptability requirements shall be rejected as nonresponsive.

(e) The award shall be issued to the lowest responsive, responsible bidder whose bid meets the requirements and criteria set forth in the invitation for bids and posted pursuant to section 103D-701, HRS, for five working days.

(f) In the event all bids exceed available funds, the provisions of section 103D-302(h), HRS, shall apply.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-302)
• The amended version of this section by Hawaii Administrative Rules Listing of Filings, 2024-01, January, eff. 1/5/2024 is not yet available.

Haw. Code R. § 3-122-35 Waiver to competitive sealed bid process

(a) If for a given invitation for bids," including multi-step bidding, there is only one responsive, responsible bidder:

(1) An award may be made to the single bidder, provided:

(A) The procurement officer determines in writing that the price submitted is fair and reasonable, and that either:

(i) Other prospective bidders had reasonable opportunity to respond; or

(ii) There is not adequate time for resolicitation; or

(B) The bid exceeds available funds as certified by the appropriate fiscal officer and the price is negotiated pursuant to section 103D-302(h), HRS;

(2) The bid may be rejected pursuant to subchapter 11 and new bids or offers may be solicited if the conditions in paragraph (1) are not met;

(3) The proposed procurement may be canceled; or

(4) An alternative procurement method may be conducted to include but not be limited to direct negotiations with the sole bidder first, and then with any contractor or vendor should negotiations with the sole bidder fail, provided the procurement officer determines in writing that the need for the good, service, or construction continues, but that the price of the one bid is not fair and reasonable and either that:

(A) There is no time for resolicitation; or

(B) Resolicitation would likely be futile.

(b) If for a given invitation for bids, including multi-step bidding, there are no bids received or there are no responsive, responsible bidders, the procurement officer may determine that it is neither practicable, nor advantageous to the State to issue a new solicitation.

(1) When making this determination, consideration shall be given to:

(A) Time constraints;

(B) Competition in the marketplace; and

(C) Whether the additional potential cost of preparing, soliciting, and evaluating competitive sealed bids is expected to exceed the benefits normally associated with the solicitations;

(2) In the event of this determination, an alternative procurement method may be selected to include, but not be limited to, direct negotiations.

(c) Documentation of the alternative procurement method selected shall:

(1) State the reasons for selection and length of contract period;

(2) Receive prior approval of the chief procurement officer or a designee; and

(3) Be made a part of the contract file upon award by the procurement officer.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-302)

Subchapter 6 COMPETITIVE SEALED PROPOSALS

Haw. Code R. § 3-122-42 Repealed

History

• R MAR 21 2008

Haw. Code R. § 3-122-43 When competitive sealed bidding is not practicable or advantageous

(a) Unless the nature of the procurement permits award to a low bidder who agrees by its bid to perform without condition or reservation in accordance with the purchase description, delivery or performance schedule, and all other terms and conditions of the invitation for bids, competitive sealed bidding is not practicable or advantageous.

(b) A determination may be made to use competitive sealed proposals if it is determined that competitive sealed bidding is not practicable, even though advantageous. Factors to be considered in determining whether competitive sealed bidding is not practicable include:

(1) Whether the primary consideration in determining award may not be price;

(2) Whether the contract needs to be other than a fixed-price type;

(3) Whether the specifications for the goods, services, or construction, or delivery requirements cannot be sufficiently described in the invitation for bids;

(4) Whether oral or written discussions may need to be conducted with offerors concerning technical and price aspects of their proposals;

(5) Whether offerors may need to be afforded the opportunity to revise their proposals, including price; and

(6) Whether award may need to be based upon a comparative evaluation as stated in the request for proposals of differing price, quality, and contractual factors in order to determine the most advantageous offering to the State. Quality factors include technical and performance capability and the content of the technical proposal.

(c) A determination may be made to use competitive sealed proposals if it is determined that competitive sealed bidding is not advantageous, even though practicable. Factors to be considered in determining whether competitive sealed bidding is not advantageous include:

(1) If prior procurements indicate that competitive sealed proposals may result in more beneficial contracts for the State; and

(2) Whether the factors listed in subsection (b) (4) through (b) (6) are desirable in conducting a procurement rather than necessary; if they are, then the factors may be used to support a determination that competitive sealed bidding is not advantageous.

(d) The determinations required by this section shall be final and conclusive unless they are clearly erroneous, arbitrary, capricious, or contrary to law.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-318) (Imp: HRS §§ 103D-303, 103D-318)

Haw. Code R. § 3-122-45 Determinations

(a) Pursuant to section 103D-303(a), HRS, the procurement policy board may approve a list of goods, services, or construction that may be procured by competitive sealed proposals without a determination by the head of the purchasing agency.

(b) The list, entitled "Procurements Approved for Competitive Sealed Proposals," shall be reviewed biennially by the procurement policy board and issued by procurement directive. Although the good, service, or construction is listed, purchasing agencies may use the competitive sealed bidding process under section 103D-302, HRS.

(c) If the procurement is not listed pursuant to subsection (a), the head of a purchasing agency shall then determine in writing that competitive sealed proposals is a more appropriate method of contracting in that competitive sealed bidding is neither practicable nor advantageous. The determinations may be made for categories of goods, services, or construction rather than by individual procurement.

(d) When it is determined that it is more practicable or advantageous to the State to procure construction by competitive sealed proposals:

(1) A procurement officer may issue a request for proposals requesting the submission of proposals to provide construction in accordance with a design provided by the offeror; and

(2) The request for proposals shall require that each proposal submitted contain a single price that includes both design and build.

(e) The head of the purchasing agency who made the determination pursuant to subsection (c) or (d) may modify or revoke it at any time and the determination shall be reviewed for current applicability on the next procurement for the goods, services, or construction. The head of the purchasing agency may also request that the procurement of the goods, services, or construction by competitive sealed proposals be added to or deleted from the list in subsection (b).

(f) The determinations required by this section shall be final and conclusive unless they are clearly erroneous, arbitrary, capricious, or contrary to law.

History

• [Eff 12/15/95; am and comp 11/17/97; am 07/06/99; am and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-303, 103D-318) (Imp: HRS §§ 103D-303, 103D-318)

Haw. Code R. § 3-122-45.01 Evaluation committee

Prior to the preparation of the request for proposals, a determination shall be made by the procurement officer that the procurement officer or an evaluation committee selected in writing by the procurement officer shall evaluate the proposals. A copy of the document identifying any committee members and any subsequent changes thereto shall be placed in the contract file.

(1) The evaluation committee shall consist of at least three governmental employees with sufficient qualifications in the area of the goods, services, or construction to be procured;

(2) Private consultants may also serve on the committee and shall:

(A) Have sufficient knowledge to serve on the committee;

(B) Serve without compensation, unless justified and determined in writing by the head of the purchasing agency that compensation is justified; and

(C) Sign an affidavit:

(i) Attesting to having no personal, business, or any other relationship that will influence their decision in the evaluation process;

(ii) Agreeing not to disclose any information on the evaluation process to other than an employee of a governmental body; and

(iii) Agreeing that their names will become public information upon award of the contract;

(3) The contract administrator shall serve as a member of the committee;

(4) The contract administrator or a designee shall serve as chairperson, and the procurement officer or a designee shall serve as advisor.

History

• [Eff and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-303) (Imp: HRS § 103D-303)

Haw. Code R. § 3-122-46 Preparing a request for proposals

The request for proposals is used to initiate a competitive sealed proposal procurement and shall include:

(1) The specifications for the goods, services, or construction items to be procured, including a description of the performance or benefit required;

(2) All contractual terms and conditions applicable to the procurement;

(3) A statement as to when and in what manner prices are to be submitted;

(4) A statement concerning whether the proposal shall be accompanied by a proposal security pursuant to subchapter 24 or other evidence of financial responsibility;

(5) The term of the contract and conditions of renewal or extension, if any;

(6) Instructions and information to offerors, including pre-proposal conferences, the location where proposals are to be received, and the date, time, and place where proposals are to be received and reviewed;

(7) The relative importance of price and other evaluation criteria; and specific evaluation criteria to be used in evaluation of proposals which may include but is not limited to:

(A) Technical capability and approach for meeting performance requirements;

(B) Competitiveness and reasonableness of price;

(C) Managerial capabilities; and

(D) Best value factors;

(8) A statement that discussions may be conducted with "priority-listed offerors" pursuant to section 3-122-53, but that proposals may be accepted without discussions; and

(9) A statement that offerors shall designate in writing those portions of the unpriced proposal that contain trade secrets or other proprietary data that are to remain confidential, subject to section 3-122-58; that the material designated as confidential shall be readily separable from the proposal in order to facilitate inspection of the nonconfidential portion of the proposal.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-303)

Haw. Code R. § 3-122-48 Repealed

History

• R MAR 21 2008

Haw. Code R. § 3-122-50 Repealed

History

• R MAR 21 2008

Haw. Code R. § 3-122-51 Receipt and registration of proposals

(a) Proposals and modifications shall be time-stamped upon receipt and held in a secure place by the procurement officer until the established due date. Purchasing agencies may use other methods of receipt when approved by the chief procurement officer.

(1) Proposals and modifications shall not be opened publicly, but shall be opened in the presence of two or more state officials;

(2) Proposals and modifications shall be shown only to members of the evaluation committee and state personnel or their designees having legitimate interest in them.

(b) After the date established for receipt of proposals, a register of proposals shall be prepared which shall include for all proposals:

(1) The name of each offeror;

(2) The number of modifications received, if any; and

(3) A description sufficient to identify the good, service, or construction item offered.

(c) The register of proposal shall be open to public inspection as provided in section 3-122-58.

(d) Proposals shall be open to public inspection as provided in section 3-122-58

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-303) (Imp: HRS § 103D-303)

Haw. Code R. § 3-122-52 Evaluation of proposals

(a) Evaluation factors shall be set out in the request for proposals and the evaluation shall be based only on the evaluation factors. Evaluation factors not specified in the request for proposals may not be considered.

(b) A numerical rating system shall be used. The relative priority to be applied to each evaluation factor shall also be set out in the request for proposals.

(c) The points to be applied to each evaluation factor shall be set out in the request for proposals.

(1) The procurement officer, or each member of the evaluation committee, as applicable, shall explain his or her ranking determination in writing which shall be placed in the procurement file;

(2) The written ranking evaluations or explanations shall be available for public inspection after the award of the contract is posted.

(d) When applicable, cost shall be an evaluation factor.

(1) The proposal with the lowest cost factor must receive the highest available rating allocated to cost. Each proposal that has a higher cost factor than the lowest must have a lower rating for cost;

(2) The points allocated to higher-priced proposals must be equal to the lowest proposal price multiplied by the maximum points available for price, divided by the higher proposal price.

(e) An evaluation factor must be included which takes into consideration whether an offeror qualifies for any procurement preferences pursuant to chapter 3-124.

(f) Evaluations may not be based on discrimination due to the race, religion, color, national origin, sex, age, marital status, pregnancy, parenthood, handicap, or political affiliation of the offeror

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-303)

Haw. Code R. § 3-122-53 Discussions with offerors

(a) Before conducting discussions, a "priority list" shall be generated by the procurement officer or evaluation committee.

(1) In order to generate a priority list, proposals shall be classified initially as acceptable, potentially acceptable, or unacceptable;

(2) All responsible offerors who submit acceptable or potentially acceptable proposals are eligible for the priority list;

(3) If numerous acceptable and potentially acceptable proposals have been submitted, the procurement officer or the evaluation committee may rank the proposals and limit the priority list to at least three responsible offerors who submitted the highest-ranked proposals;

(4) Those responsible offerors who are selected for the priority list are referred to as the "priority-listed offerors".

(b) Discussions will be limited to only "priority-listed offerors" and are held to:

(1) Promote understanding of a state agency's requirements and priority-listed offerors' proposals; and

(2) Facilitate arriving at a contract that will provide the best value to the State, taking into consideration the evaluation factors set forth in the request for proposals.

The procurement officer shall establish procedures and schedules for conducting discussions and keep a record of the date, place, purpose of meetings, and those attending.

(c) Proposals may be accepted on evaluation without discussion.

(d) Priority-listed offerors shall be accorded fair and equal treatment with respect to any opportunity for discussions and revisions of proposals.

(1) Any substantial oral clarification of a proposal shall be reduced to writing by the priority-listed offeror;

(2) If during discussions there is a need for any substantial clarification or change in the request for proposals, the request for proposals shall be amended by an addendum to incorporate the clarification or change.

(e) Addenda to the request for proposals shall be distributed only to priority-listed offerors.

(1) The priority-listed offerors shall be permitted to submit new proposals or to amend those submitted;

(2) If in the opinion of the procurement officer or the evaluation committee, a contemplated amendment will significantly change the nature of the procurement, the request for proposals shall be canceled and a new request for proposals issued.

(f) The contents of any proposal shall not be disclosed so as to be available to competing offerors during the discussion process.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 1030-303)

Haw. Code R. § 3-122-55 Repealed

History

• R MAR 21 2008

Haw. Code R. § 3-122-57 Award of contract

(a) The award shall be issued in writing to the responsible offeror whose proposal is determined in writing to provide the best value to the State taking into consideration price and the evaluation criteria in the request for proposals and posted pursuant to section 103D-701, HRS, for five working days. Other criteria may not be used in the evaluation. The contract file shall include the basis for selecting the successful offeror.

(b) Cost or pricing data requirements shall be as specified in section 103D-312, HRS, and subchapter 15.

(c) The determinations required by this section shall be final and conclusive unless clearly erroneous, arbitrary, capricious, or contrary to law.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-318) (Imp: HRS §§ 103D-303, 103D-318)

Haw. Code R. § 3-122-58 Public inspection

(a) The existing contract file, except those portions the offeror designates in writing as trade secrets or other proprietary data to be confidential subject to subsection (b), shall be available for public inspection upon posting of award pursuant to section 103D-701, HRS. The contract file shall include but not be limited to the following:

(1) The register of proposals prepared pursuant to section 3-122-51;

(2) A listing of all vendors to whom copies of the request for proposals were distributed;

(3) Name of successful offeror and dollar amount of offer;

(4) The basis on which the award was made;

(5) A copy of the request for proposals;

(6) A copy of the successful offeror's proposal;

(7) A copy of all unsuccessful offerors' proposals; and

(8) A copy of the executed contract resulting from the request for proposals.

(b) If a person requests to inspect the portions of an offeror's proposal designated as confidential pursuant to section 3-122-46(9), the inspection shall be subject to written determination by the respective attorney general or corporation counsel for confidentiality in accordance with chapter 92F, HRS.

(c) If the attorney general or corporation counsel determines in writing that the material designated as confidential is subject to disclosure, the material shall be open to public inspection unless the offeror appeals pursuant to section 92F-42(1), HRS.

(d) When a purchasing agency denies a person access to a state procurement record, the person may appeal the denial to the office of information practices in accordance with section 92F-15.5, HRS.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS §§ 92F-42, 103D-303)

Haw. Code R. § 3-122-59 Waiver to competitive sealed proposal process

(a) If for a given request for proposals, there is only one responsible offeror submitting an acceptable proposal:

(1) An award may be made to the single offeror, provided the procurement officer determines in writing that the price submitted is fair and reasonable and that either:

(A) Other prospective offerors had reasonable opportunity to respond; or

(B) There is not adequate time for resolicitation;

(2) The offer may be rejected pursuant to subchapter 11 and new requests for proposals may be solicited if the conditions in paragraph (1) are not met;

(3) The proposed procurement may be cancelled;

(4) An alternative procurement method may be conducted to include, but not be limited to, direct negotiations with the sole offeror first, and then with any contractor or vendor should negotiations with the sole offeror fail, provided the procurement officer determines in writing that the need for the good, service, or construction continues, but that the price of the one offer is not fair and reasonable and that either:

(A) There is no time for resolicitation, or

(B) Resolicitation would likely be futile.

(b) If for a given request for proposals, there are no proposals received or there are no responsible offerors submitting acceptable proposals, the procurement officer may determine that it is neither practical nor advantageous to issue a new solicitation.

(1) When making this determination, consideration shall be given to:

(A) Time constraints;

(B) Competition in the marketplace; and

(C) Whether the additional potential cost of preparing, soliciting, and evaluating competitive sealed proposals is expected to exceed the benefits normally associated with the solicitations;

(2) In the event of this determination, an alternative procurement method may be selected, to include but not be limited to, direct negotiations.

(c) Documentation of the alternative procurement method selected shall:

(1) State the reasons for selection and length of contract period;

(2) Receive prior approval of the chief procurement officer or a designee; and

(3) Be made a part of the contract file upon award by the procurement officer.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008) (Auth: HRS § 1030-202) (Imp: HRS § 103D-303)

Haw. Code R. § 3-122-60 Debriefing

(a) The purpose of a debriefing is to inform the nonselected offerors of the basis for the source selection decision and contract award.

(b) A written request for a debriefing shall be made within three working days after the posting of the award of the contract.

(c) Debriefing shall be held by the procurement officer or designee, to the maximum extent practicable, within seven working days; provided the procurement officer or designee may determine whether or not to conduct individual or combined debriefings.

(d) A protest by the requestor submitted pursuant to section 10 3D-701, HRS, following a debriefing shall be filed within five working days, as specified in section 103D-303(h), HRS.

History

• [Eff and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-303) (Imp: HRS § 103D-303)

Subchapter 6.5 MULTI-STEP COMPETITIVE SEALED BIDDING

Haw. Code R. § 3-122-61.05 Purpose

The purpose of this subchapter is to provide rules for the use of the multi-step competitive sealed bidding method of source selection when it is determined that award to the lowest responsive, responsible bidder is desired, but it is not practical to initially prepare a definitive purchase description which will be suitable to permit an award based on price, and it is desirable, prior to soliciting priced bids, to:

(1) Invite and evaluate technical proposals to determine their acceptability to fulfill the purpose of the procurement; and

(2) Conduct discussions pursuant to section 3-122-53.

History

• [Eff and comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-302)

Haw. Code R. § 3-122-61.06 Preparing a multi-step invitation for bids

(a) The multi-step sealed bidding process uses an invitation for bids consisting of two phases, and combines the receipt of technical proposals of the competitive sealed proposals process and the low priced bid award of the competitive sealed bidding process.

(1) Phase one is composed of one or more steps in which bidders submit unpriced technical proposals to be evaluated based on criteria set forth in the invitation for bids;and

(2) Phase two is to consider the priced bids from bidders whose unpriced technical proposals are determined to be acceptable in phase one, and award is made to the lowest responsive, responsible bidder.

(b) The two-phase invitation for bids shall conform to the requirements of section 3-122-21, including the following:

(1) That unpriced technical proposals are requested;

(2) Whether priced bids are to be submitted at the same time as unpriced technical proposals, and if they are, that the priced bids shall be submitted in a separately sealed envelope;

(3) That the priced bids will be considered only in phase two and only from those bidders whose unpriced technical proposals are found acceptable in phase one;

(4) That the State, to the extent the procurement officer finds necessary, may conduct discussions pursuant to section 3-122-53; and

(5) That the good, service, or construction being procured shall be furnished generally in accordance with the bidder's unpriced technical proposal as found to be finally acceptable and shall meet the requirements of the invitation for bids.

History

• [Eff and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-302) (Imp: HRS § 103D-302)

Haw. Code R. § 3-122-61.07 Phase one

Phase one shall be conducted in accordance with subchapter 6, with the exception of the rules relating to the priced offer and the following:

(1) The procurement officer may initiate phase two of the procedure if there is only one acceptable unpriced technical proposal. If no proposals are submitted, the procurement officer may make a determination pursuant to section 3-122-59(b);

(2) The procurement officer shall notify the bidder in writing when oral or written discussions are not conducted, and upon written request from the bidder, the bidder shall be given the opportunity to review the evaluation of its offer and meet with the evaluator(s) to discuss the evaluation at least five working days prior to the deadline for receipt and opening of the priced offers.

History

• [Eff and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-302) (Imp: HRS § 103D-302)

Haw. Code R. § 3-122-61.08 Phase two

(a) Upon completion of phase one, the procurement officer shall:

(1) If priced bids were required to be submitted in phase one, open the priced bids from bidders whose unpriced technical proposals were found to be acceptable;

(2) If technical discussions have been held, or if material modifications to the procurement item, project, or procedure have been made after the original submission of priced bids, return the sealed priced bids to bidders and provide them reasonable opportunity to submit a modified priced bid; or

(3) If priced bids have not been submitted, invite each acceptable bidder to submit a priced bid.

(b) Phase two shall be conducted as any other competitive sealed bid procurement except as specifically set forth in this section and no public notice need be given to phase two, submission of priced bids, because the notice was previously given.

History

• [Eff and comp MAR 212008] (Auth: HRS §§ 103D-202, 103D-302) (Imp: HRS § 103D-302)

Subchapter 7 PROCUREMENT OF PROFESSIONAL SERVICES

Haw. Code R. § 3-122-63 General provisions

(a) Professional services shall be in accordance with section 103D-304, HRS.

(b) After the contract is awarded, the following information shall be open to public inspection, including but not limited to the contract, the list of qualified persons, the screening committee's criteria for selection established under section 103D-304(d), HRS, and the statements of qualifications and related information submitted by the qualified persons, except those portions for which a written request for confidentiality has been made subject to section 3-122-58.

(c) Amendment to a professional services contract shall require prior approval of the head of the purchasing agency when the increase is at least $25,000 and ten per cent or more of the initial contract price.

History

• [Eff 12/15/95; comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-304)

Haw. Code R. § 3-122-64 Repealed

History

• R MAR 21 2008

Haw. Code R. § 3-122-65 Repealed

History

• R MAR 21 2008

Haw. Code R. § 3-122-66 Repealed

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-304)

Haw. Code R. § 3-122-67 Small purchases of professional services

Small purchases of professional services, except small purchase of design professional services furnished by licensees under chapter 464, HRS, may be conducted pursuant to section 103D-304(j), HRS, or subchapter 8.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-305) (Imp: HRS §§ 103D-304, 103D-305)

Haw. Code R. § 3-122-68 Repealed

History

• R MAR 21 2008

Haw. Code R. § 3-122-69 Review and selection committees

(a) Persons who serve on the review or selection committee who are not employees of a governmental body shall:

(1) Have sufficient knowledge to serve on the review or selection committee;

(2) Serve without compensation, unless justified and determined in writing by the head of the purchasing agency that compensation is justified; and

(3) Sign an affidavit:

(A) Attesting to having no personal, business, or any other relationship that will influence their decision in the review or selection process;

(B) Agreeing not to disclose any information on the review or selection process; and

(C) Agreeing that their names will become public information upon award of the contract.

(b) Deputy directors or equivalent appointed positions shall not serve on review or selection committees.

History

• [Eff and comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-304)

Haw. Code R. § 3-122-70 Debriefing

(a) The purpose of a debriefing is to inform providers of professional services of the basis for non-selection.

(1) A written request for a debriefing shall be made within three working days after the posting of the award of the contract;

(2) Debriefing shall be held by the procurement officer or designee, to the maximum extent practicable, within seven working days; provided the procurement officer or designee may determine whether or not to conduct individual or combined debriefings.

(b) A protest by the requestor submitted pursuant to section 103D-701, HRS, following a debriefing shall be filed within five working days, as specified in section 103D-304(k), HRS.

History

• [Eff and comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-304)

Subchapter 8 SMALL PURCHASES

Haw. Code R. § 3-122-74 General provisions

(a) Small purchases shall be subject to section 103D-305, HRS, and do not require public notice or public bid openings.

(b) Small purchase contracts for professional services may be procured pursuant to this subchapter or section 103D-304(j), HRS; provided that small purchase of design professional services furnished by licensees under chapter 464, HRS, shall be procured in accordance with section 103D-304, HRS.

(c) Unless otherwise exempt, purchasing agencies delegated small purchase authority shall comply with state procurement office price or vendor lists, price schedules, or other chief procurement officer lists and schedules, where applicable.

(d) Purchases shall not be parceled by dividing the purchase of same, like, or related items of goods, services, or construction into several purchases of smaller quantities, so as to evade the statutory competitive bidding requirements. For additional details, refer to chapter 3-131.

(e) Preferences pursuant to part X, chapter 103D, HRS, shall not apply to small purchases.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-305) (Imp: HRS § 103D-305)

Haw. Code R. § 3-122-75 Goods, services, and construction

(a) Based on specifications and with adequate and reasonable competition:

(1) No less than three quotes shall be solicited for expenditures of $5,000 to less than $15,000;

(2) No less than three written quotes shall be obtained for expenditures of $15,000 to less than $25,000; and

(3) For the period up to and including June 30, 2007, no less than three written quotes shall be obtained for expenditures of $25,000 to less than $50,000.

(b) Only vendors that supply the goods, services, or construction required, shall be solicited and considered to meet the minimum quotation requirements.

(c) Considering the criteria, including but not limited to quality, warranty, and delivery; award shall be made to the lowest responsive, responsible offeror.

(d) When award to the lowest responsive, responsible offeror is not practicable, award shall be made to the offeror whose quotation provides the best value to the State. Written determination for the selection shall be placed in the procurement file.

(e) When the minimum quotations are not obtained, for reasons such as insufficient sources, written justification shall be placed in the procurement file.

(f) Expenditures with an estimated total cost that are less than $5,000 shall be by procedures established by each chief procurement officer.

(g) Chief procurement officers may be more restrictive in their jurisdiction's small purchase procedures, e.g., requiring written quotes at lower dollar limits.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-305) (Imp: HRS § 103D-305)

Haw. Code R. § 3-122-76 Repealed

History

• R MAR 21 2008

Haw. Code R. § 3-122-77 Procurement file and disclosure of information

All quotations received shall be recorded and placed in a procurement file. Pursuant to section 3-122-9.01, a purchasing agency is not required to disclose quotation information received from vendors until the purchase order is issued or the purchasing card order is placed.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-305) (Imp: HRS § 103D-305)

Haw. Code R. § 3-122-78 Electronic procurement

(a) Effective July 1, 2007, small purchase procurements of $25,000 to less than $50,000 shall be made through an electronic procurement system.

(b) This section shall not apply to procurements subject to sections 103D-306 and 103D-307, HRS.

(c) The electronic procurement system shall include at a minimum, the functionality of notifying registered vendors of the procurement opportunity and the electronic receipt of offers.

(d) If no responsive, responsible quotes, or reasonable prices are received through an electronic procurement solicitation, the head of the purchasing agency or designee may determine that it is neither practicable, nor advantageous to the State to issue a new solicitation.

(1) When making this determination, consideration shall be given to whether the specifications can be revised, time constraints, and competition in the marketplace;

(2) In the event of this determination, an alternative procurement method may be selected to include, but not limited to, direct negotiations; and

(3) Documentation of the alternative procurement determination shall be made part of the procurement file.

(e) Procurements of goods, services, or construction of $25,000 to less than $50,000, which cannot be purchased through an electronic procurement system may be conducted pursuant to sections 103D-302, 103D-303, and 103D-304, HRS.

(f) The chief procurement officer may determine what goods, services, or construction, less than $25,000 will be made through an electronic procurement system.

History

• [Eff and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-305) (Imp: HRS § 1030-305)

Subchapter 9 SOLE SOURCE PROCUREMENT

Haw. Code R. § 3-122-81 General provisions

(a) Sole source procurement shall be in accordance with section 103D-30 6, HRS, with the exception of sole source procurement subject to section 103D-305, HRS.

(b) A sole source purchase may be made when only one source is available for a purchase, unless the expenditure is expressly exempt from public bidding by law or rule.

(c) Justification for a sole source purchase must establish that the good, service, or construction has a unique feature, characteristic, or capability essential to the agency to accomplish its work and is available from only one supplier or source.

Examples are:

(1) Proprietary item;

(2) Compatibility to existing equipment; or

(3) Public utility repair or construction that can only be provided by the utility company.

(d) The contract period for a sole source procurement shall not exceed one year, unless approval is granted for a multi-term contract pursuant to section 3-122-149.

(e) Approval for sole source procurement may be granted by the chief procurement officer when there is a requirement for a good or service in limited quantity for test or evaluation purpose.

(f) The following are not justifications for sole source procurements:

(1) An item is referred to by an exact brand, but there are other brands that qualify as "equals";

(2) An item is unique, but is available from more than one supplier, is called a "restrictive" purchase subject to bidding;

(3) The fact that a person or organization is or has been furnishing services to a purchasing agency does not, by itself, render the person or organization the only source for the type of service required;

(4) The potential loss of funds at the end of a fiscal year.

(g) The procurement officer should conduct negotiations with the sole source vendor to determine the factors as cost, quality, terms, and delivery.

(h) Cost or pricing data requirements shall be as specified in section 103D-312, HRS, and subchapter 15.

(i) A purchase order shall be issued or a certification that funds are available for the amount of the purchase shall be obtained for a sole source purchase, pursuant to section 103D-309, HRS, and subchapter 12.

(j) Pursuant to section 103D-306(c), HRS, the procurement policy board shall maintain a list, entitled "Procurements Approved for Sole Source" that may be procured without obtaining a sole source approval, pursuant to section 3-122-82. The chief procurement officer may request reports from the heads of purchasing agencies on sole source procurements.

The list of sole source procurements shall be reviewed by the procurement policy board biennially and issued by procurement directive. Purchasing agencies shall cite on the purchase order or on the contract the sole source authority as "Approved for Sole Source Procurement pursuant to Section 3-122-81, (cite sole source number from attached list), Hawaii Administrative Rules".

History

• [Eff 12/15/95; am and comp 11/17/97; am 7/6/99; am and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-306, 103D-312) (Imp: HRS §§ 103D-306, 103D-309, 103D-312)

Haw. Code R. § 3-122-82 Sole source approvals and amendments

(a) Forms required to implement the provisions for sole source approval will be distributed by the chief procurement officer.

(b) To obtain sole source approval from the chief procurement officer, the following procedures shall be followed:

(1) Complete and submit a "Request For Sole Source" to the chief procurement officer. Heads of purchasing agencies shall certify to the best of their knowledge that the information provided is true and correct; and

(2) Complete and submit a "Notice of Sole Source" which shall serve as a written determination to issue a sole source contract.

(c) The chief procurement officer shall post a copy of the "Notice of Sole Source" in a designated area accessible to the public, at least seven days prior to any approval action.

(1) Any inquiries shall be directed to the designated contact person of the purchasing agency.

(2) Any objections to the request for sole source shall be submitted in writing and received by the chief procurement officer within seven days from the date the notice was posted. The chief procurement officer shall place the sole source request on hold, review the objection, and provide a written determination to the person submitting the objection. All documents relating to the objection, including written summary of the disposition of the objection, shall be kept with the sole source file.

(d) Amendment to a contract that would change the original scope of the contract, or increase the original contract price by ten per cent or more, may only be made with the approval of the chief procurement officer. The annual renewal of a sole source contract for services shall not be submitted as an amendment, but as a new request. To amend a sole source contract, the purchasing agency shall complete and submit a "Notice of Amendment to Sole Source Contract" to the chief procurement officer. The posting and approval procedures provided in subsection (c) shall be followed.

(e) The determinations required by this section shall be final and conclusive unless they are clearly erroneous, arbitrary, capricious, or contrary to law.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-306, 103D-318) (Imp: HRS §§ 103D-306, 103D-318)

Haw. Code R. § 3-122-83 Repealed

History

• R MAR 21 2008

Haw. Code R. § 3-122-84 Repealed

History

• R MAR 21 2008

Subchapter 10 EMERGENCY PROCUREMENT

Haw. Code R. § 3-122-88 General provisions

(a) Emergency procurement shall be in accordance with section 103D-307, HRS. Section 103D-305, HRS, small purchases are not subject to emergency procurement procedures.

(b) Emergency procurement as defined in section 103D-307, HRS, may be utilized to purchase only the immediate needs for the emergency and not subsequent non-emergency requirements.

(c) The potential loss of funds at the end of a fiscal year is not an emergency.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-307)

Subchapter 11 CANCELLATION OF SOLICITATIONS AND REJECTION OF OFFERS

Haw. Code R. § 3-122-95 Cancellation of solicitations and rejection of offers

A solicitation may be canceled, or an offer rejected in whole or in part pursuant to section 103D-308, HRS.

History

• [Eff 12/15/95; comp 11/17/97; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-308) (Imp: HRS § 103D-308)

Haw. Code R. § 3-122-96 Cancellation of solicitation

(a) A solicitation may be cancelled for reasons including but not limited to the following:

(1) Cancellation prior to opening:

(A) The agency no longer requires the goods, services, or construction;

(B) The agency no longer can reasonably expect to fund the procurement;

(C) Proposed amendments to the solicitation would be of a magnitude that a new solicitation is desirable; or

(D) A determination by the chief procurement officer or a designee that a cancellation is in the public interest.

(2) Cancellation after opening but prior to award:

(A) The goods, services, or construction being procured are no longer required;

(B) Ambiguous or otherwise inadequate specifications were part of the solicitation;

(C) The solicitation did not provide for consideration of all factors of significance to the agency;

(D) Prices exceed available funds and it would not be appropriate to adjust quantities to come within available funds;

(E) All otherwise acceptable offers received are at clearly unreasonable prices;

(F) There is reason to believe that the offers may not have been independently arrived at in open competition, may have been collusive, or may have been submitted in bad faith; or

(G) A determination by the chief procurement officer or a designee that a cancellation is in the public interest.

(b) A notice of cancellation shall be sent to all businesses solicited and the notice shall include:

(1) identity of the solicitation;

(2) Brief explanation of the reason (s) for cancellation; and

(3) Where appropriate, an explanation that an opportunity will be given to compete on any resolicitation or any future procurements of similar goods, services, or construction.

(c) Documentation on the reasons for cancellation shall be made a part of the procurement file and shall be available for public inspection.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-308) (Imp: HRS § 103D-308)

Haw. Code R. § 3-122-97 Rejection of offer

(a) A bid shall be rejected for reasons including but not limited to:

(1) The bidder is nonresponsible as determined by subchapter 13; or

(2) The bid is not responsive, that is, it does not conform in all material respects to the solicitation by reason of its failure to meet the requirements of the specifications or permissible alternates or other acceptability criteria set forth in the solicitation, pursuant to section 3-122-33.

(b) A proposal may be accepted with modification or correction, unless the solicitation states otherwise.

(1) This allowance must be considered in determining whether reasons exist for rejecting all or any part of a proposal.

(2) A proposal shall be rejected for reasons including but not limited to:

(A) The offeror is nonresponsible as determined by subchapter 13;

(B) The proposal, after any opportunity has passed for modification or clarification, fails to meet the announced requirements of the agency in some material respect; or

(C) The proposed price is clearly unreasonable.

(c) An offeror may not limit acceptance to the entire bid or proposal offering, unless allowed by the solicitation:

(1) If the acceptance of an offer is so limited by the offeror but not allowed, the offer will be determined to be not acceptable and rejected.

(2) If the acceptance of an offer is so limited by the offeror and allowed, the purchasing agency shall not reject part of the offer and award on the remainder.

(d) A written notice shall be sent to the offeror advising of the reasons for the rejection.

History

• [Eff 12/15/95; comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-308) (Imp: HRS § 103D-308)

Subchapter 12 CONTRACT NOT BINDING UNLESS FUNDS AVAILABLE

Haw. Code R. § 3-122-102 Contract not binding unless funds available

(a) Certification that there is an appropriation or balance of an appropriation sufficient to cover the amount required by the contract as well as the application of federal funds shall comply or be exempt under section 103D-309, HRS.

(b) Additional certification exceptions are for the following types of contracts for which the respective chief financial officer shall only be required to certify that there is an appropriation or balance of an appropriation over and above all outstanding contracts that is sufficient to cover the amount required to be paid under the contract during the initial fiscal period and the contractual obligation of both parties in each fiscal period succeeding the first is subject to the appropriation and availability of funds:

(1) A lease contract pursuant to section 3-122-14 7; and

(2) An installment purchase payment contract pursuant to section 3-122-148.

(c) Certification of a portion of the total funds required for a contract may be permitted when an immediate solicitation will result in significantly more favorable contract terms and conditions to the State than a solicitation made at a later date; provided that certification for partial funding shall be permitted only if the respective chief financial officer, as the case may be, states in the certificate that the availability of funds in excess of the amount certified as available shall be contingent upon future appropriations or special fund revenues. All contracts partially funded shall be enforceable only to the extent to which funds have been certified as available.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS §§ 103D-309, 103D-315)

Subchapter 13 RESPONSIBILITY OF BIDDERS AND OFFERORS

Haw. Code R. § 3-122-108 Qualification of offeror or prospective offeror

(a) Pursuant to section 103D-310, HRS, a determination of responsibility or nonresponsibility of an offeror or prospective offeror to perform the work called for in the solicitation shall be made by the procurement officer on the basis of available information.

(b) If the procurement officer requires additional information, the offeror or prospective offeror may be required to answer questions contained in the sample questionnaire provided by the policy board.

(c) The requested information shall be furnished upon request within two working days or longer at the discretion of the procurement officer. Failure to furnish the requested information within the time allowed may be grounds for a determination of nonresponsibility.

(d) Upon determination of nonresponsibility, the offeror or prospective offeror shall be notified in writing. The decision shall be final unless the offeror or prospective offeror applies for administrative hearing pursuant to section 3-126-42.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-310) (Imp: HRS § 103D-310)

Haw. Code R. § 3-122-109 Questionnaire

The questionnaire shall request information for the following categories:

(1) Financial ability to deliver the goods or perform the work required;

(2) Material, equipment, facility, and personnel resources and expertise available, or the ability to obtain them, in order to meet contractual requirements;

(3) References for the determination of a satisfactory record of performance;

(4) References for the determination of a satisfactory record of integrity;

(5) Legal qualifications to contract with the State; and

(6) Additional information necessary for a determination of responsibility.

History

• [Eff 12/15/95; comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-310) (Imp: HRS § 103D-310)

Haw. Code R. § 3-122-111 Notice of intent to offer

(a) When required by the solicitation, a prospective offeror shall file a notice of intent to offer, subject to the following:

(1) The notice shall be received not less than ten days prior to the deadline for receipt of offers; and

(2) The notice may be submitted by facsimile or electronically, pursuant to section 3-122-9, and the date of receipt as evidenced by the time indicated on the electronic transmittal or the procurement officer's transaction receiving report, shall determine timeliness of the notice.

(b) A notice of intent to offer may be waived in the case of a single offer when the procurement officer determines that acceptance is in the best interest of the public and the basis for the acceptance is explained in the written determination.

History

• [Eff and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-310) (Imp: HRS § 103D-310)

Haw. Code R. § 3-122-112 Responsibility of offerors

(a) The offeror, as proof of compliance with the requirements of section 103D-310(c), HRS, upon award of a contract made pursuant to section 103D-302, 103D-303, 103D-304, or 103D-306, HRS, shall provide:

(1) A tax clearance certificate from the department of taxation and the Internal Revenue Service, subject to section 103D-328, HRS, current within six months of issuance date;

(2) A certificate of compliance for chapters 383, 386, 392, and 393, HRS, from the department of labor and industrial relations, current within six months of issuance date; and

(3) A certificate of good standing from the business registration division of the department of commerce and consumer affairs, current within six months of issuance date.

(b) In lieu of the certificates referenced in subsection (a), offeror may make available proof of compliance through a state procurement office designated certification process.

(c) Except for any contract of less than $25,000 or any contract entered into pursuant to section 103D-307, HRS, all state and county procurement officers or agents shall withhold final payment of a contract made pursuant to section 103D-302, 103D-303, 103D-304, or 103D-306, HRS, until receipt of:

(1) A tax clearance certificate from the director of taxation and the Internal Revenue Service, subject to section 103D-328, HRS, current within two months of issuance date; and a certification from the contractor affirming that the contractor has, as applicable, remained in compliance with all laws as required by this section. A contractor making a false affirmation shall be suspended and may be debarred pursuant to section 103D-702, HRS; or

(2) Proof of compliance as provided in subsection (b).

(d) This section shall not apply to any contract to the extent it jeopardizes federal funding.

History

• [Eff and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-310) (Imp: HRS § 103D-310)

Subchapter 15 COST OR PRICING DATA

Haw. Code R. § 3-122-121 Scope and application

The cost and pricing data requirement in this subchapter applies to contracts when either cost or pricing data or both are required to be submitted pursuant to section 3-122-123, except for the following:

(1) Small purchases; or

(2) A contract let by competitive sealed bidding or multi-step bidding, except when price adjustments are subsequently made to the contract pursuant to section 3-122-123.

History

• [Eff 12/5/95; comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-312)

Haw. Code R. § 3-122-123 Requirement for cost or pricing data

The procurement officer shall require cost or pricing data or both in support of the following, and may require for professional services pursuant to subchapter 7:

(1) Any contract, resulting from competitive sealed proposals or sole source procurement, expected to exceed $100,000;

(2) Any price adjustment to a contract involving aggregate increases and decreases in costs plus applicable profits expected to exceed $100,000, including a contract resulting from competitive sealed bidding, whether or not cost or pricing data were required in connection with the initial pricing of the contract, except when unrelated and separately priced adjustments, not requiring cost or pricing data if considered separately, are consolidated for administrative convenience; or

(3) A written determination by a procurement officer that the circumstances warrant requiring submission of cost or pricing data provided, however, when less than complete cost analysis, for example; analysis of only specific factors will provide a reasonable pricing result on awards under $100,000 without the submission of complete cost or pricing data, the procurement officer shall request only that data considered adequate to support the limited extent of the cost analysis needed and need not require certification.

History

• [Eff 12/15/95; comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-312)

Haw. Code R. § 3-122-124 Exceptions to the requirement for cost or pricing data

(a) Cost or pricing data need not be submitted or certified where the contract price is based on:

(1) Adequate price competition which means at least two responsible offerors independently compete for a contract to be awarded to the offeror submitting the lowest evaluated price.

(2) Established catalogue price which means the price included in a catalogue, price list, schedule, or other form that is regularly maintained by a manufacturer or contractor; is either published or otherwise available for inspection by customers; and states the price at which sales are currently or were last made to a significant number of any category of buyers or buyers constituting the general (non-government) buying public for the goods or services involved.

(3) Established market price which means a current price, established in the usual and ordinary course of trade between buyers and sellers, which can be substantiated from sources independent of the manufacturer or supplier and may be an indication of the reasonableness of price.

(4) Prices set by law or regulation which means the price of a good or service is set by law or rule if some governmental body establishes the price that the contractor may charge the State and other customers.

(b) If, despite the existence of an established catalogue price or market price, and after consultation with the prospective contractors, the procurement officer considers that the price is not reasonable, cost or pricing data may be requested. Where the reasonableness of the price can be assured by a request for cost or pricing data limited to data pertaining to the differences in the item or services being procured and those listed in the catalogue or market, requests should be so limited.

(c) When the chief procurement officer or the head of a purchasing agency determines in writing to waive the applicable requirements of section 3-122-123(1) or 3-122-123(2) for submission of cost or pricing data in a particular pricing action and the reasons for the waiver are stated in the determination, a copy of the determination shall be kept In the contract file and made available to the public upon request.

(d) If after cost or pricing data were initially requested and received, it is determined that adequate price competition does exist, the data need not be certified.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-312) (Imp: HRS § 103D-312)

Subchapter 16 TYPES OF CONTRACTS

Haw. Code R. § 3-122-145 Multiple award contract

(a) A multiple award contract is a contract resulting from an award of an indefinite quantity requirement for one or more similar goods or services to more than one bidder or offeror. The relative importance of price may vary based on the requirement and method of source selection. In making a best value determination under a competitive sealed proposals process, the purchasing agency may consider among other factors: special features, trade-in, life cycle, warranties, service availability, past performance, environmental or energy efficiency considerations or both, and competition in the marketplace.

(b) The chief procurement officer shall determine, and the solicitation shall so state, if use of multiple award contracts is voluntary or mandatory for purchasing agencies.

(c) Multiple awards may be limited to a number of suppliers necessary to meet the valid requirements of using agencies and to provide for best value and competitive pricing.

(d) All eligible users of the contract shall be named in the solicitation or be allowed to participate at a later date.

(e) The State shall reserve the right to take offers separately if:

(1) A particular quantity requirement arises which exceeds its normal requirement or an amount specified in the contract; or

(2) The head of a purchasing agency approves a finding that the goods or services available under the contract will not meet a nonrecurring special need of the State.

(f) The contract shall allow the using agencies to procure goods produced, or services performed, incidental to the State's own programs, as correctional industries, when the goods or services satisfy the need.

(g) A multiple award contract may also be awarded through a single competitive solicitation on a geographic or regional basis, pursuant to section 3-122-146.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-322) (Imp: HRS § 103D-322)

Haw. Code R. § 3-122-147 Lease contract

(a) A lease is a contract for the use of goods under which title does not pass to the agency.

(b) A lease may be entered into provided:

(1) It is in the best interest of the purchasing agency;

(2) All conditions for renewal and costs of termination are set forth in the lease; and

(3) The lease is not used to circumvent normal procurement procedures.

(c) A lease contract shall comply with the certification of funds requirement, pursuant to section 3-122-102(b).

(d) The following lease arrangements are subject to the competitive sealed bidding or proposals process when section 103D-305, HRS, does not apply:

(1) When a lease is for at least one year;

(2) When a lease agreement contains an option to purchase and the total expenditure under this option includes lease or rental payments; or

(3) When the total expenditure is for a multi-term contract.

(e) When the lease arrangement is subject to the competitive sealed bidding or proposals process and an option to purchase is contemplated, an option to purchase provision shall be included in the solicitation. The provision shall provide that to exercise the option is at the purchasing agency's discretion only, and not subject to agreement or acceptance by the contractor. Before exercising the option the procurement officer shall:

(1) Investigate alternative means of procuring comparable goods; and

(2) Compare estimated costs and benefits associated with the alternative means and the exercise of the option, for example, the benefit of buying new state-of-the-art goods compared to the estimated, initial savings associated with exercise of a purchase option.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 1D3D-313) (Imp: HRS § 103D-313)

Haw. Code R. § 3-122-148 Installment purchase payment contract

(a) Goods contracts may provide for purchase payments, including interest charges, over a period of time.

(b) Installment payments should be used judiciously in order to achieve economy and not to avoid budgetary restraints and shall be justified in writing by the head of the purchasing agency.

(c) Heads of purchasing agencies shall be responsible for ensuring that statutory or other prohibitions are not violated by use of installment provisions and that all budgetary, funding, or other required prior approvals are obtained.

(d) When used, a provision for installment payments shall be included in the solicitation document.

(e) An installment purchase payment contract shall comply with the certification of funds requirement pursuant to section 3-122-102(b).

History

• [Eff 12/15/95; comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-313) (Imp: HRS § 103D-313)

Haw. Code R. § 3-122-149 Multi-term contract

(a) The objective of the multi-term contract is to encourage effective competition or otherwise promote economies in the procurement of goods and services.

(b) A multi-term contract extends over more than one fiscal period but funds are available for only the initial fiscal period, and the contractual obligation of both parties in each fiscal period succeeding the first is subject to the appropriation and availability of funds.

(c) When funds are not appropriated or otherwise made available to support continuation of performance in a subsequent fiscal period, the contract shall be canceled and the contractor shall be reimbursed for the reasonable value of any non-recurring costs incurred but not amortized in the price of the good or service delivered under the contract.

(d) A multi-term contract may be considered:

(1) When it is in the best interest of the State to provide uninterrupted service over more than one fiscal period and where the contract will result in significantly more favorable contract terms and prices compared to a series of shorter term contracts for the same good or service due to:

(A) High start-up costs; for example, a student bus transportation contractor would incur high start-up costs for buses and other equipment solely to meet the State's requirements but the equipment would have useful life in excess of one year; or

(B) A changeover of service contractors with both high phase-in and high phase-out costs during a transition period;

(2) When special production, involving alteration in the contractor's facilities or high startup costs, for definite quantities of goods for more than one fiscal period is necessary to best meet the needs of the State and funds are available only for the initial fiscal period;

(3) When firms, otherwise not willing or able to compete because of high start-up costs or capital investment in facility expansion, will be encouraged to participate in the competition because of assurance of recouping the costs during the period of contract performance;

(4) When lower production costs because of larger quantity or service requirements, and substantial continuity of production or performance over a longer period of time, can be expected to result in lower unit prices;

(5) When stabilization of the contractor's work force over a longer period of time may promote economy and consistent quality; or

(6) When the cost and burden of contract solicitation, award, and administration of the procurement may be reduced.

(e) A multi-term contract may be entered into for any period of time deemed to be in the best interest of the State, provided the head of the purchasing agency determines in writing that:

(1) The contract will serve the best interest of the State by encouraging effective competition or otherwise promoting economies in procurement; and

(2) Sufficient funds to pay for the initial term of the contract are available.

(f) The solicitation for a multi-term contract shall state:

(1) The term of the contract and conditions for renewal or extension, if any;

(2) That funds are available for only the initial term of the contract, and the contractual obligation of both parties in each fiscal period succeeding the first is subject to the appropriation and availability of funds;

(3) The amount of goods or services required for the proposed contract period;

(4) That a unit price shall be given for each good or service, and that the unit prices shall be the same throughout the contract, except to the extent price adjustment is allowed;

(5) That the contract will be cancelled only if funds are not appropriated or otherwise made available to support continuation of performance in any fiscal period succeeding the initial term of the contract; however, this does not affect either the State's rights or the contractor's rights under any termination clause of the contract;

(6) That the head of the purchasing agency must notify the contractor on a timely basis that the funds are, or are not, available for the continuation of the contract for each succeeding fiscal period; and

(7) That, in the event of cancellation as provided in paragraph (5), the contractor will be reimbursed the unamortized, reasonably incurred, nonrecurring costs.

(g) A cancellation, as used in multi-term contracting, means the cancellation of the total requirements for the remaining portion of the contract because funds were not appropriated or otherwise made available.

(1) Cancellation of a multi-term contract shall result when the head of the purchasing agency:

(A) Notifies the contractor of nonavailability of funds for contract performance for any fiscal period subsequent to the first; or

(B) Fails to notify the contractor that funds are available for the succeeding fiscal period or that funds which may be used for the contract have not been appropriated or otherwise made available, by the date set forth in the contract, unless the parties agree to extend the date;

(2) This subsection does not limit the rights of the State or the contractor under any termination clause of the contract if the contract is terminated pursuant to that clause rather than cancelled as provided in this subsection.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-315)

Subchapter 18 RIGHT TO INSPECT PLANT

Haw. Code R. § 3-122-166 Inspection of plant or site

Circumstances under which the State may perform inspections include, but are not limited to, inspections of the contractor's plant or site in order to determine:

(1) Whether the standards set forth in section 3-122-108 have been met or are capable of being met; and

(2) If the contract is being performed in accordance with its terms.

History

• [Eff 12/15/95; comp 11/17/97; comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-316)

Haw. Code R. § 3-122-167 Access to plant or place of business

The State may enter the plant or place of business of a contractor, subcontractor, vendor, material supplier, or a professional services provider to:

(1) Inspect goods or services for acceptance by the State pursuant to the terms of a contract;

(2) Audit cost or pricing data or audit the books and records pursuant to section 3-122-175; and

(3) Investigate in connection with an action to debar or suspend a person from consideration for award of contracts pursuant to sections 3-126-11 through 3-126-18.

History

• [Eff 12/15/95; am and comp 11/17/97; comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-316)

Haw. Code R. § 3-122-168 Inspection and testing of goods and services

(a) State contracts may provide that the State may inspect supplies and services as required at any site or facility and perform tests to determine whether they conform to solicitation requirements, or after award, to contract requirements, and are therefore acceptable. The inspections and tests shall be conducted in accordance with the terms of the solicitation and contract.

(b) The chief procurement officer may establish operational procedures governing the testing and trial use of equipment, materials, and other supplies by any state agency, and the application of resulting information and data to specifications or procurements.

History

• [Eff 12/15/95; am and comp 11/17/97; comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-316)

Haw. Code R. § 3-122-169 Conduct of inspections

(a) Inspections or tests shall be performed so as not to unduly delay the work. The presence or absence of an inspector shall not result in the waiver of any requirements of the contract, nor shall any act, statement or omission by an inspector constitute or be deemed a change unless the procedure for changes is followed.

(b) When an inspection is made in a plant or place of business, the contractor or subcontractor shall provide without charge, all reasonable facilities and assistance for the safety and convenience of the person performing the inspection or testing.

(c) Inspection or testing of supplies and services performed at a plant or place of business shall be performed at reasonable times.

History

• [Eff 12/15/95; am and comp 11/17/97; comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-316)

Haw. Code R. § 3-122-170 Inspection of construction projects

On-site inspection of construction shall be performed in accordance with the terms of the contract.

History

• [Eff 12/15/95; comp 11/17/97; comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-316)

Haw. Code R. §§ 3-122-171 to 3-122-174 Reserved

Subchapter 19 RIGHT TO AUDIT RECORDS

Haw. Code R. § 3-122-175 Statutory authority to audit

Pursuant to section 103D-317, HRS, the State may, at reasonable times and places, audit the books and records of a contractor, prospective contractor, subcontractor, or prospective subcontractor which are related to:

(1) The cost or pricing data submitted under sections 3-122-122 through 3-122-130;

(2) A state contract, including subcontracts, other than a firm fixed-price contract, awarded pursuant to subchapters 5 through 10; and

(3) Any claim for additional compensation or for changes.

History

• [Eff 12/15/95; am and comp 11/17/97; comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-317)

Haw. Code R. § 3-122-176 Auditors' audit reports

Audits requested under this subchapter shall be performed by the office of the chief procurement officer, the head of a purchasing agency, the attorney general or corporation counsel with legal authority over the procuring agency, or an independent auditor. An audit report shall be prepared in accordance with section 3-122-178 or section 3-122-180. Except when the audit is done in response to a claim for additional compensation or In connection with an investigation for criminal conduct or fraud relating to the procurement, the report shall be made available to the party audited upon request.

History

• [Eff 12/15/95; am and comp 11/17/97; comp MAR 21 2008] (Auth: HRS S103D-202) (Imp: HRS 103D-317)

Haw. Code R. § 3-122-177 Cost or pricing data audit

(a) The chief procurement officer, head of a purchasing agency, the attorney general or corporation counsel with legal authority over the purchasing agency, or a designee of either officer may require an audit of cost or pricing data submitted under section 3-122-125.

(b) An audit should be required when in respect to the contractor, prospective contractor, subcontractor, or prospective subcontractor, there is:

(1) A question as to the adequacy of accounting policies or cost systems;

(2) A substantial change in the methods or levels of operation;

(3) Previous unfavorable experience indicating doubtful reliability of estimating, accounting, or purchasing methods;

(4) A lack of cost experience due to the procurement of a new supply or service; or

(5) Other evidence that an audit is in the State's best interests as determined by the chief procurement officer, head of the purchasing agency, the attorney general or corporation counsel with legal authority over the purchasing agency, or a designee of either officer.

History

• [Eff 12/15/95; am and comp 11/17/97; comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-317)

Haw. Code R. § 3-122-178 Cost or pricing data audit report

(a) When the chief procurement officer, the head of a purchasing agency, the attorney general or corporation counsel with legal authority over the purchasing agency, or a designee of either officer requires an audit under section 3-122-177, the auditor shall submit a written report to the officer by an agreed upon date.

(b) Subject to final determination by the auditor, the report should contain the following In respect to the contractor, prospective contractor, subcontractor, or prospective subcontractor:

(1) A description of the original proposal and all submissions of cost or pricing data;

(2) An explanation of the basis and the method used in preparing the proposal;

(3) A statement identifying any cost or pricing data not submitted but examined by the auditor which has a significant effect on the proposed cost or price;

(4) A description of any deficiency in the cost or pricing data not submitted and an explanation of its effect on the proposal;

(5) A statement summarizing those major points where there is a disagreement as to the cost or pricing data submitted; and

(6) A statement identifying any information obtained from other sources.

History

• [Eff 12/15/95; am and comp 11/17/97; comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-317)

Haw. Code R. § 3-122-179 Contract audit

(a) Under the authority of section 3-122-175, the type of contract under which books and records should be audited is that in which price is based on costs or is subject to adjustment based on costs, or that in which auditing would be appropriate to assure satisfactory performance, as a time and materials contract.

(b) The requirement of a contract audit may be warranted when a question arises in connection with:

(1) The financial condition, integrity, and reliability of the contractor or subcontractor;

(2) Any prior audit experience;

(3) The adequacy of the contractor's or subcontractor's accounting system;

(4) The number or nature of invoices or reimbursement vouchers submitted by the contractor or subcontractor for payment;

(5) The use of federal assistance funds;

(6) The fluctuation of market prices affecting the contract; or

(7) Any other situation when the procurement officer finds that an audit is necessary for the protection of the State's interest.

(c) The scope of the audit may be limited by the chief procurement officer, the head of the purchasing agency, the attorney general or corporation counsel with legal authority over the purchasing agency, or a designee of either officer.

History

• [Eff 12/15/95; am and comp 11/17/97; comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-317)

Haw. Code R. § 3-122-180 Contract audit report

Where the chief procurement officer, head of a purchasing agency, or a designee of either officer requires a contract audit under section 3-122-179, the auditor shall submit a written report to the officer by an agreed upon date. The scope of the report will depend on the scope of the audit ordered. However, the report should contain specific reference to the terms of the contract to which the audited data relate and a statement of the degree to which the auditor believes the audited data evidence compliance with those terms.

History

• [Eff 12/15/95; comp 11/17/97; comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-317)

Haw. Code R. § 3-122-181 Retention of books and records

(a) Any contractor who receives a contract, change order, or contract modification for which cost or pricing data are required shall maintain the books and records that relate to the cost or pricing data for three years from the date of final payment under the contract.

(b) Books and records that relate to a state contract, including subcontracts, other than a firm fixed-price contract, awarded under any method set forth in section 3-122-175 shall be maintained:

(1) By a contractor, for three years from the date of final payment under the price contract; and

(2) By a subcontractor, for three years from the date of final payment under the subcontract.

History

• [Eff 12/15/95; comp 11/17/97; comp MAR 21 2008](Auth: HRS § 103D-202) (Imp: HRS § 103D-317)

Haw. Code R. § 3-122-182 Sanctions for lack of cooperation

A party or entity that fails to comply or fully cooperate with an authorized audit shall be subject to any and all of the following sanctions:

(1) Rejection of the claim related to the audit; or

(2) Declaration of contractor default or breach of contract; or

(3) Debarment from future contracts pursuant to section 103D-702, HRS.

History

• [Eff12/15/95; am and comp 11/17/97; comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-311)

Haw. Code R. §§ 3-122-183 to 3-122-185 Reserved

Subchapter 20 REPEALED

Haw. Code R. § 3-122-186 REPEALED

History

• R MAR 21 2008

Subchapter 19 RIGHT TO AUDIT RECORDS

Haw. Code R. §§ 3-122-187 to 3-122-190 Repealed

History

• R MAR 21 2008

Subchapter 21 REPORTING OF ANTICOMPETITIVE PRACTICES

Haw. Code R. § 3-122-191 Anticompetitive practices

For the purposes of these rules, an anticompetitive practice is a practice among bidders or offerors which reduces or eliminates competition or restrains trade. An anticompetitive practice can result from an agreement or understanding among competitors to restrain trade as submitting collusive offers, or result from illicit business actions which have the effect of restraining trade, as controlling the resale price of products or an improper collective refusal to submit an offer. Indications of suspected anticompetitive practices include, but are not limited to, identical offers, rotated low offers, sharing of the business, "tie-in" sales, resale price maintenance, and group boycotts.

History

• [Eff 12/15/95; comp 11/17/97; comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-319]

Haw. Code R. § 3-122-192 Independent price determination

Every solicitation shall provide that by submitting an offer, the offeror certifies that the price submitted was independently arrived at without collusion.

History

• [Eff 12/15/95; comp 11/17/97; comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-319)

Haw. Code R. § 3-122-193 Detection of anticompetitive practices

In order to assist in ascertaining whether or not an anticompetitive practice may have occurred or may be occurring, the procurement officer should be alert and sensitive to conditions of the market place and will often find it necessary to perform the following, as appropriate:

(1) Study the pricing history of a good, service, or construction item over a period of time sufficient to determine any significant pricing patterns or changes;

(2) Review similar state contract awards over a period of time; or

(3) Consult with outside sources of information, as offerors who have competed for similar state business in the past but who are no longer competing for the business.

History

• [Eff 12/15/95; comp 11/17/97; comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-319)

Haw. Code R. § 3-122-194 Identical bidding and price fixing

(a) The term "identical bidding" means the submission by offerors of the same total price or the same price on a particular line item. The submission of identical offers may or may not signify the existence of collusion. In some instances, price controls imposed by state or federal governments result in the submission of identical offers. Identical offers for supplies are more likely to occur in the absence of collusion if:

(1) The supply is a commodity with a well-established market price or a brand name with a "suggested retail price;"

(2) The quantity being purchased is small in relation to the supplier's total sales;

(3) Early delivery is required; or

(4) Transportation expenses are low relative to total costs.

(b) In seeking to determine whether collusion has taken place, the procurement officer should view the identical offers against present and past pricing policies of the bidders or offerors, the structure of the industry involved including comparisons of prices f.o.b. shipping point and f.o.b. destination, and the nature of the supply, service, or construction involved, as whether it is a basic chemical or metal. Identical offers may also result from resale price maintenance agreements which are described in section 3-122-83. Any other attempt by offerors to fix prices should also be reported.

History

• [Eff 12/15/95; comp 11/17/97; comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-319)

Haw. Code R. § 3-122-195 Other anticompetitive practises

(a) The practices which are described in this section and which the procurement officer suspects might be anticompetitive shall be reported in accordance with section 3-122-196.

(b) Rotated low offers result where all offerors participating in the collusive scheme submit offers and by agreement, alternate being the lowest offeror. To aid in determining whether rotation may be occurring, the procurement officer should review past similar procurements in which the same offerors have participated.

(c) The practice of resale price maintenance consists of an agreement between a manufacturer and a distributor or a dealer to fix the resale price of a good. A procurement officer should consider the possibility that an agreement exists where prices offered adhere to an established pattern, as a published price schedule, and when identical bidding occurs.

(d) Sharing of the business occurs where potential offerors allocate business among themselves based on the customers or the territory involved. Thus, a procurement officer might discover that a potential offeror is not participating in a state procurement because a particular state agency, or a particular territory, has not been allocated to the offeror by the producer or manufacturer.

(e) "Tie-in" sales are those in which an offeror attempts to sell one good or service only upon the condition that the procurement officer purchase another particular good or service.

(f) A group boycott results from an agreement between competitors not to deal with another competitor or not to participate in, for instance, a state procurement until the boycotting competitors' conditions are met by the boycotted competitor or the State. The boycott of a competitor by other competitors may have an effect on the market structure or price of a good, service, or construction item needed by the State.

History

• [Eff 12/15/95; comp 11/17/97; comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-319)

Haw. Code R. § 3-122-196 Reporting suspected anticompetitive practices

The chief procurement officer, in consultation with the respective attorney general or corporation counsel, may develop procedures, including forms, for reporting suspected anticompetitive practices. A procurement officer who suspects that anticompetitive practice has occurred or may be occurring shall follow these procedures.

History

• [Eff 12/15/95; am and comp 11/17/97; comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-319)

Haw. Code R. §§ 3-122-197 to 3-122-200 Reserved

Subchapter 22 RETENTION OF PROCUREMENT RECORDS

Haw. Code R. § 3-122-201 Retention of procurement

All procurement records shall be retained and disposed of in accordance with chapter 94, HRS, and records retention guidelines and schedules approved by the governmental body.

History

• [Eff 12/15/95; comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS § 103D-202) (Imp: HRS § 103D-320)

Haw. Code R. §§ 3-122-202 to 3-122-210 Reserved

Subchapter 23

Haw. Code R. § 3-122-211 REPEALED

History

• R MAR 21 2008

Haw. Code R. §§ 3-122-212 to 3-122-220 REPEALED

History

• R MAR 21 2008

Subchapter 24 BID SECURITY, CONTRACT PERFORMANCE, AND PAYMENT BONDS

Haw. Code R. § 3-122-221 General

(a) The term "bid security", as used in this subchapter means security provided at the time an offer is submitted.

(b) Bid security protects the State against the failure or refusal of an offeror to execute the contract for the work bid or to supply the necessary performance and payment bonds, as required.

(c) A contract performance bond indemnifies the State against loss resulting from the failure of the contractor to perform a contract, in particular a construction contract, in accordance with the plans and specifications.

(d) A contract payment bond guarantees payment and protection for those furnishing labor and materials to the contractor or its subcontractors for the work bonded

History

• [Eff 12/15/95; am and comp 11/17/97; comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-323, 103D-324) (Imp: HRS §§ 103D-323, 103D-324)

Haw. Code R. § 3-122-222 Acceptable bid security, contract performance and payment bonds

(a) Acceptable bid security and contract performance and payment bonds, pursuant to sections 103D-323 and 103D-324, HRS, shall be limited to:

(1) Surety bone underwritten by a company licensed to issue bonds in this State;

(2) Legal tender; or

(3) A certificate of deposit; credit union share certificate; or cashier's, treasurer's, teller's, or official check drawn by, or a certified check accepted by a bank, a savings institution, or credit union insured by the Federal Deposit Insurance Corporation or the National Credit Union Administration, and payable at sight or unconditionally assigned to the procurement officer advertising for offers. These instruments may be utilized only to a maximum of $100,000. If the required amount totals over $100,000, more than one instrument not exceeding $100,000 each and issued by different financial institutions shall be accepted.

(b) All documentation provided to the purchasing agency shall contain the original signatures signed in ink.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-323, 103D-324) (Imp: HRS §§ 103D-323, 103D-324)

Haw. Code R. § 3-122-223 Bid security

(a) Bid security shall be required for:

(1) Construction bids exceeding the limits of section 103D-305, HRS;

(2) Goods and services bids exceeding the limits of section 103D-305, HRS, when the head of a purchasing agency has secured the approval of the chief procurement officer; and

(3) Federally funded contracts wherein the conditions of the funding requires performance or payment bonds or both.

(b) Bid security, when required, shall be in an amount equal to at least five per cent of the base bid and additive alternates or in an amount required by the terms of the federal funding.

(c) If a contractor fails to accompany its offer with the bid security when required, the offer shall then be deemed nonresponsive in accordance with the definition of "responsive bidder or offeror" in section 3-120-2, except as provided by subsection (d).

(d) If an offer does not comply with the security requirements of this subchapter, the offer shall be rejected as nonresponsive, unless the failure to comply is determined by the chief procurement officer, the head of a purchasing agency, or a designee of either officer, to be nonsequential where:

(1) Only one offer is received, and there is not sufficient time to resolicit the contract;

(2) The amount of the bid security submitted, though less than the amount required by the solicitation, is equal to or greater than the difference in the price stated in the next higher acceptable offer plus an amount to cover reasonable administrative costs and expenses, including the cost of rebidding the project, resulting from the failure of the bonded bidder to enter into a contract for the work bid; or

(3) The bid security becomes inadequate as a result of the correction of a mistake in the offer or offer modification in accordance with section 3-122-31, if the offeror increases the amount of security to required limits within the time established by the procurement officer.

(e) When it is determined that failure to comply with required bid security is nonsubstantial, the chief procurement officer, the head of a purchasing agency, or a designee of either officer shall indicate the reasons for that determination in writing and a copy of the determination shall be kept in the contract file and made available to the public upon request.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-323) (Imp: HRS § 103D-323)

Haw. Code R. § 3-122-224 Contract performance and payment bonds

(a) Performance and payment bonds shall be required for:

(1) Construction contracts exceeding the limits of section 103D-305, HRS;

(2) Goods and services contracts exceeding the limits of section 103D-305, HRS, when the head of the purchasing agency has secured the approval of the chief procurement officer; and

(3) Federally funded contracts wherein the conditions of the funding requires a performance or payment bond or both.

(b) The amounts of the performance and payment bonds, when required, shall be as follows:

(1) For construction contracts, performance and payment bonds shall each be in an amount equal to one hundred per cent of the amount of the contract price;

(2) For goods and services contracts, performance and payment bonds shall each be in an amount not to exceed fifty per cent of the amount of the contract price;

(3) For contracts where contract price cannot be determined at the time of award, the amounts of the performance and payment bonds shall each be stated in the solicitation; and

(4) For federally funded contracts, performance or payment bond or both shall each be in amount required by the terms of the federal funding.

(c) The performance and payment bonds, if required, shall be delivered by the contractor to the State at the same time the contract is executed. If the contractor fails to deliver the required performance and payment bonds, the contractor's award shall be cancelled, the contractor shall be subject to a claim by the State for all resulting damages, its bid security shall be enforced, and award of the contract may be made to the next lowest offeror in accordance with subchapter 11.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-324) (Imp: HRS § 1030-324)

Haw. Code R. § 3-122-225 Reduction of contract performance and payment bond amounts

(a) Prior to the deadline for receipt of offers and during performance of the contract, the amounts of a performance bond and a payment bond may be reduced upon written determination by the chief procurement officer or head of a purchasing agency that it is in the best interest of the State to do so.

(1) For construction contracts only, and prior to the deadline for receipt of offers, reduction of performance and payment bond amounts shall be limited to not less than fifty per cent of the contract price;

(2) During performance of the contract, the amount of the performance bond may be reduced as work is completed and the amount of the payment bond may be reduced as payments are made by the contractor.

(b) Additional performance bond or payment bond may be required by the procurement officer for a contract change order or modification where the contract amount increases.

History

• [Eff 12/15/95; comp 11/17/97; am comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-324) (Imp: HRS § 103D-324)

Haw. Code R. § 3-122-226 Repealed

History

• R MAR 21 2008

Haw. Code R. § 3-122-227 Payment claims against the bond

(a) Any person or entity who has furnished labor or material to the contractor for the work provided in the contract, for which a payment bond or a performance and payment bond is furnished under this section, and who has not been paid amounts due before the expiration of a period of ninety days after the day on which the last of the labor was done or performed or material was furnished or supplied, for which such a claim is made, may institute an action for the amount, or balance thereof, unpaid at the time of the institution of the action against the contractor or the contractor and its sureties, on the payment bond and have their rights and claims adjudicated in the action, and judgment rendered thereon; subject to the State's priority on the bond.

(b) If the full amount of the liability of the contractor or the contractor and its sureties on the security is insufficient to pay the full amount of the claims, then, after paying the full amount due the State, the remainder shall be distributed prorata among the claimants.

(c) As a condition precedent to any such suit, written notice shall be given to contractor and surety, within ninety days from the date on which the person did or performed the last labor or furnished or supplied the last of the material for which claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied for whom the labor was done or performed.

(d) The written notice shall be served by registered or certified mailing of the notice, to the contractor and surety, at any place they maintain an office or conduct their business, or in any manner authorized by law to serve summons.

(e) Every suit instituted under subsection (a) shall be brought in the circuit court of the circuit in which the project is located, but no suit shall be commenced after the expiration of one year after the day on which the last of the labor was performed or material was supplied for the work provided in the contract. The obligee named in the bond need not be joined as a party in any suit.

(f) The terms "labor" and "material" have the same meanings in this section as the terms are used in section 507-41, HRS.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp MAR 212008] (Auth: HRS §§ 103D-202, 103D-324) (Imp: HRS § 1030-324)

Haw. Code R. § 3-122-228 Bond forms

(a) The required bond forms for bid security, performance, payment, and combination performance and payment bonds shall be in conformance with sections 3-122-221, 3-122-222, and 3-122-227 and shall be as specified by the procurement policy board and issued by procurement directive.

(b) Certified copies of bonds may be requested and obtained by any person from the State upon payment of the cost of reproduction of the bond and postage, if any. A certified copy of a bond shall be prima facie evidence of the contents, execution, and delivery of the original.

History

• [Eff 12/15/95; am and comp 11/17/97; comp MAR 21 2008] (Auth: HRS §§ 103D-202, 103D-325) (Imp: HRS § 103D-325)

Haw. Code R. §§ 3-122-229 to 3-122-240 Reserved

Subchapter 25 FISCAL RESPONSIBILITY

Haw. Code R. § 3-122-241 Fiscal responsibility

Every contract modification, change order, or contract price adjustment under a contract shall be subject to prior written certification by the appropriate fiscal officer for funding the project or the contract, as to the effect of the contract modification, change order, or adjustment in contract price on the total project budget or the total contract budget. In the event that the certification of the fiscal officer discloses a resulting increase in the total project budget or the total contract budget, the procurement officer shall not execute or make contract modification, change order, or adjustment in contract price unless sufficient funds are available therefor, or the scope of the project or contract is adjusted so as to permit the degree of completion that is feasible within the total project budget or total contract budget as it existed prior to the contract modification, change order, or adjustment in contract price under consideration; provided, that with respect to the validity, as to the contractor, of any executed contract modification, change order, or adjustment in contract price which the contractor has reasonably relied upon, it shall be presumed that there has been compliance with this section.

History

• [Eff 12/15/95; comp 11/17/97; comp MAR 21 2008] (Auth: HRS § 103D-326) (Imp: HRS § 103D-326)

Haw. Code R. § 3-122-242 Reserved

Chapter 124 PREFERENCES

Subchapter 8 QUALIFIED COMMUNITY REHABILITATION PROGRAMS

Haw. Code R. § 3-124-66 Partners in employment program

The state procurement office shall:

(1) Maintain and post on the Internet a current list of participants in the partners in employment program and the goods and services they provide; and

(2) Ensure that any good or service available from a qualified community rehabilitation program pursuant to this subchapter is not placed on the Hawaii products list under section 103D-1002, HRS.

History

• [Eff and comp 11/17/97; am and comp 11/25/02; am and comp MAY 20 2004] (Auth: HRS §§ 103D-202, 103D-1010) (Imp: HRS §§ 103D-1010, 103D-1011)

Chapter 125 MODIFICATIONS AND TERMINATIONS OF CONTRACTS

Haw. Code R. § 3-125-1 General

(a) Subject to subsection (b), the contract clauses in this chapter are required for use in invitation for bids or requests for proposals and may be used in other contracts subject to chapter 103D, HRS. Clauses that are specific for a certain category of goods, services, or construction are not required for contracts of another category. For example, specific clauses applicable only to goods and services are not required for construction contracts.

(b) If the clauses set forth in this chapter are plainly inappropriate for use in a proposed contract, then the chief procurement officer or the head of a purchasing agency shall make a written determination describing the circumstances requiring a material variation, provided that notice of any variation shall be stated in the invitation for bids or requests for proposals.

History

• [Eff 12/15/95; comp NOV 17 1997] (Auth: HRS §§ 103D-202, 103D-501) (Imp: HRS § 103D-501)

Haw. Code R. § 3-125-2 Change orders to goods and services contracts

(a) A change order is a written order signed by the procurement officer, directing the contractor to make changes which the "changes clause" of the contract authorizes the procurement officer to order without the consent of the contractor.

(b) The following paragraph, or similar statement expressing the same intent of this paragraph, shall be included in all contracts for goods and services:

"Changes Clause

(1) Generally. By written order, at any time, and without notice to any surety, the procurement officer may, unilaterally, order of the contractor:

(A) Changes in the work within the scope of the contract; and

(B) Changes in the time of performance of the contract that do not alter the scope of the contract work.

(2) Adjustments of price or time for performance. If any change order increases or decreases the contractor's cost of, or the time required for, performance of any part of the work under this contract, an adjustment shall be made and the contract modified in writing accordingly.

(A) Any adjustment in contract price made pursuant to this clause shall be determined, where applicable, in accordance with the price adjustment clause included pursuant to section 3-125-12. Failure of the parties to agree to an adjustment in contract price shall be resolved in accordance with the price adjustment clause included pursuant to section 3-125-12(1)(E).

(B) Failure of the parties to agree to an adjustment in time shall not excuse the contractor from proceeding with the contract as changed, provided that the procurement officer, within fourteen days after the changed work commences, makes the provisional adjustments in time as the procurement officer deems reasonable.

The right of the contractor to dispute the contract price or time required for performance or both shall not be waived by its performing the work, provided however, that it follows the written notice requirements for disputes and claims established by the contract.

(3) Time period for claim. Except as may be provided otherwise by section 103D-501(b), HRS, the contractor must file a written claim disputing the contract price or time provided in a change order within ten days after receipt of a written change order, unless such period for filing is extended by the procurement officer in writing. The requirement for filing a timely written claim cannot be waived and shall be a condition precedent to the assertion of a claim.

(4) Claim barred after final payment. No claim by the contractor for an adjustment hereunder shall be allowed if the claim is not received by the procurement officer prior to final payment under this contract.

(5) Other claims not barred. In the absence of such a change order, nothing in this clause shall be deemed to restrict the contractor's right to pursue a claim under the contract or for breach of contract."

History

• [Eff 12/15/95; am and comp 11/17/97; am AUG 24 2009] (Auth: HRS §§ 103D-202, 103D-501) (Imp: HRS § 103D-501)

Haw. Code R. § 3-125-3 Modifications to goods and services contracts

(a) A contract modification is a written alteration within the scope of the contract to specifications, delivery point, rate of delivery, period of performance, price, quantity, or other provisions of a contract accomplished by mutual action of the parties to the contract.

(b) The following paragraph, or similar statement expressing the same intent of this paragraph, shall be included in all contracts for goods and services:

"Modifications Clause

(1) Contract modification. By a written order, at any time, and without notice to any surety, the procurement officer, subject to mutual agreement of the parties to the contract and all appropriate adjustments, may make modifications within the general scope of this contract to include any one or more of the following:

(A) Drawings, designs, or specifications, for the goods to be furnished;

(B) Method of shipment or packing;

(C) Place of delivery;

(D) Description of services to be performed;

(E) Time of performance (i.e., hours of the day, days of the week, etc.);

(F) Place of performance of the services; or

(G) Other provisions of the contract accomplished by mutual action of the parties to the contract.

(2) Adjustments of price or time for performance. If any modification increases or decreases the contractor's cost of, or the time required for, performance of any part of the work under this contract, an adjustment shall be made and the contract modified in writing accordingly. Any adjustment in contract price made pursuant to this clause shall be determined, where applicable, in accordance with the price adjustment clause of this contract or as negotiated.

(3) Claim barred after final payment. No claim by the contractor for an adjustment hereunder shall be allowed if the claim is not received by the procurement officer prior to final payment under this contract.

(4) Other claims not barred. In the absence of such a contract modification, nothing in this clause shall be deemed to restrict the contractor' s right to pursue a claim under the contract or for a breach of contract."

History

• [Eff 12/15/95; am and comp 11/17/97; am AUG 24 2009] (Auth: HRS §§ 103D-202, 103D-501) (Imp: HRS § 103D-501)

Haw. Code R. § 3-125-4 Changes for construction contracts

The following paragraph, or similar statement expressing the intent of this paragraph, shall be included in all construction contracts:

"Changes Clause

(1) Change order. The procurement officer, at any time, and without notice to any surety, in a signed writing designated or indicated to he a change order, may make changes in the work within the scope of the contract as may be found to be necessary or desirable. Such changes shall not invalidate the contract or release the sureties, and the contractor will perform the work as changed, as though it had been part of the original contract. Minor changes in the work may be directed by the procurement officer with no change in contract price or time of performance.

(2) Adjustments of price or time for performance. If any change order increases or decreases the contractor's cost of, or the time required for, performance of any part of the work under this contract, whether or not changed by the order, an adjustment may be made and the contract modified in writing accordingly.

(A) Any adjustment in contract price made pursuant to this clause shall be determined in accordance with the price adjustment clause included pursuant to section 3-125-13. Failure of the parties to agree to an adjustment in contract price shall be resolved in accordance with the price adjustment clause included pursuant to section 3-125-13(1)(E);

(B) Failure of the parties to agree to an adjustment in time shall not excuse a contractor from proceeding with the contract as changed, provided that the procurement officer, within fourteen days after the changed work commences, makes such provisional adjustments in time as the procurement officer deems reasonable.

The right of the contractor to dispute the contract price or time required for performance or both shall not be waived by its performing the work, provided however, that it follows the written notice requirements for disputes and claims established by the contract.

(3) Time period for claim. Within thirty days after receipt of a written change order under paragraph (1) of this clause, unless such period is extended by the procurement officer in writing, the contractor shall file a notice of intent to assert a claim for an adjustment. The requirement for filing a timely written notice cannot be waived and shall be a condition precedent to the assertion of a claim.

(4) Claim barred after final payment. No claim by the contractor for an adjustment hereunder shall be allowed if written notice is not given prior to final payment under this contract.

(5) Other claims not barred. In the absence of such a change order, nothing in this clause shall restrict the contractor's right to pursue a claim arising under the contract or for breach of contract."

History

• [Eff 12/15/95; am and comp 11/17/97; am AUG 24 2009] (Auth: HRS §§ 103D-202, 103D-501) (Imp: HRS § 103D-501)

Haw. Code R. § 3-125-5 Authorization for a stop work order for goods and services contracts

(a) The paragraphs, or similar statements expressing the intent of the paragraphs set forth in section 3-125-6, shall be included in any fixed-price contract for goods and services under which work stoppage may be required for reasons such as advancements in the state of the art, production modifications, engineering changes, or realignment of programs.

(b) Because stop work orders may result in increased cost by reason of standby costs, the orders shall be issued only with prior approval of the chief procurement officer, the head of a purchasing agency, or designees of either officer. Generally, use of a stop work order will be limited to situations in which it is advisable to suspend work pending a decision to proceed and a supplemental agreement providing for the suspension is not feasible. A stop work order may not be used in lieu of the issuance of a termination notice after a decision to terminate has been made.

(c) Stop work orders shall not exceed sixty consecutive days and shall include, as appropriate:

(1) A clear description of the work to be suspended;

(2) Instructions as to the issuance of further orders by the contractor for material or services;

(3) Guidance as to action to be taken on subcontracts; and

(4) Other instructions and suggestions to the contractor for minimizing costs.

(d) Promptly after issuance, stop work orders should be discussed with the contractor and should be modified, if necessary, in light of such discussions.

(e) As soon as feasible after a stop work order is issued:

(1) The contract will be terminated; or

(2) The stop work order will be canceled or extended in writing beyond the period specified in the order.

(f) In any event, whether the contract is terminated or the stop work order is extended, action must be taken before the specified stop work period expires. If an extension of the stop work order is necessary, it must be evidenced by a supplemental agreement. Any cancellation of a stop work order shall be subject to the same approvals as were required for the fussiness of the order.

History

• [Eff 12/15/95; am and comp NOV 17 1997] (Auth: HRS §§ 103D-202, 103D-501) (Imp: HRS § 103D-501)

Haw. Code R. § 3-125-6 Stop work orders for goods and services contracts

The following paragraphs, or similar statements expressing the intent of these paragraphs, shall be included in all goods and services contracts:

(1) "Order to stop work. The procurement officer, may, by written order to the contractor, at any time, and without notice to any surety, require the contractor to stop all or any part of the work called for by this contract. This order shall be for a specified period not exceeding sixty days after the order is delivered to the contractor, unless the parties agree to any further period. Any order shall be identified specifically as a stop work order issued pursuant to this section. Upon receipt of an order, the contractor shall forthwith comply with its terms and take all reasonable steps to minimize the occurrence of costs allocable to the work covered by the order during the period of work stoppage. Before the stop work order expires, or within any further period to which the parties shall have agreed, the procurement officer shall either:

(A) Cancel the stop work order; or

(B) Terminate the work covered by the order as provided in the 'termination for default clause or the 'termination for convenience clause' of this contract."

(2) "Cancellation or expiration of the order. If a stop work order issued under this section is canceled at any time during the period specified in the order, or if the period of the order or any extension thereof expires, the contractor shall have the right to resume work. An appropriate adjustment shall be made in the delivery schedule or contract price, or both, and the contract shall be modified in writing accordingly, if:

(A) The stop work order results in an increase in the time required for, or in the contractor's cost properly allocable to, the performance of any part of this contract; and

(B) The contractor asserts a claim for an adjustment within thirty days after the end of the period of work stoppage; provided that, if the procurement officer decides that the facts justify the action, any claim asserted may be received and acted upon at any time prior to final payment under this contract."

(3) "Termination of stopped work. If a stop work order is not canceled and the work covered by the order is terminated for default or convenience, the reasonable costs resulting from the stop work order shall be allowable by adjustment or otherwise."

(4) "Adjustment of price. Any adjustment in contract price made pursuant to this clause shall be determined in accordance with the price adjustment clause of this contract."

History

• [Eff 12/15/95; am and comp NOV 17 1997] (Auth: HRS §§ 103D-202, 103D-501) (Imp: HRS § 103D-501)

Haw. Code R. § 3-125-7 Suspension of work for construction contracts

The following paragraphs, or similar statements expressing the intent of these paragraphs, shall be included in all construction contracts:

(1) "Suspension of work. The procurement officer may, by written order, suspend the performance of the work, either in whole or in part for periods as the procurement officer may deem necessary for any cause, including but not limited to:

(A) Weather or soil conditions considered unsuitable for prosecution of the work;

(B) Failure on the part of the contractor to:

(i) Correct conditions unsafe for the general public or for the workers;

(ii) Carry out orders given by the procurement officer;

(iii) Perform the work in strict compliance with the provisions of the contract; or

(iv) Provide adequate supervision on the jobsite.

(C) Whenever a redesign that may affect the work is deemed necessary by the procurement officer;

(D) Unacceptable noise or dust arising from the construction even if it does not violate any law or regulation; or

(E) The convenience of the State."

(2) "Partial and total suspension. Suspension of work on some but not all items of work shall be considered a "partial suspension". Suspension of work on all items shall be considered "total suspension". The period of suspension shall be computed from the date set out in the written order for work to cease until the date of the order for work to resume."

(3) "Reimbursement to contractor. In the event that the contractor is ordered by the procurement officer in writing as provided herein to suspend all work under the contract in accordance with subparagraph (C), (D), or (E) of the "suspension of work" paragraph, the contractor may be reimbursed for actual money expended towards the project during the period of suspension. No allowance will be made for anticipated profits."

(4) "Cost adjustment. If the performance of all or part of the work is suspended for reasons beyond the control of the contractor, an adjustment shall be made for any increase in the cost of performance of this contract (excluding profit) necessarily caused by such suspension, and the contract modified in writing accordingly. However, no adjustment shall be made under this clause for any suspension:

(A) To the extent that performance would have been so suspended, delayed, or interrupted by any other cause, including the fault or negligence of the contractor; or

(B) For which an adjustment is provided for or excluded under any other provision of this contract."

(5) "Claims for adjustment. Any adjustment in contract price made pursuant to this clause shall be determined in accordance with the provisions on changes and claims for adjustment. Claims for compensation shall be filed in writing with the procurement officer within thirty days after the date of the order to resume work or the claims will not be considered. Together with the claim, the contractor shall submit substantiating documents covering the entire amount shown on the claim. The procurement officer shall take the claim under consideration, may make such investigations as are deemed necessary, and shall be the sole judge as to the equitability of the claim. The procurement officer's decision shall be final."

(6) "No adjustment. No provision of this clause shall entitle the contractor to any adjustments for delays due to failure of surety, for suspensions made at the request of the contractor, for any delay required under the contract, for suspensions, either partial or whole, made by the procurement officer under subparagraph B of the "suspension of work" paragraph."

History

• [Eff 12/15/95; am and comp NOV 17 1997] (Auth: HRS §§ 103D-202, 103D-501) (Imp: HRS § 103D-501)

Haw. Code R. § 3-125-8 Variations in quantities for definite quantity goods and services contracts

The following statement, or similar statements expressing the same intent, shall be included in definite quantity goods or services contracts:

"Variation in quantity. Upon the agreement of the parties, the quantity of goods or services or both specified in this contract may be increased by a maximum of ten per cent provided (1) the unit prices will remain the same except for any price adjustments otherwise applicable and (2) the procurement officer makes a written determination that such an increase will either be more economical than awarding another contract or that it would not be practical to award, .another contract."

History

• [Eff 12/15/95; comp NOV 17 1997] (Auth: HRS §§ 103D-202, 103D-501) (Imp: HRS § 103D-501)

Haw. Code R. § 3-125-9 Variations in quantities for indefinite quantity goods and services contracts

No statements are provided in this section, because in indefinite quantity contracts, the flexibility as to the State's obligation to order and the contractor's obligation to deliver should be designed to meet using agency needs, while still making the contract as attractive as possible to potential contractors, to obtain maximum practicable competition and to assure the best economy for the State. However, in each case, the contract should state:

(1) The minimum quantity, if any, the state is obligated to order and the contractor is to provide;

(2) Whether there is a quantity the State expects to order and how this quantity relates to any minimum and maximum quantities that may be ordered under the contract;

(3) Any maximum quantity the State may order and the contractor must provide; and

(4) Whether the State is obligated to order its actual requirements under the contract, or in the case of a multiple award as defined in section 3-122-145, that the State will order its actual requirements from the contractors under the multiple award subject to any minimum or maximum quantity stated.

History

• [Eff 12/15/95; comp NOV 17 1997] (Auth: HRS §§ 103D-202, 103D-501) (Imp: HRS §§ 103D-322, 103D-501)

Haw. Code R. § 3-125-10 Variations in estimated quantities for construction contracts

The following paragraphs, or similar statements expressing the intent of these paragraphs, shall be included only in those construction contracts which contain estimated quantity items:

(1) "Variations requiring adjustments. Where the quantity of a pay item in this contract is an estimated quantity and where the actual quantity of such pay item varies more than fifteen per cent above or below the estimated quantity stated in this contract, an adjustment in the contract price shall be made upon demand of either party. The adjustment shall be based upon any increase or decrease in costs due solely to the variation above one hundred fifteen per cent or below eighty-five per cent of the estimated quantity. If the quantity variation is such as to cause an increase in the time necessary for completion, the procurement officer shall, upon receipt of a timely written request for an extension of time, prior to final payment of the contract, ascertain the facts and make such adjustment for extending the completion date as in the judgment of the procurement officer the findings justify."

(2) "Adjustment of price. Any adjustment in contract price shall be determined in accordance with the price adjustment provisions of this chapter."

History

• [Eff 12/15/95; am and comp NOV 17 1997] (Auth: HRS §§ 103D-202, 103D-501) (Imp: HRS § 103D-501)

Haw. Code R. § 3-125-11 Differing site conditions for construction contracts

Paragraph (1) or similar statements expressing the same intent, shall be included in all construction contracts in which the procurement officer determines that the contractor should not accept the risk of differing site conditions. Where the procurement officer determines that a contractor must accept the risk of differing site conditions, the clause in paragraph (2), or similar statement expressing the intent of the clause, shall be included.

(1) "Differing site conditions - price adjustments.

(A) Notification. The contractor shall promptly, and before such conditions are disturbed, notify the procurement officer of:

(i) Subsurface or latent physical conditions at the site differing materially from those indicated in this contract; or

(ii) Unknown physical conditions at the site, of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this contract.

(B) Adjustments of price or time for performance. After receipt of the notice, the procurement officer shall promptly investigate the site, and if it is found that the conditions do materially so differ and cause an increase in the contractor's cost of, or the time required for, performance of any part of the work under this contract, whether or not changed as a result of the conditions, an adjustment shall be made and the contract modified in writing accordingly. Any adjustment in contract price made pursuant to this clause shall be determined in accordance with the price adjustment clause of this contract.

(C) Timeliness of claim. No claim of the contractor under this clause shall be allowed unless the contractor has given the notice required in this clause; provided, however, that the time prescribed therefore may be extended by the procurement officer in writing.

(D) No claim after final payment. No claim by the contractor for an adjustment thereunder shall be allowed if asserted after final payment under this contract.

(E) Knowledge. Nothing contained in this clause shall be grounds for an adjustment in compensation if the contractor had actual knowledge of the existence of such conditions prior to the submission of bids."

(2) "Differing site conditions - contractor's responsibility. The contractor accepts the conditions at the construction site as they eventually may be found to exist and warrants and represents that the contract can and will be performed under such conditions, and that all materials, equipment, labor, and other facilities required because of any unforeseen conditions (physical or otherwise) shall be wholly at the contractor's own cost and expense, anything in this contract to the contrary notwithstanding."

History

• [Eff 12/15/95; am and comp NOV 17 1997] (Auth: HRS §§ 103D-202, 103D-501) (Imp: HRS § 103D-501)

Haw. Code R. § 3-125-12 Price adjustment for goods and services contracts

The following paragraph or similar statement expressing the intent of this paragraph, shall be included in all contracts for goods and services for which price adjustments will be allowed:

"Price Adjustment Clause

(1) Price adjustment methods. Any adjustment in contract price pursuant to a clause in this contract shall be made in one or more of the following ways:

(A) By agreement on a fixed price adjustment before commencement of the pertinent performance;

(B) By unit prices specified in the contract or subsequently agreed upon before commencement of the pertinent performance;

(C) By the costs attributable to the events or situations under such clauses with adjustment of profit or fee, all as specified in the contract or subsequently agreed upon before commencement of the pertinent performance;

(D) In any other manner as the contracting parties may mutually agree upon before commencement of the pertinent performance; or

(E) In the absence of agreement between the parties, the provisions of section 103D-501(b)(5), HRS, shall apply.

(2) Submission of cost or pricing data. The contractor shall be required to submit cost or pricing data if any adjustment in contract price is subject to the provisions of section 103D-312, HRS. The submission of any cost or pricing data shall be made for any price adjustment subject to the provisions of subchapter 15, chapter 3-122. A fully executed change order or other document permitting billing for the adjustment in price under any method listed in paragraph (1)(A) through (1)(D) shall be issued within ten days after agreement on the method of adjustment."

History

• [Eff 12/15/95; comp 11/17/97; am AUG 24 2009] (Auth: HRS §§ 103D-202, 103D-501) (Imp: HRS §§ 103D-312, 103D-501, 103D-601, 103D-703)

Haw. Code R. § 3-125-13 Price adjustment for construction contracts

(a) The paragraphs in this subsection, or similar statements expressing the intent of these paragraphs, shall be included in all applicable construction contracts for which price adjustments will be allowed:

(1) "Price adjustment. Any adjustment in contract price pursuant to a clause in this contract shall be made in one or more of the following ways:

(A) By agreement on a fixed price adjustment before commencement of the pertinent performance or as soon thereafter as practicable ;

(B) By unit prices specified in the contract or subsequently agreed upon;

(C) Whenever there is a variation in quantity for any work covered by any line item in breakdown costs provided by the contractor pursuant to contractual pre-work submittal requirements, by the procurement officer, at the procurement officer's discretion, adjusting the lump sum price proportionately;

(D) In such other manner as the parties may mutually agree;

(E) At the sole option of the procurement officer, by the costs attributable to the event or situation covered by the change, plus appropriate profit or fee; or

(F) In the absence of agreement between the parties, by a unilateral determination by the procurement officer of the costs attributable to the event or situation covered by the clause, plus appropriate profit or fee, all as computed by the procurement officer in accordance with generally accepted accounting principles and applicable sections of chapters 3-123 and 3-126."

(2) "Determining the cost or credit. In determining the cost or credit to the State resulting from a change, the allowances for all overhead, extended overhead resulting from adjustments to contract time (including home office and field overhead) and profit combined, shall not exceed the percentages set forth below:

(A) For the contractor, for any work performed by its own labor forces, fifteen per cent of the cost;

(B) For each subcontractor involved, for any work performed by its own forces, fifteen per cent of the cost;

(C) For the contractor or any subcontractor, " for work performed by their subcontractors, seven per cent of the amount due the performing subcontractor."

(3) "Percentages for fee and overhead. Not more than three line item percentages for fee and overhead, not to exceed the maximum percentages shown above, will be allowed regardless of the number of tier subcontractors."

History

• [Eff 12/15/95; am and comp NOV 17 1997 ] (Auth: HRS §§ 103D-202, 103D-5O1) (Imp: HRS §§ 103D-501, 103D-601, 103D-703)

Haw. Code R. § 3-125-14 Novation, or change of name

The following paragraphs are authorized for use in all contracts:

(1) "No assignment. No State contract is transferable, or otherwise assignable, without the written consent of the chief procurement officer or the head of a purchasing agency provided that a contractor may assign monies receivable under a contract after due notice to the State."

(2) "Recognition of a successor in interest; assignment. When in the best interest of the State, a successor in interest may be recognized in an assignment agreement in which the transferor, the transferee and the State shall agree that:

(A) The transferee assumes all of the transferor's obligations;

(B) The transferor remains liable for all obligations under the contract but waives all rights under the contract as against the State; and

(C) The transferor shall continue to furnish, and the transferee shall also furnish, all required bonds."

(3) "Change of name. When a contractor requests to change the name in which it holds a contract with the State, the procurement officer responsible for the contract shall, upon receipt of a document indicating such change of name (for example, an amendment to the articles of incorporation of the corporation), enter into an agreement with the requesting contractor to effect such a, change of name. The agreement changing the name shall specifically indicate that no other terms and conditions of the contract are thereby changed."

History

• [Eff 12/15/95; am and comp NOV 17 1997] (Auth: HRS §§ 103D-202, 103D-501) (Imp: HRS § 103D-501)

Haw. Code R. § 3-125-15 Claims based on a procurement officer's actions or omissions for goods and services contracts

The following paragraphs, or similar statements expressing the intent of the paragraphs, shall be included in all goods and services contracts:

(1) " "Claims based on a procurement officer's actions or omissions. If any action or omission on the part of a procurement officer or designee of the officer, requiring performance changes within the scope of the contract constitutes the basis for a claim by the contractor for additional compensation, damages, or an extension of time for completion, the contractor shall continue with performance of the contract in compliance with the directions or orders of such officials, but by so doing, the contractor shall not be deemed to have prejudiced any claim for additional compensation, damages, or an extension of time for completion; provided:

(A) The contractor shall have given written notice to the procurement officer or designee of the officer:

(i) Prior to the commencement of the work involved, if at that time the contractor knows of the occurrence of the action or omission;

(ii) Within thirty days after the contractor knows of the occurrence of the action or omission, if the contractor did not have knowledge prior to the commencement of the work; or

(iii) Within further time as may be allowed by the procurement officer in writing.

(B) This notice shall state that the contractor regards the act or omission as a reason which may entitle the contractor to additional compensation, damages, or an extension of time. The procurement officer or designee of the officer, upon receipt of the notice may rescind the action, remedy the omission, or take other steps as may be deemed advisable in the discretion of the procurement officer or designee of the officer;

(C) The notice required by subparagraph (A) describes as clearly as practicable, at the time, the reasons why the contractor believes that additional compensation, damages, or an extension of time may be remedies to which the contractor is entitled; and

(D) The contractor maintains and, upon request, makes available to the procurement officer within a reasonable time, detailed records to the extent practicable, of the claimed additional costs or basis for an extension of time in connection with the changes.

(2) "Nothing herein contained, however, shall excuse the contractor from compliance with any rules of law precluding any state officers and any contractors from acting in collusion or bad faith in issuing or performing change orders which are clearly not within the scope of the contract."

(3) "Any adjustment in the contract price made pursuant to this clause shall be determined in accordance with the price adjustment clause of this contract."

History

• [Eff 12/15/95; am and comp NOV 17 1997] (Auth: HRS §§ 103D-202, 103D-501) (Imp: HRS § 103D-501)

Haw. Code R. § 3-125-16 Claims based on oral directives for construction contracts

The following paragraphs, or similar statements expressing the intent of these paragraphs, shall be included in all construction contracts:

(1) "Any oral order, direction, instruction, interpretation, or determination from the procurement officer which, in the opinion of the contractor, causes any change, can be considered as a change only if the contractor gives the procurement officer written notice of its intent to treat the oral order, direction, instruction, interpretation, or determination as a change directive. The written notice must be delivered to the procurement officer before the contractor acts in conformity with the oral order, direction, instruction, interpretation, or determination, but not more than five days after delivery of the oral order to the contractor. The written notice shall state the date, circumstances, whether a time extension will be requested, and source of the order that the contractor regards as a change. The written notice may not be waived and shall be a condition precedent to the filing of a claim by the contractor. Unless the contractor acts in accordance with this procedure, any oral order shall not be treated as a change and the contractor waives any claim for an increase in the contract time or contract price related to the work."

(2) "Not more than five days after receipt of the written notice from the contractor, the procurement officer shall issue a change order for the subject work if the procurement officer agrees that it constitutes a change. If no change order is issued in the time established, it shall be deemed a rejection of the contractor's claim for a change. If the contractor objects to the procurement officer's refusal to issue a change order, it shall file a written protest with the procurement officer within thirty days after delivery to the procurement officer of the contractor's written notice of its intention to treat the oral order as a change. In all cases the contractor shall proceed with the work. The protest shall be determined as provided in the disputes and claims section of the contract."

History

• [Eff 12/15/95; am and Comp NOV 17 1997] (Auth: HRS §§ 103D-202, 103D-501) (Imp: HRS § 103D-501)

Haw. Code R. § 3-125-17 Termination for default in goods and services contracts

The following paragraphs, or similar statements expressing the intent of these paragraphs, shall be included in all goods and services contracts:

(1) "Default. If the contractor refuses or fails to perform any of the provisions of this contract with such diligence as will ensure its completion within the time specified in this contract, or any extension thereof, otherwise fails to timely satisfy the contract provisions, or commits any other substantial breach of this contract, the procurement officer may notify the contractor in writing of the delay or non-performance, and if not cured in ten days or any longer time specified in writing by the procurement officer, the officer may terminate the contractor's right to proceed with the contract or a part of the contract as to which there has been delay or other breach of contract. In the event of termination in whole or in part, the procurement officer may procure similar goods or services in a manner and upon terms deemed appropriate by the procurement officer. The contractor shall continue performance of the contract to the extent it is not terminated and shall be liable for excess costs incurred in procuring similar goods or services."

(2) "Contractor's duties. Notwithstanding termination of the contract and subject to any directions from the procurement officer, the contractor shall take timely and necessary action to protect and preserve property in the possession of the contractor in which the state or county has an interest."

(3) "Compensation. Payment for completed goods delivered and accepted by the State shall be at the contract price. Payment for the protection and preservation of property shall be in an amount agreed upon by the contractor and procurement officer; if the parties fail to agree, the procurement officer shall set an amount subject to the contractor's rights under chapter 3-126. The State may withhold from amounts due the contractor as the procurement officer deems to be necessary to protect the State against loss because of outstanding liens or claims of former lien holders and to reimburse the State for the excess costs incurred in procuring similar goods and services."

(4) "Excuse for nonperformance or delayed performance. Except with respect to defaults of subcontractors, the contractor shall not be in default by reason of any failure in performance of this contract in accordance with its terms, if the contractor has notified the procurement officer within fifteen days after the cause of the delay and the failure arises out of causes including but not limited to the following: acts of God; acts of the public enemy; acts of the State and any other governmental body in its sovereign or contractual capacity; fires; floods; epidemics; quarantine restrictions; strikes or other labor disputes; freight embargoes; or unusually severe weather. If the failure to perform is caused by the failure of a subcontractor to perform or to make progress, and if the failure arises out of causes similar to those set forth above, the contractor shall not be deemed to be in default, unless the goods or services to be furnished by the subcontractor were obtainable from other sources in sufficient time to permit the contractor to meet the contract requirements. Upon request of the contractor, the procurement officer shall ascertain the facts and extent of the failure, and, if the officer determines that any failure to perform was occasioned by any one or more of the excusable causes, and that, but for the excusable cause, the contractor's progress and performance would have met the terms of the contract, the delivery schedule shall be revised accordingly, subject to the rights of the State under the clause entitled in fixed-price contracts, 'Termination for Convenience' and in cost-reimbursement contracts, 'Termination'. As used in this paragraph, the term 'subcontractor' means subcontractor at any tier."

(5) "Additional rights and remedies. The rights and remedies provided in this contract are in addition to any other rights and remedies provided by law."

History

• [Eff 12/15/95; am and Comp NOV 17 1997] (Auth: HRS §§ 103D-202, 103D-501) (Imp: HRS § 103D-501)

Haw. Code R. § 3-125-18 Default, delay, and time extensions for construction contracts

The following paragraphs, or similar statements expressing the intent of these paragraphs, shall be included in all construction contracts:

(1) "Default. If the contractor refuses or fails to perform the work, or any separable part thereof, with such diligence as will assure its completion within the time specified in this contract, or any extension thereof, fails to complete the worK within such time, or commits any other substantial breach of this contract, and further fails within seven days after receipt of written notice from the procurement officer to commence and continue correction of the refusal or failure with diligence and promptness, the procurement officer may, by written notice to the contractor, declare the contractor in breach and terminate the contractor's right to proceed with the work or the part of the work as to which there has been delay or other breach of contract. In that event, the State may take over the work and perform the same to completion, by contract or otherwise, and may take possession of, and utilize in completing the work, the materials, appliances, and plant as may be on the site of the work and necessary therefor. Whether or not the contractor's right to proceed with the work is terminated, the contractor and the contractor's sureties shall be liable for any damage to the State resulting from the contractor's refusal or failure to complete the work within the specified time."

(2) "Liquidated damages upon termination. If fixed and agreed liquidated damages are provided in the contract, and if the State so terminates the contractor's right to proceed, the resulting damage will consist of the liquidated damages for the time as may be required for final completion of the work."

(3) "Liquidated damages in absence of termination. If fixed and agreed liquidated damages are provided in the contract, and if the State does not terminate the contractor's right to proceed, the resulting damage will consist of liquidated damages until the work is completed or accepted."

(4) "Time extension. The contractor's right to proceed shall not be so terminated nor shall the contractor be charged with resulting damage if:

(A) The delay in the completion of the work arises from causes such as: acts of God; acts of the public enemy; acts of the State and any other governmental entity in either a sovereign or contractual capacity; acts of another contractor in the performance of a contract with the State; fires; floods; epidemics; quarantine restrictions; strikes or other labor disputes; freight embargoes; unusually severe weather; delays of subcontractors due to causes similar to those set forth above; or shortage of materials; provided, however, that no extension of time will be granted for a delay caused by a shortage of materials, unless the contractor furnishes to the procurement officer proof that the contractor has diligently made every effort to obtain the materials from all known sources, and further proof that the inability to obtain the materials when originally planned did in fact cause a delay in final completion of the entire work which could not be compensated for by revising the sequence of the contractor's operations; and

(B) The contractor, within ten days from the beginning of the delay (unless the procurement officer grants a further period of time before the date of final payment under the contract), notifies the procurement officer in writing of the causes of delay. The procurement officer shall ascertain the facts and the extent of the delay and extend the time for completing the work when, in the judgment of the procurement officer, the findings of fact justify such an extension."

(5) "Additional rights and remedies. The rights and remedies of the State provided in this contract are in addition to any other rights and remedies provided by law."

History

• [Eff 12/15/95; am and comp NOV 17 1997] (Auth: HRS §§ 103D-202, 103D-501) (Imp: HRS § 103D-501)

Haw. Code R. § 3-125-19 Liquidated damages for goods and services contracts

The following statement captioned "Liquidated damages" may be used in goods or services contracts when it is difficult to determine with reasonable accuracy the amount of damage to the State due to delays caused by late contractor performance or nonperformance and the contract contains the termination for default clause set forth in section 3-125-17:

"Liquidated damages. When the contractor is given notice of delay or nonperformance as specified in section 3-125-17(1) of the termination for default clause of this contract and fails to cure in the time specified, the contractor shall pay to the State the amount of $_________ per calendar day from date set for cure until either the State reasonably obtains similar goods or services if the contractor is terminated for default, or until the contractor provides the goods or services if the contractor is not terminated for default. To the extent that the contractor's delay or nonperformance is excused under section 3-125-17(4), excuse for nonperformance or delayed performance of the termination for default clause of this contract, liquidated damages shall not be due the State. The contractor remains liable for damages caused other than by delay."

History

• [Eff 12/15/95; am and comp NOV 17 1997] (Auth: HRS §§ 103D-202, 103D-501) (imp: HRS § 103D-501)

Haw. Code R. § 3-125-20 Liquidated damages for construction contracts

The following statement captioned "Liquidated damages" may be used in construction contracts when it is difficult to determine with reasonable accuracy damage to the State due to delays cause by late contractor performance or nonperformance:

"Liquidated damages. When the contractor fails to complete the work or any portion of the work within the time or times fixed in the contract or any extension thereof, it is agreed the contractor shall pay to the State the amount of [$ ] per calendar day of delay."

History

• [Eff 12/15/95; comp NOV 17 1997] (Auth: HRS §§ 103D-202, 103D-501) (Imp: HRS § 103D-501)

Haw. Code R. § 3-125-21 Termination for convenience of goods and services contracts

The following paragraphs, or similar statements expressing the intent of these paragraphs, shall be included in all goods and services contracts:

(1) "Termination for convenience. The procurement officer may, when the interests of the State so require, terminate this contract in whole or in part, for the convenience of the State. The procurement officer shall give written notice of the termination to the contractor, specifying the part of the contract terminated and when termination becomes effective."

(2) "Contractors obligations. The contractor shall incur no further obligations in connection with the terminated work, and on the dates set in the notice of termination the contractor will stop work to the extent specified. The contractor shall also terminate outstanding orders and subcontracts as they relate to the terminated work. The contractor shall settle the liabilities and claims arising out of the termination of subcontracts and orders connected with the terminated work subject to the State's approval. The procurement officer may direct the contractor to assign the contractor's right, title, and interest under terminated orders or subcontracts to the State. The contractor must still complete the work not terminated by the notice of termination and may incur obligations as are necessary to do so."

(3) "Right to goods. The procurement officer may require the contractor to transfer title and deliver to the State in the manner and to the extent directed by the procurement officer:

(A) Any completed goods; and

(B) The partially completed goods and materials, parts, tools, dies, jigs, fixtures, plans, drawings, information, and contract rights, hereinafter called "manufacturing material," as the contractor has specifically produced or specially acquired for the performance of the terminated part of this contract. The contractor shall, upon direction of the procurement officer, protect and preserve property in the possession of the contractor in which the State has an interest. If the procurement officer does not exercise this right, the contractor shall use the contractor's best efforts to sell the goods and manufacturing materials. Use of this section in no way implies that the State has breached the contract by exercise of the termination for convenience clause."

(4) "Compensation:

(A) The contractor shall submit a termination claim specifying the amounts due because of the termination for convenience together with cost or pricing data to the extent required by subchapter 15, chapter 3-122, bearing on the claim. If the contractor fails to file a termination claim within one year from the effective date of termination, the procurement officer may pay the contractor, if at all, an amount set in accordance with subparagraph (C).

(B) The procurement officer and the contractor may agree to settlement provided the contractor has filed a termination claim supported by cost or pricing data to the extent required by subchapter 15, chapter 3-122, and that the settlement does not exceed the total contract price plus settlement costs reduced by payments previously made by the State, the proceeds of any sales of goods and manufacturing materials under subparagraph (3) of this clause, and the contract price of the work not terminated.

(C) Absent complete agreement under subparagraph (B), the procurement officer shall pay the contractor the following amounts, provided payments agreed to under subparagraph (B) shall not duplicate payments under this subparagraph for the following:

(i) Contract prices for goods or services accepted under the contract;

(ii) Costs incurred in preparing to perform and performing the terminated portion of the work plus a five per cent markup on actual direct costs on the portion of the work, the markup shall not include anticipatory profit or consequential damages, less amounts paid or to be paid for accepted goods or services; provided that if it appears that the contractor would have sustained a loss if the entire contract would have been completed, no markup shall be allowed or included and the amount of compensation shall be reduced to reflect the anticipated rate of loss;

(iii) Subject to the prior approval of the procurement office the costs of settling and paying claims arising out of the termination of subcontracts or orders pursuant to paragraph (2). Subcontractors shall be entitled to a markup of no more than ten per cent on direct costs incurred to the date of termination. These costs must not include costs paid in accordance with clause (ii) of subparagraph (C).

(iv) The total sum to be paid the contractor under this subparagraph shall not exceed the total contract price reduced by the amount of payments otherwise made, the proceeds of any sales of supplies and manufacturing materials under subparagraph (B), and the contract price of work not terminated.

(D) Cost claimed, agreed to, or established under subparagraphs (B) and (C) shall be in accordance with chapter 3-123."

History

• [Eff 12/15/95; am and comp NOV 17 1997] (Auth: HRS §§ 103D-202, 103D-501) (Imp: HRS §§ 103D-312, 103D-501, 103D-601)

Haw. Code R. § 3-125-22 Termination for convenience of construction contracts

The following paragraphs, or similar statements expressing the intent of these paragraphs, shall be included in all construction contracts:

(1) "Terminations. The procurement officer may, when the interests of this State so require, terminate this contract in whole or in part, for the convenience of the State. The procurement officer shall give written notice of the termination to the contractor specifying the part of the contract terminated and when termination becomes effective."

(2) "Contractor's obligations. The contractor shall incur no further obligations in connection with the terminated work, and on the date set in the notice of termination the contractor will stop work to the extent specified. The contractor shall also terminate outstanding orders and subcontracts as they relate to the terminated work. The contractor shall settle the liabilities and claims arising out of the termination of subcontracts and orders connected with the terminated work subject to the State's approval. The procurement officer may direct the contractor to assign the contractor's right, title, and interest under terminated orders or subcontracts to the State. The contractor must still complete the work not terminated by the notice of termination and may incur obligations as necessary to do so."

(3) "Right to construction and goods. The procurement officer may require the contractor to transfer title and deliver to the State in the manner and to the extent directed by the procurement officer:

(A) Any completed constructions; and

(B) The partially completed construction, goods, materials, parts, tools, dies, jigs, fixtures, plans, drawings, information, and contract rights (hereinafter called "construction material") as the contractor has specifically produced or specially acquired for the performance of the terminated part of this contract.

The contractor shall protect and preserve property in the possession of the contractor in which the State has an interest. If the procurement officer does not exercise this right, the contractor shall use the contractor's best efforts to sell the construction, goods, and construction materials in accordance with the standards of section 490:2-706, HRS. This in no way implies that the State has breached the contract by exercise of the termination for convenience clause."

(4) "Compensation.

(A) The contractor shall submit a termination claim specifying the amounts due because of the termination for convenience together with cost or pricing data, submitted to the extent required by subchapter 15, chapter 3-122, bearing on such claim. If the contractor fails to file a termination claim within one year from the effective date of termination, the procurement officer may pay the contractor, if at all, an amount set in accordance with clause (ii) of subparagraph (C).

(B) The procurement officer and the contractor may agree to a settlement provided the contractor has filed a termination claim supported by cost or pricing data submitted as required and that the settlement does not exceed the total contract price plus settlement costs reduced by payments previously made by the State, the proceeds of any sales of construction, goods, and construction materials under clause (iii) of subparagraph (C), and the contract price of the work not terminated.

(C) Absent complete agreement under subparagraph (B), the procurement officer shall pay the contractor the following amounts, provided payments under subparagraph (B) shall not duplicate payments under this paragraph, for the total (without duplication of any items) of:

(i) The cost of all contract work performed prior to the effective date of the notice of termination plus a five per cent markup on actual direct costs on the portion of the work (the markup shall not include anticipatory profit or consequential damages) less amounts paid or to be paid for completed portions of the work; provided, however, that if it appears that the contractor would have sustained a loss if the entire contract would have been completed, no markup shall be allowed or included and the amount of compensation shall be reduced to reflect the anticipated rate of loss;

(ii) Subject to the prior approval of the procurement officer, the costs of settling and paying claims arising out of the termination of subcontracts or orders pursuant to the "contractor's obligations" provisions of this contract. Subcontractors shall be entitled to a markup of no more than ten per cent on direct costs incurred to the date of termination. These costs must not include costs paid in accordance with clause (i);

(iii) The total sum to be paid the contractor under this paragraph shall not exceed the total contract price reduced by the amount of any sales of construction, goods, and construction materials under paragraph (3), and the contract price of work not terminated.

(D) Cost claimed, agreed to, or established under subparagraphs (B) and (C) shall be in accordance with chapter 3-123."

History

• [Eff 12/15/95; am and comp NOV 17 1997] (Auth: HRS §§ 103D-202, 103D-501) (Imp: HRS §§ 103D-312, 103D-501, 103D-601, 490:2-706)

Haw. Code R. § 3-125-23 Prompt payment by contractors to subcontractors

The following paragraph, or similar statement expressing the same intent, shall be included in all contracts:

"Prompt Payment Clause

(1) Generally Any money paid to a contractor shall be disbursed to subcontractors within ten days after receipt of the money in accordance with the terms of the subcontract; provided that the subcontractor has met all the terms and conditions of the subcontract and there are no bona fide disputes on which the procurement agency has withheld payment.

(2) Final payment. Upon final payment to the contractor, full payment to the subcontractor, including retainage, shall be made within ten days after receipt of the money; provided that there are no bona fide disputes over the subcontractor' s performance under the subcontract.

(3) Penalty. The procurement officer or the contractor, as applicable, will be subject to a penalty of one and one-half per cent per month upon outstanding amounts due that were not timely paid by the responsible party under the following conditions. Where a subcontractor has provided evidence to the contractor of satisfactorily completing all work under their subcontract and has provided a properly documented final payment request as described in paragraph (4), and:

(A) Has provided to the contractor an acceptable performance and payment bond for the project executed by a surety company authorized to do business in the State, as provided in section 103-32.1, HRS; or

(B) The following has occurred:

(i) A period of ninety days after the day on which the last of the labor was done or performed and the last of the material was furnished or supplied has elapsed without written notice of a claim given to contractor and the surety, as provided for in section 103D-324, HRS; and

(ii) The subcontractor has provided to the contractor, an acceptable release of retainage bond, executed by a surety company authorized to do business in the State, in an amount of not more than two times the amount being retained or withheld by the contractor; any other bond acceptable to the contractor; or any other form of mutually acceptable collateral, then, all sums retained or withheld from a subcontractor and otherwise due to the subcontractor for satisfactory performance under the subcontract shall be paid by the procurement officer to the contractor and subsequently, upon receipt from the procurement officer, by the contractor to the subcontractor within the applicable time periods specified in paragraph (2) and section 103-10, HRS. The penalty may be withheld from future payment due to the contractor, if the contractor was the responsible party. If a contractor has violated paragraph (2) three or more times within two years of the first violation, the contractor shall be referred by the procurement officer to the contractors license board for action under section 444-17(14), HRS.

(4) A properly documented final payment request from a subcontractor, as required by paragraph (3), shall include:

(A) Substantiation of the amounts requested;

(B) A certification by the subcontractor, to the best of the subcontractor's knowledge and belief, that:

(i) The amounts requested are only for performance in accordance with the specifications, terms, and conditions of the subcontract;

(ii) The subcontractor has made payments due to its subcontractors and suppliers from previous payments received under the subcontract and will make timely payments from the proceeds of the payment covered by the certification, in accordance with their subcontract agreements and the requirements of this section; and

(iii) The payment request does not include any amounts that the subcontractor intends to withhold or retain from a subcontractor or supplier in accordance with the terms and conditions of their subcontract; and

(C) The submission of documentation confirming that all other terms and conditions required under the subcontract agreement have been fully satisfied.

The procurement officer shall return any final payment request that is defective to the contractor within seven days after receipt, with a statement identifying the defect.

(5) In the case of a construction contract, a payment request made by a contractor to the procurement officer that includes a request for sums that were withheld or retained from a subcontractor and are due to a subcontractor may not be approved under paragraph (3) unless the payment request includes:

(A) Substantiation of the amounts requested; and

(B) A certification by the contractor, to the best of the contractor's knowledge and belief, that:

(i) The amounts requested are only for performance in accordance with the specifications, terms, and conditions of the contract;

(ii) The subcontractor has made payments due to its subcontractors and suppliers from previous payments received under the contract and will make timely payments from the proceeds of the payment covered by the certification, in accordance with their subcontract agreements and the requirements of this section; and

(iii) The payment request does not include any amounts that the contractor intends to withhold or retain from a subcontractor or supplier in accordance with the terms and conditions of their subcontract.

The procurement officer shall return any final payment request that is defective to the contractor within seven days after receipt, with a statement identifying the defect.

(6) This section shall not be construed to impair the right of a contractor or a subcontractor at any tier to negotiate and to include in their respective subcontracts provisions that provide for additional terms and conditions that are requested to be met before the subcontractor shall be entitled to receive final payment under paragraph (3); provided that any such payments withheld shall be withheld by the procurement officer."

History

• [Eff 12/15/95; am and comp 11/17/97; am AUG 24 2009] (Auth: HRS §§ 103D-202, 103D-501) (Imp; HRS § 103D-501)

Haw. Code R. § 3-125-24 Remedies clause

The following clause, or a similar statement expressing the intent of the clause, shall be included in all contracts:

"Remedies clause. Any dispute arising under or out of this contract is subject to chapter 3-126."

History

• [Eff 12/15/95; comp NOV 17 1997] (Auth: HRS §§ 103D-202, 103D-501) (Imp: HRS § 103D-501)

Chapter 126 LEGAL AND CONTRACTUAL REMEDIES

Subchapter 1 AUTHORITY TO RESOLVE PROTESTED

Haw. Code R. § 3-126-1 Definitions

(a) In addition to the definitions in section 103D-104, HRS, the following definitions also apply to this chapter:

"Award" means the written notification of the State's acceptance of a bid or proposal, or the presentation of a contract to the selected offeror.

"Person" includes individuals, partnerships, corporations, associations, or public or private organizations or any character other than a governmental body.

"Protestor" means any actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation or the award of a contract and who files a protest.

History

• [Eff 12/15/95; am and comp MAY 20 2004] (Auth: HRS § 103D-202, 103D-701) (Imp: HRS § 103D-701)

Haw. Code R. § 3-126-2 Repealed

History

• Eff 12/15/95; R

Haw. Code R. § 3-126-3 Filing of complaint and protest prior to receipt of offers

(a) Protestor initially should seek an informal resolution of the protestor's complaint with the procurement officer named in the solicitation.

(b) Protestor may file a protest pursuant to section 103D-701, HRS, prior to receipt of offers on any phase of a solicitation including, but not limited to, specifications or disclosure of information marked confidential in the bid or offer.

(c) To expedite handling of protests, the envelope should be labeled "Protest" and either served personally or sent by registered or certified mail, return receipt requested, to the chief procurement officer or as otherwise specified in the solicitation.

(d) The written protest shall include at a minimum the following:

(1) The name and address of the protestor;

(2) Appropriate identification of the procurement;

(3) A statement of reasons for the protest; and

(4) Supporting exhibits, evidence, or documents to substantiate any claims unless not available within the filing time in which case the expected availability date shall be indicated.

History

• [Eff 12/15/95; am and comp MAY 20 2004] (Auth: HRS § 103D-202, 103D-701) (Imp: HRS § 103D-701)

Haw. Code R. § 3-126-4 Protest of an award

(a) A protest of a award shall be submitted in writing to the chief procurement officer or as otherwise specified in the solicitation, within five working days after the posting of the notice of award for solicitations pursuant to section 103D-302 or 103D-303, HRS; provided a protest following a debriefing pursuant to section 103D-303(h), HRS, shall be submitting in writing within five working days after the debriefing is completed. The provisions of section 3-126-3(c) and (d) to file a protest shall be complied with. Heads of purchasing agencies shall not proceed with the award upon receipt of a timely protest, and shall comply with section 3-126-5.

(b) Protest of an award pursuant to section 103D-304, 103D-305, or 103D-306, HRS, shall be submitted in writing by the protestor to the procurement officer, within five working days of knowledge giving rise to the protest; provided a protest following a debriefing pursuant to section 103D-304(k), HRS, shall be submitted in writing within five working days after the debriefing is completed.

(1) A protest shall be filed in accordance with section 3-126-3(c) and (d), with supporting exhibits, evidence, or documents to substantiate the protest;

(2) A decision shall be made by the procurement officer as expeditiously as possible after reviewing all relevant information, and shall be final. A decision issued in resolution of a protest shall contain the following:

(A) A statement of the action to be taken or resolution to the protest; and

(B) A statement that the decision is final and conclusive.

History

• [Eff 12/15/95; am and comp MAY 20 2004] (Auth: HRS §§ 103D-202, 103D-701) (Imp: HRS § 103D-701)

Haw. Code R. § 3-126-5 Stay of procurements during protest

When a protest has been filed pursuant to section 3-126-3 or 3-126-4, no further action shall be taken until the protest has been settled,' unless the chief procurement officer makes a written determination, after consulting with the head of the purchasing agency, that the award of the contract is necessary to protect the substantial interests of the State.

History

• [Eff 12/15/95; am and comp MAY 20 2004] (Auth: HRS §§ 103D-202, 103D-701) (Imp: HRS § 103D-701)

Haw. Code R. § 3-126-6 Request for information

(a) Any additional information requested by any of the parties should be submitted within the time periods established by the requesting party in order to expedite consideration of the protest unless justification is provided for a delay. Unsubstantiated delays may result in resolution of the protest without consideration of any information which is not filed within the established time period.

(b) The chief procurement officer or designee shall, upon written request, make available to any interested party information submitted that bears on the substance of the protest except where information is proprietary, confidential, or otherwise permitted or required to be withheld by law or rules. Persons submitting information considered proprietary, confidential, or otherwise permitted or required to be withheld by law or rules shall request that the information be kept confidential by specifically identifying the information within documents submitted, and indicating on the front page of each document that it contains such information.

History

• [Eff 12/15/95; am and comp MAY 20 2004] (Auth: HRS §§ 103D-202, 103D-701) (Imp: HRS § 103D-701)

Haw. Code R. § 3-126-7 Decision by the chief procurement officer or designee

(a) A decision on a protest shall be made by the chief procurement officer or designee as expeditiously as possible after reviewing all relevant information, and shall be final.

(b) The protestor shall be informed:

(1) Whether the protest is denied or sustained; and

(2) If the protest is denied, the protestor's right to an administrative proceeding pursuant to subchapter 5.

(c) The protestor shall inform the head of the purchasing agency within seven calendar days after the final decision if an administrative appeal will be filed. An appeal shall be filed within seven calendar days of the final decision in accordance with subchapter 5.

(d) If the protest is sustained, the available remedies include, but are not limited to, those set forth in this section and subchapter 4. In addition to any other relief, the chief procurement officer or designee shall award the protestor the reasonable costs incurred in connection with the solicitation, including bid preparation costs other than attorneys' fees, when the protestor should have been but was not awarded the contract.

History

• [Eff 12/15/95; am and comp MAY 20 2004] (Auth: HRS § 103D-202, 103D-701) (Imp: HRS S103D-701)

Haw. Code R. § 3-126-8 REPEALED

History

• Eff 12/15/95; R

Subchapter 2 AUTHORITY TO DEBAR OR SUSPEND

Haw. Code R. § 3-126-11 Application

This subchapter applies to the debarment, or suspension of persons from consideration for award of all public contracts and from performance on any public contract.

History

• [Eff 12/15/95; am and comp MAY 20 2004] (Auth: HRS §§ 103D-202, 103D-702) (Imp: HRS § 103D-702)

Haw. Code R. § 3-126-11.01 Other causes for debarment or suspension

(a) Debarment procedures shall be initiated by the administrator of the state procurement office for any person committing an act, after the effective date of this section, for which that person is subsequently assessed an administrative fine of $5,000 or more by the campaign spending commission under section 11-228, HRS, or convicted of a violation under section 11-229, HRS.

(b) "Person" for the purposes of this section shall be as defined under section 11-191, HRS.

(c) The campaign spending commission shall provide the administrator of the state procurement office a listing of all persons fined or convicted, including the date of the violation and date the fine or conviction was imposed.

(d) The procurement officer shall, prior to award, verify the offeror's eligibility under subsection (a).

History

• [Eff MAY 20 2004] (Auth: HRS § 103D-202) (Imp: HRS § 103D-702)

Haw. Code R. § 3-126-12 Suspension

(a) After consultation with the affected purchasing agency, the respective attorney general or corporation counsel, and, where practicable, the person who is to be suspended, and upon written determination by the chief procurement officer or designee that probable cause exists for debarment as set forth in section 103D-702, HRS, that person shall be suspended.

(b) A notice of suspension, including a copy of the determination, shall be sent to the suspended person stating that:

(1) The suspension is for the period it takes to complete an investigation into possible debarment including any appeals of a debarment decision but shall not exceed three months unless the chief procurement officer or designee determines in writing that additional time is necessary to complete the investigation;

(2) Bids or proposals will not be solicited from the suspended person, and if they are received, they will not be considered during the period of suspension; and

(3) The suspended person may request a review in accordance with section 3-126-14.

(c) The notice of suspension shall signal the start of the investigation for debarment.

(d) A person is suspended upon issuance of the notice of suspension. The suspension will remain in effect during any appeals and may be terminated by the chief procurement officer or designee, an administrative hearings officer, or by a court, but otherwise shall only end when the suspension has been in effect in accordance with subsection (b)(1) or a debarment decision takes effect.

History

• [Eff 12/15/95; am and comp MAY 20 2004] (Auth: HRS §§ 103D-202, 103D- 702, 103D-709) (Imp: HRS §§ 103D-702, 103D-709, 103D-710)

Haw. Code R. § 3-126-13 Notice of debarment action

(a) Written notice of the proposed debarment action shall be sent by certified mail, return receipt requested, to the person and shall:

(1) State that debarment is being considered;

(2) Set forth the. reasons for the action;

(3) State that if the person so requests, a review will be conducted, provided the request is received by the chief procurement officer or designee within ten working days after the person receives notice of the proposed action; and

(4) State that the person may be represented by counsel.

(b) The notice shall be sent to the respective attorney general or corporation counsel and the affected purchasing agency. If more than one purchasing agency is involved, the chief procurement officer or designee may designate one or more representatives to be consulted in respect to this action.

History

• [Eff 12/15/95; am and comp MAY 20 2004] (Auth: HRS §§ 103D-202, 103D-702) (Imp: HRS § 103D-702)

Haw. Code R. § 3-126-14 Review by a chief procurement officer or designee

(a) A person notified of a proposed debarment action may request in writing that a review be conducted. The request must be received by the official proposing the action within ten working days of receipt of notice of the proposed action under section 3-126-12 or 3-126-13. The request for review shall contain a detailed statement of the factual and legal grounds upon which reversal or modification is deemed warranted, specifying any errors of law made or information not previously considered.

(b) If no request is received within the ten working day period, a final determination may be made as set forth in section 3-126-16 after consulting with the respective attorney general or corporation counsel and the affected purchasing agency.

(c) If a review is requested, the chief procurement officer may appoint a designee to conduct the review and recommend a final decision. Otherwise, the chief procurement officer shall conduct the review.

(d) The chief procurement officer or designee shall send a written notice to the person within fifteen working days of the request for review. The written notice shall be sent by certified mail, return receipt requested, and shall state the time and place, and the nature and purpose of the proceedings. copies shall be sent to the respective attorney general or corporation counsel and the purchasing agency.

History

• [Eff 12/15/95; am and comp MAY 20 2004] (Auth: HRS §§ 103D-202, 103D-702) (Imp: HRS § 103D-702)

Haw. Code R. § 3-126-15 Review procedures

(a) The review shall be as informal as may be reasonable and appropriate under the circumstances and in accordance with applicable due process requirements completed within sixty days from the date set for the review.

(b) The weight to be attached to evidence presented will be within the discretion of the review officer. The review officer may require evidence in addition to that offered by the parties.

History

• [Eff 12/15/95; am and comp MAY 20 2004] (Auth: HRS §§ 103D-202, 103D-702) (Imp: HRS § 103D-702)

Haw. Code R. § 3-126-16 Determination of the review officer

(a) The review officer shall prepare a written determination recommending a course of action. Copies shall be sent to all affected parties, including the person under consideration for debarment, the respective attorney general or corporation counsel, and the affected purchasing agency.

(b) The person under consideration for debarment shall have ten working days to file comments upon the review officer's determination. The chief procurement officer or designee may request oral argument.

(c) After consultation with the affected purchasing agency and the respective attorney general or corporation counsel, the chief procurement, officer or designee shall issue a final decision. Both the review officer's determination and the final decision shall recite the evidence relied upon.

(d) When debarment is recommended or ordered, the length of the debarment, not to exceed three years, the reasons for such action, and to what extent affiliates are affected shall be set forth. In addition, the final determination shall inform the debarred person of the right to commence an administrative proceeding under subchapter 5.

History

• [Eff 12/15/95; am and comp MAY 20 2004] (Auth: HRS §§ 103D-202, 103D-702) (Imp: HRS § 103D-702)

Haw. Code R. § 3-126-17 Effect of debarment decision

A debarment decision will take effect upon issuance and receipt by the debarred person. After the debarment decision takes effect, that person shall remain debarred until a court or the chief procurement officer, or designee who issued the decision, orders otherwise or until the debarment period specified in the decision expires.

History

• [Eff 12/15/95; am and comp MAY 20 2004] (Auth: HRS §§ 103D-202, 103D-702) (Imp: HRS § 103D-702)

Haw. Code R. § 3-126-18 List of debarred and suspended persons

(a) The chief procurement officer shall send a copy of the decision to debar or suspend a person to the administrator of the state procurement office who shall compile and distribute a list to all chief procurement officers of the State and post the list on the state procurement office's website. Each chief procurement officer shall send the list and updates of the list to all purchasing agencies.

(b) Should a debarred or suspended person have a contract awarded prior to the effective date of the list, the chief procurement officer shall make a written determination as to whether to allow a debarred or suspended contractor to continue performance on that contract.

History

• [Eff 12/15/95; am and comp MAY 20 2004] (Auth: HRS §§ 103D-202, 103D-702) (Imp: HRS § 103D-702)

Subchapter 3 AUTHORITY TO RESOLVE CONTRACT AND BREACH OF CONTRACT CONTROVERSIES

Haw. Code R. § 3-126-25 General

This subchapter establishes procedures and remedies to resolve contract and breach of contract controversies between the State and a contractor. It is the State's policy to try to resolve all controversies by mutual agreement without litigation. In appropriate circumstances, informal discussions between the parties can aid in the resolution of differences by mutual agreement and are encouraged. If informal discussions do not resolve the controversy, individuals who have not participated substantially in the matter in controversy may be brought in to conduct discussions if this is feasible. Independent committees and panels which review controversies expeditiously and informally with a view to fair settlement possibilities are encouraged at this stage.

History

• [Eff 12/15/95; am and comp MAY 20 2004] (Auth: HRS §§ 103D-202, 103D-703) (Imp: HRS § 103D-703)

Haw. Code R. § 3-126-26 REPEALED

History

• Eff 12/15/95; R

Haw. Code R. § 3-126-27 Delegation of authority to procurement officer

(a) Subject to subsection (b), unless a provision of the contract specifies that the authority to settle and resolve controversies and to issue decisions is reserved to the head of a purchasing agency, the authority is hereby delegated to the procurement officer.

(b) The settlement or resolution of controversies involving claims in excess of fifty thousand dollars is subject to the prior written approval of the head of a purchasing agency. The procurement officer shall prepare a recommended decision for the head of a purchasing agency.

History

• [Eff 12/15/95; am and comp MAY 20 2004] (Auth: HRS §§ 103D-202, 103D-703) (Imp: HRS § 103D-703)

Haw. Code R. § 3-126-28 Procurement officer's decision

(a) When a controversy cannot be resolved by mutual agreement, the procurement officer'shall promptly issue a final written decision. Before issuing the decision, the procurement officer shall:

(1) Review the facts pertinent to the controversy; and

(2) Secure any necessary assistance from legal, fiscal, and other advisors.

(b) The procurement officer shall immediately furnish a copy of the decision to the contractor, by certified mail, return receipt requested, or by any other method that provides evidence of receipt, and include in the decision:

(1) A description of the controversy;

(2) A reference to pertinent contract provisions;

(3) A statement of the factual areas of agreement or disagreement;

(4) A statement of the procurement officer's decision, with supporting rationale;

(5) A paragraph stating substantially as follows: "This is the final decision of the procurement officer. This decision may be appealed by initiating judicial action pursuant to section 103D-711, HRS. If you decide to initiate judicial action, you must file your complaint in the circuit court within six months of the date you receive this decision."; and

(6) A copy of the complaint to initiate judicial action shall be furnished to the procurement officer from whose decision the complaint is taken. The notice shall indicate that a judicial action pursuant to section 103D-711, HRS, is intended, reference the decision from which the complaint is being taken, and identify the contract involved.

(c) The procurement officer shall issue a written decision within the following time limitations:

(1) For claims not exceeding fifty thousand dollars: ninety calendar days after receipt of the claim.

(2) For claims exceeding fifty thousand dollars: ninety calendar days after receipt of the claim; provided that if a decision is not issued within ninety calendar days, the procurement officer shall notify the contractor of the time within which such officer will make the decision. The reasonableness of this time period will depend on the size and complexity of the claim and the adequacy of the contractor's supporting data and other relevant factors.

If the procurement officer fails to issue a decision within the allowed, the contractor may proceed as if an adverse decision has been received.

(d) The amount determined payable pursuant to the decision, less any portion already paid, normally should be paid without awaiting contractor action concerning appeal. The payments shall be without prejudice to the rights of either party and where such payments are required to be returned by a subsequent decision, interest on such payments shall be paid at the statutory rate from the date of payment.

History

• [Eff 12/15/95; am and comp MAY 20 2004] (Auth: HRS §§ 103D-202, 103D-703) (Imp: HRS §§ 103D-703, 103D-711, 103D-712)

Haw. Code R. § 3-126-29 Controversies involving state claims against the contractor

All controversies involving claims asserted by the State against a contractor which cannot be resolved by mutual agreement shall be the subject of a decision by the chief procurement officer or designee as applicable.

History

• [Eff 12/15/95; am and comp MAY 20 2004] (Auth: HRS §§ 103D-202, 103D-703) (Imp: HRS § 103D-703)

Haw. Code R. § 3-126-30 Repealed

History

• Eff 12/15/95; R

Subchapter 4 DETERMINATION THAT SOLICITATION OR AWARD VIOLATES LAW

Haw. Code R. § 3-126-35 Application

The provisions of this subchapter apply where it is determined administratively, or upon administrative or judicial review, that a solicitation or award of a contract is in violation of law.

History

• [Eff 12/15/95; am and comp MAY 20 2004] (Auth. HRS § 103D-202) (Imp: HRS § 103D-705)

Haw. Code R. § 3-126-36 Violation determination

(a) A solicitation or award may be in violation of the law due to actions of state or county employees, bidders, offerors, contractors, or other persons. After consultation with the respective attorney general or the corporation counsel, as applicable, the chief procurement officer or designee may determine that a solicitation or contract award is in violation of the provisions of chapter 103D, HRS, or the rules adopted under the chapter.

(b) After consultation with the respective attorney general or corporation counsel, the state ethics commission may determine that a solicitation or award violates chapter 84, HRS. Any such determination shall be made in writing after an opportunity to be heard is given, and such determination is subject to appropriate appeal. The department of commerce and consumer affairs hearings officer designated in subchapter 5 may determine that a solicitation or contract award is in violation of the provisions of the state procurement code or the rules adopted under the code. The circuit court designated in subchapters 6 and 7 may find that a solicitation or award is in violation of law.

(c) Specific findings showing reckless disregard of clearly applicable laws or rules must support a finding of bad faith. A finding of fraud must be supported by specific findings showing knowing, willful acts in disregard of such laws or rules.

History

• [Eff 12/15/95; am and comp MAY 20 2004] (Auth: HRS § 103D-202) (Imp: HRS § 103D-705)

Haw. Code R. § 3-126-37 Remedies prior to an award

A finding by the chief procurement officer or designee, after consultation with the respective attorney general or corporation counsel, as applicable, that the solicitation or proposed award is in violation of law, will constitute a cogent and compelling reason to cancel, or revise a solicitation or proposed award. The cancellation shall be made in accordance with subchapter 11, chapter 3-122.

History

• [Eff 12/15/95; am and comp MAY 20 2004] (Auth: HRS § 103D-202) (Imp: HRS § 103D-706)

Haw. Code R. § 3-126-38 Remedies after an award

(a) When there is no fraud or bad faith by a contractor:

(1) Upon finding after award that a state or county employee has made an unauthorized award of a contract or that a solicitation or contract award is otherwise in violation of law where there is no finding of fraud or bad faith, the chief procurement officer or designee may ratify and affirm, modify, or terminate the contract in accordance with this section after consultation with the respective attorney general or corporation counsel, as applicable.

(2) If the violation can be waived without prejudice to the State or other bidders or offerors, the preferred action is to ratify and affirm the contract.

(3) If the violation cannot be waived without prejudice to the State or other bidders or offerors, if performance has not begun, and if there is time for resoliciting bids or offers, the contract shall be terminated. If there is no time for resoliciting bids or offers, the contract may be amended appropriately, ratified, and affirmed.

(4) If the violation cannot be waived without prejudice to the State or other bidders or offerors and if performance has begun, the chief procurement officer or designee shall determine in writing whether it is in the best interest of the State to terminate or to amend, ratify, and affirm the contract.

Termination is the preferred remedy. The following factors are among those pertinent in determining the State's best interest:

(A) The costs to the State in terminating and resoliciting;

(B) The possibility of returning goods delivered under the contract and thus decreasing the costs of termination;

(C) The progress made toward performing the whole contract; and

(D) The possibility of obtaining a more advantageous contract by resoliciting.

(5) Contracts based on awards or solicitations that were in violation of law shall be terminated at no cost to the State, if possible, unless the determination required under paragraphs (2) through (4) is made. If the contract is terminated, the State shall, where possible and by agreement with the supplier, return the goods delivered for a refund at no cost to the State or at a minimum restocking charge. If a termination claim is made, settlement shall be made in accordance with the contract. If there are no applicable termination provisions in the contract, settlement shall be made on the basis of actual costs directly or indirectly allocable to the contract through the time of termination, other than attorney's fees. Such costs shall be established in accordance with generally accepted accounting principles. Profit shall be proportionate only to the performance completed up to the time of termination and shall be based on projected gain or loss on the contract as though performance was completed. Anticipated profits are not allowed.

(b) When there is fraud or bad faith by the contractor:

(1) Upon finding after award that a solicitation or award is in violation of law and the recipient of the contract acted fraudulently or in bad faith, the chief procurement officer or designee may, after consulting with the respective attorney general or corporation counsel, declare the contract void or ratify and affirm, or modify in accordance with this section.

(2) The contract shall be declared void unless modification, ratification, and affirmation are found to be in the State's best interest under paragraph (3).

(3) The contract shall not be modified, ratified, and affirmed unless it is determined in writing that there is a continuing need for the goods, services, or construction under the contract and:

(A) There is no time to re-award the contract; or

(B) The contract is being performed for less than it could be otherwise performed.

(4) In all cases where a contract is voided, the State shall endeavor to return those goods delivered under the contract that have not been used or distributed". No further payments shall be made under the contract and the State is entitled to recover the greater of:

(A) The difference between payments made under the contract and the contractor's actual costs up until the contract was voided; or

(B) The difference between payments under the contract and the value to the State of the goods, services, or construction the State obtained under the contract.

(C) The State may in addition claim damages under any applicable legal theory.

(5) The State shall be entitled to any damages it can prove under any theory including, but not limited to, contract and tort regardless of its ratification and affirmation of the contract.

(6) If a state or county employee knowingly and willfully lets a contract contrary to law, that employee may be personally liable for his or her actions.

History

• [Eff 12/15/95; am and comp MAY 20 2004] (Auth: HRS §§ 103D-106, 103D-202) (Imp: HRS §§ 103D-106, 103D-707)

Subchapter 5 ADMINISTRATIVE PROCEEDING FOR REVIEW

Haw. Code R. § 3-126-42 Commencement of proceedings

An administrative proceeding authorized by sections 103D-310, 103D-701, 103D-702 and 103D-709, HRS, shall commence by the filing of a request for hearing with the office of administrative hearings, department of commerce and consumer affairs within seven calendar days, in accordance with section 103D-712, HRS. The office of administrative hearings shall docket the request for hearing, assign a docket number to the request for hearing, and schedule the matter for hearing.

History

• [Eff 12/15/95; am and comp MAY 20 2004] (Auth: HRS §§ 103D-202, 103D-709) (Imp: HRS § 103D-709)

Haw. Code R. § 3-126-46 Format and certification of pleadings

(a) Requests for hearings, motions, and other pleadings shall be typed or printed in ten or twelve point pica or equivalent type size upon good quality paper, eight and one-half by eleven inches in size and of at least sixteen pounds weight, except that documentary exhibits may be larger, if folded to the size of the pleadings to which they are attached.

(b) All copies shall be legible on paper eight and one-half by eleven inches in size and of at least sixteen pounds weight.

(c) The first page of every pleading shall set forth the name, address, and phone number of the party, the party's attorney, if any, the title of the particular pleading, the docket number, and the name of the proceeding.

(d) All pleadings shall be signed in black or other photo-reproducible ink by the party filing the pleadings or by the party's authorized agent. The signature shall constitute certification that the person so signing has read the pleading and that to the best of the person's knowledge, information, and belief, the pleading is true or has good grounds to support it and is not submitted for the purpose of hindering, harassing, or delaying any party or proceeding.

(e) Unless otherwise provided, all pleadings, motions, memoranda, and other documents shall be filed with the office of administrative hearings.

History

• [Eff 12/15/95; am and comp MAY 20 2004] (Auth: HRS §§ 103D-202, 103D-709) (Imp: HRS § 103D-709)

Haw. Code R. § 3-126-49 Time

(a) Unless otherwise provided by statute or rule, in computing any period of time prescribed or allowed by this chapter, the day of the act, event, or default after which the designated period of time is to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday, or legal State holiday, in which event the period runs until the next day which is neither a Saturday, Sunday, nor a holiday. Intermediate Saturdays, Sundays, and holidays shall not be included in a computation when the period of time prescribed or allowed is seven days or less.

(b) The hours of a day during which documents will be accepted for filing by the panel or hearings officer shall be those specified in section 80-1, HRS.

History

• [Eff 12/15/95; am and comp MAY 20 2004] (Auth: HRS §§ 103D-202, 103D-709) (Imp: HRS § 103D-709)

Subchapter 6 JUDICIAL REVIEW

Haw. Code R. § 3-126-78 Judicial review of contested cases

(a) Requests for judicial review under section 103D-710, HRS, shall be filed in the circuit court within ten calendar days after the issuance of the written decision.

(b) Any party requesting judicial review shall immediately serve a copy of the application for judicial review upon the hearings officer or review officer, as applicable, and all other parties to the proceeding.

(c) Within twenty calendar days after the filing of a request for judicial review, the hearings officer shall transmit the record of the administrative proceedings, including the electronic recording of the hearing, to the circuit court. A written transcript of the electronic recording of the hearing shall not be required -to be submitted as part of the record on appeal, unless specifically requested and paid for by a party to the appeal.

History

• [Eff 12/15/95; am and comp MAY 20 2004] (Auth: HRS §§ 103D-202, 103D-709) (Imp: HRS §§ 103D-709, 103D-710)

Chapter 128 GOVERNMENTAL RELATIONS AND COOPERATIVE PURCHASING

Haw. Code R. § 3-128-1 Definitions

Section 103D-801, HRS, provides definitions applicable to terms used in this chapter.

History

• [Eff 12/15/95; am and comp 11/17/97; and comp 11/15/01; am and comp 11/25/02; comp AUG 24 2009] (Auth: HRS § 103D-202) (Imp: HRS § 103D-801)

Haw. Code R. § 3-128-2 Cooperative purchasing subject to chapter 103D, HRS

(a) Prior written approval of the chief procurement officer is required before entering into a cooperative purchasing agreement.

(b) Procurement by cooperative purchasing agreements shall be conducted in compliance with the requirements of chapter 103D, HRS, and title 3, subtitle 11, except when the cooperative agreement is initiated by an external procurement unit; provided:

(1) The public procurement unit complies with the public notice requirements of section 3-128-4; and

(2) The external procurement unit complies with its respective public notice requirements and includes the public procurement unit in its notice and solicitation as a participating entity.

(c) Contracts described in section 3-122-143, are the principal contract types for cooperative purchasing agreements subject to any restrictions specified in this chapter.

(d) Agencies shall not enter into or "piggyback" on an existing cooperative purchasing agreement, including contracts issued by the federal government or other state or local government. The term "piggyback" is defined as procuring goods, services, or construction using another agency contract without prior public notice and intent to participate.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp 11/15/01; am and comp 11/25/02; am and comp AUG 24 2009] (Auth: HRS § 103D-202) (Imp: HRS §§ 103D-802, 103D-804)

Haw. Code R. § 3-128-3 Cooperative purchasing agreements between procurement units

All cooperative purchasing agreements shall provide that:

(1) A procurement unit shall be designated as lead agency for the procurement;

(2) An order for any good or service shall be placed on an as needed basis by the participating procurement units in accordance with the terms and conditions of the agreement;

(3) Payment for any good or service shall be the exclusive responsibility of the procurement unit which placed the order;

(4) Inspection and acceptance of any good or service shall be the exclusive obligation of the procurement unit which placed the order;

(5) The lead agency for the procurement may terminate the cooperative agreement with a procurement unit for failure of that unit to comply with the terms of the contract;

(6) The exercise of any warranty rights attached to any good or service obtained through a purchase order shall be the exclusive right of the procurement unit which placed the order; and

(7) Failure of a procurement unit that is procuring the good or service from a cooperative agreement contract to secure performance from the contractor pursuant to its terms and conditions, may not necessarily preclude the remaining procurement units from obtaining goods and services from the cooperative agreement contract.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp 11/5/01; am and comp 11/25/02; am and comp AUG 24 2009] (Auth: HRS § 103D-202) (Imp: HRS §§ 103D-802, 103D-803)

Haw. Code R. § 3-128-4 Public notice of cooperative purchasing agreements between public procurement units and external procurement activities

Any public procurement unit intending to participate in an external procurement unit's cooperative purchasing agreement, shall place a public notice within the State pursuant to section 3-122-16.03, of the external procurement unit's solicitation. The notice shall also include a statement of the public procurement unit's intent to participate in such cooperative purchasing agreement.

History

• [Eff 12/15/95; comp 11/17/97; comp 11/15/01; comp 11/25/02; am and comp AUG 24 2009] (Auth: HRS § 103D-202) (Imp: HRS §§ 103D-802, 103D-803)

Haw. Code R. § 3-128-5 Cooperative purchasing agreements between chief procurement officers and nonprofit private procurement units

(a) A chief procurement officer may enter into a cooperative purchasing agreement with a nonprofit private procurement unit if:

(1) The nonprofit private procurement unit is under a purchase of services contract with the State, pursuant to chapter 103F, HRS; and

(2) The nonprofit private procurement unit submits an application to enter into a cooperative purchasing agreement and receives approval from the chief procurement officer. An agreement form shall be developed by the chief procurement officer for this purpose.

(b) The chief procurement officer may charge a nominal fee for participation by a nonprofit organization.

History

• [Eff 12/15/95; comp 11/17/97; am and comp 11/15/01; am and comp 11/25/02; comp AUG 24 2009] (Auth: HRS § 103D-202) (Imp: HRS §§ 103D-802, 103D-804)

Haw. Code R. § 3-128-6 Supply of personnel, information, and technical services

Requests to one public procurement unit by another public procurement unit, or an external procurement activity to provide or make available personnel, services, information, or technical services pursuant to section 103D-806, HRS, shall be complied with only to the extent that the chief procurement officer determines that it is practicable to do so.

History

• [Eff 12/15/95; comp 11/17/97; comp 11/15/01; comp 11/25/02; comp AUG 24 2009] (Autn: HRS § 103D-202) (Imp: HRS § 103D-806)

Haw. Code R. § 3-128-7 Procurement of goods produced or services performed by governmental institutions

Goods or services provided by correctional industries or other governmental institutions may be obtained by governmental agencies without public solicitation.

History

• [Eff 12/15/95; comp 11/17/97; am and comp 11/15/01; am and comp 11/25/02; am and comp AUG 24 2009] (Auth: HRS § 103D-202) (Imp: HRS § 103D-803)

Haw. Code R. § 3-128-8 Compliance with federal requirement

Any procurement which involves the expenditure of federal assistance or contract monies shall comply with this chapter and applicable federal law and regulations.

History

• [Eff 12/15/95; am and comp 11/17/97; comp 11/15/01; comp 11/25/02; am and comp AUG 24 2009] (Auth: HRS § 103D-202) (Imp: HRS § 103D-102)

Haw. Code R. § 3-128-9 Repealed

History

• R AUG 24 2009

Chapter 129 SURPLUS PROPERTY

Haw. Code R. § 3-129-1 Purpose

(a) To promote the donation of federal surplus personal property to the State and local organizations for public purposes and other purposes in accordance to Public Law 94-519 and Hawaii state plan of operation in accordance with part XI, chapter 103D, HRS.

(b) State surplus personal property acquired through the state surplus property office must be used by the public agency to carry out or to promote for the residents of a given political area one or more public purposes in accordance with part XI, chapter 103D, HRS.

(c) This chapter 129, subtitle 11 of title 3, Hawaii Administrative Rules, replaces rescinded interim rules previously adopted on 6/9/01 (file no. 2362) and 11/15/01 (file no. 2398).

History

• [Eff DEC 15 1995; comp 6/9/01; comp 11/15/01; comp 11/8/02] (Auth: HRS § 103D-202) (Imp: HRS § 103D-1103)

Haw. Code R. § 3-129-2 Definitions

As used in this chapter:

"Donee" means a service educational activity; a state, political subdivision, municipality, or tax-supported institution acting on behalf of a public airport; a public agency using surplus personal property in carrying out or promoting for the residents of a given political area one or more public purposes, such as conservation, economic development, education, parks and recreation, public health, and public safety; an eligible nonprofit tax-exempt educational or public health institution or organization; the American National Red Cross; a public body; a charitable institution; or any state or local government agency, and any nonprofit organization or institution, which receives funds appropriated for programs for older individuals under the Older Americans Act of 1965, as amended, under Title IV or Title XX of the Social Security Act, or under Titles VIII and X of the Economic Opportunity Act of 1964 and the Community Services Block Grant Act.

History

• [Eff DEC 15 1995; comp 6/9/01; comp 11/15/01; comp 11/8/02] (Auth: HRS § 103D-202) (Imp: HRS § 103D-1101)

Haw. Code R. § 3-129-3 State agency for surplus property

The surplus property supervisor, hereafter referred to as the surplus property director of the state procurement office is designated to administer a statewide plan of operation for a fair and equitable distribution of surplus property in conformity with Section 203 (j) of the Federal Property and administrative Services Act of 1949, as amended, and chapter 103D-1102, HRS.

History

• [Eff DEC 15 1995; am and comp 6/9/01; am and comp 11/15/01; am and comp 11/8/02] (Auth: HRS § 103D-202) (Imp: HRS § 103D-1102)

Haw. Code R. § 3-129-4 Donee certification and agreements

(a) To be eligible for surplus property a donee certifies that:

(1) It is a public agency or a nonprofit institution or organization exempt from taxation under section 501 of the Internal Revenue Code of 1954 within the meaning of Section 203 (j) of the Federal Property and Administrative Services Act of 1949, as amended, and regulations of the administrator of General Services Administration;

(2) If a public agency, the property is needed and will be used by the recipient for carrying out or promoting for the residents of a given political area one or more public purposes, or, if a nonprofit, tax-exempt institution or organization, the property is needed for and will be used by the recipient for educational or public health purposes, including research for such purpose, or for programs for older individuals;

(3) The property is not being acquired for any other use or purpose, or for sale or other distribution, or for permanent use outside the State, except with prior approval of the state agency;

(4) Funds are available to pay all costs and charges incident to donation; and

(5) They shall be subject to the nondiscrimination regulations governing the donation of surplus personal property issued under Title VI of the Civil Rights Act of 1964, Section 606 of Title VI of the Federal Property and Administrative Services Act of 1949, as amended, Section 504 of the Rehabilitation Act of 1973, as amended, Title IX of the Education Amendments of 1972, as amended and Section 3 03 of the Age Discrimination Act of 1975.

(b) When issued surplus property, the donee agrees:

(1) That all items of property shall be placed in use for the purpose(s) for which acquired, within one year of receipt and shall be continued in use for such purpose(s) for one year from the date the property was placed in use. In the event the property is not so placed in use or continued in use, the donee shall immediately notify the state agency and, at the donee's expense, shall return such property to the state agency or otherwise make the property available for transfer or other disposal by the state agency, provided the property is still usable as determined by the state agency;

(2) To special handling or use limitations as are imposed by the General Services Administration on any item(s) of property listed hereon; and

(3) That in the event the property is not so used or handled as required by paragraphs (1) and (2), title and right to the possession of such property shall at the option of General Services Administration, revert to the United States of America and upon demand the donee shall release such property to such person as the general services administration or its designee shall direct.

(c) The donee agrees to the following conditions imposed by the state agency, applicable to items with a unit acquisition cost of five thousand dollars or more and passenger motor vehicles, regardless of acquisition costs, except vessels fifty feet or more in length and aircraft:

(1) The property shall be used only for the purpose(s) for which acquired and for no other purpose(s);

(2) There shall be a period of restriction which will expire after such property has been used for the purpose(s) for which acquired for a period of eighteen months from the date the property is placed in use, except for such items of major equipment, listed hereon, on which the state agency designates a further period of restriction; and

(3) In the event the property is not so used as required by paragraphs (1) and (2) and the federal restrictions in sections (b)(1) and (b)(2) have expired, then title and right to the possession of such property shall at the option of the state agency revert to the State and the donee shall release such property to such person as the state agency shall direct.

(d) The donee agrees to the following terms, reservations, and restrictions:

(1) From the date of receipt of the property listed hereon and through the period(s) of time the conditions imposed by subsections (b) and (c) remain in effect, the donee shall not sell, trade, lease, lend, bail, cannibalize, encumber, or otherwise dispose of such property, or remove it permanently for use outside the State, without the prior approval of the General Services Administration under subsection (b) or the state agency under subsection (c). The proceeds from any sale, trade, lease, loan, bailment, encumbrance, or other disposal of the property, when such action is authorized by the General Services Administration or by the state agency, shall be remitted promptly by the donee to the General Services Administration or the state agency, as the case may be;

(2) In the event any of the property is sold, traded, leased, loaned, bailed, cannibalized, encumbered, or otherwise disposed of by the donee from the date it receives the property through the period(s) of time the conditions imposed by subsections (b) and (c) remain in effect, without the prior approval of the General Services Administration or the state agency, the donee, at the option of the General Services Administration or the state agency shall pay to the General Services Administration or the state agency, as the case may be, the proceeds of the disposal or the fair market value or the fair rental value of the property at the time of such disposal, as determined by the General Services Administration or the state agency;

(3) If at any time, from the date of receipt of the property through the period(s) of time the conditions imposed by subsections (b) and (c) remain in effect, any of the property listed hereon is no longer suitable, usable, or further needed by the donee for the purpose(s) for which acquired, the donee shall promptly notify the state agency, and shall, as directed by the state agency, return the property to the state agency, release the property to another donee or another state agency, department, or agency of the United States, sell, or otherwise dispose of the property. The proceeds from any sale shall be remitted promptly by the donee to the state agency;

(4) The donee shall make reports to the state agency on the use, condition, and location of the property, and on other pertinent matters as may be required from time to time by the state agency; and

(5) At the option of the state agency, the donee may abrogate the conditions set forth in subsection (c) and the terms, reservations, and restrictions pertinent thereto in this subsection by payment of an amount as determined by the state agency.

(e) The donee agrees to the following conditions, applicable to all items of property listed hereon:

(1) The property acquired by the donee is on an "as is, where is" basis, without warranty of any kind; and

(2) Where a donee carries insurance against damages to or loss of property due to fire or other hazards and where loss of or damage to donated property with unexpired terms, conditions, reservations, or unamortized portion of the fair value of the fair value of the damaged or destroyed donated items.

(f) The terms and conditions applicable to the donation of aircraft and vessels (fifty feet or more in length) having an acquisition cost of five thousand dollars or more, and other items of property requiring special handling or use limitations, regardless of the purpose for which acquired are subject to the terms, conditions, reservations and restrictions set forth in the conditional transfer document executed by the authorized donee representative.

(g) The donee agrees to the following terms and conditions imposed by the state agency applicable to items with a unit acquisition cost of under five thousand dollars:

(1) The state agency may at its discretion, and when it considers appropriate, impose reasonable terms, conditions, reservations, and restrictions on the use of surplus property items other than those with a unit acquisition cost of five thousand dollars or more, and passenger motor vehicles; and

(2) The state agency will impose on the donation of any surplus item of property, regardless of acquisition cost, such conditions involving special handling or use limitations as the General Services Administration may determine necessary because of the characteristics of the property.

History

• [Eff DEC 15 1995; comp 6/9/01; comp 11/15/01; comp 11/8/02] (Auth: HRS §§ 103D-202, 103D-1105) (Imp: HRS §§ 103D-1103, 103D-1105)

Haw. Code R. § 3-129-5 Authority for transfer

(a) The surplus property director shall determine donee eligibility for the acquisition of federal or state surplus property. Eligibility for both state and federal surplus property shall be the same.

(b) Donee compliance for federal property shall be in accordance with the state plan and federal law. Donee compliance for state property shall be determined by the surplus property director.

History

• [Eff DEC 15 1995; am and comp 6/9/01; am and comp 11/15/01; am and comp 11/8/02] (Auth: HRS § 103D-202) (Imp: HRS §§ 103D-1103, 103D-1105)

Haw. Code R. § 3-129-6 Transfer charges

(a) At the time property is received at the state agency's warehouse, service charges are established based on the following factors:

(1) Item acquisition cost or fair value;

(2) Type, condition, quantity, and proposed use of property;

(3) Screening and transportation;

(4) Warehousing, handling, and crating;

(5) Personnel, administration, and accounting;

(6) Utilities and telephone;

(7) Maintenance, fuels, and lubricants;

(8) Compliance, surveys, correspondence, and records;

(9) Operating reserve; and

(10) Printing.

(b) Transportation and other unusual costs are prorated except when applicable to a single unit of property.

(c) Service charges, as a whole, for the care and handling of surplus property will be limited to the amount necessary to pay actual expenses of current operations and to purchase necessary equipment, plus the accumulation and maintenance of a working capital reserve. The service charge assessed for the transfer of any single items of surplus property will be reasonable in relation to the costs incident to the transfer.

(d) The total of the service charges for all property donated by the agency during any given fiscal year shall not exceed twenty per cent of the original government acquisition cost of the property.

History

• [Eff DEC 15 1995; comp 6/9/01; comp 11/15/01; comp 11/8/02] (Auth: HRS § 103D-202) (Imp: HRS § 103D-1106)

Chapter 130 INVENTORY MANAGEMENT

Haw. Code R. § 3-130-1 Purpose

(a) The purpose of these rules is to implement the requirements of section 103D-1202, HRS, and prescribe procedures governing the management, control, and disposal of property owned by the State, including state property accounted for by the several counties, and reported to the administrator of the state procurement office.

(b) This chapter 130, subtitle 11 of title 3, Hawaii Administrative Rules, replaces rescinded interim rules previously adopted on 10/30/2014 (file no. 3123).

History

• [Eff 12/15/95; comp 6/9/01; comp 11/15/01; am and comp 11/8/02] (Auth: HRS §§ 103D-202; 103D-1202) (Imp: HRS § 103D-1202)

Haw. Code R. § 3-130-2 Definitions

As used in this chapter, unless a different meaning clearly appears in the context:

"Accountability" means the responsibility for maintaining continuous records, periodically reporting the location and condition, ensuring proper usage, safekeeping, and maintenance of all property.

"Controlled items" includes property not classified as equipment, real property, or weapons, but having a useful life of more than a year, and considered a theft sensitive item, or determined by the property custodian to be critical to the agency's operation, or important for safekeeping and property management. Two or more physically or functionally identical controlled items located within the same inventory area may be combined into a single line item.

"Excess property" means any property that has a remaining useful life but which is no longer required by the using agency in possession of the property.

"Expendable" means property consumed or which loses its identity in use.

"Equipment" includes all nonexpendable state property having a unit cost of one thousand dollars or more, or other amounts that may be applicable to the counties' inventory, a useful life of more than one year, but excluding real property and weapons. Equipment shall be accounted for individually by make, model, serial number, and decal number.

"Nonexpendable" means property not consumed in use, retaining its original identity when used for the purpose for which it was designed.

"Property custodian" means the head of the department, or the head of any board, commission, agency, bureau, or office of the State or any person designated by that head, who is responsible for the accountability of all state property in their possession, custody, control, or use.

"Real property" includes land, land improvements, buildings, building improvements, and infrastructures.

"State property" means all things, tangible and intangible, owned by the State of Hawaii, excluding the several counties, including equipment, weapons, real property, controlled items, supplies, works of art, historical treasures, patents, inventions, and copyrights.

"Supplies" means all state property not classified as equipment, real property, a weapon, or controlled item.

"Surplus property" means any property that no longer has any use to the State.

"Tangible" means having a physical existence and capable of being appraised at an actual or approximate value.

"Theft sensitive item" means small and attractive property that is easily converted to personal use or easily pawned, including personal computer equipment, cameras, television sets, videocassette recorders, video cameras, and communication equipment.

"Weapons" mean handguns, rifles, shotguns, grenade launchers, and other explosive devices used for law enforcement or security purposes. These items shall be accounted for individually by make, model, serial number, and decal number, regardless of the cost or expected life of the item.

History

• [Eff 12/15/95; am and comp 6/9/01; am and comp 11/15/01; am and comp 11/8/02] (Auth: HRS § 103D-202) (Imp: HRS § 103D-1201)

Haw. Code R. § 3-130-3 Accountability

The head of the department, or the head of any board, commission, agency, bureau, or office of the State, shall be responsible for the accountability of all state property in the possession, custody, control, or use of the unit or jurisdiction, including the several counties, over which the head presides. The head may designate specific individuals or positions to be personally responsible for the property within their jurisdiction. The assignment of responsibilities does not relieve the head of the overall accountability responsibility.

History

• [Eff 12/15/95; comp 6/9/01; comp 11/15/01; comp 11/8/02] (Auth: HRS §§ 103D- 202, 103D-1202) (Imp: HRS §§ 103D-1202, 103D-1204)

Haw. Code R. § 3-130-4 Internal control

(a) The designated property custodian shall establish, maintain, and enforce written internal control procedures to ensure accountability for all state property in their possession, custody, control, or use.

(b) The purpose of the written internal control procedures is to ensure that all employees are aware of the proper handling of state property.

(c) "Internal control procedures" shall include and address the following:

(1) Assigning of responsibility which includes providing the names and positions of personnel responsible for custody of property at each location;

(2) Recordkeeping of property which includes accounting for all acquired state property; conducting of physical inventory; updating the master inventory listing; maintaining an accurate audit trail; and conducting internal audits;

(3) Proper usage of property which includes assuring property is used by authorized personnel and only for official state purposes; and training personnel on the proper use of vehicles and equipment;

(4) Safekeeping of property which includes affixing of property identification or decal; documentation for authorized loan, movement from location, and transfer to another agency; guidelines pertaining to property declared excess, surplus, obsolete, beyond economical repair, lost, or stolen; and guidelines for sale of property;

(5) Safeguards for property which includes procedures for security of property during and after working hours; special care of items that are of a sensitive or theft prone nature; investigating and reporting of thefts, or vandalism; and appointment of key or lock custodian; and

(6) Care and maintenance of property which includes a preventive maintenance schedule; management of warranty file; repair of broken property; and guidelines for damaged or destroyed property.

History

• [Eff 12/15/95; am and comp 6/9/01; am and comp 11/15/01; am and comp 11/8/02] (Auth: HRS § 103D-202) (Imp: HRS § 103D-1205)

Haw. Code R. § 3-130-5 Property inventory record file

(a) Each chief procurement officer for their respective jurisdiction shall establish, manage, and maintain a centralized property inventory record file for all equipment, real property, weapon, and controlled items of state property in the possession, custody, control, or use of the jurisdiction over which the officer presides.

(b) The file shall consist of the following information for each property:

(1) Office or agency having the responsibility of accountability of the property;

(2) Physical location of property;

(3) Type of property, which includes land, land improvements, buildings, building improvements, infrastructures, vehicles, equipment, weapons, works of art, historical treasures, and controlled items;

(4) Description of property, which includes land tax map key, and executive order number, and for vehicle or equipment the manufacture, model, and serial number;

(5) Date of acquisition;

(6) Acquisition cost of property; and

(7) State identification number.

(c) Each state agency shall be accountable for all acquired supplies. Internal records shall be maintained for consumable supplies if an agency's annual expenditure, for such supplies, exceeds five thousand dollars, and for non-consumable supplies with a unit cost of two hundred fifty dollars but less than one thousand dollars. These records shall contain information on purchases for all supplies, usage for non-consumable supplies, transfers for non-consumable supplies, and disposals for non-consumable supplies, and are subject to audit. Supplies include the following:

(1) Consumable supplies are items consumed in the normal course of an agency operations such as food, clothing, stationery and other supplies which are normally used only once or have a useful life of less than one year;

(2) Non-consumable supplies are items not consumed in the normal course of an agency operations, that have a useful life of more than one year and a unit cost of two hundred fifty dollars to less than one thousand dollars, but excludes weapons and controlled items.

History

• [Eff 12/15/95; am and comp 6/9/01; am and comp 11/15/01; am and comp 11/8/02] (Auth: HRS § 103D-202) (Imp: HRS § 103D-1205)

Haw. Code R. § 3-130-6 Physical inventory

(a) Each designated property custodian or governmental unit shall conduct an annual inventory, to be verified by physical count of all state property in their possession, custody, control, or use.

(b) If there is a change in the designated property custodian, the head of the department, or the head of any board, commission, agency, bureau, or office of the State or the custodial department's fiscal office shall take action to have a physical inventory taken at that time.

(c) Immediately upon the completion or termination of any agency or property account, for whatever reason, a complete physical inventory shall be taken pursuant to the direction of the head of the department, or the head of any board, commission, agency, bureau, or office of the State or the custodial department's fiscal office.

History

• [Eff 12/15/95; comp 6/9/01; comp 11/15/01; comp 11/8/02] (Auth: HRS § 103D-202) (Imp: HRS § 103D-1205)

Haw. Code R. § 3-130-7 Annual inventory reporting

The chief procurement officers, the administrative heads of the executive departments, and all other persons, offices, and boards of a public character that are not by law under the control and direction of any of the officers specifically named in this section shall prepare and file with the administrator of the state procurement office an annual inventory return of state property in their possession, custody, or control. The annual inventory return shall be filed before September 16 of each year. The annual inventory return shall contain information in accordance with section 103D-1206, HRS.

History

• [Eff 12/15/95; am and comp 6/9/01; am and comp 11/15/01; am and comp 11/8/02] (Auth: HRS § 103D-202) (Imp: HRS § 103D-1206)

Haw. Code R. § 3-130-8 Lost, stolen, or damaged property

(a) The theft of state property shall be immediately reported to the appropriate law enforcement agency.

(b) All lost, stolen, or damaged equipment shall be reported by the state governmental unit within ten days after discovery of the loss to the designated property custodian.

(c) The designated property custodian shall conduct an investigation of the incident and initiate the appropriate action to prevent future loss.

(d) The designated property custodian shall submit a disposal application to the head of the department, or the head of any board, commission, agency, bureau, or office of the State in accordance with section 3-130-11(c).

(e) Any such equipment deleted from the inventory that is subsequently located shall be added back to the inventory.

History

• [Eff 12/15/95; comp 6/9/01; comp 11/15/01; comp 11/8/02] (Auth: HRS §§ 103D-202; 103D-1202) (Imp: HRS § 103D-1202)

Haw. Code R. § 3-130-9 Excess state property

(a) To obtain maximum utilization and to minimize the procurement of new items, each state department or agency shall be responsible for making excess state property available and facilitate the transfer of the property to other state departments or agencies, excluding weapons, works of art, historical treasures, patents, inventions, and copyrights, and real property.

(b) Each state department or agency shall to the maximum extent practicable, fulfill its requirements for property by obtaining excess property from other state departments or agencies instead of initiating a new procurement.

(c) Agencies receiving or transferring excess property shall establish controls over the processing of transfer documents and shall establish and maintain an adequate system of property accountability.

History

• [Eff 12/15/95; comp 6/9/01; comp 11/15/01; comp 11/8/02] (Auth: HRS §§ 103D-202, 103D-1202) (Imp: HRS § 103D-1202)

Haw. Code R. § 3-130-10 Disposal and restrictions relating to state property

(a) No state property shall be sold, traded, destroyed, or otherwise disposed of, except in accordance with the following rules:

(1) Land and interest in land owned by the State.

(A) Approval for disposal shall be obtained from the department of land and natural resources; and

(B) A copy of the approval, together with the disposal application, shall be submitted to the head of the department, or the head of any board, commission, agency, bureau, or office of the State.

(2) Surplus property shall be disposed of using one of the following methods:

(A) Disposal by trade-in to a vendor for credit on an acquisition which must receive the head of the department, or the head of any board, commission, agency, bureau, or office of the State's prior approval and determination shall be based on:

(i) The urgency of need by other state governmental units; or

(ii) Whether the trade-in value is expected to exceed the value realized through the sale of the property;

(B) Disposal to the state surplus property office of the state procurement office, which may, at its discretion, refuse to accept the property;

(C) Disposal by sale of property through competitive sealed bids, public auctions, established markets, or posted prices.

(i) Notice of sale by competitive sealed bid sale and public auction shall be publicized;

(ii) The following conditions of sale by competitive sealed bid and public auction shall be included in the publicized notice, in the solicitations, and in the notices posted at the site of sale: It is the buyer's responsibility to remove the items within a stipulated time after purchase; no guarantees or warranties are given by the State for the items; major defects, if known, are listed, but the State makes no claim that all defects are known; no sale will be invalid if defects are discovered in the item after the sale; and the State assumes no responsibility or liability once the items are sold;

(iii) Competitive sealed bidding method shall be in accordance with the following: Notice of sealed bid sale shall be advertised and made publicly available from the selling department or agency at least ten days before the date set for bid opening; the notice shall list the materials offered for sale, their location, availability for inspection, the terms and conditions of sale and instructions to bidders including the place, date, and time set for bid opening; bids shall be opened publicly at the time and place announced; the award shall be made in accordance with the provisions of the notice of sealed bid sale to the highest responsive and responsible bidder, provided that the price offered by such bidder is acceptable to the designated property custodian; if the designated property custodian determines that the bid is not advantageous to the State, such officer may reject the bids in whole or in part and may re-solicit bids or such officer may negotiate the sale, provided that the negotiated sale price is higher than the highest responsive and responsible bidder;

(iv) Public auctions shall be advertised no less than six days before the auction date and all terms and conditions will be available to the public at least twenty-four hours prior to the auction date. The solicitation to bidders shall stipulate all the terms and conditions of any sale. When appropriate, an experienced auctioneer may be used to cry the sale and assist in preparation of the sale;

(v) Posted price (pre-established price) may be used for items for which there is no regular market, demand is erratic, or for items that received unacceptable prices through competitive bids or public auction and the items shall be available on a first-come basis;

(vi) Only United States postal money orders, certified checks, cashiers' checks, or cash shall be accepted for sales of surplus property unless approved by the designated property custodian or for sales of less than one hundred dollars;

(D) Sale in accordance to one of the methods and requirements described in subparagraph (C)(i) thru (iv), or disposal to dealers for recycling, salvaging, or scrap;

(E) Donation to the following organizations, provided the designated property custodian makes a written justification, approved by the head of the department, or the head of any board, commission, agency, bureau, or office of the State, that the donation would be advantageous to the State:

(i) City or county agency within the State; or

(ii) "A nonprofit tax-exempt charitable activity" is defined as an institution or organization whose earnings are used to help the poor or needy, and no part of the net earnings of which are used or is applied to the benefit of any private shareholder or individual and has been held to be tax-exempt under the provisions of the Federal Internal Revenue Code and the State of Hawaii tax laws;

(F) Cannibalize the usable parts and destroy, dispose in trash bin, incinerator, or landfill.

(3) Any weapon, if not transferred to another statutorily authorized state agency in accordance with section 3-130-9, shall be disposed of as follows, and the supporting documents shall be attached to the disposal application or certificate of disposal:

(A) Traded or sold to a federally licensed firearm dealer; or

(B) Donated to the local police department.

(b) No state property shall be given or loaned to any individual or non-government organization; however, a state agency may furnish state property to a private contractor to facilitate the performance of services for the State by the contractor, so long as the agency includes a provision for the furnished state property in the procurement document.

(c) Approval for disposal of controlled items and supplies shall be obtained from the designated property custodian of the items and state agencies shall be responsible for maintaining adequate records to account for the disposal of such items.

(d) Whenever any designated property custodian desires to dispose or remove any equipment, weapon, or real property from their inventory, other than by transfer to another state agency, the designated property custodian must, before the action, submit a written disposal application to the head of the department, or the head of any board, commission, agency, bureau, or office of the State requesting approval of the requested disposition.

History

• [Eff 12/15/95; am and comp 6/9/01; am and comp 11/15/01; am and comp 11/8/02] (Auth: HRS §§ 103D-202, 103D-1202) (Imp: HRS § 103D-1202)

Haw. Code R. § 3-130-11 Disposal application

(a) Disposal applications shall be submitted to the head of the department, or the head of any board, commission, agency, bureau, or office of the State for approval, and if the application has been approved:

(1) The original shall be retained by the head of the department, or the head of any board, commission, agency, bureau, or office of the State; and

(2) Two copies shall be returned to the applying department's fiscal office, which in turn shall keep one copy and forward the other copy to the applying agency.

(b) Disposal application shall contain the following information:

(1) Statement and certification: "Application is hereby made for the disposal of government property under my custody and control. Pursuant to chapter 3-130, HAR, I do solemnly swear and affirm the accuracy of this application.";

(A) Designated property custodian's signature;

(B) Designated property custodian's name, official position, and phone number;

(2) Property information: complete information as shown on the current inventory printout;

(3) Present condition and estimated value of the property;

(4) Reason for requesting to delete or dispose of the property;

(5) Proposed method of disposal:

(A) If an item is to be used as a trade-in for new equipment, the application shall identify the name of the vendor, the price of the new item, and the amount of the trade-in allowance;

(B) If an item is to be sold by competitive sealed bidding, public auction, or posted prices, the application shall list the names and offers from interested parties, the party purchasing the property, and if applicable, a copy of the public notice shall be attached to the disposal application. If the information is not available when submitting the disposal application, it shall be provided with the submission of the certificate of disposal;

(C) If an item is to be donated, the application shall provide the name of the city or county agency or the nonprofit tax-exempt charitable activity to receive the donation, and justification for the donation;

(D) If an item is to be sold or disposed for recycling, salvaging, or scrap, the application shall list the name of the party purchasing or disposing the property and the amount offered for the property, if applicable;

(E) If an item is to be discarded, the application shall state the means of disposal; i.e., to be cannibalized for usable parts or destroyed and disposed in trash bin, or sent to local incinerator or landfill.

(c) Lost, stolen, or damaged items shall not be reported on the same disposal application with other equipment to be disposed of by choice, but shall be reported separately. A number of items may be listed on the same application provided the incident and circumstance surrounding the loss, theft, or damage are the same. The following information shall be provided in the application:

(1) Information as required in subsection (b)(1), (b)(2), (b)(3), and (b)(4);

(2) Date and explanation of the circumstances surrounding the loss, theft, or damage;

(3) Description of internal control procedures and security measures in effect at the time of the loss, theft, or damage;

(4) Applicant's conclusion or opinion as to the cause of the loss, theft, or damage;

(5) Description of internal control procedures or security improvements to be implemented to prevent or minimize future losses; and

(6) Statement whether the police or attorney general's office was notified, and if so, attach any supporting documents to the application.

(d) Upon receipt of the application, the head of the department, or the head of any board, commission, agency, bureau, or office of the State shall:

(1) Evaluate the application, and, if necessary, request additional information;

(2) Grant or deny the requested action; or

(3) Direct disposition of the property in such other manner as determined to be in the best interest of the State.

(e) State property approved for destruction or discarding may be disposed at the agency's location, or may be taken to an incinerator or landfill for disposal. The following procedure shall apply:

(1) Any mark or decal indicating State of Hawaii ownership shall be removed or obliterated before disposing of the property;

(2) The property shall be destroyed in such a manner to prevent reuse by other parties.

(f) The certificate of disposal is a certification by the applying agency that the property listed on the applicable disposal application was disposed in the manner approved by the head of the department, or the head of any board, commission, agency, bureau, or office of the State. The following is the distribution sequence of the certificate of disposal:

(1) Following the head of the department, or the head of any board, commission, agency, bureau, or office of the State's approval of the disposal application, except for applications for lost or stolen items, the head of the department, or the head of any board, commission, agency, bureau, or office of the State shall forward a copy of the approved disposal application to the applying custodian's fiscal office. The applying custodian's fiscal office shall then forward to the applying agency one copy of the disposal application;

(2) Upon completion of the disposal transaction, the applying agency shall confirm the final disposition of the property by returning copies of the completed certificate of disposal as follows:

(A) One copy to the head of the department, or the head of any board, commission, agency, bureau, or office of the State; and

(B) One copy to the applying agency's fiscal office.

(g) All disposal records such as disposal applications, certificates of disposal, and actions taken pursuant thereto by an applying agency shall be kept for audit purposes by the applying agency's office, the applying department's fiscal office, and the head of the department, or the head of any board, commission, agency, bureau, or office of the State.

History

• [Eff 12/15/95; am and comp 6/9/01; am and comp 11/15/01; am and comp 11/8/02] (Auth: HRS §§ 103D-202, 103D- 1202) (Imp: HRS § 103D-1202)

Haw. Code R. § 3-130-12 Exceptions

If any requirement of this chapter results in undue hardship for the agency, the head of the department, or the head of any board, commission, agency, bureau, or office of the State may grant, in writing, an exception to that requirement if the head of the department, or the head of any board, commission, agency, bureau, or office of the State determines such action to be in the best interest of the State. Each exception granted by the head of the department, or the head of any board, commission, agency, bureau, or office of the State shall be by written determination approved by the administrator of the state procurement office.

History

• [Eff 12/15/95; comp 6/9/01; comp 11/15/01; comp 11/8/02] (Auth: HRS §§ 103D-202, 103D-1202) (Imp: HRS § 103D-1202)

Chapter 131 COMPLIANCE

Haw. Code R. § 3-131-1 Definitions

Definitions are in section 103D-104, HRS. The following definitions are also applicable to terms used in this chapter:

"After-the-fact" means a request for approval, unless the context requires otherwise, for a procurement made in violation of proper procedures.

"Business integrity" means the practice of good business responsibility such as business ethics, honesty, fidelity, and trustworthiness.

"Parceling" means the artificial division or intentional division of a purchase of same, like, or related items of goods, services, or construction into several purchases of smaller quantities, in order to evade the statutory competitive requirements.

"Purchasing ethics" means the principles to be respected and applied, including the prohibition of any breach of the public trust by realizing or attempting to realize improper gain for oneself or another through conduct inconsistent with the requirements of this chapter.

"Reviewing officer" means the chief procurement officer, the head of a purchasing agency, or a designee above the level of a procurement officer, who has been delegated in writing by the chief procurement officer or head of a purchasing agency, the authority and responsibility to review procurement violations; provided the authority and responsibility to review procurement violations of a chief procurement officer or designee shall be that of the administrator and the authority and responsibility to review procurement violations of the administrator shall be with the department of commerce and consumer affairs, pursuant to section 103D-709, HRS.

History

• [Eff 12/15/95; comp 11/17/97; am and comp 11/25/02; am and comp AUG 24 2009] (Autn: HRS §§ 103D-202, 103D-305) (Imp: HRS §§ 103D-104, 103D-305, 103D-709)

Haw. Code R. § 3-131-1.01 Applicability

This chapter shall apply to any person, including any actual or prospective bidder, offeror, contractor, or business.

History

• [Eff and comp AUG 24 2009 ] (Auth: HRS § 103D-202) (Imp: HRS § 103D-106)

Haw. Code R. § 3-131-1.02 Procurement code of ethics

(a) Public employees shall act in good faith to discharge their duties to ensure the fair and equitable treatment of all persons who deal with government procurement; to foster public confidence in the integrity of the procurement process; and to ensure the appropriate application of purchasing ethics. Any person employed by a governmental body who, when engaging in procurement, shall be bound by this code of ethics, including but not limited to the following:

(1) Avoid the intent and appearance of unethical behavior or practices;

(2) Diligently follow the procurement laws, rules, and procedures;

(3) Refrain from any activity that would create a conflict between personal interests and the interests of the State;

(4) Identify and eliminate any conflicts of interest;

(5) Avoid soliciting or accepting money, loans, credits, discounts, favors, or services from present or potential suppliers which may influence or appear to influence purchasing decisions; and (6) Ensure that all persons are afforded equal opportunity to compete in a fair and open environment.

(b) Governmental bodies shall conduct procurement in accordance with all applicable statutes and rules, including chapter 84, HRS.

(c) Any person, including any actual or prospective bidder, offeror, contractor, or business shall act in good faith to practice purchasing ethics, and when applicable, display business integrity as a responsible offeror, including but not limited to the following:

(1) Avoid the intent and appearance of unethical behavior or business practices;

(2) Refrain from any activity that would create a conflict between personal interests and the interests of the State;

(3) Identify and eliminate any conflicts of interest; and

(4) Ensure that all persons are afforded equal opportunity to compete in a fair and open environment.

History

• [Eff and comp AUG 24 2009 ] (Auth: HRS § 103D-202) (Imp: HRS §§ 103D-101, 103D-106, 103D-310, 84-15, 84-16)

Haw. Code R. § 3-131-2 Parceling

(a) Procurements should be done through a competitive process whenever possible. Since there is no definition of artificial division or intentional division that could address every circumstance, the procurement officer in deciding if a division is artificial or intentional, shall consider the following:

(1) The higher the price of a group of procurements, the more likely they should be consolidated.

(2) The more similar the good, service, or construction, or the more likely it is to purchase a group of goods, services, or construction from one type of vendor, the more likely it should be consolidated.

(3) The more foreseeable the procurement of similar goods, services, and construction is, the more likely it should be consolidated.

(b) In determining whether a competitive sealed process is required and if consolidation is appropriate, the estimated expenditures for any twelve-month period exceeding the dollar limits as stated in section 103D-305, HRS, the competitive sealed process pursuant to section 103D-302, HRS, or section 103D-303, HRS, shall be used to establish a contract.

(c) A purchasing agency shall, where possible, make appropriate consolidations to obtain competition. The procurement officer shall be responsible for decisions to proceed with small purchase procurements rather than with a competitive sealed process.

History

• [Eff 12/15/95; am and comp 11/17/97; am and comp 11/25/02; am and comp AUG 24 2009] (Auth: HRS §§ 103D-202, 103D-305) (Imp: HRS § 103D-305)

Haw. Code R. § 3-131-3 Procurement violations

(a) The head of the purchasing agency is responsible for the agency's compliance with the law. Violations of chapter 103D, HRS, which are normally inadvertent, and the result of administrative error, lack of knowledge, or simple carelessness, may be avoided through the implementation of better procedures, employee training, and progressive discipline.

(b) The procurement officer may prepare a report of procurement violations for review by the reviewing officer. It may be helpful to prepare and maintain procurement violation reports, first, to pinpoint weaknesses in the State's procurement process, including the procurement code itself, and to find ways to improve state procurement, and second, to determine whether or not a violation has reached the level requiring civil or criminal penalties.

(c) Being responsible for the initial investigation of violations requires the head of the purchasing agency to carefully examine the in-place procurement procedures. Any improvements can best be achieved through the agency's own initiative.

History

• [Eff 12/15/95; comp 11/17/97; am and comp 11/25/02; am and comp AUG 24 2009] (Auth: HRS § 103D-202) (Imp: HRS § 103D-106)

Haw. Code R. § 3-131-4 Civil and criminal penalties

(a) Certain violations of chapter 103D, HRS, may be subject to civil and criminal penalties as described in this section:

(1) Civil penalties. A person who contracts for, or purchases goods, services, or construction, in a manner the person knows to be contrary to the requirements of the procurement law is liable for all costs and damages to the State arising out of the violation.

(2) Criminal penalties. A person who intentionally or knowingly contracts for or purchases goods, services, or construction, under a scheme or artifice to avoid the requirements of the procurement law shall be guilty of a misdemeanor, and in addition to any applicable criminal penalties, shall be subject to removal from office and shall be liable to the State or the appropriate county for any sum paid by it in connection with the violation, and that sum, together with interest and costs, shall be recoverable by the State or county.

(b) In order for civil penalties to apply, a person must have knowingly violated the requirements of the law. In other words, the person committing the violation must be aware that he or she is acting contrary to the requirements of the law at the time the violation occurs. Violations that are the result of administrative error or mistake, ignorance, or carelessness are usually not subject to the civil penalties. The determining factor is what the person understood the procurement requirements to be when the violation occurred, and whether or not the person believed he or she was acting in compliance with those requirements.

(c) In order for criminal penalties to apply, a person must have knowingly or intentionally engaged in a scheme or artifice to avoid the requirements of the law. The violation must have been committed in a deliberate manner, involving some calculated means, such as parceling for a single procurement, a deliberate misstatement of fact, or an after-the-fact purchase, which is purposefully designed to avoid the requirements of the law. Legally admissible documentary evidence of the wrongdoing must be available to law enforcement authorities in order for criminal prosecution to be undertaken. Law enforcement authorities will also need to determine whether personal gain was intended or involved for either the person committing the violation, a friend or relative of the person, or the vendor, or whether some other vendor was significantly injured, whether intended or not.

(d) In addition to any other civil and criminal penalty allowed by law, a chief procurement officer may render a written decision on any person found in violation of any provision of this chapter, and impose any of the following:

(1) If an employee of a governmental agency:

(A) Reimbursement for any sum paid in connection with the violation, including interest and costs;

(B) A recommendation for termination of employment;

(C) Reduction or rescission of delegated procurement authority; and

(D) Administrative fine as provided in section 3-131-8.

(2) If a person or actual or prospective offeror:

(A) Payment for any sum paid in connection with the violation, including interest and costs;

(B) Suspension and debarment action pursuant to section 103D-702, HRS; and

(C) Administrative fine as provided in section 3-131-8.

History

• [Eff 12/15/95; comp 11/17/97; am and comp 11/25/02; am and comp AUG 24 2009] (Auth: HRS § 103D-202) (Imp: HRS §§ 103D- 106, 103D-702)

Haw. Code R. § 3-131-5 Corrective action

When a procurement violation has occurred, the head of the purchasing agency shall determine whether any corrective action is necessary to remedy the situation, or prevent its reoccurrence. Action may include training, or a reduction of an employee's purchasing authority.

History

• [Eff 12/15/95; comp 11/17/97; am and comp 11/25/02; am and comp AUG 24 2009] (Auth: HRS § 103D-202) (Imp: HRS § 103D-106)

Haw. Code R. § 3-131-6 Report of findings and corrective actions

(a) The purchasing agency shall consult with the chief procurement officer on all procurement violations and provide a report of findings and corrective actions that shall include, at a minimum:

(1) The facts and circumstances leading to the need for the good or service, including the explanation as to why established procedures were not followed;

(2) Whether there are any indications of intent to deliberately evade established purchasing procedures;

(3) Any lack of procurement information or training;

(4) Whether this is the first occurrence; and

(5) Whether appropriate written assurance and safeguards have been established to preclude a subsequent unauthorized procurement.

(b) If the head of the purchasing agency determines that payment to a vendor is also required, the head of the purchasing agency shall include a request for after-the-fact payment approval in the report of findings and corrective actions to the chief financial officer.

(c) If the chief procurement officer disapproves the purchasing agency's report of findings and corrective actions, the provisions of section 3-131-4(d) shall apply.

History

• [Eff 12/15/95; comp 11/17/97; am and comp 11/25/02; am and comp AUG 24 2009] (Auth: HRS § 103D-202) (Imp: HRS § 103D-106)

Haw. Code R. § 3-131-7 Repealed

History

• R AUG 24 2009

Haw. Code R. § 3-131-8 Administrative fine

(a) A chief procurement officer may assess an administrative fine in the following amounts:

(1) An amount not to exceed $5,000 for each violation involving a procurement which amount is in excess of the dollar levels specified by section 103D- 305, HRS;

(2) An amount not to exceed $1,000 for each violation involving a procurement which amount is less than the dollar levels specified by section 103D-305, HRS.

(b) Prior to the imposition of an administrative fine, the chief procurement officer shall notify the person in writing that the chief procurement officer intends to assess an administrative fine. The person then shall be given an opportunity to be heard by the chief procurement officer. A request for a meeting shall be made within seven calendar days after the receipt of the chief procurement officer's letter. After the meeting, if any, should the chief procurement officer determine that the imposition of an administrative fine is appropriate, the person may request the review of the assessment through an administrative review of the chief procurement officer's decision pursuant to section 103D-709, HRS. The request shall be made within seven calendar days pursuant to section 3-125-42, after the receipt of the chief procurement officer's decision.

(c) The payment of the administrative fine shall be the responsibility of the person, and if the person is a government employee, shall not be paid with government funds.

(d) The chief procurement officer shall report annually to the state procurement office any administrative fines assessed. The report shall include but not be limited to the following information: the name of the person, the amount fine, and the reason for the fine.

History

• [Eff and comp AUG 24 2009 ] (Auth: HRS § 103D-202) (Imp: HRS § 103D-106)

Chapter 132 VALUE ENGINEERING INCENTIVES IN CONSTRUCTION CONTRACTS

Haw. Code R. § 3-132-1 Definitions

As used in these rules:

"Net savings" means those savings in project costs realized by the State as the result of a value engineering change proposal after deducting the contractor's share of the cost savings.

"Single contract" means the single construction for which the cost savings is proposed.

"Value engineering" means an analysis of the requirements for the systems, equipment, and supplies of the single contract for the purpose of achieving a net savings by providing less costly items than those specified without impairing any essential functions and characteristics as service life, reliability, substitutability, economy of operations, ease of maintenance, and necessary standing functions.

"Value engineering change proposal" means a cost reduction proposal based on value engineering submitted by the contractor pursuant to this chapter and particularly identified as such.

History

• [Eff NOV 17 1997] (Auth: HRS §§ 103-49, 103D-202) (Imp: HRS § 103-49)

Haw. Code R. § 3-132-2 Applicability

(a) The provisions of this chapter shall apply to all construction contracts in excess of $100,000. The application of value engineering incentives to contracts shall not be construed to have an effect on the solicitation or the selection of the contractor.

(b) The contractor may develop and submit value engineering change proposals for drawings, designs, specifications, or other requirements of the contract. If any proposal is accepted and approved, in whole or in part, by the procurement officer, the contract shall be modified and shall include an equitable adjustment of the contract price in accordance with this chapter.

(c) This chapter shall not apply to any cost reduction proposal that is not identified as a value engineering change proposal by the contractor at the time of its submission to the procurement officer.

History

• [Eff NOV 17 1997] (Auth: HRS §§ 103-49, 103D-202) (Imp: HRS § 103-49)

Haw. Code R. § 3-132-3 General provisions

(a) The processing of a value engineering change proposal shall be similar to that for any proposed contract change order and shall be considered only after the construction contract is awarded.

(b) Nothing herein shall be construed to mean that the State must accept or approve any or all value engineering change proposals submitted in accordance with this chapter. The procurement officer's interpretation and findings relative to the impairment of the functions or characteristics of the item or items covered by the value engineering change proposal shall be final.

(c) Adjustment in contract prices and allowances for implementation costs shall be in accordance with this chapter and shall only be considered if and when the value engineering change proposal is approved by the procurement officer. The receipt of the value engineering change proposal by the State or a verbal acceptance of a value engineering change proposal by any employee of the State shall not obligate the State to accept the value engineering change proposal.

(d) The procurement officer may impose, as a condition of acceptance of any value engineering change proposal, a requirement that the contractor warrant the statements, claims, and other information contained in the value engineering change proposal. In addition, the contractor's responsibility under any such warranty shall be in addition to the liability imposed by the "guarantee of work" requirement as included in the contract.

(e) The contractor shall be responsible for the new design of the facility or a portion of the facility submitted as a value engineering change proposal, including errors and omissions and, if the value engineering change proposal is for a portion of the facility, for any adverse impacts the new design may have on the unchanged portions of the facility.

(f) Attached to this chapter and made a part of this chapter is Exhibit A, titled "Value Engineering Change Proposal", dated 10/14/97, with two attachments that may be used to initiate a value engineering change proposal.

History

• [Eff NOV 17 1997] (Auth: HRS §§ 103-49, 103D-202) (Imp: HRS § 103-49)

Haw. Code R. § 3-132-4 Conditions for a value engineering change proposal

(a) A value engineering change proposal to a contract shall:

(1) Result in an estimated net savings to the State in the project cost of at least four thousand dollars by providing less costly items than or using different construction methods from those specified in the contract without impairing any essential functions and characteristics as service life, reliability, substitutability, economy of operation, ease of maintenance, and necessary standardized features of the completed work;

(2) Require, in order to be applied to the contract, a change order to the contract; and

(3) Not adversely impact on the performance schedule or the contract completion date.

(b) As a minimum, the following information shall be submitted by the contractor with each value engineering change proposal:

(1) A description of the difference between the existing contract requirements and the value engineering change proposal and the comparative advantages and disadvantages of each including durability, service life, reliability, substitutability, economy of operation, ease of maintenance, desired appearance, design, safety standards, impacts due to construction, and other essential or desirable functions and characteristics as appropriate;

(2) An itemization of the requirements of the contract which must be changed if the value engineering change proposal is adopted and a recommendation as to how to make each change;

(3) An itemized estimate of the reduction in performance costs that will result from adoption of the value engineering change proposal or parts thereof taking into account the costs of implementation by the contractor, including any amounts attributable to subcontractors, and the basis for the estimate;

(4) A prediction of any effects and impacts the value engineering change proposal would have on: other costs to the State as the costs of State-furnished property, related items, and maintenance and operation over the anticipated life of the material, equipment, or facilities as appropriate; the construction schedule, sequence and time; and bid item totals used for evaluation and payment purposes;

(5) A statement of the time by which a change order adopting the value engineering change proposal must be issued so as to obtain the maximum cost reduction during the remainder of the contract, noting any effect on the contract time; and

(6) If previously submitted, the date(s) of any previous submission(s), the contract number(s) of those contract(s) for which it was submitted and the previous action(s) by the State, if known;

(c) When, in the judgment of the procurement officer, a value engineering change proposal alters the design prepared by a registered professional architect or engineer, the contractor shall ensure the changes to be prepared are by or under the supervision of a registered professional architect or engineer, and stamped and so certified.

(d) A value engineering change proposal will be processed expeditiously and in the same manner as prescribed for any other proposal which would likewise necessitate issuance of a contract change order. Unless and until a change order applies a value engineering proposal to a contract, the contractor shall remain obligated to perform in accordance with the terms of the contract and the State shall not be liable for delays incurred by the contractor resulting from the time required for the State's determination of the acceptability of the value engineering change proposal.

The determination of the procurement officer as to the acceptance of any value engineering change proposal under a contract shall be final.

(e) The procurement officer may accept in whole or in part any value engineering change proposal submitted pursuant to this chapter by issuing a change order to the contract. Prior to issuance of the change order, the contractor shall submit complete final contract documents similar to those of the original contract showing the accepted changes and the new design and features as well as the following:

(1) Design calculations;

(2) The design criteria used; and

(3) A detailed breakdown of costs and expenses to construct or implement such revisions.

The change order will identify the final value engineering change proposal on which it is based.

(f) When a value engineering change proposal submitted pursuant to this chapter is accepted under a contract, an equitable adjustment in the contract price and in any other affected provisions of the contract shall be made in accordance with this chapter and the "change order" clause of the contract. The equitable adjustment shall first be established by determining the effect on the contractor's cost of implementing the change, including any amount attributable to subcontractors and to the State's charges to the contractor for architectural, engineering, or other consultant services and the staff time required to examine and review the proposal. The contract price shall then be reduced by fifty per cent of the net estimated decrease in the cost of performance.

(g) The contractor may restrict the State's right to use the data or information or both on any sheet of a value engineering change proposal or of the supporting data, submitted pursuant to this section, if it is stated on that sheet as follows:

"This data or information or both shall not be disclosed outside the ["State" or "Name of County"], or be duplicated, used, or disclosed, in whole or in part, for any purpose other than to evaluate this value engineering change proposal.

This restriction does not limit the ["State" or "Name of County"]'s right to use this data or information or both if obtained from another source, or is otherwise available, without limitations. If this proposal is accepted by the ["State" or "Name of County"] by issuance of a change order to the contract after the use of this data or information or both in such an evaluation, the ["State" or "Name of County"] shall have the right to duplicate, use and disclose any data or information or both pertinent to the proposal as accepted, in any manner and for any purpose whatsoever, and have others so do".

(h) In the event of acceptance of a value engineering proposal, the State shall have all rights to use, duplicate, or disclose in whole or in part, in any manner and for any purpose whatsoever, and to have or permit others to do so, any data or information or both reasonably necessary to fully utilize such proposal.

(i) Notwithstanding the provisions of this chapter, for any construction contract, the contractor shall not be precluded from making substitution requests in accordance with applicable rules and policies of the State. The procurement officer shall be the sole judge of whether a proposal is a value engineering change proposal or a substitution request.

History

• [Eff NOV 17 1997] (Auth: HRS §§ 103-49, 103D-202) (Imp: HRS § 103-49)

Haw. Code R. § 3-132-5 Preparation, evaluation, and acceptance of value engineering change proposal

(a) The contractor shall submit with each value engineering change proposal the information as required by this chapter and provide all additional information as may be required by the procurement officer to evaluate and implement the value engineering change proposal. The cost for preparing the value engineering change proposal shall be the contractor's responsibility, and will be part of the contractor's cost for implementing the change, and compensation shall be made only when the proposal is accepted by the State and the adjustment in contract price is made as provided for in this chapter.

(b) If the services of the State's architect, engineer, or consultant is necessary to review and evaluate a value engineering change proposal, the cost therefor shall be paid for by the contractor.

(c) The evaluation and acceptance of all value engineering change proposals shall be in accordance with the requirements as listed in this chapter.

(d) Each value engineering change proposal shall be evaluated as applicable to the particular project, and past acceptance on another State project for a similar item shall not be automatic grounds for approval.

History

• [Eff NOV 17 1997] (Auth: HRS §§ 103-49, 103D-202) (Imp: HRS § 103-49)

Haw. Code R. § 3-132-6 Value engineering sharing method

The method by which the contractor will share a portion of the cost savings from an accepted value engineering change proposal shall be in accordance with section 3-132-4 and the following:

(1) The contractor's share in cost savings shall be for the single contract only, and no consideration shall be made for future acquisition, royalty type payment, or collateral savings.

(2) The State may accept the proposed value engineering change proposal, in whole or in part. The engineer shall issue a contract change order or modify the contract to identify and describe the accepted value engineering change proposal.

History

• [Eff NOV 17 1997] (Auth: HRS §§ 103-49, 103D-202) (Imp: HRS § 103-49)

Procurement of Health and Human Services Procurement of Health and Human Services

Chapter 140 DEFINITIONS

Haw. Code R. § 3-140-101 Definitions

As used in chapters 3-140 to 3-149:

"Administrator" means the administrator of the state procurement office.

"Advantageous" means the determination by the State of how well its best interests will be served.

"Agency" means any department, authority, commission, council, board, committee, institution, legislative body, agency, or other establishment or office of the executive, legislative, or judicial branch of the state, and includes the office of Hawaiian affairs.

"Applicant" means an organization or individual that responds to a request for proposals or solicitation for statements of qualifications by submitting either a proposal or statement of qualifications.

"Capability" means the ability of a provider to provide the health and human services required by a purchasing agency. "Chief procurement officer" means those officials designated by section 103D-203, HRS.

"Contract" means all types of agreements, regardless of what they may be called.

"Contract amendment" means any written alteration of scope of services, time of delivery, payment terms, amount of payment, or other provisions of any contract accomplished by mutual action of the parties to the contract.

"Cost or pricing data" means all facts as of the date of price agreement that prudent buyers and sellers would reasonably expect to affect price negotiations significantly. Cost or pricing data are factual, not judgmental, and are therefore verifiable. While they do not indicate the accuracy of a prospective provider's judgement about future costs or projections, they do include the data forming the basis for that judgement. Cost or pricing data are more than historical accounting data; they are all facts that can reasonably be expected to contribute to the soundness of estimates of future costs and to the validity of determinations of costs already incurred.

"Departmental coordinator" means any person designated by the head of the purchasing agency to be the lead in coordinating activities or processes on behalf of the purchasing agency related to purchases of health and human services.

"Designee" means a person to whom a head of a purchasing agency or a chief procurement officer delegates all or a portion of his or her power and authority under chapters 103D and 103F, HRS, or other applicable body of law.

"Health and human services" means services to communities, families, or individuals which are intended to maintain or improve health or social well-being through methods including, but not limited to:

(a) Assessment, treatment, diagnosis, prevention, and education services provided directly to a target clientele; or

(b) Insurance coverage for assessment, treatment, diagnosis, prevention, and education services to be provided to a target clientele.

"Practicable" means what may be accomplished or put into practical application.

"Procurement officer" means any person with delegated authority from the head of a purchasing agency, the chief procurement officer, or a designee of either, to enter into and administer contracts, and to make written determinations with respect thereto.

"Protestor" or "protesting applicant" means any party who is aggrieved in connection with the award of a contract under section 103F-402, or 103F-403, HRS, and who files a protest in accordance with the procedures established in chapter 3-148.

"Provider" means an organization or individual contracted by an agency to provide health or human services on its behalf.

"Public funds" means funds from any combination of federal, state, and local government sources.

"Purchase of service" means an award of public funds to a provider by an agency under a contract for health and human services pursuant to chapter 103F, HRS.

"Purchasing agency" means an agency authorized to provide, or responsible for providing, or entering into contracts to provide health or human services to the public.

"Quotation" means a statement of amount, terms, and description of services, by a prospective provider, usually for small purchases.

"Request for proposals" means all documents, whether attached or incorporated by reference, soliciting providers to submit a detailed plan to provide health or human services to the public, on behalf of a state agency.

"Responsible provider" means an applicant that has the capability in all respects to perform fully the contract requirements.

"Responsive provider" means an applicant that has submitted a proposal or statement of qualifications that conforms in all material respects to a purchasing agency's request for proposals or solicitation for statements of qualifications.

"Scope of service" means any description of the health and human services required by a purchasing agency, which may include the estimated number of persons to be served, activities, outcomes being sought, target group, and geographic area in which the services are to be provided.

"Treatment" means services to individuals and families by health or social work professionals which attempt to alleviate physical or mental illness or behavioral problems, including but not limited to, medical treatment, counseling, physical, occupational and other therapeutic services, and referral and case management services for medical treatment, counseling, and other therapeutic services.

"Unit of service" means a measurable unit of service activity, productivity, or performance as determined by the purchasing agency, including but not limited to:

(a) A unit of time, such as an hour of counseling, or a residential day;

(b) The completion of prescribed procedure, such as a client evaluation; or

(c) Any other measurable unit of service. "Unit rate" means the monetary rate charged per unit of service.

History

• [Eff 6/19/99; am and comp JAN 23 2006] (Auth: HRS § 103F-106) (Imp: HRS §§ 103F-101 to 103F-504)

Campaign Spending Commission Campaign Spending Commission

Chapter 160 ELECTION CAMPAIGN CONTRIBUTIONS AND EXPENDITURES

Subchapter 3 CONTRIBUTION AND EXPENDITURE REPORTING, LIMITATIONS, AND PROHIBITIONS

Haw. Code R. § 3-160-30 Contributions; timely reporting

(a) A monetary contribution shall be deposited in a depository institution. The contribution shall be segregated from, and not commingled with any other money that will not be solely used to influence the nomination or election of a candidate or the outcome of any question or issue which may appear on a ballot.

(b) A monetary contribution shall be deposited within seven days after a candidate or any individual authorized to receive contributions on behalf of a candidate or noncandidate committee that received the contribution. The committee shall report the contribution, even if the contribution was not deposited within seven days.

(c) The date a monetary contribution is deposited is deemed to be the date the contribution is received for purposes of disclosing information in reports filed with the commission.

(d) A monetary contribution which was not deposited and returned to the contributor within seven days after it was received need not be disclosed and reported as a contribution.

(e) A nonmonetary contribution to a committee shall be disclosed and reported at the contribution's reasonable market value on the date received.

History

• [Eff MAY 29 2010] (Auth: HRS §§ 11-193, 11-216, 11- 225) (Imp: HRS §§ 11-199, 11-203, 11-206, 11-212, 11-213)

Haw. Code R. § 3-160-31 Contributions; limits for persons

(a) All of a person's contributions shall be aggregated and subject to the limits in sections 11-357, 11-358, 11-359(b), and 11-360, Hawaii Revised Statutes, except as provided in this section.

(b) A person's contribution limits are applicable to the election period in which the candidate is certified to be on the ballot, except as provided in this section.

(1) A person's contribution limits apply to the current election period even if the contributions are used to pay expenses incurred during a prior election period.

(2) A person's contribution limits for the prior election period are applicable only if all the following requirements are met: the person contributes to a candidate who is term limited, is not a candidate for another office, has no surplus, and has unpaid expenses or loans.

(c) A person's aggregate contributions to a candidate or candidate's committee include:

(1) A contribution to another committee that is organized to support the candidate unless that committee is a noncandidate committee making only independent expenditures;

(2) A contribution to another committee if the contribution is earmarked for the candidate. For purposes of this section, "earmarked" means a designation, instruction, whether direct or indirect, express or implied, oral or written, which results in all or any part of a contribution being made to, or expended on behalf of, a candidate or a candidate's committee;

(3) Any expenditures or coordinated activity made by the person for the benefit of a candidate in cooperation, consultation, or concert with, or at the request or suggestion of, a candidate, a candidate's committee, or their agents.

(d) Contributions or expenditures made by a person "financed, maintained, or controlled" by another person shall be aggregated. Whether a person is "financed, maintained, or controlled" by another person is determined by the totality of the factual circumstances, including but not limited to the following:

(1) Whether a sponsoring organization owns a controlling interest in the voting stock or securities of the sponsoring organization of another committee;

(2) Whether a sponsoring organization or committee has the authority or ability to direct or participate in the governance of another sponsoring organization or committee through provisions of constitutions, bylaws, contracts, or other rules, or through formal or informal practices or procedures;

(3) Whether a sponsoring organization or committee has the authority or ability to hire, appoint, demote, or otherwise control the officers, or other decision making employees or members of another sponsoring organization or committee;

(4) Whether a sponsoring organization or committee has a common or overlapping membership with another sponsoring organization or committee which indicates a formal or ongoing relationship between the sponsoring organizations or committees;

(5) Whether a sponsoring organization or committee has common or overlapping officers or employees with another sponsoring organization or committee which indicates a formal or ongoing relationship between the sponsoring organizations or committees;

(6) Whether a sponsoring organization or committee has any members, officers, or employees who were members, officers, or employees of another sponsoring organization or committee which indicates a formal or ongoing relationship between the sponsoring organizations or committees, or which indicates the creation of a successor entity;

(7) Whether a sponsoring organization or committee provides funds or goods in a significant amount or on an ongoing basis to another sponsoring organization or committee, such as through direct or indirect payments for administrative, fundraising, or other costs;

(8) Whether a sponsoring organization or committee causes or arranges for funds in a significant amount or on an ongoing basis to be provided to another sponsoring organization or committee;

(9) Whether a sponsoring organization or a committee or its agent had an active or significant role in the formation of another sponsoring organization or committee; or

(10) Whether the sponsoring organizations or committees have similar patterns of contributions or contributors which indicate a formal or ongoing relationship between the sponsoring organizations or committees.

(e) A person who "controls" another person includes:

(1) A person who has control over the disbursement of corporate assets, particularly the disbursement for political purposes; and

(2) A person with the actual financial ownership of corporate assets.

(f) A person's contributions to a candidate shall not be aggregated if the candidate previously campaigned for and appeared on the ballot for a different elective office and the two offices have overlapping election periods.

History

• [Eff MAY 29 2010] (Auth: HRS §§ 11-193, 11-216, 11- 225) (Imp: HRS §§ 11-199, 111-200, 11-201, 11-202, 11- 203, 11-204, 11-205, 11-205.5, 11-205.6, 11-206, 11- 207, 11-212, 11-213)

Haw. Code R. § 3-160-32 Contributions; joint functions or fundraisers

In the case of a fundraiser or function held by more than one candidate or committee, contributions shall be made to the individual candidates or each committee, not made in the name of one candidate or committee and later divided.

History

• [Eff MAY 29 2010] (Auth: HRS §§ 11-193, 11-216, 11- 225) (Imp: HRS §§ 11-199, 11-200, 11-201, 11-202, 11-203, 11-204, 11-205, 11-205.5, 11-205.6, 11-206, 11-207, 11-212, 11-213)

Haw. Code R. § 3-160-33 Contributions; officer of multiple committees

An individual shall not serve as an officer on two or more committees which support or oppose the same candidate. An "officer", for purposes of this section, is defined as the candidate, chairperson, treasurer, deputy chairperson, or deputy treasurer.

History

• [Eff MAY 29 2010] (Auth: HRS §§ 11-193, 11-216, 11- 225) (Imp: HRS §§ 11-199, 11-200, 11-201, 11-202, 11-203, 11-204, 11-205, 11-205.5, 11-205.6, 11-206, 11-207, 11-212, 11-213)

Haw. Code R. § 3-160-34 Repealed

History

• [Eff MAY 29 2010] (Auth: HRS §§ 11-193, 11-216, 11-225) (Imp: HRS §§ 11-199, 11-200, 11- 201, 11-202, 11-203, 11-204, 11-205, 11-205.5, 11-205.6, 11-206, 11-207, 11-212, 11-213)

Haw. Code R. § 3-160-35 Contributions by limited partnerships, limited liability partnerships, or limited liability limited partnerships

(a) "Limited partnership, limited liability partnership, or limited liability limited partnership", as used in this section, means business entities that are recognized as such under the laws of the state in which they are established,

(b) A contribution from a limited partnership, limited liability partnership, or limited liability limited partnership shall be treated as a contribution from a partnership.

History

• [Eff MAY 29 2010] (Auth: HRS §§ 11-193, 11-216, 11-225) (Imp: HRS §§ 11-199, 11-200, 11-201, 11-202, 11-203, 11-204, 11-205, 11-205.5, 11-205.6, 11-206, 11-207, 11-212, 11-213)

Haw. Code R. § 3-160-36 Contributions by a sole proprietor

(a) "Sole proprietor" means a business in which one individual owns all the assets, owes all the liabilities, and operates in the individual owner's personal capacity, and has no legal identity apart from its owner.

(b) A contribution from a sole proprietor shall be treated as a contribution from an individual.

History

• [Eff MAY 29 2010] (Auth: HRS §§ 11-204, 11-205.5) (Imp: HRS §§ 11-199, 11-200, 11-201, 11-202, 11-203, 11-204, 11-205, 11-205.5, 11-205.6, 11-206, 11-207, 11-212, 11-213)

Haw. Code R. § 3-160-37 Contributions by a state or county contractor prohibited

(a) A state or county contractor, as specified in section 11-355, Hawaii Revised Statutes, shall not make contributions to a candidate or committee; provided, that the prohibition in section 11-355, Hawaii Revised Statutes, is not applicable to a state or county contractor contributing to a ballot issue committee.

(b) The assets of a partnership, including a limited liability company treated as a partnership by the Internal Revenue Service, which is a state or county contractor as specified in section 11-355, Hawaii Revised Statutes, shall not be used to make contributions. Individual partners and employees of a partnership may make contributions or expenditures in their own names from their personal assets.

(c) Stockholders, officers, or employees of a state or county contractor as specified in section 11-355, Hawaii Revised Statutes, may contribute in their own names from their personal assets.

(d) Individuals who are state or county contractors as specified in section 11-355, Hawaii Revised Statutes, may not contribute in their own names from their personal assets.

(e) Sole proprietors who are state or county contractors as specified in section 11-355, Hawaii Revised Statues, may not make contributions.

(f) "Contract", as used in section 11-355, Hawaii Revised Statutes, means:

(1) A written contract between any person and the State, any of its counties, or any department or agency thereof; and

(2) Any written contract modification.

(g) "Execution", as used in section 11-355, Hawaii Revised Statutes, means the date the last party signs the contract.

(h) "Personal services", as used in section 11-355, Hawaii Revised Statutes, means the performance of services in the fields of health, law, engineering, architecture, construction, accounting, actuarial science, performing arts, or consulting.

History

• [Eff MAY 29 2010] (Auth: HRS §§ 11-193, 11-216, 11-225) (Imp: HRS §§ 11-199, 11-200, 11-201, 11-202, 11-203, 11-204, 11-205, 11-205.5, 11-205.6, 11-206, 11-207, 11-212, 11-213)

Haw. Code R. § 3-160-38 False name contributions prohibited

(a) No person shall make a contribution in any name other than the true name of the owner of the money or the property.

(b) False name contributions include but are not limited to:

(1) Giving a contribution, all or part of which was provided to the contributor by another person (the true contributor) without disclosing the source of the contribution to the recipient candidate or committee at the time the contribution is made;

(2) Making a contribution and attributing as the source of the contribution another person when in fact the contributor is the source; or

(3) Compensating an employee, director, or contractor for a contribution, through a bonus, expense account, or other form of direct or indirect compensation.

History

• [Eff MAY 29 2010] (Auth: HRS §§ 11-193, 11-216, 11-225) (Imp: HRS §§ 11-199, 11-200, 11-201, 11-202, 11-203, 11-204, 11-205, 11-205.5, 11-205.6, 11-206, 11-207, 11-212, 11-213)

Haw. Code R. § 3-160-39 Loans to candidates or committees

(a) A candidate or candidate's committee may receive loans from:

(1) A financial institution regulated by the State or a federally chartered depository institution and made in accordance with applicable law in the ordinary course of business;

(2) The candidate's own funds;

(3) The candidate's immediate family in an aggregate amount with contributions not to exceed $50,000 during an election period;

(4) Persons other than immediate family of a candidate in an aggregate amount not to exceed $10,000 during an election period.

(b) All loans to a candidate or candidate's committee must be reported to the commission in the report covering the period when the loan was received.

(1) The loan and payments made to repay the loan must be reported in each reporting period until the loan is repaid.

(2) A copy of the loan agreement, for every loan in excess of $100 containing the terms of the loan shall be mailed and received or delivered to the commission by 4:30 p.m. on the due date of the report covering the applicable reporting period and the following information shall be disclosed in the report:

(A) The lender's name, address, employer, and occupation and purpose of the loan;

(B) The date, amount, repayment schedule, and interest rate of the loan; and

(C) The types and value of collateral, if any, or other sources that secure the loan.

(c) The failure to document the loan or to disclose the loan to the commission in the report covering the reporting period when the loan was received shall cause the loan to be treated as a contribution, unless the loan is from the candidate, in which case it shall be treated as an other receipt.

(d) The following records must be preserved for five years after the loan is paid or until ordered by the executive director:

(1) Records to demonstrate the ownership of the accounts or assets securing the loans;

(2) Copies of the executed loan agreement and all security and guarantee statements;

(3) Statements of account for all accounts used to secure any loan for the period the loan is outstanding, and statements on any line of credit account that were used for the purpose of influencing the candidate's election; and

(4) Documentation for all payments to repay the loan.

(e) The $10,000 loan limit for loans from persons other than immediate family and commercial depository institutions, in section 11-371, Hawaii Revised Statutes, is applicable to the candidate, rather than the person making the loan.

(f) A candidate or candidate's committee may receive loans in an aggregate amount with contributions not to exceed $50,000 during an election period.

(g) A loan from a financial institution is made in the ordinary course of business if it meets the following requirements:

(1) The terms and conditions of the loan are incorporated into a written promissory note or loan agreement;

(2) The loan shall be fully repaid within one year from the effective date of the loan except that home equity or business loans may be repaid within the terms and conditions of that particular loan;

(3) The loan is secured by collateral with a market value covering at least eighty per cent of the amount borrowed; except that loan for less than $5,000 require only a signature of the candidate and no collateral; and

(4) The loan includes the payment of interest at a rate that is not less than the prevailing market rate for a similarly secured institutional loan.

(h) If a loan from a financial institution provides for the payment of interest at a rate that is less than the prevailing market rate for a similarly secured institutional loan, the difference between the rate charged the candidate and the prevailing market rate is deemed to be a contribution from the lender to the candidate.

History

• [Eff MAY 29 2010] (Auth: HRS §§ 11-193, 11-216) (Imp: HRS §§ 11-191, 11-199, 111-200, 11-201, 11-202, 11-203, 11-204, 11-204, 11-205.5, 11-205.6, 11-206, 11-207, 11-207.5, 11-211, 11-212, 11-213)

Haw. Code R. § 3-160-40 Expenditures; reporting

(a) Expenditures coordinated with the candidate or candidate committee authorized by a candidate, shall be reported as non-monetary contributions to the candidate.

(b) A noncandidate committee, required to register and file reports, that coordinates expenditures with a candidate shall keep complete records of such coordinated expenditures and file reports pursuant to sections 11-335, 11-336, 11-337, and 11-33 8, Hawaii Revised Statutes.

(c) Any expenditures authorized by a candidate, committee, or party shall be reported in the report covering the reporting period in which the expenditure is made or incurred, unless the person filing the required report furnishes detailed information to justify an allocation to another reporting period.

(d) Unpaid expenditures must be reported until payment is made in full or the debt is forgiven.

(e) Expenditures made for or on behalf of more than one candidate shall be attributed to each candidate according to the benefit reasonably expected to be derived as follows:

(1) In the case of a publication or broadcast communication, the expenditures shall be attributed based upon the proportion of time or space devoted to each candidate.

(2) In the case of a phone bank, the expenditures shall be attributed based upon the number of questions or statements devoted to each candidate as compared to the number of questions or statements devoted to all candidates,

(f) In the case of a fundraiser or event held by more than one candidate, the expenditures will be reported by each participating candidate pro rata.

History

• [Eff MAY 29 2010] (Auth: HRS §§ 11-193, 11-216, 11-225) (Imp: HRS §§ 11-207, 11-208, 11-209, 11-212, 11-213, 11-224)

Haw. Code R. § 3-160-41 Expenditures; donations

(a) A candidate or candidate committee may donate to a community service, educational, youth, recreational, charitable, scientific, or literary organization.

(b) "Community service, educational, youth, recreational, charitable, scientific, or literary organization", as used in this section, does not include:

(1) Organizations or trust funds established by a candidate or the candidate's committee;

(2) Organizations whose beneficiaries include the candidate, the candidate's immediate family members, officers of the candidate's committee and their immediate families; and

(3) Any organization where one individual constitutes the entire organization.

(c) "Educational organization" does not include organizations that are established temporarily to advocate or promote political or ballot issues.

History

• [Eff MAY 29 2010] (Auth: HRS §§ 11-193, 11-216, 11- 225) (Imp: HRS §§ 11-207, 11-208, 11-209, 11-212, 11-213, 11-224)

Haw. Code R. § 3-160-41.1 Expenditures; scholarships

A candidate or candidate committee shall not use campaign funds for a scholarship for the candidate or the candidate's immediate family.

History

• [Am and Comp 12/1/2016 ] (Auth: HRS § 11-314(8)) (Imp: HRS § 11-381(a) (5))

Haw. Code R. § 3-160-42 Expenditures not allowed for personal expenses

(a) Candidates and committees shall not use campaign funds for "personal expenses".

(b) "Personal expenses", as used in this section, means expenses that would exist irrespective of a candidate's campaign to seek the nomination or election to office or being elected to an office and includes the following expenses:

(1) Household food items and supplies purchased for daily personal consumption by the candidate, a family member of the candidate, or members of a committee, candidate committee, or noncandidate committee;

(2) Gifts or donations for weddings, Christmas, birthdays, funerals, or other personal occasions, except gifts to campaign employees or volunteers as provided in section 3-160-43(a) (5);

(3) Clothing usually and customarily worn for every day wear; provided that a campaign expense for clothing identifying the candidate or campaign for an office shall not be prohibited;

(4) Tuition and educational fees or expenses not directly related to the performance of duties or responsibilities in a candidate's campaign for elected office;

(5) Mortgage, rent, and utility expenses for a personal residence; provided that if a clearly segregated portion of the personal residence is being used for campaign purposes, contributions may be used to reimburse the owner of the property a fair rental value for the apportioned actual use of the personal residence;

(6) Entertainment or sporting events;

(7) Dues, fees, or other expenses to a country club, health club, recreational or exercise facility and not arising from a fundraising activity or function held at the facility;

(8) Compensation for personal services paid to the candidate;

(9) Compensation for personal services paid to the candidate's immediate family or relatives, unless the payments are for bona fide services necessary to maintain a campaign to influence the nomination or election of the candidate and is comparable to the compensation paid to other persons in the community providing similar services;

(10) Legal expenses not related to the nomination or election of a candidate; provided that personal expenses do not include legal expenses specifically related to the nomination or election of a candidate in:

(A) Proceedings before the commission; or

(B) Proceedings before an administrative agency or a court of law; or

(11) Vacation expenses.

History

• [Eff MAY 29 2010] (Auth: HRS §§ 11-193, 11-216, 11- 225) (Imp: HRS §§ 11-206, 11-207, 11-208, 11-209, 11-212, 11-213, 11-224)

Haw. Code R. § 3-160-43 Expenditures directly related to a candidate's campaign; unauthorized expenditures

(a) A candidate or candidate's committee may pay expenses that are predominantly and directly related to a candidate's campaign to influence the nomination or election of the candidate and includes the following:

(1) Airfare and hotel accommodations;

(2) Meal or food expenses incurred at a fund-raising event or other campaign activity;

(3) Professional services that are necessary in a candidate's campaign to seek the nomination or election of the candidate;

(4) Penalties, fines, judgments, or settlements imposed on a candidate or candidate committee by a court or regulatory agency for violations of part XIII of chapter 11, Hawaii Revised Statutes, or this chapter;

(5) Personal gifts:

(A) For one or more campaign employees or volunteers or for one or more employees working for the candidate who voluntarily campaigned for the candidate;

(B) Of not more than an aggregate of $500 for a two-year office, $1,000 for a four-year non-statewide office, or $1,500 for a four-year statewide office in the applicable election period;

(6) Mixed benefit expenditures authorized in section 3-160-45;

(7) State and county political convention expenses to attend and participate in the convention, including travel, meals, and registration, but not including expenses for clothing and entertainment; or

(8) Reasonable expenses for "Mahalo parties" and newsletters to supporters.

(b) A candidate or candidate committee shall not pay for expenses not predominantly and directly related to a candidate's campaign to influence the nomination or election of the candidate, including:

(1) An expenditure to compensate an individual who approved the expenditure;

(2) An expenditure to purchase a fee simple interest in real property;

(3) An expenditure for the lease of real property or the purchase, lease, or refurbishment or repair of any appliance or equipment, if the candidate, campaign treasurer, or any individual with authority to approve the expenditure maintains any legal interest in the real property, appliance, or equipment. "Equipment", as used in this section, includes vehicles, office equipment, and electronic devices such as television, phone, computers, printers, copiers, calculators and other similar devices;

(4) Expenditures for a federal elective office; or

(5) Expenditures to endorse another candidate or oppose any candidate, other than the opponent of the candidate who received the contribution.

History

• [Eff] (Auth: HRS §§ 11-216, 11-225) (Imp: HRS §§ 11-206, 11-207, 11-208, 11-209, 11-212, 11-213, 11-224)

Haw. Code R. § 3-160-44 Expenditures; ordinary and necessary expenses

A candidate may pay ordinary and necessary expenses incurred in connection with the candidate's duties as a holder of an elected state or county office. These expenses must be reasonable, usual, and directly related to the office.

History

• [Eff MAY 29 2010] (Auth: HRS §§ 11-193, 11-216, 11- 225) (Imp: HRS §§ 11-206, 11-207, 11-208, 11-209, 11-212, 11-213, 11-224)

Haw. Code R. § 3-160-45 Mixed benefit to the candidate

(a) A candidate or candidate's committee may purchase goods or services and lease goods and real property, except as provided in section 3-160-43(b)(3), that provide a mixed benefit to the candidate; provided that the amount attributed to the candidate's personal use shall be determined and reimbursed by the candidate to the committee, unless the personal benefit is "de minimis".

(b) "Mixed benefit to the candidate", for purposes of this section, means any use of goods or services both for personal use and to influence the nomination or election of a candidate or to satisfy a function of the candidate's elected office and includes the following:

(1)

(A) Expenses to purchase, lease, maintain, and repair a vehicle if the title to the vehicle is in the name of the candidate committee. Contributions shall not be used to pay vehicle expenses including maintenance, towing, or repair for a candidate's personal vehicle; or

(B) Reimbursement for the use of a personal vehicle at the federal optional standard mileage rate for computing deductions for operating an automobile for business purposes, in effect at the time the vehicle is used. A daily mileage log, noting the campaign use and personal use, that is maintained and retained as part of the candidate and candidate committee's records would satisfy the recordkeeping requirements of section 3-160-23; and

(2) Lease of real property to a candidate or candidate committee, except as provided in section 3-160-43(b)(3) for a renewable period not to exceed one year.

(c) "De minimis", as used in this section, means that the personal use from the goods or services is five per cent or less of the total use of the property or services in a calendar month and the expenditure for the personal use of the goods or services did not exceed a usual and normal charge of $100 in any one calendar month.

(d) Expenditures made for purchase or lease goods or services that provide a mixed benefit to the candidate shall be disclosed in the report covering the reporting period in which the product is delivered or services rendered.

History

• [Eff MAY 29 2010] (Auth: HRS §§ 11-193, 11-216, 11-225) (Imp: HRS §§ 11-206, 11-207, 11-208, 11-209, 11-212, 11-213)

Haw. Code R. § 3-160-46 Durable asset; acquisition and disposition

(a) "Durable asset", as used in this section, means non-consumable supplies or equipment with a minimum purchase value of $250 and a useful life of twelve months or more.

(b) Any acquisition or disposition of a durable asset by a candidate, candidate's committee, or noncandidate committee shall be reported on the commission's electronic filing system's durable assets schedule, and the report shall include the following current information:

(1) Detailed description and cost of the durable asset;

(2) Date of acquisition or disposition;

(3) Full name, street address, city, state, and zip code of the vendor or contributor.

(c) If the durable asset is sold, the sales proceeds shall be reported as an "other receipt" on the commission's electronic filing system's durable asset schedule.

(d) If the durable asset is donated to a community organization by a candidate or candidate committee as specified in section 11-381, Hawaii Revised Statutes, the asset's fair market value at the time it was donated shall be reported on the commission's electronic filing system's durable asset schedule.

History

• [Eff MAY 29 2010] (Auth: HRS §§ 11-193, 11-216, 11-225) (Imp: HRS §§ 11-195, 11-207, 11-212, 11-213, 11-224)

Haw. Code R. § 3-160-47 Newsletters, reports, surveys, and polls

(a) The payment of costs to prepare, publish, and distribute reports, surveys, or polls which influence the nomination for election, or election of any candidate must be reported unless specifically excepted by this section.

(b) Use of personal funds by a candidate to pay the costs to prepare, publish, and distribute reports, surveys, or polls shall be reported as expenditures, and "other receipts" from the candidate.

(c) The payment of costs for the following reports, surveys, or polls are not reported as expenditures:

(1) Reports, surveys, or polls of independent organizations not affiliated with any candidate and who have not received or expended any money on behalf of any candidate, and whose report, survey, or poll is either available to all candidates as well as the general public is confidential and not distributed or publicized at any time prior to an election in which the report, survey, or poll would have an influence;

(2) Reports, surveys, or polls required by law to be made by any governmental agency and for which funds have been appropriated by law;

(3) Reports, surveys, or polls of incumbent officeholders, not candidates, who pay for costs of publication and distribution from funds which have been specifically appropriated by law; and

(4) Reports, surveys, or polls of any news reporting agencies or communications media who have neither received nor contributed any moneys on behalf of any candidate.

(d) The exceptions stated in subsection (c) are not applicable and the expenditures must be reported if the report, survey, or poll clearly identifies a person who is a candidate and advocates or supports the candidate's nomination for election or defeat.

History

• [Eff MAY 29 2010] (Auth: HRS §§ 11-193, 11-216) (Imp: HRS §§ 11-206, 11-211, 11-212, 11-213, 11-215, 11-224)

Haw. Code R. § 3-160-48 Repealed

History

• [Eff MAY 29 2010] (Auth: HRS §§ 11-11-193, 11-216, 11-225) (Imp: HRS §§ 11-207.6, 11-212, 11-213)

Haw. Code R. § 3-160-49 Disclosure of top contributors; hardship exception

(a) If a noncandidate committee making only independent expenditures is required to disclose its top contributors in an advertisement pursuant to section 11-393, Hawaii Revised Statutes, the following requirements also apply:

(1) In a written advertisement, the disclosure must be in at least ten-point type, not be subject to the half-tone or screening process, and be set apart from any other printed matter;

(2) In a radio or other audio advertisement, the disclosure must be clearly spoken; and

(3) In a television or other video advertisement, the disclosure must be either clearly spoken, or appear in print and be visible for at least four seconds, appear in letters greater than four per cent of the visual screen height, and have a reasonable color contrast with the background,

(b) The requirement to disclose the top contributors shall not apply to radio or other audio advertisement under thirty seconds in duration, or television or other video advertisement, under twenty seconds in duration.

History

• [Eff and Comp 12/1/2016 ] (Auth: HRS § 11-314(8)) (Imp: HRS § 11-393)

Subchapter 4 PARTIAL PUBLIC FINANCING OF CAMPAIGNS

Haw. Code R. § 3-160-60 "Qualifying contribution", defined

(a) "Qualifying contribution" means the same as defined in section 11-302, Hawaii Revised Statutes, and does not include:

(1) Loans;

(2) Non-monetary contributions;

(3) Contributions from individuals who are not Hawaii residents;

(4) The candidate's own funds;

(5) Contributions received prior to the filing of the 'Statement of Intent to Seek Public Funds" form; and

(6) Contributions of $100 or less received from a person during the matching payment period if the person's aggregate contributions exceed $100 during the matching payment period.

(b) An individual may contribute $100 to a candidate in the primary matching payment period, and may contribute $100 to the same candidate in the general matching payment period.

History

• [Eff MAY 29 2010] (Auth: HRS §§ 11-193, 11-216, 11-225) (Imp: HRS §§ 11-191, 11-213, 11-215, 11-219, 11-220)

Haw. Code R. § 3-160-61 Campaign expenditures

(a) Campaign expenditures for purposes of the voluntary expenditure limit, include expenses for a fundraiser or other political fundraising activities for the candidate.

(b) Campaign expenditures for purposes of the voluntary expenditure limit do not include amounts paid to repay or forgive a loan.

(c) There is no aggregation of campaign expenditures between candidates for governor and lieutenant governor of the same political party for purposes of the voluntary expenditure limit in section 11-423, Hawaii Revised Statutes, when a candidate for governor or lieutenant governor supports a co-candidate in the general election.

History

• [Eff MAY 29 2010] (Auth: HRS §§ 11-193, 11-216, 11-225) (Imp: HRS §§ 11-206, 11-207, 11-208, 11-209, 11-212, 11-213, 11-214, 11-215, 11-220)

Haw. Code R. § 3-160-62 Application for public funds

(a) To apply for public funds a candidate shall:

(1) File a 'Statement of Intent to Seek Public Funds" form with the commission. Contributions received prior to the filing of this form are not qualifying contributions and shall not be included on the 'Statement of Qualifying Contributions" form; Mail or deliver an "Affidavit to Voluntarily Agree with Campaign Expenditure Limits" form to the commission on or before the deadline for filing nomination papers which states that the candidate is aware of the campaign expenditure limit for the candidate's office and is willing to abide by this limit;

(3) File a 'Statement of Qualifying Campaign Contributions" form on the commission's electronic filing system, with the following information:

(A) The name and address of each person who contributed an aggregate of $100 or less to the candidate since filing the statement of intent to seek qualifying campaign contributions; and

(B) The total amount of each qualifying contribution and the date the contribution was received;

(4) Mail or deliver an "Application For Public Funds" form, along with a copy of the 'Statement of Qualifying Campaign Contributions" form, to the commission requesting public funds;

(5) Not owe fines to the Hawaii election campaign fund;

(6) Be qualified to be on the election ballot in a primary or general election; and

(7) Have an opponent qualified to be on the election ballot in a primary or general election.

(b) After initial certification for eligibility for public funds has been made by the commission, a candidate may receive additional funding by:

(1) Mailing or delivering an "Application For Public Funds" form to the commission requesting additional funds; and

(2) Mailing or delivering a 'Statement of Qualifying Campaign Contributions" form listing:

(A) The name and address of each person who contributed an aggregate of $100 or less to the candidate since the candidate filed the preceding 'Statement of Qualifying Campaign Contributions"; and

(B) The total amount of each qualifying campaign contribution and the date the contribution was received since the candidate filed the preceding 'Statement of Qualifying Campaign Contributions".

(c) Applications for funding shall not be submitted more frequently than every fourteen calendar days after the last filed application.

(d) The death, withdrawal, or disqualification of an opponent in an election does not disqualify the remaining candidate from receiving public funds.

History

• [Eff MAY 29 2010] (Auth: HRS §§ 11-193, 11-216, 11- 225) (Imp: HRS §§ 11-217, 11-218, 11-219, 11-220, 11-221, 11-222, 11-223, 11-224, 11-225)

Haw. Code R. § 3-160-63 Authorized expenditures of public funds

(a) A candidate shall use public funds only for the following expenses:

(1) Filing fees;

(2) Television or radio broadcast costs;

(3) Newspaper, other print, and internet advertising;

(4) Mail-outs;

(5) Bumper stickers;

(6) Sundry items such as pens, pencils, magnets, and stickers;

(7) Banners and signs

(8) Printing;

(9) Postage;

(10) T-shirts;

(11) Loan repayment if the proceeds of the loan were used to pay for the authorized campaign expenses listed in paragraphs (1) to (10); and

(12) Airfare, Ferryfare, and ground transportation for candidates with multi-island constituencies.

(b) "Broadcast costs" means the costs for on-air time and costs for production of a radio spot, video, or television advertising.

(c) "Printing" includes the costs for shirts, hats, other articles of clothing, and paper.

(d) A candidate shall keep a complete record of expenses paid for with public funds.

(e) A candidate shall use public funds to pay for campaign expenditures incurred during the matching payment period for which the candidate received the public funds.

(f) Public funds received during a primary matching payment period shall not be carried over and used by the candidate in a general matching payment period. The candidate shall return public funds not used in a primary election to the commission on the deadline for filing a final report for the primary election.

(g) The candidate shall return public funds not used in a general election to the commission on the deadline for filing a final report for the general election.

History

• [Eff MAY 29 2010] (Auth: HRS §§ 11-193, 216, 225) (Imp: HRS §§ 11-222, 11-223, 11-224, 11-225)

Haw. Code R. § 3-160-64 Voluntary campaign expenditure limitation affidavit

(a) A candidate who agrees to comply with the voluntary expenditure limit shall file the "Affidavit to Voluntarily Agree with Campaign Expenditure Limits" with the commission no later than the deadline for filing of nomination papers, stating that the candidate shall not exceed the voluntary expenditure limit.

(b) The benefits of filing the "Affidavit to Voluntarily Agree with Campaign Expenditure Limits" include:

(1) Reduced filing fee with Office of Elections; and

(2) Fulfills one requirement to be eligible for public funding.

(c) The commission shall keep copies of all affidavits.

(d) Any candidate who files the affidavit agreeing to limit expenditures and who exceeds the voluntary expenditure limits for that election shall:

(1) Notify all opponents, the office of elections, and the commission by telephone and in writing on the day that the expenditure limit is exceeded, except when such day falls on a Saturday, Sunday or holiday designated in section 8-1, Hawaii Revised Statutes, then notifications shall be on the next succeeding day that is not a Saturday, Sunday, or holiday;

(2) Return all public funds to the commission within fourteen days of the day that the expenditure limit is exceeded, except when such day falls on a Saturday, Sunday, or holiday then return of all public funds to the commission shall be on the next succeeding day that is not a Saturday, Sunday, or holiday; and

(3) Pay the balance of the full filing fee to the chief election officer, or for candidates for county offices, the county clerk.; and

(4) Provide reasonable notice to all contributors within thirty days of exceeding the limit that the voluntary expenditure limit was exceeded.

History

• [Eff MAY 29 2010] (Auth: HRS §§ 11-193, 11-216, 11-225) (Imp: HRS §§ 11-208, 11-209, 11-212, 11-213, 11-225, 11-226, 11-227, 11-228, 11-229)

Haw. Code R. § 3-160-65 Depletion of fund

(a) The Hawaii election campaign fund shall be considered close to depletion when the balance in the trust fund equals the sum of the average amount of operating expenses, including staff salaries and fringe benefits, paid by the commission in the two prior fiscal years, added to the average amount of public funds paid by the commission to candidates in the partial public financing program in the two prior two-year election periods.

(b) The Hawaii Election campaign fund shall be considered at near depletion when the balance in the trust fund equals the average amount of operating expenses, including staff salaries and fringe benefits, paid by the commission in the two prior fiscal years.

History

• [Eff and Comp 12/1/2016] (Auth: HRS § 11-314(8)) (Imp: HRS § 11-422)

Subchapter 5 COMPLIANCE

Haw. Code R. § 3-160-70 Complaints of violations; administrative fines; referral

(a) Any complaint of a violation of the Hawaii election campaign laws in chapter 11, part XIII, Hawaii Revised Statutes and this chapter, shall be filed with the commission.

(1) A complaint shall be in writing and signed under oath by the complainant. The oath shall verify that the statements provided in the complaint were made with sufficient personal knowledge or information to form an understanding and belief that the statements are true. Complaints initiated by the commission or its staff shall be in writing and signed by the executive director;

(2) The complaint shall provide specific and detailed statements that are based upon a complainant's personal knowledge and belief;

(3) The complaint shall cite the statute or rule that has been violated, and allege facts to support the claim that a specific statute or rule has been violated; and

(4) The complaint shall specify the remedy sought.

(b) If a complaint does not comply with the requirements of this section, the commission staff shall notify the complainant and any persons identified in the complaint as respondents that no action shall be taken on the basis of that complaint.

History

• [Eff MAY 29 2010] (Auth: HRS §§ 91-2, 11-193, 11-216, 11-225) (Imp: HRS §§ 91-2, 11-216, 11-225, 11-228, 11-229)

Haw. Code R. § 3-160-71 Determination of complaint; summary dismissal

The commission may determine without regard to chapter 91, Hawaii Revised Statutes, to summarily dismiss a complaint if:

(1) The complaint fails to comply with the requirements of section 3-160-70;

(2) The complaint fails to provide statements that were based upon sufficient knowledge or information to form a belief that the statements are true;

(3) The complaint fails to provide sufficient statements to support a claim that a law or rule may have been violated; or

(4) The complaint clearly lacks merit.

History

• [Eff MAY 29 2010] (Auth: HRS §§ 91-2, 11-193, 11-216, 11-225) (Imp: HRS §§ 91-2, 11-216, 11-225, 11-228, 11-229)

Haw. Code R. § 3-160-72 Determination of complaint; further investigation

(a) The commission may request a complaint be further investigated by its staff for reasons including:

(1) The complaint may involve other candidates, parties, committees, or persons not stated in the complaint;

(2) The complaint provides statements that may support a claim that other laws or rules may have been violated; or

(3) An investigation by the commission staff will assist in a prompt and efficient determination of any violation of law or rule.

(b) The investigation may include, but is not limited to field investigations, audits, and other methods of information-gathering.

(c) The commission may also cause another complaint to be initiated by its staff."

History

• [Eff MAY 29 2010] (Auth: HRS §§ 91-2, 11-193, 11-216, 11-225) (Imp: HRS §§ 91-2, 11-216, 11-225, 11-228, 11-229)

Haw. Code R. § 3-160-73 Administrative fines; adoption of guidelines

(a) The commission may adopt a schedule of fines for violations of chapter 11, part XIII, Hawaii Revised Statutes, and these rules, in guidelines approved by the commission at a meeting conducted under chapter 92, Hawaii Revised Statutes.

(b) These guidelines, which may be amended from time to time by the commission in accordance with paragraph (a), shall be posted on the commission's website.

(c) The executive director may assess fines for violations in accordance with the guidelines adopted by the commission.

(d) The executive director shall report to the commission the amount of fines paid by persons pursuant to subsection (c), in the annual report.

History

• [Eff and Comp 12/1/2016] (Auth: HRS § 11-314(8)) (Imp: HRS §§ 11-340, 11-410)

Haw. Code R. § 3-160-74 Conciliation Agreements

(a) After a complaint is filed with the commission, the executive director may enter into a conciliation agreement with the person(s) against whom the complaint is filed, to resolve the complaint.

(b) A conciliation agreement shall be approved by the commission at a meeting conducted under chapter 92, Hawaii Revised Statutes.

History

• [Eff and Comp 12/1/2016] (Auth: HRS § 11-314(8)) (Imp: HRS §§ 11-340, 11-410)

Chapter 162 HAWAII COUNTY COUNCIL COMPREHENSIVE PUBLIC FUNDING PROJECT

Haw. Code R. § 3-162-1 Voter's residence information included on the application for certification

(a) The residence address for each registered voter who makes a qualifying contribution and signs a candidate's application for certification as a comprehensive publicly funded candidate must be listed on the application.

(b) If the residence address for each registered voter who makes a qualifying contribution and signs a candidate's application for certification is not listed on the application, that voter's contribution and signature shall not be included in determining whether the candidate has submitted at least two hundred qualifying contributions.

(c) A post office box number or post office box address or description of the location of the residence does not satisfy the requirements of a residence address of a registered voter as required in subsection (a).

History

• [Eff MAR 08 2010] (Auth: HRS § 11-193) (Imp: Act 244, SLH 2008, sections 7 and 8)

Haw. Code R. § 3-162-2 Public funds deposited in an account; expenditures from the account

(a) A certified candidate shall deposit public funds, provided pursuant to Act 244, SLH 2 008, in a depository institution checking account. Except as provided in subsection (b), the funds in this account shall not be commingled with other funds. Expenditures of public funds from this account shall only be made by the candidate or candidate committee's debit cards or bank checks.

(b) Personal funds used as seed money and surplus campaign funds used as seed money may also be deposited in the "depository institution checking account.

History

• [Eff MAR 08 2010] (Auth: HRS § 11-193) (Imp: Act 244, SLH 2008, sections 6 and 16)

Haw. Code R. § 3-162-3 Public funds used only for expenditures directly related to the candidate's campaign

(a) Public funds provided pursuant to Act 244, SLH 2008, may be used only for expenditures directly related to the candidate's campaign during the election for which the public funds are allocated.

(b) Expenditures for any other purpose are prohibited.

History

• [Eff MAR 08 2010] (Auth: HRS § 11-193) (Imp: Act 244, SLH 2008, section 15)

Haw. Code R. § 3-162-4 Directly related expenditures

(a) In determining whether an expenditure is directly related to the candidate's campaign during the election for which the public funds were provided pursuant to Act 244, SLH 2008, the circumstances of the expenditure(s) shall be considered, including the following:

(1) The timing of the expenditure;

(2) Whether there is a high proportion of spending on a specific category of expenditure;

(3) The reporting of the expenditure and documentation for the expenditure; and

(4) Whether the expenditure was made to a family member or relative of the candidate, or to any individual or entity with whom the candidate has a business or other financial relationship.

(b) Expenditures for the following goods and services are presumed to be directly related to the candidate's campaign:

(1) Candidate filing fee;

(2) Voter lists;

(3) Rent for campaign headquarters;

(4) Office supplies;

(5) Advertising and publicity, including expenditures for producing, printing and broadcasting campaign literature;

(6) Mailing;

(7) Promotional event;

(8) Mileage reimbursement for campaign meetings, voter contact, or volunteers not exceeding the current mileage rate adopted by the department of accounting and general services at the time the vehicle is used;

(9) Food and beverages at campaign meetings;

(10) Telephone, including cellular phones, and telephone banks;

(11) Reasonable salaries for campaign staff and fees for consultants;

(12) Website design, registration, hosting, and maintenance;

(13) Campaign communications such as bumper stickers, signs, banners, T-shirts, or caps with a campaign logo or slogan; or

(14) Sundry items such as pens, pencils, magnets, and stickers.

History

• [Eff MAR 08 2010] (Auth: HRS § 11-193) (Imp: Act 244, SLH 2008, section 15)

Haw. Code R. § 3-162-5 Unauthorized expenditures of public funds

Unauthorized expenditures of public funds provided pursuant to Act 244, SLH 2008, include:

(1) The candidate's personal expenses;

(2) Money spent promoting or assisting another candidate or committee, including money spent to purchase tickets for an event held by another candidate or committee, whether or not the event constitutes a fundraiser as defined in Hawaii Revised Statutes section 11-203;

(3) Donations to any community service, educational, youth, recreational, charitable, scientific, or literary organization;

(4) Contributions to any political party;

(5) Ordinary and necessary expenses incurred in connection with the candidate's duties as a holder of an office; provided that a certified candidate elected to office may carryover up to $4,000 in public funds to pay for in-office constituent communications pursuant to Act 244, section 11;

(6) Compensation paid to a candidate for services to influence the nomination or election of the candidate;

(7) Compensation paid to the candidate's immediate family or relatives for services to influence the nomination or election of the candidate, unless the compensation is for bona fide services necessary to maintain a campaign, to influence the nomination or election of the candidate and is comparable to the compensation paid to other persons in the community for similar services;

(8) Money spent to pay any fine or penalty imposed pursuant to federal, state, or county law;

(9) Money spent to buy gifts; or

(10) Expenses paid to host a post-election mahalo party for staff, volunteers, and supporters.

History

• [Eff MAR 08 2010] (Auth: HRS § 11-193) (Imp: Act 244, SLH 2008, section 15)

Haw. Code R. § 3-162-6 "Personal expense," defined

For purposes of section 3-162-5, "personal expense," means an expense that would exist irrespective of a candidate's campaign to seek nomination or election to office including, without limitation, the following:

(1) Household food items and supplies purchased for daily personal consumption by the candidate, a family member of the candidate, or candidate committee;

(2) Gifts or donations for weddings, Christmas, birthdays, funerals or other personal occasions;

(3) Clothing usually and customarily worn for everyday wear; provided that a campaign expense for clothing identifying the candidate or campaign for an office shall not be prohibited;

(4) Tuition and educational fees or expenses not directly related to the performance of duties or responsibilities in a candidate's campaign for elected office;

(5) Mortgage, rent, and utility expenses for a personal residence;

(6) Entertainment or sporting events; and

(7) Dues, fees, or other expenses to a country club, health club, recreational or exercise facility and not arising from a fundraising activity or function held at the facility.

History

• [Eff MAR 08 2010] (Auth: HRS § 11-193) (Imp: Act, 244, SLH 2008, section 15)

Haw. Code R. § 3-162-7 Joint expenditures

While a certified candidate is prohibited from using public money provided pursuant to Act 244, SLH 2008 to promote or assist another candidate or committee, the certified candidate may share expenditures directly related to the candidate's campaign with one or more other candidates if the certified candidate pays a prorata share of the directly related expenditures.

History

• [Eff MAR 08 2010] (Auth: HRS §H-193) (Imp: Act, 244, SLH 2008, section 15)

Office of Elections Office of Elections

Chapter 171 ADOPTION, AMENDMENT, OR REPEAL OF RULES BY CHIEF ELECTION OFFICER (REPEALED)

Haw. Code R. § 3-171-1 Chief election officer initiates (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 91-6) (Imp: HRS §§ 11-4, 91-3, 92-41)

Haw. Code R. § 3-171-2 Petitions for the adoption, amendment, or repeal of rules (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 91-6) (Imp: HRS §§ 11-4, 91-2, 91-6)

Haw. Code R. § 3-171-3 Adoption, amendment, or repeal of rules (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 91-3, 91-6, 92-41)

Haw. Code R. § 3-171-4 Conduct of hearing (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 11-4, 91-3)

Haw. Code R. § 3-171-5 Decision; taking effect of rules (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS § 11-4) (Imp: HRS §§ 11-4, 91-3, 91-4)

Haw. Code R. § 3-171-6 Emergency rule making (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS § 11-4)

Haw. Code R. § 3-171-7 Construction of rules (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS § 11-4)

Chapter 172 VOTING (REPEALED)

Subchapter 6 PRECINCT OFFICIALS AND WATCHERS (REPEALED)

Haw. Code R. § 3-172-60 Precinct officials; selection (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS § 11-72)

Haw. Code R. § 3-172-61 Precinct officials; gifts and gratuities prohibited (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 19-13, 19-6)

Haw. Code R. § 3-172-62 Precinct officials; confidentiality of voter information (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 11-75, 11-137, 11-139)

Haw. Code R. § 3-172-63 Precinct officials procedure; campaign activities (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 11-132) (Imp: HRS §§ 11-132, 19-6)

Haw. Code R. § 3-172-64 Non-campaign activity within prescribed area of polling place; time, place, and manner (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 11-132) (Imp: HRS §§ 11-132, 19-6)

Haw. Code R. § 3-172-65 Poll watchers; guidelines, (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS § 11-77)

Haw. Code R. § 3-172-66 Compensation for election day officials (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS § 11-76)

Haw. Code R. §§ 3-172-67 to 3-172-69 Reserved (Repealed)

History

• R 7/26/2020

Subchapter 7 BALLOT PRINTING AND DELIVERY (REPEALED)

Haw. Code R. § 3-172-70 Candidate vacancies; filling of by party (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 11-117, 11-118)

Haw. Code R. § 3-172-71 Official ballots (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 11-112, 11-119)

Haw. Code R. § 3-172-71.1 [Repealed]

History

• R 7/26/2020

Haw. Code R. § 3-172-72 Ballots; delivery; seal certification procedure; delivery and collection team (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 11-120) (Imp: HRS §§ 11-120, 11-134, 11-43)

Haw. Code R. § 3-172-73 Ballots; transportation and receipt at polling places (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 11-120) (Imp: HRS §§ 11-75, 11-120, 11-134, 16-43)

Haw. Code R. § 3-172-74 Ballots; receipt by clerks; procedure (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 11-120) (Imp: HRS §§ 11-75, 11-120, 11-134, 16-43)

Haw. Code R. § 3-172-75 Receipt of materials other than ballots (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 11-120) (Imp: HRS § 11-120)

Haw. Code R. §§ 3-172-76 to 3-172-79 Reserved (Repealed)

History

• R 7/26/2020

Subchapter 9 VOTE DISPOSITION (REPEALED)

Haw. Code R. § 3-172-90 Paper ballot voting system; counting ballots at precinct (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 11-152, 11-153, 11-154, 16-24, 16-29)

Haw. Code R. § 3-172-91 Paper ballot voting system; tally sheet; results of votes cast; ballots; and records (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 11-154, 16-29) (Imp: HRS §§ 11-153, 11-154, 11-155)

Haw. Code R. § 3-172-92 Electronic voting systems; centralized and decentralized counting (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4) (Imp: HRS §§ 16-2, 16-41 through 16-47)

Haw. Code R. § 3-172-93 Electronic voting systems, transmission, receipt, and tabulation of votes (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4) (Imp: HRS §§ 16-2, 16-41 through 16-47)

Haw. Code R. § 3-172-94 Electronic voting systems; marksense ballot voting system results (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4) (Imp: HRS §§ 16-2, 16-41 through 16-47)

Haw. Code R. § 3-172-95 Electronic voting systems; direct recording electronic voting system results (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4) (Imp: HRS §§ 16-2, 16-41 through 16-47)

Haw. Code R. § 3-172-96 Electronic voting systems; inspection, audit, and experimental testing (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4) (Imp: HRS §§ 16-2, 16-41 through 16-47)

Haw. Code R. § 3-172-97 Electronic voting system; counting center procedures (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 11-154, 16-44) (Imp: HRS §§ 16-2, 16-41 through 16-45)

Haw. Code R. § 3-172-98 Electronic voting system centralized counting; receipt at counting center (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 11-154, 16-44) (Imp: HRS §§ 16-2, 16-41 through 16-45)

Haw. Code R. § 3-172-99 Electronic voting system counting; duplication procedure (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 16-46) (Imp: HRS §§ 16-2, 16-41 through 16-46)

Haw. Code R. § 3-172-100 Electronic voting system decentralized counting; receipt at counting center (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 11-154) (Imp: HRS §§ 16-2, 16-41 through 16-45)

Haw. Code R. § 3-172-101 Electronic voting system decentralized counting; preparation of uncounted voted ballots, memory cards, precinct counter keys, and zero reports (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 11-154) (imp: HRS §§ 16-2, 16-41 through 16-45)

Haw. Code R. § 3-172-102 Auditing (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 11-4, 11-153, 16-2, 16-41, 16-42)

Haw. Code R. § 3-172-103 Challenged voter's ballot; disposition of at counting center (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 11-25, 11-54)

Haw. Code R. § 3-172-104 Election results; certification of (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS § 11-155)

Haw. Code R. §§ 3-172-105 to 3-172-109 Reserved (Repealed)

History

• R 7/26/2020

Subchapter 10 PRESIDENTIAL PETITIONS (REPEALED)

Haw. Code R. § 3-172-110 Presidential petitions; issuing (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS § 11-113)

Haw. Code R. § 3-172-111 Presidential petitions; withdrawal of signatures (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 11-6, 11-113)

Haw. Code R. § 3-172-112 Presidential petitions; qualification of signatories (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS § 11-113)

Haw. Code R. § 3-172-113 Presidential petitions; verification of signatories (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS § 11-113)

Haw. Code R. §§ 3-172-114 to 3-172-129 Reserved (Repealed)

History

• R 7/26/2020

Subchapter 12 PROVISIONAL VOTING (REPEALED)

Haw. Code R. § 3-172-140 Provisional voting; general procedures (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4, 42 USC §15482) (Imp: HRS §§ 11-15, 11-20, 11-21, 11-24, 42 USC §15482)

Chapter 173 PRIMARY ELECTIONS (REPEALED)

Haw. Code R. § 3-173-1 Nomination papers; when available (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 12-3, 12-4)

Haw. Code R. § 3-173-2 Nomination papers; qualification of signatories (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 12-3, 12-4, 12-5)

Haw. Code R. § 3-173-3 Nomination papers; verification of signatories (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 12-3, 12-4, 12-5)

Haw. Code R. § 3-173-4 Nomination papers; candidate name on ballot (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 11-112, 12-3)

Haw. Code R. § 3-173-5 Nomination papers; political party affiliation or nonpartisan designation (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 12-3) (Imp: HRS § 12-3)

Haw. Code R. § 3-173-6 Filing fee; payment of (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 12-3, 12-6)

Chapter 174 ABSENTEE VOTING PROCEDURES (REPEALED)

Haw. Code R. § 3-174-1 Definitions (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS § 11-1)

Haw. Code R. § 3-174-2 General provisions (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 15-4, 15-5, 15-9)

Haw. Code R. § 3-174-3 Who may vote by absentee ballot (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 15-2, 42 USC §§1973ff et seq.) (Imp: HRS §§ 11-16, 15-2, 15-5, 42 USC §§1973ff et seq.)

Haw. Code R. § 3-174-4 Application for absentee voter ballot; content (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 15-2) (Imp: HRS § 15-4)

Haw. Code R. § 3-174-5 Application for absentee voter ballot; reproduction (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS § 15-4)

Haw. Code R. § 3-174-6 Waiver of requirement for an application for absentee voter ballot (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 11-14.5, 15-1, 15-2, 15-2.5, 15-4, and 15-1)

Haw. Code R. § 3-174-7 Absentee polling place (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 15-7) (Imp: HRS §§ 11-152, 15-7, 19-6)

Haw. Code R. § 3-174-8 Administration and operation of the absentee polling place (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4, 42 USC §1973aa-l a) (Imp: HRS §§ 11-136, 11-139, 15-7, 42 USC §1973aa -l a)

Haw. Code R. § 3-174-9 Accountability and security of ballots and ballot boxes (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 15-7, 15-8)

Haw. Code R. § 3-174-10 Return and receipt of mail absentee return envelopes (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 15-6, 15-9, 15-10, 15-11)

Haw. Code R. § 3-174-11 Mail absentee return envelopes; signature validation (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 15-6) (Imp: HRS §§ 15-6, 15-9, 15-10, 15-11)

Haw. Code R. § 3-174-12 Mail absentee return envelopes; processing of damaged, duplicate, or unidentifiable by the clerk (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 15-6, 15-9, 15-10, 15-11)

Haw. Code R. § 3-174-13 Mail absentee return envelope; receipt at the precincts (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 15-6, 15-9, 15-10, 15-11)

Haw. Code R. § 3-174-14 Mail absentee return envelope; procedures after the polls close; paper ballots (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 15-6, 15-9, 15-10, 15-11)

Haw. Code R. § 3-174-15 Walk-in and mail absentee ballots; transfer to the counting center (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 15-6, 15-8, 15-9, 15-10)

Haw. Code R. § 3-174-16 Absentee ballots; receipt at the counting center (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 15-6, 15-8, 15-9, 15-10)

Haw. Code R. § 3-174-17 Mail absentee return envelopes; processing at the counting center; electronic voting system (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 15-6, 15-9, 15-10, 15-11)

Haw. Code R. § 3-174-18 Absentee ballots; processing at the counting center (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 15-6, 15-8, 15-9, 15-10)

Haw. Code R. § 3-174-19 Mail absentee ballots; replacement by facsimile transmission (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 15-2) (Imp: HRS § 15-5)

Haw. Code R. § 3-174-20 Federal write-in ballots, and ballots transmitted by facsimile; processing of (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 15-6, 15-8, 15-9, 15-10)

Haw. Code R. § 3-174-21 Absentee voting in remote areas (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 15-4, 15-7, 15-8)

Haw. Code R. § 3-174-22 Voting, registration, and counting of absentee ballots of overseas citizens (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4, 42 USC §§1973ff et seq.) (Imp: HRS § 11-16, 42 USC §§1973ff et seq.)

Haw. Code R. § 3-174-23 Absentee ballot for presidential election (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS § 15-3)

Chapter 175 ELECTIONS BY MAIL (REPEALED)

Haw. Code R. § 3-175-1 Purpose; general applicability (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 11-91.5) (Imp: HRS §§ 11-4, 11-91.5)

Haw. Code R. § 3-175-2 Proclamation (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 11-91.5) (Imp: HRS §§ 11-4, 11-91.5)

Haw. Code R. § 3-175-3 Board of Registration (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 11-91.5) (Imp: HRS §§ 11-4, 11-91.5)

Haw. Code R. § 3-175-4 Ballot packet; contents (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 11-91.5) (Imp: HRS §§ 11-4, 11-91.5)

Haw. Code R. § 3-175-5 Mailing of Ballots; date (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 11-91.5) (Imp: HRS §§ 11-4, 11-91.5)

Haw. Code R. § 3-175-6 Absentee polling place (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 11-91.5) (Imp: HRS §§ 11-4, 11-91.5)

Haw. Code R. § 3-175-7 Voter procedure (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 11-91.5) (Imp: HRS §§ 11-4, 11-91.5)

Haw. Code R. § 3-175-8 Return of ballots; postage (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 11-91.5) (Imp: HRS §§ 11-4, 11-91.5)

Haw. Code R. § 3-175-9 Ballot collection sites; private collection sites prohibited (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 11-91.5) (Imp: HRS §§ 11-4, 11-91.5)

Haw. Code R. § 3-175-10 Ballot cast upon receipt; replacement ballot (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 11-91.5) (Imp: HRS §§ 11-4, 11-91.5)

Haw. Code R. § 3-175-11 Submittal of ballots; deadline (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 11-91.5) (Imp: HRS §§ 11-4, 11-91.5, 11-131)

Haw. Code R. § 3-175-12 Extension of deadline for receiving ballots (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 11-91.5) (Imp: HRS §§ 11-4, 11-91.5, 128-9)

Haw. Code R. § 3-175-13 Verification of affirmation signatures (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 11-91.5) (Imp: HRS §§ 11-4, 11-91.5)

Haw. Code R. § 3-175-14 Processing and tabulation of ballots (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 11-91.5) (Imp: HRS §§ 11-4, 11-91.5)

Haw. Code R. § 3-175-15 Receipt and disposition of late ballots (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 11-91.5) (Imp: HRS §§ 11-4, 11-91.5)

Haw. Code R. § 3-175-16 Deadlines for all-mail elections (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS §§ 11-4, 11-91.5) (Imp: HRS §§ 11-4, 11-91.5, 11-131)

Chapter 176 VOTING SYSTEMS (REPEALED)

Haw. Code R. § 3-176-1 Voting system requirements (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 11-4, 16-1, 16-2, 16-11, 16-12, 16-22, 16-41, 16-42, 42 USC §§15361, 15362, 15371.)

Haw. Code R. § 3-176-2 Voting system requirements; optional requirements (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 11-4, 16-1, 16-2, 16-11, 16-12, 16-22, 16-41, 16-42, 42 USC §§15361, 15362, 15371.)

Haw. Code R. § 3-176-3 Approval of all voting equipment, materials, and procedures (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 11-4, 16-1, 16-2)

Haw. Code R. § 3-176-4 County elections; assistance (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS § 11-4)

Haw. Code R. § 3-176-5 Elections services; provision and charges (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS § 16-3)

Haw. Code R. § 3-176-6 Testing computer programs and related equipment; electronic voting systems (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 16-42, 16-43, 16-45)

Haw. Code R. § 3-176-7 Experimental voting systems; rules and procedures (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS § 16-1)

Haw. Code R. § 3-176-8 Experimental voting systems; public information program (Repealed)

History

• [Eff JAN 09 2010] (Auth: HRS § 11-4) (Imp: HRS §§ 11-4, 16-1)

Chapter 177 RULES OF THE OFFICE OF ELECTIONS

Subchapter 13 BALLOT PACKAGE PROCEDURES

Haw. Code R. § 3-177-600 Ballot packages; contents; eligibility

(a) Unless the context indicates otherwise, a ballot package is used by any voter in an election by mail, unless the voter votes in-person at a voter service center by using a voting device (e.g. a voter directly using a voting system such as a direct recording electronic device or a marksense ballot counter).

(b) A ballot package, unless it is transmitted electronically, consists of the following:

(1) An official ballot;

(2) A return identification envelope with postage prepaid;

(3) A secrecy envelope or secrecy sleeve;

(4) The instructions provided for in HRS § 11-104; and

(5) A statement to be subscribed to by the voter that affirms the fact that the voter is the person, voting and that the voter's employer or agent of the employer, agent of the voter's labor union, or any candidate listed on the ballot did not assist the voter, as described in HRS § 11-139, along with the instruction that the voter's ballot will be valid only if the affirmation statement is signed. The statement may appear on the return identification envelope or separately, depending on the means of transmission utilized or authorized by the clerk.

(c) A ballot package may be sent by electronic transmission. "Electronic transmission" refers to transmission by facsimile or electronic mail delivery, or the use of an online ballot and return system, which may include the ability to mark the ballot. An electronic ballot package additionally will include a waiver of secrecy under HRS § 11-137. This waiver may be combined with the affirmation statement. Additionally, instructions on how to return the ballot or ballot summary, depending on the type of electronic ballot system, used, by electronic transmission or alternatively by mail, may be included.

(d) Ballot, packages may generally be issued in the following contexts:

(1) To any registered voter who has not already voted and is legally eligible under state or federal law to receive a ballot;

(2) To any registered voter who has requested an absentee ballot;

(3) In response to a request for a replacement ballot by a voter; or

(4) Pursuant to a request by a voter covered under chapter 15D, HRS, or the. Uniformed and Overseas Citizens Absentee Voting Act of 1986, as amended, or any other applicable federal or state law.

History

• [Eff JUL 26 2020] (Auth: HRS § 11-4) (Imp: HRS §§ 11-102, 11-104, 11-107, 11-137, 11-139, 15-4, 15D-7)

Haw. Code R. § 3-177-601 Ballot packages; timing of transmittal, generally

(a) To the extent practicable, the clerk shall mail a ballot package by non-forwardable mail to each registered voter in the county to enable voters to receive the ballot package approximately eighteen days before the election.

(b) In determining the initial mailing date of the ballot package, the clerk shall consider the mailing place of origin and the most recent postal service delivery standards. Public notice of the date or dates on which the initial ballot packages are to be mailed shall be given by the clerks before the ballot packages, are made available to voters.

(c) The clerk shall continue mailing ballot packages to voters who. update their voter registration address no later than fourteen days before the date of the election. However, the clerk may continue to mail ballots to those who have updated their voter registration address after the fourteenth day, if the clerk believes there is sufficient time for the voter to return the ballot by the applicable deadline.

(d) The clerk shall not mail a ballot package to any voter in the county register who is an inactive voter or to a voter' otherwise having an outdated or non-deliverable mailing address.

History

• [Eff JUL 26 2020] (Auth: HRS § 11-4) (Imp: HRS §§ 11-102, 11-103)

Haw. Code R. § 3-177-602 Ballot packages; timing of transmittal, military and overseas voter requests

(a) Notwithstanding any law to the contrary, to the extent a valid military-overseas ballot application is made, pursuant to HRS § 15D-7, and the request is received no later than forty-five days before the election or, if the forty-fifth day before the election is a weekend or holiday, no later than the business day preceding the forty-fifth day, the clerk shall transmit a ballot package by that date.

(b) A covered voter who requests that a ballot and balloting materials be sent to the voter by electronic transmission may choose facsimile transmission or electronic mail delivery, or, if offered by the voter's county, internet delivery.

(c) The clerk in each jurisdiction charged with distributing a ballot and balloting materials shall transmit the ballot and balloting materials to the voter using the means of transmission chosen by the voter.

(d) If a ballot application from a covered voter arrives after the county begins transmitting ballots and balloting materials to voters, the official charged with distributing ballots and balloting materials shall transmit them to the voter no later than two business days or as soon as allowable after the application, arrives.

History

• [Eff JUL 26 2020] (Auth: HRS § 11-4) (Imp: HRS § 15D-7, 15D-9)

Haw. Code R. § 3-177-603 Ballot packages; timing of transmittal, absentee requests

(a) Notwithstanding any law to the contrary, as it relates to ballot packages requested pursuant to HRS § 15-4, any request received by the seventh day prior to an election seeking the mailing of a ballot package shall be processed and the ballot package mailed to the voter. Requests received on the last day specified in HRS § 15-4 will result in a ballot package being mailed no later than twenty-four hours after receipt.

(b) The clerk may continue to mail ballots to those whose requests have been received after the seventh day prior to an election, if the clerk believes there is sufficient time for the voter to return the ballot by the applicable deadline.

History

• [Eff JUL 26 2020] (Auth: HRS § 11-4) (Imp: HRS §§ 15-4, 15-5)

Haw. Code R. § 3-177-604 Ballot packages; timing of transmittal, replacement requests to be transmitted by mail

(a) Notwithstanding any law to the contrary, as it relates to replacement ballot package requested pursuant to HRS § 11-105, any request received by the seventh day prior to an election seeking the mailing of a ballot package shall be processed and the ballot package mailed to the voter. Requests received on the last day specified in HRS § 15-4 will result in a ballot package being mailed no later than twenty-four hours after receipt.

(b) The clerk may continue to mail ballots to those whose requests have been received after the seventh day prior to an election, if the clerk believes there is sufficient time for the voter to return the ballot by the applicable deadline.

History

• [Eff JUL 26 2020] (Auth: HRS § 11-4) (Imp: HRS §§ 11-105, 11-140, 15-4)

Haw. Code R. § 3-177-605 Ballot packages; timing of transmittal, in-person pick up

Notwithstanding any law to the contrary, a voter may request that the clerk make the ballot package available for pick up by them or through an intermediary other than the voter's employer or agent of the employer, agent of the voter's labor union, or any candidate listed on the ballot. However, the clerk may limit the processing of such requests to no earlier than the fifth day prior to an election. Additionally, the clerk will determine where the ballot package will be made available for pickup. A single location may be determined by the clerk for such purposes (e.g. the issuance of ballot packages may not occur at a voter service center but instead at a location determined by the clerk).

History

• [Eff JUL 26 2020] (Auth: HRS § 11-4) (Imp: HRS §§ 11-102, 11-105, 11-140, 15-4, 15-5, 15D-9)

Haw. Code R. § 3-177-606 Ballot packages; timing of transmittal, replacement requests to be transmitted by electronic transmission

(a) If a ballot package is not received by a voter by the fifth day before the date of the election or a voter otherwise requires a replacement ballot within five days of an election, the voter may request that a ballot be forwarded by electronic transmission; provided that a voter with special needs may request that a ballot be forwarded by electronic transmission at any time.

(b) "Voter with special needs" for purpose of this rule includes an individual with a disability. The term "disability" refers to a physical or mental impairment that substantially limits one or more major life activities of an individual. "Major life activities" include caring for one's self, walking, seeing, hearing, speaking, breathing, working, performing manual tasks, and learning. A "voter with special needs" may also include any voter that the clerk determines would otherwise not be able to return their ballot by the day of the election, if the ballot were to be transmitted at its originally scheduled time (e.g. a voter who will be traveling to a place without timely mail service who requests that they be mailed their ballot prior to their trip, so they can vote before they leave).

History

• [Eff JUL 26 2020] (Auth: HRS § 11-4) (Imp: HRS §§ 11-107, 11-140, 15-5)

Haw. Code R. § 3-177-607 Ballot packages; replacement and absentee requests, form

(a) To the extent a voter requires a ballot package beyond the one initially authorized by HRS § 11-102 to be mailed to them, an application may be required.

(b) Election officials may use different applications for different situations and the applications shall be in a form prescribed and approved by the chief election officer or clerk.

(c) The applications may include information to permit the verification of the identity of the applicant, such, as applicant's name, date of. birth, and one of the following:

(1) Hawaii State Driver License Number;

(2) Hawaii State Identification Number; or

(3) Last Four Digits of the Social Security Number.

(d) Depending on the type of. application request, other information relevant to the request may be requested (e.g., mailing address, temporary mailing address, electronic mail address, name of designee picking up a ballot for the voter, evidence of statutory eligibility for the presidential ballot, or affirmation indicating compliance with the criteria for the request).

(e) The clerk may initially accept an oral request for a ballot, package in an emergency situation to expedite the transmission of the ballot package but they may still require the voter to complete and return a signed application before accepting the ballot.

(f) Notwithstanding anything to the contrary, in special cases the clerk may waive any of the foregoing requirements related to the submission of an application (e.g. the clerk may determine under the totality of the circumstances that it is sufficient to make a notation, of the oral request in the voter's record, issue the ballot package, and review signature on the return identification envelope, when it is returned). The following constitutes a non-exhaustive list of special cases:

(1) Any voter who has confidential voter registration status pursuant to HRS § 11-14.5 or the provisions of chapter 801G, HRS;

(2) Under any circumstances the clerk determines may unduly interfere with the ability of a voter to vote; or

(3) Under any circumstances the clerk determines to constitute an emergency.

History

• [Eff JUL 26 2020] (Auth: HRS §§ 11-4) (Imp: HRS §§ 11-102, 11-10.5, 11-107, 11-14.5, 15 ch. 801G)

Haw. Code R. §§ 3-177-608 to 3-177-649 Reserved

Subchapter 14 RETURN IDENTIFICATION ENVELOPE PROCEDURES

Haw. Code R. § 3-177-650 Return and receipt of return identification envelopes; manner, location, and time of receipt

(a) Return identification envelopes maybe returned in person or by mail. To the extent a ballot package was electronically transmitted to a voter, the voter will also have the option of returning the electronic equivalent, of the return identification envelope by electronic transmission. In such a situation, the voter will be required to return at a minimum the ballot or ballot summary, depending on the type-of electronic ballot system used, the waiver of secrecy under HRS § 11-137, and applicable affirmation statement. The waiver may be combined with the affirmation statement.

(b) Any statutory reference to the return of ballots or return identification envelopes by mail shall not be interpreted to preclude- those items being delivered in-person by a voter or their agent.

(c) Any statutory reference to the receipt of ballots or return identification envelopes by the "clerk" or "office of the clerk" shall be interpreted consistently to reflect that appropriate receipt shall have occurred if the clerk, their staff, or others delegated authority by the clerk take custody of return identification envelopes from anyone at any location, including the U.S. Postal Service post office, no later than the applicable deadline provided for in statute.

(d) The following constitutes a non-exhaustive list of locations where identification envelopes (i.e. ballots) may be received:

(1) Voter Service Centers;

(2) Places of Deposit;

(3) Any location designated by the clerk for the receipt of return identification envelopes (e.g. the clerk may have locations that cannot support a voter service center, but could still reasonably accommodate the receipt of return identification envelopes, so long as they are received than the applicable deadline provided for in statute); or

(4) Any location where the clerk, their staff, or others delegated authority by the clerk take custody of return identification envelopes (e.g. the clerk may make arrangements to pick up return identification envelopes at a U.S. Postal Service post office, so long as they are received by the applicable deadline provided for in statute).

(e) To the extent a voter is standing in line at the applicable deadline provided in statute at a place of deposit or at a voter service center with the intent of returning their return identification envelope, they shall be allowed to vote. Likewise, a person or a mail carrier delivering return identification envelopes on behalf of voters, to the extent they are standing in line at a place of deposit or at a voter service center, with the intent of delivering said return identification envelopes they will be permitted to deliver them and they will be considered to have met the applicable deadline. The term "mail carrier" includes the U.S. Postal Service and any private delivery service.

(f) Once a return identification envelope is received, the voter's ballot shall be deemed cast and may not be recast in the election.

(g) Election officials shall secure the return identification envelopes and deliver them to any location that is established to validate signatures or otherwise process the envelopes or their contents.

History

• [Eff JUL 26 2020] (Auth: HRS §§ 11-4) (Imp: HRS §§ 11-102, 11-104, 11-105, 11-107, 11-109, 11-137, 15-4)

Haw. Code R. § 3-177-651 Return identification envelopes; general preparing of ballots for counting

(a) Upon receipt of the return identification envelope, the clerk may prepare the ballots for counting. Before opening return identification envelopes and counting the ballots, the return identification envelopes shall be checked for the following:

(1) Signature on the affirmation, statement;

(2) Whether the signature corresponds with a reference signature image using the provisions of HAR § 3-177-652; and

(3) Whether there is a condition that would not allow the counting of the contents of the return identification envelope (e.g. the. voter has already voted, or otherwise returned a return identification envelope that has been validated).

(b) If any requirement listed in subsection (a) is not met or if the return identification envelope appears to be tampered with, the clerk shall mark across the face of the envelope "invalid" and it shall be kept in the custody of the clerk and disposed of as prescribed for ballots in HRS § 11-154, unless it is subsequently determined to be valid. To the. extent a return identification envelope is deemed invalid, the provisions of HAR § 3-177-654 relating to the correction of deficient return identification envelopes may apply.

(c) Notwithstanding anything to the contrary, if a return identification envelope is initially determined to be valid and it is subsequently found that the return identification envelope is empty or otherwise the contents cannot be counted, it may be invalidated (e.g. the return identification envelope typically has a hole that permits one to confirm that there is an enclosed secret ballot envelope, sleeve, or ballot).

(d) The return identification envelope of any voter who was eligible to vote at the time the ballot was cast shall not be deemed invalid solely because the voter became ineligible to vote after casting the ballot (e.g. subsequent death or other basis, of ineligibility will not invalidate ballot). For the purposes of this subsection, "cast" means that the voter has:

(1) Deposited the return identification envelope in the mail;

(2) Delivered the return identification envelope to the clerk; or

(3) Completed voting in person at a voter service center.

However, a ballot will not be considered for counting if it was not received by the applicable statutory deadline on the day of the election.

(e) All return identification envelopes complying with subsection (a) shall be deemed valid and secured by election officials for subsequent processing and counting.

History

• [Eff JUL 26 2020] (Auth: HRS § 11-4) (Imp: HRS §§ 11-106, 11-107, 11-108, 11-154, 15-3.5, 15-9, 15D-10, 15D-10.5)

Haw. Code R. § 3-177-652 Return identification envelopes; signature validation

(a) The clerk will initially compare the signature on a return identification envelope with the reference signature or reference signatures of the voter. The clerk may authorize the use of a signature device, as defined in HAR § 3-177-653, to compare signatures. A signature considered matched by a signature device will be considered valid and not require further verification.

(b) A "reference signature" is any signature provided in connection with the administration of elections or any signature provided to election officials from a governmental entity obtained in the ordinary course of business (e.g. voter signatures on any election issued form or- application, correspondence with election officials, signature capture cards sent to and returned by voters, signatures from the Department of Transportation or county licensing examiners, or signatures from any governmental entity shared with election officials).

(c) Any signature not initially validated by the signature device or that was not submitted to a signature device will be visually compared by the election official.

(1) As a return identification envelope was issued and transmitted to the voter, the return of the: return identification envelope or electronic equivalent will be rebuttably presumed to be from the voter and any signature contained therein as that of the voter;

(2) A voter is permitted to use a variation of their name, to the extent it can be recognized as such by the reviewing election official;

(3) The election official will review the general appearance of. the signatures taking into account the above noted rebuttable presumption, permitted name variations, and the following:

(A) type of writing (e.g. cursive versus print);

(B) speed of writing (e.g. harmonious versus slow and deliberate);

(C) overall spacing;

(D) overall size and proportions;

(E) position of the signature (e.g. slanted versus straight); and

(F) spelling and punctuation.

(4) The election official will consider whether any apparent differences can be reasonably explained, by the facts and circumstances surrounding the signatures. The election official may consider, but not be limited to, the following considerations:

(A) When the signatures were made incomparison to each (e.g. a significant period of time has transpired between signatures);

(B) The age of the writer at the time of the signatures;

(C) How the signatures were made (e.g. driver license offices may use an electronic signature pad to record signatures, including those used for voter registration, while an envelope may be signed in ink); or

(D) Whether household members signed and returned each other's return identification envelope by accident, in which case, if the signatures match each of the correct voter's signature reference image and the voters have not otherwise voted, such that the counting of the impacted ballots would not result in a voter having voted a ballot not associated with their residence or containing questions or contests they are not eligible to vote on the impacted return identification envelopes may be considered valid.

(d) A voter may make a mark in place of a signature on the affirmation statement on the return identification envelope so long as there is a witness' signature and address on the affirmation statement. In such a situation, the return identification envelope will be considered valid. If no witness' signature and address appear on the affirmation statement, then the return identification, envelope will be deemed invalid. However, if a voter is physically unable to sign or to make a mark, they may use the provisions of HRS § 456-19 to have a notary sign on their behalf, and the return identification envelope will be considered valid.

History

• [Eff JUL 26 2020] (Auth: HRS § 11-4) (Imp: HRS §§ 11-15, 11-16, 11-106, 11-107, 11-108, 15-9, 15D-10, 456-19)

Haw. Code R. § 3-177-653 Return identification envelopes; signature device

(a) A "signature device" refers to a device that either captures images or uses imported images which it analyzes and compares to existing signature reference images. A signature device can be incorporated into any automated ballot sorting system or similar system or it may be a stand-alone device.

(b) The clerk may conduct audits relating to the signature device and may discontinue the use of the device at any time without regard to the results of any auditing.

History

• [Eff JUL 26 2020] (Auth: HRS § 11-4) (Imp: HRS §§ 11-106, 11-107, 11-108, 15-9, 15D-10)

Haw. Code R. § 3-177-654 Return identification envelopes; notification and correction of deficiencies

(a) Any return identification envelope initially identified as invalid will be considered a deficient return identification envelope for purposes of HRS § 11-106, if the voter has not already voted. The clerk shall make an attempt to notify the voter by first class mail, telephone, or electronic mail to inform the voter of the procedure to correct the deficiency. The voter shall have five business days after the date of the election to cure the deficiency. The counting of ballots and disclosure of subsequent election results may continue during the time period permitted to cure a deficiency. The clerk's inability to contact voters shall not be grounds for a contest for cause under HRS § 11-172.

(b) A deficient return identification envelope may be corrected and treated as valid in any manner that satisfies the clerk due to one of the following:

(1) the signatory to the return identification envelope is the voter who was assigned the return identification envelope; or

(2) the basis of the deficiency has been properly addressed and removed.

(c) The manner of correction may include, but not be limited to the following:

(1) The returning of a signed form including the voter's name and date of birth, in addition to the voter's Hawaii State Driver License number, Hawaii State Identification Card number, or the last four digits of their Social Security Number, indicating that the voter signed the original return identification envelope or otherwise addressing the deficiency associated with their return identification envelope. The form may be returned in any manner authorized by the clerk, including electronic transmission;

(2) The use of. an online voter registration system or similar state or county system that permits a voter to log in through the submission of their name and date of birth, along with their Hawaii State Driver License number, Hawaii State Identification Card number, and allows the voter to indicate they signed the original return identification envelope or otherwise addressing the deficiency associated with their return identification envelope;

(3) Any other program or service used by the state or county, including through a third party, that permits a voter to indicate that they signed the original return identification envelope or otherwise addressing the deficiency associated with their return identification envelope; or

(4) The clerk, at their discretion, repeating the prior signature validation process or aspects of it, in conjunction with any updates to the signature reference images to the statewide voter registration system.

(c) For purposes of this rule, a voter as part of the correcting of a deficiency may not mark a new ballot after the applicable statutory deadline on election day. Instead, only the original deficient return identification envelope may be considered cured and now valid (i.e. a voter after the results of an election are known cannot change who they voted for, as they can only ensure that their original ballot received by the applicable statutory deadline on election day is considered valid).

(d) A voter who has been informed prior to the applicable statutory deadline on election day for voting that their return identification envelope is deficient will not be prevented from requesting a replacement return identification ballot or otherwise voting at a voter service center by the applicable statutory deadline on election day, so long as ultimately only one ballot is counted (e.g. a voter whose signature was found not to match may decide to simply vote in person at a voter service center and not have their prior, return identification envelope counted). Otherwise, such a voter may correct the originally deficient return identification envelope within five business days of the election.

History

• [Eff JUL 26 2020] (Auth: HRS § 11-4) (Imp: HRS §§ 11-106, 11-172)

Haw. Code R. §§ 3-177-655 to 3-177-699 Reserved

Subchapter 15 VOTING SYSTEMS

Haw. Code R. § 3-177-700 Voting system requirements

(a) In addition to, and not in lieu of, any other election processes contained in Title 2 of the Hawaii Revised. Statutes, the chief election officer, or the clerk in the case of a county only election, may use a voting system or voting systems that comply with one, or a combination of the following:

(1) The federal voting system standards as printed in the Federal Election Commission publication: Performance and Test Standards for Punchcard, Marksense, and Direct Recording Electronic Voting Systems (1990);

(2) The federal voting system standards as printed in. the Federal Election Commission publication: Voting System Standards, Volumes I & II (April 2002);

(3) The federal voluntary voting system guidelines as printed in the United States Election Assistance Commission publication: 2005 Voluntary Voting System Guidelines Version 1.0, Volumes I & II (2005), and subsequently published in the Federal Register, Vol. 71, No. 70 (April 12, 2006);

(4) The Voluntary Voting System Guidelines 1.1 adopted by the United States Election Assistance Commission on. March 31, 2015;

(5) Any subsequent iteration of the Voluntary Voting System Guidelines adopted by the United States Election Assistance Commission, its designee, or as provided for in the Help America Vote Act of 2002, as amended; or

(6) Any federal guidelines, manuals, forms, policies, or opinions issued by the United States Election Assistance Commission.

(b) To the extent a voting system uses COTS or MOTS and was originally compliant with this rule, the subsequent use of a more current version of the original COTS or MOTS or the use of another brand of COTS or MOTS will not undermine the original finding of compliance and no subsequent certification or compliance process will be required.

(1) "COTS" for purposes of these rules is understood to be the following: "Software, firmware, device or component that is used in the. United States by many different people or organizations for many different applications other than certified voting systems and- that is incorporated into the voting system with no manufacturer or application-specific modification;"

(2) Similarly, for purposes of these rules "Modified COTS (or MOTS - Modified Off-the-Shelf) refers to an off-the-shelf product that is customized by a commercial vendor to respond to specific requirements of the election community;" and

(3) These definitions are from the United States Election Assistance Commission, Considerations for Implementing Voting Systems with COTS Products, Posted March 21, 2017 at https://www.eac.gov/documents/2017/03/21/considerations-for-implementing-voting-systems-with-cots-products/.

History

• [Eff JUL 26 2020] (Auth: HRS § 11-4) (Imp: HRS §§ 11-4, 16-1, 16-2, 16-11, 16-12, 16-22, 16-41, 16-42, 52 USC § 20961, 52 USC §20962, 52 USC § 20971)

Haw. Code R. § 3-177-701 Approval of all voting equipment, materials, and procedures

The chief election officer or designated representative shall approve all necessary forms, supplies, and procedures used in the operation of any voting system.

History

• [Eff JUL 26 2020] (Auth: HRS § 11-4) (Imp: HRS §§ 11-4, 16-1, 16-2)

Haw. Code R. § 3-177-702 County elections; assistance

In county elections, the clerk may request the assistance of the chief election officer and staff in administering and using the voting system.

History

• [Eff JUL 26 2020] (Auth: HRS §§ 11-4) (Imp: HRS § 11-4)

Haw. Code R. § 3-177-703 Elections services; provision and charges

The chief election officer may provide election related services and equipment to government and private non-profit organizations to assist with the conduct of elections or surveys subject to the following conditions:

(1) A request is made on a form provided by the chief election officer;

(2) The provision of such election services or equipment does not interfere with the preparation for, or conducting of any primary, special primary, general, special general election, or special election;

(3) The services or equipment are not used in connection with any activity or message intended to influence the outcome of any contest or question in any primary, special primary, general, special general election, or special election;

(4) The requesting party directly assumes all costs associated with the conduct of the election or survey other than those associated with the personnel and equipment of the chief election officer; and

(5) The requesting party agrees to reimburse the chief election officer for an amount not to exceed the actual costs associated with, the personnel and equipment used, provided that this requirement may be waived in writing by the chief election officer for government' offices or agencies.

History

• [Eff JUL 26 2020] (Auth: HRS § 11-4) (Imp: HRS § 16-3)

Haw. Code R. § 3-177-704 Testing the vote counting system; electronic voting systems

(a) Prior to election day the vote counting system prepared for counting and tabulating the votes shall be tested in the presence of the following persons:

(1) The chief election officer, clerk, or designated representative;

(2) Official observers; and

(3) Other authorized interested persons, as space permits.

(b). The test may include, a predetermined number of votes for each candidate and for and against each, question and a predetermined number of excess or "over" votes and blank votes for each candidate or question.

(1) Each official observer and other authorized persons may prepare test ballots for the test' of the vote counting system;

(2) The vote counting system shall not be approved unless it produces the exact count of all votes, rejects all improper votes, and meets all other test criteria;

(3) After the test has been satisfactorily conducted, all test ballots, test results, and the vote counting system shall be secured and shall not be subsequently open except in the presence of not less than two official observers who are of different political party or organizational affiliations. Notwithstanding this, voting equipment that has been, initially secured under this rule for subsequent delivery to another location, such as a voter service center, counting center, or similar location, may be opened by the election officials present at that subsequent location;

(4) Official observers shall sign a certification that the vote counting system was tested, found accurate, and approved.

(c) In the event of a vote counting system malfunction, the test shall be rerun upon completion of the maintenance or corrective work. There shall be no further processing until the test indicates that the vote counting system is working properly.

History

• [Eff JUL 26 2020] (Auth: HRS § 11-4) (Imp: HRS §§ 16-42, 16-43, UT6-45)

Haw. Code R. § 3-177-705 Experimental voting systems; rules and procedures

In an election where the chief election officer experiments with voting systems of a different kind, all rules which can be reasonably applied to that system shall be followed. Temporary procedures shall be used as required for the experimental voting systems only. Nothing herein is to be used to diminish, take away or otherwise impair the rights of the voter.

History

• [Eff JUL 26 2020] (Auth: HRS § 11-4) (Imp: HRS § 16-1)

Haw. Code R. § 3-177-706 Electronic voting systems; generally

An "electronic voting system" means any method of recording, counting, and tabulating votes via automatic tabulating equipment. For purposes of these rules, an electronic voting system includes, but is not limited to, the "marksense ballot voting system" and the "direct recording electronic voting system." To the extent an electronic voting system is not a "marksense ballot voting system" or a "direct recording electronic voting system," all rules associated with those systems which can be reasonably applied to the new system shall be. followed. Temporary procedures shall be used as required if the rules associated with the "marksense ballot voting system" or a "direct recording electronic voting system" cannot be reasonably applied to the new system and followed. Nothing herein is to be used to diminish, take away or otherwise impair the rights of the voter.

History

• [Eff JUL 26 2020] (Auth: HRS § 11-4) (Imp: HRS §§ 16-1, 16-41, 16-42)

Haw. Code R. § 3-177-707 Electronic voting systems; marksense voting system

A "marksense voting system" means an automatic tabulation system using ballots and optical scanning or similar technology equipment. The voter manually records votes by marking the appropriate voting- position on the ballot, with a prescribed' marking device, in the manner instructed by. the chief election officer. The marks on the ballots are subsequently read by the optical scan or similar, technology device, in conformance with the specifications of the voting system selected by the chief election officer. As used in these rules, a "marksense voting system" is considered to be a "mechanical tabulation system," which may be used in any context requiring or permitting the use of a mechanical tabulation system. A "mechanical tabulation system" means an automatic tabulation system, including a marksense ballot voting system.

History

• [Eff JUL 26 2020] (Auth: HRS § 11-4) (Imp: HRS §§ 16-1, 16-41, 16-42)

Haw. Code R. §§ 3-177-708 to 3-177-749 Reserved

Subchapter 16 VOTE DISPOSITION

Haw. Code R. § 3-177-750 Electronic voting systems; documentation of overages and underages; records

The voted ballots shall be kept secure and handled only in the presence of representatives not of the same political party or official observers. If there are more ballots than documented usage indicates, this shall be an overage and if fewer ballots, it shall be an underage. Any overages or underages in any district shall be documented. The list of any such overages or underages shall be filed and kept as a public record in the office of the chief election officer or the clerk in county elections. After all ballots have been tabulated, they shall be sealed in containers.

History

• [Eff JUL 26 2020] (Auth: HRS §§ 11-4, 11-154) (Imp: HRS §§ 11-153, 11-154, 11-155)

Haw. Code R. § 3-177-751 Electronic voting systems; centralized and decentralized counting

(a) Centralized counting involves the receipt of ballots which are counted at a counting center designated by the chief election officer,

(b) Decentralized counting involves ballots which are counted at the voter service center by the voting device or voting devices associated with the voter service center, including marksense voting devices, direct recording electronic voting devices, or similar technology,

(c) A "counting center" means the facilities and surrounding premises designated by the chief election officer or the clerk where ballots or other electronic voting system votes are processed, counted, and tabulated.

(d) The chief election officer may use centralized counting, decentralized counting, or a combination thereof.

History

• [Eff JUL 26 2020] (Auth: HRS §§ 11-4) (Imp: HRS §§ 16-2, 16-41 through 16-47)

Haw. Code R. § 3-177-752 Electronic voting systems; marksense voting system; disposition of marks

(a) As noted in HAR § 3-177-454, the voter, shall properly mark the ballot in the manner and color of ink, softness of pencil graphite, or other manner as described by the instructions prescribed by the-chief election officer.

(b) A mark made in the manner indicated in subsection (a) shall be considered a "proper mark" and counted by a properly functioning voting system as a vote.

(c) A mark made, outside of the voting position, will be considered an "improper mark" and will not be counted by a properly functioning voting system as a vote.

(d) A "marginal mark" involves a mark in the voting position area in which the voter may have used an improper marking device or did not completely fill in the voting position area as instructed. As indicated by its name, such marks are marginal. The disposition of a marginal mark as to whether it will be counted as a vote will be based on whether a properly functioning voting system has read the mark as a vote. A marginal mark will be read by the voting system as a vote under two circumstances:

(1) The vote counting system has been tested pursuant to HAR § 3-177-7.04 and it has determined that the mark has met the threshold of the system for a vote; or

(2) The voting system in using an algorithm or similar process to eliminate false overvotes caused by pen rests, dirt, or other small marks on the ballot, determines that the mark is in fact a vote.

(A) The use of such an algorithm will be determined, by the chief election officer prior to the election and the official observers will be able to test the vote counting system to ensure it is working properly; and

(B) The chief election officer may authorize such an algorithm to be used in conjunction with the processing of ballots at the counting center or at a voter service center. However, the chief election officer may elect to only authorize it in certain settings. For example, situations in which the voter does not have the benefit of an in-person voting system to inform them of a possible voting error on the ballot that they could address before the ballot is cast.

History

• [Eff JUL 26 2020] (Auth: HRS §§ 11-4, 52 USC § 21081) (Imp: HRS §§ 11-104, 11-108, 16-2, 16-41 through 16-47, 52 USC 21081)

Haw. Code R. § 3-177-753 Electronic voting systems, transmission, receipt, and tabulation of votes

(a) The transmission or receipt of vote data, including but not limited to votes, vote tabulation, or similar information shall be permitted between locations authorized by the chief election officer or clerk in the case of county elections. Election results, accumulated from said transmissions, may be distributed to the general public while awaiting receipt of the ballots, vote data storage media, or other materials associated with the transmissions and the completion of any procedures intended to verify the proper transmission and accumulation of data.

(b) "Vote data storage media" is the means of storing vote data such as a PCMCIA card or other device that may be secured in the voting equipment or any part of the overall voting system.

(c) The following requirements shall be employed when transmitting election data electronically:

(1) The voting system shall be self-contained and not connected to any network infrastructure that is not under the direct control of the office of elections or the clerk in the case of county elections;

(2) The transmission and accumulation of election results shall be subject to a testing and-verification prior to the election;

(3) The electronic transmission of official-election vote data, shall occur via virtual private network or other secured network. Where possible and to the extent that the voting system design permits, data transfers between system components should incorporate the use of digital signatures or encryption to authenticate the data for the particular election.

(4) Accumulated election results shall be considered uncertified unless it can be independently verified prior to transmission and following receipt and until certified by the chief election officer. Independent verification may be accomplished via manual inspection of election results prior to and following electronic transmission or by employing the use of a cryptographic hashing algorithm on randomly selected data files prior to and after transmission.

(c) Any election results transmitted by modem shall be considered "uncertified" unless transmitted via a virtual private network or until compiled directly from the source media.

(d) In elections where voting results are tabulated at multiple locations and accumulated at a central location, election results tabulated and produced at the distributed counting center locations shall be considered the source of election results for verification purposes.

History

• [Eff JUL 26 2020] (Auth: HRS §§ 11-4) (Imp: HRS §§ 11-104, 11-108, 16-2, 16-41 through 16-47)

Haw. Code R. § 3-177-754 Electronic voting systems; marksense ballot voting system results

Uncertified results from a marksense ballot voting system may be distributed to the general public, while awaiting the completion of any audit under HAR § 3-177-762, and any other procedures required by law.

History

• [Eff JUL 26 2020] (Auth: HRS §§ 11-4) (Imp: HRS §§ 11-108, 16-2, 16-41 through 16-47)

Haw. Code R. § 3-177-755 Electronic voting systems; direct recording electronic voting system results

The chief election officer, clerk, or designees may distribute electronic tallies created directly from a direct recording electronic voting device, while the requirements of HRS § 16-42(b) are being met. In the event the chief election officer, clerk, or designee determines that the electronic tallies from a direct recording electronic voting device are not reliable, the chief election officer, clerk, or designee shall promptly notify the official observers and count the voter verifiable paper audit trails by hand or a mechanical tabulation system.

History

• [Eff JUL 26 2020] (Auth: HRS §§ 11-4) (Imp: HRS §§ 11-108, 16-2, 16-47)

Haw. Code R. § 3-177-756 Electronic voting systems; inspection, audit, and experimental testing

Prior to election day, the chief election officer, county clerk, or designees shall test the electronic voting system. If, as a result of the initial testing, the chief election officer determines additional inspection, auditing or testing is required, the chief election officer shall notify the official observers so that they can witness the additional inspection, auditing or retesting needed to ensure that the voting system is working properly. If, after election day, the post-election, pre-certification audit indicates misreporting within the system, the chief election officer shall notify the official observers so that they can witness the additional inspection, auditing or retesting performed to ascertain the nature of the problem.

History

• [Eff JUL 26 2020] (Auth: HRS §§ 11-4) (Imp: HRS §§ 11-108, 16-2, 16-41 through 16-47)

Haw. Code R. § 3-177-757 Electronic voting system; counting center procedures

(a) The handling of ballots, vote data storage media, and voter verifiable paper audit trails shall occur only in the presence of representatives who are not of the same political party or official observers, except in cases where technical knowledge and skill is required when authorized by the chief election officer, clerk, or designated representative.

(b) The official observers shall observe the processes within the counting center and shall report any changes or deviations from the rules or procedures to the chief election officer, clerk in county elections, or designated representative. The observers shall also participate in all certifications that may be required by the chief election officer, clerk, or designated representative.

(c) No person shall be permitted into the counting center-without the authorization of the chief election officer, clerk in county elections, or designated representative.

(d) There shall be no printout by the computer or other disclosure of the number, of votes- cast for a candidate or on a ballot question prior to the closing of the polls as specified in HRS § 11-131.

(e) If a system becomes inoperative, the chief election officer, clerk, or designated representatives shall evaluate and determine the extent of the malfunction. Provisions for backup procedures shall be available and may be put into effect. All tests and operational procedures stated in these rules shall apply to any standby equipment used.

(f) After all ballots are counted, the election database and vote data storage media, test ballots and results, the election results, and the voted ballots shall be sealed in containers or cabinets.

(g) Subsequent audits may be conducted by the chief election officer, clerk, or designated representative in accordance with established procedures.

(h) A written record shall be maintained of each opening and sealing of these storage containers or cabinets. The record shall include all of the following:

(1) Date and time;

(2) Name of each person requesting opening and reasons for opening;

(3) Seal numbers; and

(4) Signatures of two or more witnesses-attesting to the opening and closing of these containers or cabinets and certifying that ballots were handled in their presence at all times.

(i) The containers or cabinets shall be sealed and stored for twenty-two months in accordance with federal law.

History

• [Eff JUL 26 2020] (Auth: HRS §§ 11-4, 11-131, 11-154, 16-44) (Imp: HRS §§ 11-108, 11-154, 16-2, 16-41 through 16-47)

Haw. Code R. § 3-177-758 Electronic voting system centralized counting; receipt at counting center

Counting center officials shall receive and sign for the containers from the voter service centers and the valid return envelopes for processing. The containers shall be unsealed and opened in accordance with established procedures and in the presence of not less than two representatives who are not Of the same political party or official observers.

History

• [Eff JUL 26 2020] (Auth:HRS §§ 11-4, 11-154) (Imp: HRS §§ 11-108, 11-154, 15-9, 15-10, 16-2, 16-41 through 16-47)

Haw. Code R. § 3-177-759 Electronic voting system counting; duplication procedure

(a) Counting center officials shall record and reconcile the number of defective ballots before and after the ballot is duplicated.

(b) Counting center officials, in the presence of representatives who are not of the same political party or official observers, shall prepare a duplicate ballot to replace each, defective ballot. To the extent a defective ballot is the result of the wrong ballot type having been used for a particular district, counting center officials shall ensure that all votes, cast in contests for which the voters in that district are entitled to vote are properly duplicated onto the duplicate ballot associated with the correct ballot type, for counting. All of the votes in contests for which the voters in that district, are not entitled to vote will not be counted and as such will not be duplicated onto a duplicate ballot. Unvoted ballots for duplication and voting devices shall be authorized in the counting center for this purpose.

(c) Counting center officials shall prepare a reconciliation of the number of duplicated ballots used to replace the defective ballots. The defective ballots shall be invalid and stored in accordance with subsection (f).

(d) Duplicated ballots shall be returned to the appropriate originating counting center officials for final verification.

(e) All valid ballots shall be read and counted by the vote counting system. If, during the scanning of the ballots additional defective, ballots are rejected, the defective ballots shall be processed in accordance with subsections (a) through (d).

(f) After the duplicated ballots are counted, the. counted ballots and the invalid ballots shall be logged and sealed. The ballots shall be stored in containers or cabinets which shall be sealed. The storage of the ballots and sealing of the cabinets shall be done in the presence of not less than two representatives who are not of the same political party or official observers.

History

• [Eff JUL 26 2020] (Auth: HRS §§ 11-4, 16-46, 52 USC § 21081) (Imp: HRS §§ 11-108, 11-154, 16-2, 16-41 through 16-46, 52 USC § 21081)

Haw. Code R. § 3-177-760 Electronic voting system decentralized counting; receipt at counting center

(a) Counting center officials shall receive and sign for the sealed containers of voted ballots that have already been counted by the precinct counters, sealed containers, of voted ballots that have not been counted by the precinct counters if any, and any other sealed container from each voter service center.

(b) Counting center officials shall track and log sealed containers of ballots, voter verifiable paper audit trails, vote data storage media, and other election related materials, such as zero reports, as they are processed at the counting center and received from the voter service centers in the presence of not less than two representatives not of the same political party or official observers.

History

• [Eff JUL 26 2020] (Auth: HRS §§ 11-4, 11-154) (Imp: HRS §§ 11-108, 16-2, 16-41 through 16-45)

Haw. Code R. § 3-177-761 Electronic voting system; handling of vote data storage media

Election officials shall process the vote data storage media as follows:

(1) Receipt of vote data storage media and zero reports shall be logged; and

(2) The vote data storage media is readied for processing:

(A) The location or voting equipment that the vote data storage media came from shall be logged; and

(B) Any identifying information, such as a serial number, associated with the vote data storage media shall be logged.

History

• [Eff JUL 26 2020] (Auth: HRS §§ 11-4, 11-154) (Imp: HRS §§ 11-108, 15-10, 16-2, 16-41 through 16-45)

Haw. Code R. § 3-177-762 Electronic voting system; auditing

(a) The chief election officer or the clerk shall conduct an audit of a random sample of not less than ten per cent of the precincts employing the electronic voting system, to verify that the electronic tallies generated by the system in those precincts equal hand tallies of the paper ballots generated by the system in those precincts.

(1) The manual audit may be conducted by election officials or by counting center officials;

(2) Except for designated election officials, counting center officials, or official, observers, no person shall be permitted to witness the audit without the authorization of the chief election officer, clerk, or designated representative. The area in which, the audit is conducted shall be kept secure;

(3) Observers may request to conduct a manual audit;

(4) Whenever ballots are removed from storage, the handling of the ballots shall be witnessed by not less than two representatives who. are riot of the same political party or official observers;

(5) Election officials and. counting center-officials shall certify the conduct of and results of the manual audit; and

(6) The manual audit shall not be considered a recount pursuant to the election contest provisions of the law.

(b) In the event discrepancies are found in the audit, the chief election officer may authorize an expanded audit to determine the extent of misreporting within the system.

(1) The chief election officer may use official observers, election day officials, county or state election employees, or other designated individuals as part of the expanded audit.

(2) The chief election officer will determine when the expanded-audit is concluded.

(3) The results of the expanded audit will be filed with the office of elections.

(c) In lieu of relying on the initial results from an electronic voting system, the chief election officer may count ballots or voter verifiable paper audit, trails by hand or with a mechanical tabulation system, or a combination thereof.

(1) Any counting of ballots or voter verifiable paper audit trails, through the use of a mechanical tabulation system, will conform to the marking and vote disposition rules relating to the voting system that the ballot or voter verifiable paper audit trails were associated with.

(A) As the marksense ballot voting system, is a mechanical tabulation system, and the ballots were intended to be read by the devices associated with that system, the chief election officer, will to the extent possible, use those voting devices of the system that did not experience misreporting problems; and

(B) In the event there are inadequate voting equipment that did not experience misreporting problems, the chief election officer, in consultation with the official observers, may use voting equipment that have been repaired to the satisfaction of the chief election officer.

(2) Any counting by hand of ballots or voter verifiable paper audit trails will conform to the marking and vote disposition rules relating to the voting system that the ballot or voter verifiable paper audit trails were associated with.

(A) Ballots that were marked for use by a marksense ballot voting system, will be counted in accordance with those rules associated with that system to the extent reasonably possible. Any hand count of marksense ballots will not use any statute or rules associated with the paper ballot voting system, as those marking instructions and vote disposition rules are uniquely different from those statutes and rules associated with other voting systems; and

(B) Voter verifiable paper audit trails from a direct recording electronic device voting system will be counted in accordance with the ballot selections indicated on them.

(d) The chief election will to the extent possible, resolve any misreporting problem, prior to the end of the contest period stated in HRS § 11-173.5, in the case of a primary, or special primary election, or HRS § 11-174.5, in the case of a general, special general, or special election. Any resolution of a misreporting problem shall be documented and filed with the office of elections.

(e) "Precinct" for purposes of this rule, consistent with HAR § 3-177-57, refers to the ballot type that corresponds to the manner in which results are reported (i.e. if results are reported by state representative district-precinct, such as DP 17-01, then the ballot type associated with DP 17-01 is the applicable precinct for auditing purposes).

History

• [Eff JUL 26 2020] (Auth: HRS § 11-4, 52 USC § 21081) (Imp: HRS §§ 11-4, 11-108, 11-153, 16-2, 16-41, 16-42, 52 USC § 21081)

Haw. Code R. § 3-177-763 Electronic voting system; recount

(a) No person shall be permitted in the counting center without the written authorization of the chief election officer or clerk for purposes of the recount.

(b) The "counting center" means the facilities and surrounding premises, designated by the chief election, officer or the clerk in county elections where electronic voting system ballots are processed, counted, and tabulated.

(c) The office of elections or the clerk in the case of county. elections, shall notify candidates affected by a recount, of the date and time the recount will begin. The candidate or their designated representative may attend and witness the recount. The candidate or their representative will be provided with identification, which they must wear when present in the counting center for the recount.

(d) An attempt will be made to contact candidates affected by the recount to inform them of the time and place of the recount. Contact may be attempted through using the telephone number or electronic mail address provided to election officials as part of the candidate's application for their nomination paper. Election officials are not responsible for the non-receipt of such notice by the candidate.

(e) Given the need to conclude any recount within seventy-two hours of the closing of polls on election day, any notice may be provided on Saturdays, Sundays, or holidays. Such a notice will not serve to extend the initiation or conclusion of the recount.

(f) As the ballot typically contain various contest beyond the contest that triggered the recount, the system may read all marks on the ballot, when the ballots are scanned. This may result in the system generating not only new results for the contest in question but also other contests on the impacted ballots. However, any results for those other contests will not be considered official and will not change the previous official results in those contests.

(g) Any counting of ballots or voter verifiable paper audit trails will conform to the marking and vote disposition rules relating to the voting system that the ballot or voter verifiable paper audit trails were associated with As the marksense ballot voting system, is a mechanical tabulation system, and the ballots were intended to be read by the devices associated with that system, the election, officials, will to the extent possible, use voting devices associated with the system.

(h) The results of the recount will be subject to auditing under HAR § 3-177-762.

(i) After the conclusion of any audit of the recount, the results of the recount for the contest that triggered the recount will be publicly announced.

(j) The recount will include only those ballots that were a part of the initial tabulation, which HRS § 11-108(b) required role completed no later than 6:00 a.m. on the day following an election day.

(k) Ballots whose validity had not been initially determined and as such were not included in the initial tabulation, will be counted separately after being validated. This includes, but is not limited to, any ballots that were initially deficient but were subsequently corrected by voters, pursuant to HRS § 11-106. The counting of these ballots will result in updated election results. However, the updated election results may not serve as a basis for the triggering of another recount. As these ballots are not a part of the initial tabulation subject to recount, the provisions related to a recount shall not apply to the counting of them. However,, the date and time of the. counting of these ballots will be provided to the official observers, pursuant to HRS § 16-45.

History

• [Eff JUL 26 2020] (Auth: HRS § 11-4, 52 USC § 21081) (Imp: HRS §§ 11-108, 11-158, 16-2, 16-41 through 16-45, 52 USC § 21081)

Haw. Code R. § 3-177-764 Challenged voter's ballot; disposition, of at counting center

(a) As it relates to a challenged voter's ballot, it will only be counted if the clerk informs the counting center manager that the resolution of the challenge is for the challenged voter's ballot to be counted. The resolution of the challenge may occur through the expiration of the deadline to appeal a decision of the board of registration saying the ballot should be counted, the waiving of any right of appeal prior to the deadline, or a ruling by. the intermediate court of appeals to count the ballot.

(b) If the challenged voter's ballot is to be counted, counting center officials shall prepare the ballot for processing. The ballot shall be counted using procedures established by the chief election officer. In all cases, the secrecy of the ballot must be preserved. If the secrecy of the ballot cannot be preserved, the challenged ballot shall not be processed except to break a tie vote, as ordered by the appellate court. It shall be disposed of as provided by law.

History

• [Eff JUL 26 2020] (Auth: HRS § 11-4) (Imp: HRS §§ 11-25, 11-54)

Haw. Code R. § 3-177-765 Election results; certification of

The chief election officer or clerk, as the case may require, shall prepare a certified statement of the results of votes cast for the election.

History

• [Eff JUL 26 2020] (Auth: HRS § 11-4) (Imp: HRS § 11-155, 11-156)

Haw. Code R. § 3-177-766 Certificate of election and certificate of results, form

(a) The chief election officer or clerk shall deliver certificates of election to the persons elected as determined under HRS § 11-155. The chief election officer or clerk in county elections shall issue certificates of results where a question has been voted upon.

(b) Certificates of election shall be delivered only after the:

(1) Filing of reports in accordance with HRS §§ 11-331 and 11-333; and

(2) Payment of any fine assessed by the campaign spending commission, by the person elected in accordance with Part XIII of Chapter 11, Hawaii Revised Statutes and after the expiration of time for bringing an election contest.

(c) The certificate of election shall be substantially in the form found in HRS § 11-156.

(d) If there is an election contest these certificates shall be delivered only after a final determination in the contest has been made and the time for an appeal has expired.

History

• [Eff JUL 26 2020] (Auth: HRS § 11-4) (Imp: HRS § 11-156)

Haw. Code R. § 3-177-767 Processing of voted ballots at the counting center; return identification envelopes; centralized counting

(a) Valid return identification envelopes, including validated mail ballot packages returned by electronic transmission, shall be transported to the counting center or designated location in secured containers in accordance with procedures established by the chief election officer.

(b) Opening and processing of valid-return envelopes for tabulation may begin no sooner-than the tenth day before the election. In the presence of official observers, counting center officials may open the return identification envelopes and count the ballots; provided that any tabulation of the number of votes cast for a candidate or question appearing on the ballot, including a counting center printout or other disclosure, shall be kept confidential and shall not be disclosed to the public until after 7:00 p.m. on the date of the election or after the last person in line at a voter service center desiring to vote at 7:00 p.m. on the date of the election has voted, as provided in HRS § 11-131, whichever is later.

(c) Valid return identification envelopes shall be opened and processed in accordance with procedures established by the chief election officer.

(d) Upon opening the return identification envelopes, counting center officials shall indicate that a ballot is invalid for the following reasons:

(1) More than one secret ballot envelope or secret ballot sleeve containing a ballot;

(2) Secret ballot envelopes or secret ballot sleeves containing more than one ballot, provided that in an election which requires more than one ballot card or sheet, ballots constituting a paired ballot shall be valid (i.e. if an election contains more candidates and/or ballot questions that can fit on one ballot card);

(3) The ballot returned is defective and cannot be duplicated;

(4) The ballot returned is for the wrong election; or

(5) No ballot has actually been returned in the secret ballot envelope or secret ballot sleeve.

(e) Invalidated ballots shall be noted as being "invalid," placed in an invalid ballot box or otherwise securely segregated. Any reconciliation form shall be adjusted to reflect any invalidating' conditions.

(f) The counting of ballots and certification of results shall occur in accordance with Subchapter 16 to Chapter 3-177, Hawaii Administrative Rules.

History

• [Eff JUL 26 2020] (Auth: HRS § 11-4) (Imp: HRS §§ 11-108, 15-9)

Haw. Code R. § 3-177-768 Processing of uncounted voted ballots from voter service centers

Voter service center officials shall identify and pack any uncounted voted ballots at the voter service center in a secure container to transfer to the counting center to be counted. Election officials shall process uncounted voted ballots that were unable to be counted at a voter service center as follows:

(1) The location and container number shall be logged; and

(2) The uncounted voted ballots shall be readied for counting.

History

• [Eff JUL 26 2020] (Imp: HRS §§ 11-109, 16-2, 16-41 through 16-46)

Haw. Code R. § 3-177-769 Reconciliation of voted ballots

(a) The clerk, shall prepare a reconciliation of voted mail and voter service center ballots recorded on a form prescribed by the chief election officer. The form shall summarize the following totals by precinct:

(1) Walk-in voter service center ballots;

(2) Valid mail return, identification envelopes; and

(3) Invalidated mail ballots.

(b) If there are more ballots than documented usage indicates, this shall be an overage and if fewer ballots, it shall be an underage.

History

• [Eff JUL 26 2020] (Auth: HRS §§ 11-4) (Imp: HRS §§ 11-153, 11-155)

Haw. Code R. §§ 3-177-770 to 3-177-799 Reserved

Subchapter 17 PAPER BALLOT VOTING SYSTEM

Haw. Code R. § 3-177-800 Paper ballot voting system; voting procedure at the voter service center

(a) The "paper ballot voting system" means the method of recording votes which are counted manually in accordance with HRS §§ 16-21 to 16-29. Neither the paper ballot voting system or paper ballot voting system procedures apply to ballots that were originally meant for any other voting, system, such as the marksense voting system (e.g. marksense ballots cannot be marked or counted under the rules associated with this subchapter).

(b) If a paper ballot voting system is to be used, a demonstration of the proper method to use in marking a paper ballot, shall be available to all voters at the voter service center. A card of instruction detailing: the method of marking ballots and voting shall be posted outside the voter service center and in each voting booth.

(c) The voter may be asked to verify their identity.

(d) The voter may be required to fill out an application that will' be used in conjunction with the statewide voter registration system. In the alternative, they may sign a poll book, depending on how the voter service center is operated. In either case, the poll book or application shall include the ability for the voter to make a mark in the appropriate place if the voter is unable to write for reasons of illiteracy, blindness, or other physical disability. The voter service center official shall print "witnessed by" next to the voter's mark and sign the voter service center official's name.

(e) Before issuing a ballot to a voter, the voter service center official shall fold the ballot in the manner prescribed by the chief election officer or clerk so as to conceal the contents.

(f) Upon receiving the folded ballot, the voter shall proceed into the voting booth and shall mark the ballot in the manner and color of ink or grade of softness of pencil graphite prescribed by the chief election officer as described in the card of instruction. Within the voting booth the voter shall designate each choice by marking an "X", "+", or "%" in the voting position area next to the name of the candidate for whom the voter desires to vote or the question on the ballot for which the voter desires to vote. The voting position area will be designated by the chief election officer on the ballot. The voting position area may include, but not be limited to circles, squares, rectangles, or other shapes. In addition, the chief election officer will determine whether the voting position area is on the right or left hand side of a candidate's name or the ballot question.

(1) Examples of proper marks are:

Click here to view image

(2) Examples of improper marks are:

Click here to view image

(g) The voter shall then refold the ballot using the same folds as when handed to the voter by the voter service center official and shall give the folded ballot to the voter service center official at the ballot box. The official shall not open or unfold the ballot, but shall ensure that the correct number of ballots are deposited in the ballot box.

(h) The voter service center official at the ballot box shall give the voter a receipt.

(i) Voter assistance shall be provided at the voter service center.

History

• [Eff JUL 26 2020] (Auth: HRS §§ 11-4, 16-22) (Imp: HRS §§ 11-109, 11-139, 12-31, 16-22, 16-23)

Haw. Code R. § 3-177-801 Paper ballot voting system; counting ballots

(a) All counting shall be conducted by the election officials in accordance with HRS § 16-25.

(b) Insofar as the limits of the room in which the voting takes place reasonably allow, no person shall be prevented from attending the counting of the ballots on election day, unless it is necessary to restrict access to preserve the peace.

(c) All tallying shall be done on the official tally sheet, and no one but. an. election official shall be permitted to assist in calling, tallying, or performing any other work involved in counting the votes cast. The election officials shall also tally the number of:

(1) Questionable ballots, as defined- in HRS § 16-26, which shall be placed in an envelope provided for that purpose; and

(2) Totally blank ballots.

(d) When tallying is completed, an election official, in the presence of at least one other election official not of the same political party, shall circle the last block containing the last tally mark with a red pen.

(1) Immediately to the right of the circled block, an election official shall record the total number of tally marks including those in that block, and the election official and the other election officials shall affix their initials.

(2) The total count shown on the tally sheet shall be recorded on the results of votes cast form.

(3) The election officials shall then complete and sign the certification on the tally sheet and the results of votes cast form.

(e) When the election officials have ascertained the number of votes given for each candidate and ballot question, they shall make public declaration of the whole number of votes cast, the names of the persons voted for, the ballot questions, and the number of votes for each person and ballot question.

History

• [Eff JUL 26 2020] (Auth: HRS § 11-4) (Imp: HRS §§ 11-152, 11-153, 11-154, 16-24 through 16-29)

Building Code Council Building Code Council

State Elevator Code State Elevator Code

Subtitle 8 DIVISION OF OCCUPATIONAL SAFETY AND HEALTH

Part 11 ELEVATORS AND RELATED SYSTEMS

Chapter 229 GENERAL, ADMINISTRATIVE, AND LEGAL PROVISIONS

Haw. Code R. § 12-229-1 Scope and Application

This part contains general and administrative rules and legal provisions which apply to this part. This part applies to all elevators, escalators, moving walks, dumbwaiters, material lifts, lifts for the mobility impaired, personnel hoists, and amusement rides in the State, with the following exceptions:

(1) Equipment or apparatus installed in private residences provided the equipment or apparatus is not accessible to the public or to other occupants in the building;

(2) Coin or token operated amusement rides considered or known in the amusement trade as kiddie rides;

(3) Material hoists used to raise or lower materials during construction, alteration or demolition. (within the scope of ANSI A10.5); and

(4) Equipment or apparatus installed in buildings or structures wholly owned and operated by the United States government.

History

• [Eff 6/19/00; am and comp 6/30/14; comp 11/10/16; am and comp 2/15/19; comp 1/31/21] (Auth: HRS § 394-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-229-2 Definitions

As used in this part:

"Alteration" means any change to equipment, including parts, components, or subsystems other than maintenance, repair, or replacement.

"Amusement ride" means a mechanically or electrically operated device designed to carry passengers in various modes and used for entertainment and amusement.

"ANSI" means the American National Standards Institute.

"ANSI/American Society of Safety Engineers A10.4" means ANSI/ASSE, Personnel Hoists and Employee Elevators on Construction and Demolition Sites, as adopted and incorporated by reference in section 12229-3.1.

"Appeals board" means the labor and industrial relations appeals board, department of labor and industrial relations.

"Approved" means approved by the department.

"Appurtenance" means a device installed on and used in the normal operation of an elevator, escalator, or kindred equipment.

"ASME" means American Society of Mechanical Engineers.

"ASME A17.1" means ASME A17.1, Safety Code for Elevators and Escalators, as adopted and incorporated by reference in section 12-229-3.1.

"ASME A17.3" means ASME A17.3, Safety Code for Existing Elevators and Escalators, as adopted and incorporated by reference in section 12-229-3.1.

"ASME A17.6" means ASME A17.6, Standard for Elevator Suspension, Compensation and Governor Systems, as adopted and incorporated by reference in section 12-229-3.1.

"ASME A18.1" means ASME A18.1, Safety Standard for Platform Lifts and Stairway Chairlifts, as adopted and incorporated by reference in section 12-229-3.1.

"ASTM" means American Society for Testing and Materials.

"ASTM-F24" means ASTM-F24 1997 standard on amusement rides and devices.

"Attorney general" means the attorney general of the State of Hawaii or any of the attorney general's deputies.

"Authority Having Jurisdiction" or "AHJ", means the director of labor and industrial relations or the director's designee.

"Authorized inspection agency" means the department of labor and industrial relations, elevator inspection section.

"Building code" means the currently adopted, applicable county code in the revised ordinances of the applicable county, or the code adopted by the State of Hawaii for state buildings.

"Certificate of competency" means a certificate issued to a person who has passed the examination prescribed by the director.

"Contractor" means any person, firm, or corporation installing, repairing, or servicing any amusement ride, elevator, or kindred equipment or structure inspected pursuant to chapter 397, HRS.

"Department" means the department of labor and industrial relations, State of Hawaii.

"Director" means the director of the department of labor and industrial relations or the director's designee.

"Discrepancy" means the non-conformance to codes, standards, rules, or regulations required by this part.

"Division" means the Hawaii occupational safety and health, department of labor and industrial relations, State of Hawaii.

"Elevator" means a hoisting and lowering mechanism equipped with a car that moves within guides and serves two or more fixed landings, and is classified by elevator types as described in ASME A17.1, as adopted and incorporated by reference in section 12-229-3.1.

"Elevators and related systems" means elevators and kindred equipment and amusement rides.

"Existing installation" means any device or equipment where the application for the installation was properly filed with the department before the effective date of this chapter.

"HAW" means the registration number assigned to an elevator and kindred equipment or amusement ride by the AHJ.

"Hawaii Revised Statutes" or "HRS" means laws enacted by the Hawaii state legislature.

"IBC" means the International Building Code, as adopted and incorporated by reference in section 12 229-3.1.

"Installation" means a complete elevator or kindred equipment, including its hoistway, hoistway enclosures and related construction, and all machinery and equipment necessary for its operation.

"Installation or alteration permit" means a document, which may be electronic, issued by the department authorizing the installation or alteration of an elevator or kindred equipment, or the department approval of a new amusement ride.

"Kindred equipment" means escalators, moving walks, dumbwaiters, permanently installed material lifts, platform lifts, inclined lifts, stage lifts, stairway chairlifts, personnel hoists, and any other similar mechanized equipment used to convey people in places other than a public right-of-way, but does not include amusement rides.

"May" means not mandatory.

"New installation" means any device or equipment that is not an existing installation or an existing installation that is being relocated.

"NFPA" means the National Fire Protection Association.

"NFPA 1, UFC" means the NFPA 1, Uniform Fire Code, as adopted and incorporated by reference in section 12-229-3.1.

"NFPA 70" means NFPA 70, National Electrical Code, as adopted and incorporated by reference in section 12-229-3.1.

"Operating permit" means a permit issued by the department authorizing the operation of an elevator, kindred equipment, or amusement ride.

"Order" means a command to perform a mandatory act issued by the department.

"Overtime" means hours outside a regular eighthour working day.

"Owner" means any person, firm, or corporation with legal title to any amusement ride, and elevator and kindred equipment inspected pursuant to chapter 397, HRS.

"Permit to operate" means a document, which may be electronic, issued by the department authorizing the operation of an elevator, kindred equipment, or an amusement ride.

"Qualified elevator inspector" means an elevator inspector employed by the department holding a valid certificate of competency issued by the department and a Qualified Elevator Inspector certification that meets the criteria of the American Society of Mechanical Engineers and the standards for the qualification of elevator inspectors of the American National Standards Institute. The certificate of competency is valid only while the inspector is employed by the department.

"Regular operating permit" means an operating permit that is not indicated as temporary.

"Shall" means mandatory.

"Unsafe" means potential exposure to a recognized hazard.

"Violation" means the failure to comply with any citation, notice, or order of the department, or rule or standard promulgated under chapter 397, HRS.

History

• [Eff 6/19/00; am and comp 6/30/14; am and comp 11/10/16; am and comp 2/15/19; comp 1/31/21] (Auth: HRS §§ 397-4, 397-6) (Imp: HRS §§ 397-4, 397-6)

Haw. Code R. § 12-229-3 [Repealed]

History

• [R 6/30/14]

Haw. Code R. § 12-229-3.1 Codes incorporated and adopted by reference

The following codes are incorporated and adopted by reference and made a part of this chapter and shall apply to elevators, kindred equipment, and amusement rides in this part, unless otherwise modified by the rules pertaining to elevators, kindred equipment, and amusement rides:

(1) ANSI/ASSE A10.4-2007, Personnel Hoists and Employee Elevators on Construction and Demolition Sites, published in 2007 by American National Standards Institute, Inc.;

ASME A17.1-2010/CSA-B44-10, Safety Code for Elevators and Escalators, published in 2010 by the American Society of Mechanical Engineers;

ASME A17.3-2011, Safety Code for Existing Elevators and Escalators, published in 2011 by the American Society of Mechanical Engineers;

(2) ASME A17.5-2011, Elevator and Escalator Electrical Equipment, published in 2011 by the American Society of Mechanical Engineers;

(3) ASME A17.6-2010, Standard for Elevator Suspension, Compensation and Governor Systems, published in 2010 by the American Society of Mechanical Engineers;

(4) ASME A18.1-2011, Safety Standard for Platform Lifts and Stairway Chairlifts, published in 2011 by the American Society of Mechanical Engineers;

(5) International Building Code, 2012 edition, published in 2012 by the International Code Council, Incorporated;

(6) ICC A117.1-2009, Accessible and Usable Buildings and Facilities, published in 2010 by the International Code Council, Incorporated;

(7) NFPA 1, Uniform Fire Code, 2009 Edition, published in 2009 by the National Fire Protection Association;

(8) NFPA 72, National Fire Alarm and Signaling Code, 2010 edition, published in 2010 by the National Fire Protection Association;

(9) NFPA 13, Standard for the Installation of Sprinkler Systems, 2010 edition, published in 2010 by the National Fire Protection Association; and

(10) NFPA 70, National Electrical Code, 2011 edition, as published in 2011 by the National Fire Protection Association.

History

• [Eff and comp 6/30/14; comp 11/10/16; am and comp 2/15/19; am and comp 1/31/21] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-229-4 [Repealed]

History

• [R 6/30/14]

Haw. Code R. § 12-229-4.1 Installation and alteration permits

(a) No person shall install, construct, reconstruct, relocate, or make an alteration to any elevator, kindred equipment, or amusement ride subject to this part without first obtaining an installation or alteration permit from the department.

The owner shall be responsible for contracting the work with a licensed elevator contractor, and shall ensure that the contractor obtains all permits and inspections required by this part. The contractor shall be responsible for the safe operation of equipment during the installation, alteration, or relocation, until a permit to operate has been issued by the department. An amusement ride owner shall register the new apparatus or an alteration by submitting an application for review and registration.

An application on a form provided by the department shall be submitted and approved prior to commencement of work. The application shall include:

(1) Applicant's name (elevator contractor licensed to perform the work), business address and license number, expiration date of the license, name and contact information of the licensed mechanic or supervisor in charge of the work;

(2) Building name and complete address, including island and zip code, of the installation or alteration;

(3) The name and complete address of the legal owner of the elevator, kindred equipment, or amusement ride;

(4) The anticipated start date of the installation or alteration and the anticipated completion date;

(5) The type of equipment to be installed or altered, manufacturer of the equipment, maximum rise and number of floors;

(6) The plans and specification for installation or alteration of elevators and kindred equipment together with the building details that are pertinent to the installation;

(7) Copies of engineering data, tests, and laboratory reports, and any other pertinent information deemed necessary by the department;

(8) For amusement rides, the application to review, approve, and register the new apparatus shall be submitted on a form authorized by the department and shall include manufacturers' drawings, and engineering and test data; and

(9) Any other information indicated as required by the application.

(b) Applications to install, alter, or register must be accompanied by the payment of the appropriate installation or alteration processing fee for each conveyance subject to this part as per the schedules in Exhibit A, titled "Elevator and Kindred Equipment Installation and Alteration Fees", dated January 1, 2021, which is made a part of this chapter and located at the end of this chapter, and Exhibit B, titled

"Elevator and Kindred Equipment Inspection Fees", dated January 1, 2021, which is made a part of this chapter and located at the end of this chapter.

(1) Refunds of the initial installation or alteration processing fee minus the department's cost to review the application thus far may be refunded upon written or electronic request to the department. A refund of the initial installation or alteration processing fee may be granted upon satisfactory showing that the withdrawal or amendment of the application was due to circumstances beyond the control of the applicant; and

(2) No refunds will be issued for expired permits.

(c) Only a person who is licensed to engage in the business of installing or repairing elevators and kindred equipment by the contractors license board of the Hawaii department of commerce and consumer affairs may apply for an installation permit or alteration permit, except the application to install a personnel hoist may be made by a licensed construction contractor and the application to register an amusement ride may be made by the owner.

(d) All alteration work on elevators and kindred equipment requires an alteration permit prior to the work being performed. Alteration work includes:

(1) All alteration to elevators and kindred equipment as described in ASME A17.1, section 8.7;

(2) Any alterations that requires the equipment or conveyance to be tested by the department prior to being returned to service, including:

(A) The replacement or repair of any part or parts that would require recalibration or testing per ASME A17.1, section 8.7; or

(B) Work performed on components or equipment affecting or necessary for fire safety (e.g., cab interiors, systems associated with fire recall, etc.); and

(3) Any alteration, renovation, or change to the original design of the car's interior.

(e) The application shall be deemed approved if not acted on by the department within thirty calendar days following the receipt of the completed application. The maximum period of time for the department to act on an application for installation or alteration established pursuant to this section shall be extended in the event of a national disaster, state emergency, or union strike that would prevent the applicant or the department from fulfilling application review requirements until the time the emergency conditions improve or are reasonably under control.

(f) Installation or alteration permits issued by the department shall be posted in a conspicuous place on the jobsite near the elevator, kindred equipment, or amusement ride prior to the start of any work being done. They shall remain posted until the department has witnessed all acceptance tests and issued an operating permit for the elevator or kindred equipment.

(g) Installation or alteration permits shall expire within one year of the issuance date if the installation or alteration work described on the application has not yet commenced. Otherwise, the permit is valid for a period of three years.

(h) All new elevators and kindred equipment shall have the Hawaii registration number (HAW) assigned by the department painted on or permanently attached to both the car top crosshead and the controller. The owner is responsible for having the HAW number painted on or attached to the device or equipment, and ensuring that the number remains legible.

History

• [Eff and comp 6/30/14; am and comp 11/10/16; am and comp 2/15/19; am and comp 1/31/21] (Auth: § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-229-5 [Repealed]

History

• [R 6/30/14]

Haw. Code R. § 12-229-5.1 Permits to operate

(a) The department shall issue a "permit to operate" for any elevator, kindred equipment, or amusement ride where the inspection and tests required by the department show that the equipment has been designed and installed in accordance with the requirements of chapter 397, HRS, and its related rules, and are in compliance with this part. It shall be a violation for any person, firm, association, partnership, or corporation to operate an elevator, kindred equipment, or amusement ride regulated by this part unless a permit for the operation has been issued by the department and the permit remains in effect.

(b) A permit to operate an elevator or related systems shall be issued only after a qualified inspector has determined that the equipment, device or apparatus meets all applicable requirements of this part. A permit to operate elevators or related systems shall be valid per the schedules in Exhibit C, titled "Inspection and Test Intervals (In Months)", dated January 1, 2017, which is made a part of this chapter and located at the end of this chapter, unless revoked sooner, and may be renewed only upon satisfactory completion of an inspection by a qualified inspector.

A valid permit may be extended for cause by the department if so requested in writing by the owner or contractor prior to the expiration date.

(c) The owner, or the owner's duly appointed agent, shall be responsible for:

(1) The safe operation and proper maintenance of elevators and related systems after the installation or alteration has been approved and an initial permit to operate has been issued;

(2) Conducting all periodic or maintenance tests required by this part;

(3) Arranging for inspection of closed buildings and not readily accessible elevators and related systems by qualified inspectors.

Elevators and kindred equipment not inspected as a result of the owner's failure to provide convenient access shall be considered removed from service and shall comply with section 12-229-7.1(b)(4); and

(4) Requesting and scheduling with the department all safety tests in accordance with the schedule in Exhibit C, titled

"Inspection and Test Intervals (In Months)", dated January 1, 2017, which is made a part of this chapter and located at the end of this chapter.

(d) The permit to operate shall indicate the type of equipment for which it is issued. In the case of elevators and kindred equipment, the permit shall state whether it is passenger or freight, and the rated load and speed for the elevator, dumbwaiter, escalator, or moving walk. For new or altered elevators, after the effective date of these rules, a copy of the permit to operate shall be posted conspicuously in the car of the elevator, and on or near the dumbwaiter, escalator, moving walk, or other kindred equipment.

(e) The department may immediately revoke any permit to operate for any equipment required to be inspected by this chapter that is found to be in an unsafe condition; or when an owner or contractor fails to comply with a department order to correct specific defects or hazards and continues to use or operate the equipment, device, or apparatus without abating the hazards or defects. The department shall reissue a permit to operate when a subsequent inspection by a qualified inspector finds that the hazardous condition has been corrected or when the department receives documentation that the noncompliant item has been abated.

(f) Exhibit C, titled "Inspection and Test Intervals (In Months)", dated January 1, 2017, which is made a part of this chapter and located at the end of this chapter, establishes the required maximum intervals for the periodic reinspection and renewal of the permits to operate. The department may require that specific equipment be re-inspected more frequently if conditions found during an inspection require closer or more frequent monitoring to ensure its safe operation.

(g) The department may provide for the issuance of a temporary permit to operate while any noncomplying elevator or kindred equipment is being brought into full compliance with chapter 397, HRS.

(h) The owner or contractor may petition the department for additional time to correct any discrepancy or violation by submitting a request in writing by no later than the correction due date or the expiration date of the temporary permit, whichever is applicable, and shall include:

(1) Specific additional time needed;

(2) Efforts made to date to effect correction; and

(3) Any interim steps or actions taken to ensure the safe operation of the equipment, device or apparatus.

(i) No elevator, kindred equipment, or amusement ride that is required to be inspected pursuant to chapter 397, HRS, shall be operated except as necessary to install, repair, or test the elevator, kindred equipment, or amusement ride unless a permit to operate has been issued by the department and remains valid.

History

• [Eff and comp 6/30/14; am and comp 11/10/16; am and comp 2/15/19; comp 1/31/21] (Auth: § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-229-6 [Repealed]

History

• [R 6/30/14]

Haw. Code R. § 12-229-6.1 Fees

(a) Departmental inspection fees. The department shall collect from the owner or contractor, the fee listed in the schedules in Exhibit A, titled "Elevator and Kindred Equipment Installation and Alteration Fees", dated January 1, 2021, which is made a part of this chapter and located at the end of this chapter, and Exhibit B, titled "Elevator and Kindred Equipment Inspection Fees", dated January 1, 2021, which is made a part of this chapter and located at the end of this chapter, for each inspection made by a qualified inspector. The following shall apply to departmental inspection fees:

(1) The fees for scheduled inspection delayed or canceled by the requester, shall be charged to the requester in accordance with the scheduled fee for the type of inspection scheduled, however, if the notice of cancellation or delay of the scheduled inspection is provided at least forty-eight hours prior to the scheduled date and time, not counting weekends and state holidays, no additional fee will be charged. A delayed inspection includes situations where the equipment is not ready for the inspection or the requester is not ready to conduct the required tests within one hour of the scheduled date and time;

(2) Where an inspection must be re-scheduled due to untimely notification of delay or cancellation, the appropriate inspection fee must be paid prior to the re-scheduling of the inspection;

(3) Permit renewal and witness fees are per inspection, which may constitute one day or part of the day. If the inspector is required or requested to return on another day or at another time on the same day, additional fees shall be assessed at the rate of $400 per day for up to two hours and $800 per day for more than two hours. Fees for overtime hours shall be $800 per day for up two hours and $1,600 per day for more than two hours;

(4) When a special or dedicated inspection is made at the request of the owner, contractor, or vendor, the sum of expenses incurred shall be charged in addition to the inspection fee;

(5) Whenever the requester of an inspection fails to pay the fees required pursuant to this section within sixty days after notification, the requester shall pay, in addition to the fees required, a penalty equal to fifty percent of the fee. For the purpose of this section, the date of invoice shall be considered the date of notification. For online inspection requests, fees must be paid at the time of the request, except for additional fees for special, dedicated, return, or overtime inspections for which the amount owed could not be determined in advance. In such cases, the requester shall be invoiced by the department;

(6) Departmental reports of inspections for which expenses must be added to the basic fee shall be accompanied by an itemized account of the inspections made and the expenses incurred;

(7) For elevators that have considerable rise but few openings, such as observation or deep well elevators, each ten feet of vertical rise shall be considered on floor in determining installation permit fees; and

(8) The department shall charge and collect the fee listed in Exhibit B, titled "Elevator and Kindred Equipment Inspection Fees", dated January 1, 2021, which is made a part of this chapter and located at the end of this chapter, for each category 3 or 5, or internal escalator inspection, witnessed by qualified inspectors of the department during regular working hours. If the inspector is required or requested to return on another day or at another time on the same day, additional fees shall be assessed at the rate of $400 per day for up to two hours and $800 per day for more than two hours. Fees for overtime hours shall be $800 per day for up to two hours and $1,600 per day for more than two hours.

(b) Departmental installation and alteration permit and test fees. The following shall apply to installation, alteration, and test fees:

(1) The department, before accepting an application for installing, constructing, re-constructing, or relocating an elevator or a related system, shall charge and collect a fee for each object in accordance with Exhibit A, titled "Elevator and Kindred Equipment Installation and Alteration Fees", dated January 1, 2021, which is made a part of this chapter and located at the end of this chapter;

(2) The department, before accepting an application for an alteration, shall charge and collect a fee for each object in accordance with Exhibit A, titled "Elevator and Kindred Equipment Installation and Alteration Fees", dated January 1, 2021, which is made a part of this chapter and located at the end of this chapter. For online applications, fees must be paid electronically at the time of the application. Any transaction failure shall void the application;

(3) For each instance requiring an installation or alteration permit fee, the department shall provide the final installation drawing review, inspection and witnessing of the initial acceptance test on the installation, any resulting permit to operate, and on additional follow-up inspection per permit, and the follow-up inspection shall be at the convenience of the department;

(4) Fees in accordance with Exhibit A, titled "Elevator and Kindred Equipment Installation and Alteration Fees", dated January 1, 2021, which is made a part of this chapter and located at the end of this chapter, or the fee in effect on the application submittal date shall be charged and collected for all applications for installation or alteration permits;

For each instance requiring a building plan review, the department shall charge a fee in accordance with Exhibit A, titled "Elevator and Kindred Equipment Installation and Alteration Fees", dated January 1, 2021, which is made a part of this chapter and located at the end of this chapter;

(5) For additional follow-up inspections for final acceptance, the fee shall be $400 per day for up to two hours and $800 per day for more than two hours if during the normal workday. Fees for overtime hours shall be $800 per day for up to two hours and $1,600 per day for more than two hours; and

(6) For elevators that have considerable rise but few openings, such as observation or deep well elevators, each ten feet of vertical rise shall be considered one floor in determining installation permit fees.

(c) Amusement rides, fees. The following shall apply to amusement ride fees:

(1) The fee for an inspection of an amusement ride shall be $200;

(2) Inspections, for which a fee is to be charged, shall include, but are not limited to:

(A) A reinspection of a ride at a site to allow it to operate at that site after the ride was found at an earlier inspection to be unsafe;

(B) An inspection made at a site after being unable to complete an earlier inspection at that site due to delay within the control of the requester;

(C) A permit to operate; and

(D) Scheduled inspections delayed or canceled by the requester where notification was provided to the department less than forty-eight hours prior to the scheduled inspection date and time (not including weekends and state holidays);

(3) When an unscheduled inspection is made at the request of the owner or contractor, the sum of expenses incurred shall be charged in addition to the inspection fee;

(4) For additional follow-up inspections for final acceptance, the fee shall be $400 per day for up to two hours and $800 per day for more than two hours if during the normal workday. Fees for overtime hours shall be $800 per day for up to two hours and $1,600 per day for more than two hours; and

(5) Whenever the requester fails to pay the fees required under this section within sixty days after notification, the requester shall pay in addition to the fees required, a penalty equal to fifty percent of the fee. For the purpose of this section, the date of the invoice shall be considered the date of notification. For online inspection requests, fees must be paid at the time of the request, except for additional fees for unscheduled, return, or overtime inspections, which will be invoiced to the requester.

History

• [Eff and comp 6/30/14; am and comp 11/10/16; am and comp 2/15/19; am and comp 1/31/21] (Auth: § 397-4) (Imp: HRS § 397-5)

Haw. Code R. § 12-229-7 [Repealed]

History

• [R 6/30/14]

Haw. Code R. § 12-229-7.1 Inspections and tests

(a) The department shall inspect to ensure compliance with chapter 397, HRS, any activity related to the erection, construction, alteration, demolition, or maintenance of buildings, structure, bridges, highways, roadways, dams, tunnels, sewers, underground buildings or structures, underground pipelines or ducts, and other construction projects or facilities containing elevators or kindred equipment.

(b) Elevators and kindred equipment. The following shall apply to inspections and tests:

(1) All permit renewal inspections and witnessing of tests of elevators or kindred equipment as required under this chapter shall be performed by qualified inspectors employed by the department;

(2) Where notifications of discrepancies, recommendations, or requirements are made, these notations shall refer to the applicable code, rule, or standard;

(3) Elevator or kindred equipment regulated under this part shall be inspected and tested in accordance with the schedule in Exhibit C, titled "Inspection and Test Intervals (In Months)", dated January 1, 2017, which is made a part of this chapter and located at the end of this chapter;

(A) Internal inspection of escalators and moving walks shall be performed at intervals of thirty-six months;

(B) Personnel hoists shall be load tested at intervals of three months;

(C) The category 3 test shall be performed on all holed and holeless hydraulic elevator systems. The interval may be extended at the discretion of the department for those hydraulic elevator installations such as holeless hydraulic elevators in which all components are readily accessible for visual inspection; and

(D) The period between inspections may be extended by the department for cause.

A written application by the owner must be received by the department prior to the expiration date for review;

Any elevator or kindred equipment that is out of service and not continuously maintained for a period exceeding one year or has not been inspected in accordance with paragraph (3) shall be taken out of service by the owner by complying with the following:

(A) Car and counterweight (if any) shall be landed at the bottom of the hoistway and hoisting ropes shall be disconnected at both ends. For hydraulic driven elevators and hydraulic driven kindred equipment, the car shall be lowered to the bottom of the hoistway, oil line disconnected with partial or total oil supply line removal, and oil removed from the tank reservoir;

(B) All electric power shall be removed by disconnected and removing the power feeders; and

(C) All hoistway entrances or escalator entrances and exits shall be permanently blocked or barricaded to prevent inadvertent entry. The owner or the owner's agent shall submit a certification that the unit has been properly taken out of service as indicated in this paragraph, on a form provided by the department. Prior to placing the elevator or kindred equipment back in service, the department shall be notified and an inspection made; and

(4) While conducting tests and inspections required by section 12-229-5.1 for acceptance of new elevators for load testing of elevators, a positive means of communication, such as a walkie-talkie system, between the various testing and witnessing personnel shall be furnished by the elevator maintenance company performing the test or inspection.

(c) Amusement rides. The following shall apply to amusement rides:

The department shall inspect and witness load tests, in accordance with ASTM-F24 and chapter 12-250 at least semi-annually, for all amusement rides at a carnival, circus, fair, amusement park, or other public venue, for protecting the safety of the public;

(1) After the initial inspection, each amusement ride shall be inspected as often as necessary to ensure safe operation but not less than twice annually at intervals of not less than five months nor greater than seven months;

(2) If the department finds, upon inspection, that an amusement ride is in a safe operating condition and meets with the requirements of this chapter and chapter 12250, the department shall affix to the ride in a prominent location a permit to operate bearing upon its face the date of the inspection and the permit expiration date; and

(3) No ride shall be operated unless it has affixed to it a current permit to operate.

History

• [Eff and comp 6/30/14; am and comp 11/10/16; am and comp 2/15/19; comp 1/31/21] (Auth: § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-229-8 [Repealed]

History

• [R 6/30/14]

Haw. Code R. § 12-229-8.1 Rights and enforcement

(a) Rights.

(1) Authorized representatives of the director may enter without delay during regular working hours and at other reasonable times, any place, establishment, or premises in which are located amusement rides, or elevators and kindred equipment requiring inspection pursuant to chapter 397, HRS; The department may question any employer, owner, operator, agent, or employee in investigation, enforcement, and inspection activities covered by this chapter; and

(2) Any employee of the State acting within the scope of the employee's office, employment, or authority under this chapter shall not be liable for or made a party to any civil action growing out of administration and enforcement of chapter 397, HRS.

(b) Enforcement.

(1) Whenever the right of entry to a place to inspect an amusement ride, elevator, or kindred equipment required by this chapter to be inspected is refused to an authorized representative of the director, the department may apply to the circuit court where the equipment is located for a search warrant providing on its face that the wilful interference with its lawful execution may be punished as a contempt of court;

(2) Whenever the department finds that the construction of or the operation of any amusement ride, or elevator and kindred equipment required to be inspected under this part is not safe, or that any practice, means, method, operation, or process employed or used is unsafe or is not in conformance with the standards and codes adopted pursuant to chapter 91, HRS, the department shall issue an order to render the construction or operation safe or in conformance with chapter 397, HRS, or its standards and codes and deliver the same to the contractor or owner. Each order shall be in writing and may be delivered by mail, electronically, or in person. The department may in the order direct that, in the manner and within a time specified, such additions, repairs, improvements, or changes be made and such safety devices and safeguards be furnished, provided, and used as are reasonably required to ensure compliance with the purposes and provisions of chapter 397, HRS. An order to bring the operation of elevator or kindred equipment into compliance may require the owner to submit a plan of compliance that addresses interim corrective plans to ensure public and worker safety as well as the schedule for the correction of the non-conforming element. A plan of compliance shall not exceed five years for residential buildings or three years for all other buildings. The owner or contractor shall obey and observe all orders issued by the department or be subject to appropriate civil penalties;

(3) Whenever, in the opinion of the department, the condition of or the operation of amusement rides, or elevators and kindred equipment required to be inspected by chapter 397, HRS, or any practice, means, method, operation, or process employer or used, is unsafe, or is not properly guarded, or is dangerously placed, its use may be prohibited by the department. An order to that effect shall be posted prominently on the equipment or near the place or condition referred to in the order. The order shall be removed when a determination has been made by an authorized representative of the department that the amusement rides, or elevators and kindred equipment are safe and the required safeguards or safety devices are provided;

(4) Pursuant to section 397-4(d)(4), HRS, when an imminent hazard exists, the department may apply for a restraining order from a circuit court to effect enforcement restraining the use or operation until the use or operation is made safe;

Pursuant to section 397-4(d)(5), HRS, the director, or an authorized representative, shall have the same powers as are possessed by the court respecting administering of oaths, compelling attendance of witnesses, producing documentary evidence, and examining witnesses or causing them to be examined, and may take depositions and certify to official acts;

(5) Where a condition or practice involving any amusement ride, or elevator and kindred equipment required to be inspected by chapter 397, HRS, could reasonably be expected to cause death or serious physical harm, the department shall have the right, independent of any other enforcement powers under this chapter, to:

(A) Immediately take steps to obtain abatement by informing the owner, contractor, and all person in harm's way of the hazard by meeting, posted notice, or otherwise;

(B) Take steps to immediately obtain abatement through direct control or elimination of the hazard if, after reasonable search, the owner, contractor, or their representative is not available;

(C) Take steps to obtain immediate abatement when the nature and imminence of the danger or hazard does not permit a search for the owner or contractor; and

(D) Where appropriate, initiate necessary legal proceedings to require abatement by the owner or contractor; and The department may prosecute, defend, and maintain actions in the name of the department for the enforcement of the provisions of chapter 397, HRS, including the enforcement of any order issued by it, the appeal of an administrative or court decision, and other actions necessary to enforce chapter 397, HRS.

History

• [Eff and comp 6/30/14; comp 11/10/16; am and comp 2/15/19; comp 1/31/21] (Auth: HRS § 397-4) (Imp: HRS §§ 397-4, 397-6, 397-8)

Haw. Code R. § 12-229-9 [Repealed]

History

• [R 6/30/14]

Haw. Code R. § 12-229-9.1 Complaints

(a) Complaints may be made to the department and where reasonable grounds exist for the department to believe there may be a hazard, there shall be an inspection in response to the complaint.

(b) Names of all complainants and witnesses shall be held in confidence by the department, unless prior permission has been given by the complainants or witnesses to release his or her names, or unless it has been determined by the state attorney general that disclosure is necessary for the enforcement and review under this chapter.

History

• [Eff and comp 6/30/14; comp 11/10/16; com 2/15/19; comp 1/31/21] (Auth: HRS §3974) (Imp: HRS § 397-7)

Haw. Code R. § 12-229-10 [Repealed]

History

• [R 6/30/14]

Haw. Code R. § 12-229-10.1 Reporting of accidents

(a) Whenever an accident occurs involving either an amusement ride, or an elevator and kindred equipment, the owner shall promptly notify the division within eight hours by telephone at (808)586-9141. For reporting purposes, "accident" is defined as an occurrence resulting in significant damage to an elevator and kindred equipment and amusement device, including when it is rendered inoperative or any occurrence resulting in physical injury to a person or persons.

An accident report shall be submitted to the department within two calendar days after the owner has completed the accident investigation, and shall include the following information:

(1) The date and time of the accident;

(2) Hawaii registration number (HAW number) of the amusement ride, elevator, or kindred equipment involved;

(3) Name and address of the victim or victims;

(4) A brief description of the accident, including the nature and scope of the injuries;

(5) Whether the amusement ride, elevator, or kindred equipment sustained any damage rendering it inoperative for any period of time;

(6) Names and contact information of any witnesses interviewed;

(7) A brief description of any inspections or tests conducted of the equipment to determine probable causation and who conducted them;

(8) The investigators' conclusions as to the cause of the accident; and

(9) The name and contact information of the investigator. For purposes of this section, the owner may contract another to perform the actual accident investigation, however, the owner is responsible for the report and its timely submittal to the department. If the accident investigation cannot be completed within three months of the date of the incident, the owner shall submit the incomplete report to the department with information as to when the investigation is expected to be completed. The final report shall be submitted as soon as the investigation is completed.

(b) Whenever an accident occurs which results in loss of life, the owner shall promptly notify the division by telephone at (808)586-9141, or messenger, within eight hours, and neither the amusement ride, or elevator and kindred equipment, or any of their parts, shall be removed or disturbed before permission has been given by the department except for the purpose of saving human life or limiting consequential damage.

(c) Additional reports, in writing or otherwise, may be required by the director.

History

• [Eff and comp 6/30/14; am and comp 11/10/16; comp 2/15/19; comp 1/31/21] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-229-11 [Repealed]

History

• [R 6/30/14]

Haw. Code R. § 12-229-11.1 Investigations

The department may investigate accidents reported under section 12-22910.1 involving amusement rides, and elevators and kindred equipment inspected under this chapter and may issue orders and recommendations with respect to the elimination and control of the causal factors.

History

• [Eff and comp 6/30/14; comp 11/10/16; comp 2/15/19; comp 1/31/21] (Auth: HRS § 397-4) (Imp: HRS §§ 397-4, 397-6)

Haw. Code R. § 12-229-12 [Repealed]

History

• [R 6/30/14]

Haw. Code R. § 12-229-12.1 Violations and penalties

(a) The director may assess all civil penalties provided in this section, giving due consideration to the gravity of the violation, the good faith of the owner or contractor, and the history of previous violations.

(b) Violations. The following shall apply to violations:

(1) Any owner or contractor who violates chapter 397, HRS, or any safety standards and codes adopted pursuant to chapter 91, HRS, or who violates or fails to comply with any order made under or by virtue of chapter 397, HRS, or who defaces, displaces, destroys, damages, or removes without the authority of the department any safety device, safeguard, notice, order, or warning required by chapter 397, HRS, its standards, or codes, shall be assessed a civil penalty of not more than $10,000 for each such violation;

(2) Any owner who allows the installation, construction, reconstruction, relocation, or alteration of any elevator or kindred equipment prior to obtaining an installation or alteration permit as required by section 12-229-5.1 shall be assessed a civil penalty of not more than $10,000. The penalty may be reduced by a maximum of ten percent for history of past violations;

(3) Owners who fail to report an accident as required by section 12-229-10.1 shall be assessed a civil penalty of not more than $5,000 per instance. Consideration may be given for good faith and history of violations;

(4) Owners who fail to maintain or provide records or reports to the department as required by this part shall be assessed a civil penalty of not more than $5,000 per record not maintained or provided;

(5) Repeated violations shall be assessed a civil penalty of not more than $10,000.

Consideration may be given for gravity only;

(6) Owners who fail to take an elevator or kindred equipment out of service as specified in section 12-229-7.1(b)(4) shall be assessed a civil penalty of not more than $10,000; and

(7) Each day a violation continues shall constitute a separate violation except during an abatement period.

(c) Discrepancies and penalties. The following shall apply to discrepancies and penalties:

(1) Any conditions found not in conformance with applicable standard or codes adopted pursuant to chapter 397, HRS, shall be regarded as discrepancies and shall be made known to the owner or contractor by letter or written order to correct or both. All discrepancies shall be satisfactorily resolved as soon as possible. When, in the opinion of the department, a discrepancy constitutes a potentially serious hazard, the department may prohibit the use of the equipment until the condition is abated. Failure to abate unsafe conditions or failure to correct discrepancies within the time prescribed shall be a violation subject to the civil penalties prescribed in this section;

(2) Assessing penalties.

(A) Consideration shall be given to the gravity of the violation. For a violative condition that could not or probably would not result in serious harm to life the penalty may be reduced by forty percent;

(B) Consideration shall be given to the good faith of the owner or contractor. For immediate correction or for attempts to make correction or abate hazards that have been thwarted by conditions beyond the control of the owner or contractor, the penalty may be reduced by forty percent; and

(C) Consideration shall be given for the history of previous violations. For no previous violations by the owner or contractor, the penalty may be reduced by ten percent.

(d) Anyone who knowingly makes a false statement on any document required by chapter 397, HRS, upon conviction, shall be punished by a fine of not more than $10,000 or imprisonment or both. Any evidence suggesting that a false statement may have been made shall be immediately referred to the director, who shall consult with the state attorney general for purposes of initiating appropriate action.

History

• [Eff and comp 6/30/14; am and comp 11/10/16; am and comp 2/15/19; comp 1/31/21] (Auth: HRS § 397-4) (Imp: HRS § 397-8)

Haw. Code R. § 12-229-13 [Repealed]

History

• [R 6/30/14]

Haw. Code R. § 12-229-13.1 Review and appeal

(a) Any order or citation of the director shall be final and conclusive against an owner or contractor, unless an appeal is made in writing, clearly stating what items are being contested. The notice of contest must be addressed to the director and received or, if mailed, postmarked by no later than the twentieth calendar day following receipt of the order or citation.

(b) The director or the director's designee may hold a formal hearing, which shall result in a decision and order by the director. Any party who disagrees with the director's decision may appeal in writing to the director within twenty calendar days of receipt of the decision and order. The director shall promptly notify the labor and industrial relations appeals board of the notice of the contest. Where a prior formal hearing is held at the department level, the labor and industrial relations appeals board shall conduct a case review using only the record.

(c) An owner or contractor may petition the director for modification of the abatement requirements in an order, as provided in section 397-9, HRS.

History

• [Eff and comp 6/30/14; comp 11/10/16; comp 2/15/19; comp 1/31/21] (Auth: HRS § 397-4) (Imp: HRS § 397-9)

Haw. Code R. § 12-229-14 [Repealed]

History

• [R 6/30/14]

Haw. Code R. § 12-229-14.1 Trade secrets

Information obtained by the department containing or revealing a trade secret shall be held confidential and access shall be limited to authorized representatives of the director for purposes of carrying out chapter 397, HRS.

History

• [Eff and comp 6/30/14; comp 11/10/16; comp 2/15/19; comp 1/31/21] (Auth: HRS § 397-4) (Imp: HRS § 397-11)

Haw. Code R. § 12-229-15 [Repealed]

History

• [R 6/30/14]

Haw. Code R. § 12-229-15.1 Notifications of transfer and location

(a) The seller of any elevator or kindred equipment regulated by this part shall notify the department in writing using a form provided by the department within thirty calendar days of the sale of giving the HAW number, location name, location address the equipment, and the name and address of the purchaser.

(b) The owner of any elevator or kindred equipment who gives, scraps, demolishes, or removes the device shall report the transaction and the name and address of the new owner, if any, within thirty calendar days of the transaction to the department using the form provided by the department.

History

• [Eff and comp 6/30/14; am and comp 11/10/16; comp 2/15/19; comp 1/31/21] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-229-16 [Repealed]

History

• [R 6/30/14]

Haw. Code R. § 12-229-16.1 Variances

(a) In cases of practical difficulties, undue hardships, or new developments, an owner may apply for a variance from any elevator safety standard. The application must be in writing, clearly stating the standard from which a variance is sought, the conditions, means, practices, methods, operations, or processes proposed to be used, together with drawings, specifications, and other supporting data. The director may issue an order for a variance if what is proposed will provide a substantially equivalent level of safety to that provided by the standard.

(b) All variances granted pursuant to this chapter shall have only a future effect. The director may decline to entertain an application for variance on a subject or issue for which a discrepancy letter or citation has been issued to the owner or contractor involved and the discrepancy or violation has not yet been satisfactorily corrected or resolved.

(c) Before granting the variance, the director shall publish a notice in a paper of general circulation or post notice on the department's website notifying all potentially affected parties of the director's intent to grant the variance. The notice shall provide a period of thirty calendar days to object to the granting of the variance, after which time the variance shall become final if no objections are filed or a hearing is requested. The cost of the publication shall be borne by the petitioning party.

Every notice shall specify the alternative to the safety standard being considered.

(d) Any party objecting to the granting of the variance must notify the director in writing within the thirty-day period, stating the reasons why the variance should not be granted and the resultant specific impact on public safety. The objecting party's reasons for objection may also be based on grounds other than impact on public safety such as feasibility of compliance or lack of undue hardship to the petitioner. The objecting party may also elect to provide the reasons for the objection at a hearing.

(e) The hearing requested by the objecting party shall be held no later than forty-five days after the thirty-day period stated in the public notice as follows:

(1) The objecting party or parties and the variance applicant shall be provided notice of the date, time, and place of the hearing at least fourteen calendar days before the scheduled hearing;

(2) Each party shall be prepared to provide evidence supporting the party's case, including a brief oral statement summarizing such evidence;

(3) The director shall provide a written determination to all parties;

(4) If the director determines that the evidence does not support denial of the variance request, no further notice is required; and

(5) If the director determines that the evidence supports a denial of the variance request, a notice shall be published in a newspaper of general circulation stating the reasons why the variance is not granted.

(f) If the variance application does not include all relevant information as indicated in subsection

(a), the director may deny the application. The denial shall be submitted in writing to the applicant within thirty calendar days. A notice of denial shall include a brief statement of the grounds for the denial. A denial of an application shall be without prejudice to the filing of another application.

(g) Requests for reconsideration on denied variance requests. The variance applicant whose variance request was denied may file a petition for reconsideration of the denial with the director. The petition must be filed in writing within twenty calendar days of the denial notice and should include all pertinent facts regarding why the variance should be granted.

(1) The director may review the record on the case along with any additional information provided by the applicant or conduct further inquiries on the matter; and Any party objecting to the director's decision shall use the review and appeal process as provided for in section 12-229-13.1.

History

• [Eff and comp 6/30/14; am and comp 11/10/16; am and comp 2/15/19; comp 1/31/21] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-229-17 Records

Records shall be maintained by the elevator inspection branch of the department of labor and industrial relations for the purpose of preserving reports of inspections, witnessing of test and accident investigations, correspondence, prints, and memoranda for all objects inspected pursuant to this chapter. These records shall be maintained for a period of not less than five years for amusement rides, elevators, and kindred equipment."

History

• [Eff and comp 6/30/14; comp 11/10/16; comp 2/15/19; comp 1/31/21] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Chapter 230.1 ELEVATORS, ESCALATORS, DUMBWAITERS, MOVING WALKS, AND MATERIAL LIFTS AND DUMBWAITERS WITH AUTOMATIC TRANSFER DEVICES

Haw. Code R. § 12-230.1-1 Applicability

The requirements of this chapter shall be applicable to the design, construction, installation, plans review, testing, inspection, certification, operation, use, maintenance, repair, alteration and relocation of, and investigation of accidents involving elevators and kindred equipment subject to chapter 397, Hawaii Revised Statutes, including elevators, escalators, dumbwaiters, moving walks, and material lifts and dumbwaiters with automatic transfer devices.

History

• [Eff 6/30/14; comp 11/10/16; comp FEB 15 2019] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-230.1-2 General requirements

(a) All new and existing installations of elevators and kindred equipment shall be reasonably safe to persons and property and in conformity with the provisions of this chapter.

(b) Conditions found not in conformity with the provisions of this chapter for which the director had not previously issued a discrepancy letter may be regarded as discrepancies. All discrepancies shall be satisfactorily resolved as soon as possible or within the time specified by the director. Failure to correct discrepancies or failure to abate an unsafe condition within the time specified shall be deemed a violation.

(c) All passenger elevators shall have a clearly legible 'Smoking Prohibited by Law" or "No Smoking" sign installed inside of the cab. The letters on the sign shall not be less than one inch in height. The sign shall be posted in elevators in buildings open to the public, including elevators in apartments and other multi-unit residential buildings. The international no-smoking symbol may be posted in lieu of the sign provided that the diameter of the circle is not less than four inches.

History

• [Eff 6/30/14; comp 11/10/16; comp FEB 15 2019] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-230.1-3 Requirements for the installation of new elevators and kindred equipment or the relocation of existing equipment

(a) The design, construction, installation, operation, inspection, testing, maintenance, alteration, and repair of elevators, escalators, dumbwaiters, moving walks, and material lifts and dumbwaiters with automatic transfer devices, and its associated parts, shall conform to this chapter and the American Society of Mechanical Engineers A17.1-2010, which is adopted by reference and made a part of this chapter with the following amendments:

(1) Section 5.2 of the American Society of Mechanical Engineers A17.1, Limited-Use/Limited-Application Elevators, is amended to read: "Limited-use/limited-application elevators (see 1.3) are not permitted to be installed or used, unless:

(A) The building is required to be accessible in accordance with the Department of Justice's ADA Standards for Accessible Design (2010), or in accordance with section 103-50, Hawaii Revised Statutes;

(B) The building is also on the National or Hawaii Register of Historic Places; and

(C) Accessibility cannot otherwise be achieved without adversely altering the historically protected features of the structure.";

(2) Section 8.6.1.2.l(c) of the American Society of Mechanical Engineers A17.1 is amended to read: "A written Maintenance Control Program in electronic or paper form created for the equipment is the property of the equipment owner, and shall be made available to the department and be located on site."; and Section 8.9.2 of the American Society of Mechanical Engineers A17.1 is amended to read: "The data plate shall be in plain view and securely attached to the controller door. An additional data plate shall be installed in the vicinity of the top key operated starting switch on the exterior of escalators and moving walks.".

(b) A stairway or ladder shall be provided at all personnel points of access where there is a break in elevation of eight (8) inches (200 millimeters) or more and when no ramp or runway is provided.

(c) International Building Code, 2012 edition, chapter 30, Elevators and Conveying Systems, is adopted by reference and made a part of this chapter, and shall apply to all new elevators and kindred equipment.

(d) International Code Council A117.1-2009, Accessible and Usable Buildings and Facilities, sections 407, 410, and related portions of sections 106, 302, 308, 309, 703, and 705 are adopted by reference and made a part of this chapter, and shall apply to all new installations.

(e) Chapter 21 of the National Fire Protection Association 72 National Fire Alarm and Signaling Code, 2010 edition, and its related annexes and provisions are adopted by reference and made a part of this chapter, and shall apply to all new elevators.

(f) Article 620 of the National Fire Protection Association 70, National Electric Code, 2011 edition, and its related provisions are adopted by reference and made a part of this chapter, and shall apply to all new elevators.

(g) Paragraph 8.15.5, of National Fire Protection Association 13, Standard for the Installation of Sprinkler Systems, 2010 edition, is adopted by reference and made a part of this chapter, and shall apply to all new elevators and escalators. The annexes A.8.15.5.1 to A.8.15.5.4, D.1.1.9.2, D.1.1.10.2, D.2.23.2.2, and D.2.24.2.2, are explanatory and informational only.

(h) In each machine room, control room, machinery space, control space, and hoistway pit, there shall be provided at least one 125-volt, single phase, 15- or 20-ampere ground fault circuit interrupter (GFCI) duplex receptacle.

(i) All lamps utilized for illumination in machine room/space, control room/space, hoistway and pit, shall be externally guarded to prevent accidental breakage.

(j) Section 2.27.8 (switch keys) of American Society of Mechanical Engineers A17.1 is amended to read: "The key switches required by 2.27.2 through 2.27.5 for all elevators in a building shall be operable by the "FEO-Kl" key. The keys shall be Group 3 Security (see 8.1). A separate key shall be provided for each switch. These keys shall be kept inside the firefighter's lockbox. The firefighter's lockbox shall be located immediately adjacent to the firefighter's emergency recall key switch, at an approximate height of six (6) feet above the floor. Access to the firefighter's lockbox shall only be the standardized key (#25460) for Hawaii, as required by the Authority Having Jurisdiction (AHJ). The firefighter's emergency recall key switch shall be located six (6) feet above the floor on the left-hand side of the elevator wall when facing the elevator and six (6) feet above the floor on the left-hand side of the left elevator when facing the elevators for a group of elevators. The key for the firefighter's emergency recall switch shall be of a tubular, 7-pin, style 137 construction and shall have a bitting code of 6143521 starting at the tab sequenced clockwise as viewed from the barrel end of the key. The key shall be coded "FEO-Kl". The possession of the "FEO-Kl" key shall be limited to elevator personnel, emergency personnel, elevator equipment manufacturers, and authorized personnel during checking of the Firefighter's Emergency Operation (see 8.1 and 8.6.11.1).".

History

• [Eff 6/30/14; comp 11/10/16; comp FEB 15 2019] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-230.1-4 Requirements for existing elevators, escalators, dumbwaiters, moving walks, and material lifts and dumbwaiters with automatic transfer devices

(a) All existing elevators, escalators, moving walks, and dumbwaiters and material lifts without automatic transfer devices shall comply with the code in effect at the time of installation or alteration as illustrated in Exhibit A, titled "Existing Elevator and Kindred Equipment Code Application Dates", dated January 1, 2017, which is made a part of this chapter and located at the end of this chapter, provided that for those years where the Hawaii Registration number (HAW) did not specify code year, the code version of the American Society of Mechanical Engineers A17.1 in effect at the time of installation or alteration shall apply. The director shall have the discretion to apply a specific code to any elevator and related system if the applicable code cannot be readily ascertained. If the installation or alteration permit was issued after 1997, then the elevator or kindred equipment shall comply with American Society of Mechanical Engineers A17.3-2011, which is adopted by reference and made a part of this chapter.

(b) The following provisions of American Society of Mechanical Engineers A17.1-2010 are adopted by reference and shall apply to existing elevators and kindred equipment as stated:

(1) Part 1, General, shall apply to all existing elevators, escalators, moving walks, and dumbwaiters, and material lifts;

(2) Section 5.10, Elevators Used for Construction, shall apply to all existing elevators used for construction;

(3) Section 8.1, Security, shall apply to all existing elevators, escalators, and moving walks;

(4) Section 8.6, Maintenance, Repair, Replacement and Testing, shall apply to all existing elevators, escalators and moving walks, and dumbwaiters and material lifts with automatic transfer devices with the following amendment: Section 8.6.1.2.l(c) of the American Society of Mechanical Engineers A17.1 shall not apply;

(5) Section 8.7, Alterations, shall apply to all existing elevators, escalators, moving walks, and material lifts and dumbwaiters with automatic transfer devices;

(6) Section 8.8, Welding, shall apply to all existing elevators, escalators, moving walks, and material lifts and dumbwaiters with automatic transfer devices;

(7) Section 8.9, Code Data Plate, shall apply to all existing elevators, escalators, moving walks, and material lifts and dumbwaiters with automatic transfer devices, except section 8.9.2 is amended to read: "The data plate shall be in plain view and securely attached to the controller door. An additional data plate shall be installed in the vicinity of the top key operated starting switch on the exterior of escalators and moving walks.";

(8) Section 8.10, Acceptance Inspections and Tests, shall apply to all existing elevators, escalators, moving walks, and material lifts and dumbwaiters with automatic transfer devices; and

(9) Section 8.11, Flood Resistances, shall apply to all existing elevators, escalators, moving walks, and material lifts and dumbwaiters with automatic transfer devices.

(c) Chapter 12-240 shall apply to all elevators where the installation or alteration application was received by the department after December 6, 1990.

(d) American Society of Mechanical Engineers 17.62010 shall apply to existing elevators with other types of suspension means and steel cables less than three-eighths of an inch in diameter.

History

• [Eff 6/30/14; comp 11/10/16; comp FEB 15 2019] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Chapter 232.1 PERSONNEL HOISTS

Haw. Code R. § 12-232.1-1 Code adoption

American National Standards Institute/Arnerican Society of Safety Engineers A10.4-2007, is adopted by reference and made a part of this chapter and applies to all new and existing personnel hoists.

History

• [Eff JUN 30 2014] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-232.1-2 Existing personnel hoists

Where the application for the installation of a personnel hoist was filed with the department before the effective date of this chapter and the applicant is unable to comply with the current requirements, the director may grant a temporary variance without publication of a legal notice provided the applicant meets all other requirements of section 12-229-16.1.

History

• [Eff JUN 30 2014] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Chapter 240 ELEVATOR REQUIREMENTS FOR INDIVIDUALS WITH DISABILITIES

Haw. Code R. § 12-240-1 General

Passenger elevators which have had their architectural plans reviewed for installation permit after December 6, 1990, shall have accessible elevators on an accessible route and shall comply with American National Standards Institute specifications for making buildings and facilities accessible to and usable by persons with disabilities (ANSI All7.l-1986) and with the American National Standard Safety Code for Elevators, Dumbwaiters, Escalators, and Moving Walks, ASME Al7.l 1996. This standard does not preclude the use of residential or fully enclosed wheelchair lifts when appropriate and approved by administrative authorities. Freight elevators shall not be considered as meeting the requirements of this section, unless the only elevators provided are used as combination passenger and freight elevators for the public and employees.

History

• [Eff 12/6/90; am 11/5/93; am 7 /6/98; am 6/30/14; comp FEB 15 2019] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-240-2 Automatic operation

Elevator operation shall be automatic. Each car shall be equipped with a self-leveling feature that will automatically bring the car to floor landings within a tolerance of one-half (1/2) inch or thirteen (13) millimeters under rated loading to zero loading conditions. This self-leveling feature shall be automatic and independent of the operating device and shall correct the overtravel or undertravel.

History

• [Eff 12/6/90; am and comp FEB 15 2019] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-240-3 Hall call buttons

Call buttons in elevator lobbies and halls shall be centered at approximately forty-two (42) inches (1065 millimeters) above the floor. When situations prohibit mounting at forty-two (42) inches, in conjunction with ICC All7.l-2009, hall buttons maybe be mounted between fifteen (15) inches and forty-eight (48) inches for unobstructed forward reach, and between twenty-five (25) inches and forty-eight (48) inches for obstructed forward reach. Such call buttons shall have visual signals to indicate when each call is registered and when each call is answered. Call buttons shall be a minimum of three-fourths (3/4) inch or nineteen (19) millimeters in the smallest dimension. The button designating the up direction shall be on top as shown in Figure 240-1, titled, "Hoistway and Elevator Entrances", dated December 6, 1990, which is made a part of this chapter, and located at the end of this chapter. Buttons shall be raised or flush. Objects mounted or placed beneath hall call buttons shall not project into the elevator lobby more than four (4) inches or 100 millimeters.

History

• [Eff 12/6/90; am and comp FEB 15 2019] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-240-4 Hall lanterns

A visible and audible signal shall be provided at each hoistway entrance to indicate which car is answering a call. Audible signals shall sound once for the up direction and twice for the down direction or shall have verbal annunciators that say "up" or "down." Visible signals shall have the following features:

(1) Hall lantern fixtures shall be mounted so that their centerline is at least seventy-two (72) inches or 1830 millimeters above the lobby floor;

(2) Visual elements shall be at least two and a half (2.5) inches or sixty-four (64) millimeters in the smallest dimension; and

(3) Signals shall be visible from the vicinity of the hall call button. In-car lanterns located in cars, visible from the vicinity of hall call buttons, and confirming to the above requirements, shall be acceptable as shown in Figure 240-1, titled, "Hoistway and Elevator Entrances," dated December 6, 1990, which is made a part of this chapter, and located at the end of this chapter.

History

• [Eff 12/6/90; am and comp FEB 15 2019] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-240-5 Raised characters on hoistway entrances

All elevator hoistway entrances shall have raised floor designations provided on both jambs. The centerline of the characters shall be sixty (60) inches (1525 millimeters) from the floor. Such characters shall two (2) inches or fifty (50) millimeters high and shall comply with ANSI A117.1-1986 Rule 1.30. Permanently applied plates are acceptable if they are permanently fixed to the jambs as shown in Figure 240-1, titled, "Hoistway and Elevator Entrances", dated December 6, 1990, which is made a part of this chapter, and located at the end of this chapter.

History

• [Eff 12 / 6/ 90; am and comp FEB 15 2019] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-240-6 Door protective and reopening device

Elevator doors shall open and close automatically. They shall be provided with a reopening device that will stop and reopen a car door and hoistway door automatically if the door becomes obstructed by an object or person. The device shall be capable of completing these operations without requiring contact for an obstruction passing through the opening at heights of five (5)inches and twenty-nine (29) inches or 125 and 735 millimeters, respectively, from the floor as shown in Figure 240-1, titled, "Hoistway and Elevator Entrances", dated December 6, 1990, which is made a part of this chapter, and located at the end of this chapter. Door reopening devices shall remain effective for at least twenty (20) seconds. After such an interval, doors may close in accordance with the requirements of ANSI A17.lb-1989.

History

• [Eff 12/6/90; am and comp FEB 15 2019] (Auth: HRS §3 97-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-240-7 Door and signal timing for hall calls

The minimum acceptable time from notification that a car is answering a call until the doors of that car start to close shall be calculated from the following equation:

Click here to view image

where T = total time in seconds and D = distance (in feet or millimeters) from a point in the lobby or corridor sixty (60) inches or 1525 millimeters directly in front of the farthest call button controlling that car to the centerline of its hoistway door as shown in Figure 240-2, titled "Graph of Timing Equation", dated December 6, 1990, which is made a part of this chapter, and located at the end of this chapter. For cars with in-car lanterns, T begins when the lantern is visible from the vicinity of hall call buttons and an audible signal is sounded. The minimum acceptable notification time shall be five (5) seconds.

History

• [Eff 12/6/90; am and FEB 15 2019] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-240-8 Door delay for car calls

The minimum time for elevator doors to remain fully open in response to a car call shall be three ( 3) seconds.

History

• [Eff 12 / 6/ 90; am and comp FEB 15 2019] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-240-9 Floor plan of elevator cars

The floor area of elevator cars shall provide space for wheelchair users to enter the car, maneuver within reach of controls, and exit from the car. Acceptable door opening and inside dimensions shall be as shown in Figure 240-3, titled "Minimum Dimensions of Elevator Cars'', dated December 6, 1990, which is made a part of this chapter, and located at the end of this chapter. The clearance between the car platform sill and the edge of any hoistway landing shall be no greater than one and one-fourth inch or thirty-two (32) millimeters.

History

• [Eff 12/ 6/ 90; am 7 / 6/ 98; am and comp FEB 15 2019] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-240-10 Floor surfaces

Floor surfaces shall comply with ANSI A117.1-1980 Rule 4.5.

History

• [Eff 12/6/90; comp FEB 15 2019] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-240-11 Illumination levels

The level of illumination at the car controls, platform, and car threshold and landing sill shall be at least five (5) footcandles ( 53. 8 lux).

History

• [Eff 12/ 6/ 90; am and comp FEB 15 2019] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-240-12 Car controls

Elevator control panels shall have the following features:

(1) Buttons. All control buttons shall be at least three fourths (3/4) inch or nineteen (19) millimeters in their smallest dimension. They may be raised or flush;

(2) Tactile and visual control indicators. All control buttons shall be designated by raised standard alphabet characters for letters, Arabic characters for numerals, or standard symbols as shown in Figure 240-4(a), titled "Car Controls", dated December 6, 1990, which is made a part of this chapter, and located at the end of this chapter, and as required in ANSI Ai7.1-1989. Raised characters and symbols shall comply with ANSI A117.1-1986 Rule 4.30. The call button for the main entry floor shall be designated by a raised star at the left of the floor designation as shown in Figure 240-4(a), titled "Car Controls", dated December 6, 1990, which is made a part of this chapter, and located at the end of this chapter. All raised designations for control buttons shall be placed immediately to the left of the button to which they apply. Applied plates, permanently attached, are an acceptable means to provide raised control designations. Floor buttons shall be provided with visual indicators to show when each call is registered. The visual indicators shall be extinguished when each call is answered;

(3) Height. All floor buttons shall be no higher than fifty-four (54) inches or 1220 millimeters, above the finish floor for side approach and forty-eight (48) inches for front approach. Emergency controls, including the emergency alarm and emergency stop, shall be grouped at the bottom of the panel and shall have their centerlines no less than thirty-five (35) inches or 890 millimeters above the floor as shown in Figures 240-4(a) and (b), entitled "Car Controls", dated December 6, 1990, which is made a part of this chapter, and located at the end of this chapter. The emergency alarm bell shall be operable under normal power as well as for a minimum of one (1) hour on auxiliary power in the event of the loss of normal power; and

(4) Location. Controls shall be located on a front wall if cars have center opening doors, and at the side wall or at the front wall next to the door if cars have side opening doors as shown in Figures 240-4(c) and (d), entitled "Car Controls", dated December 6, 1990, which is made a part of this chapter, and located at the end of this chapter.

History

• [Eff 12/6/90; am 11/5/93; am and comp FEB 15 2019] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-240-13 Car position indicators

In elevator cars, a visual car position indicator shall be provided above the car control panel or over the door to show the position of the elevator in the hoistway. As the car passes or stops at a floor served by the elevators, the corresponding numerals shall illuminate, and an audible signal shall sound. Numerals shall be a minimum of one-half (1/2) inch or thirteen (13) millimeters high. The audible signal shall be no less than twenty (20) decibels with a frequency no higher than 1500 Hertz. An automatic verbal announcement of the floor number at which a car stops or which a car passes may be substituted for the audible signal.

History

• [Eff. 12/6/90; am and comp FEB 15 2019] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-240-14 Emergency communications

If provided, emergency two-way communication systems between the elevator and a point outside the hoistway shall comply with ANSI A17.1-1989. The highest operable part of a two-way communication system shall be a maximum of forty-eight (48) inches or 1220 millimeters from the floor of the car. It shall be identified by a raised or recessed symbol and lettering complying with ANSI A117-1986 Rule 4.30 and located adjacent to the device. If the system uses a handset, then the length of the cord from the panel to the handset shall be at least twenty-nine (29) inches or 735 millimeters. If the system is located in a closed compartment, the compartment door hardware shall conform to ANSI A117.1-1980 Rule 4.27, Controls and Operating Mechanisms. The emergency intercommunication system shall not require voice communication.

Figure 240-1

Holstway and Elevator Entrances

December 6, 1990

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Figure 240-2

Graph of Timing Equation

December 6, 1990

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Figure 240-3

Minimum Dimensions of Elevator Cars

December 6, 1990

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Figure 240-4

Car Controls December 6, 1990

Click here to view image

History

• [Eff. 12/6/90; am and comp FE8 15 2019 (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Chapter 250 AMUSEMENT RIDES

Haw. Code R. § 12-250-1 Application

This chapter shall apply to amusement rides installed on a temporary or permanent basis at carnivals, circuses, fairs, amusement parks, or other locations available to the public. It shall not apply to small rides such as a single animal figure or three-car carousel, usually coin operated, which are designed for use by small children.

History

• [Eff. 12/6/82; am and comp 12/6/90] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-250-2 Definitions

As used in this chapter:

"Accident" means an unexpected happening causing loss or injury which is not due to any fault or misconduct on the part of the person injured but from consequences of which the person has no control of and may be entitled to some legal relief.

"Amusement ride" means a mechanically or electrically operated device designed to carry passengers in various modes and used for entertainment and amusement.

"Manager" means a person having possession, custody, or managerial control of an amusement ride or its temporary structure at any location available to the public whether as owner, lessee, agent, or otherwise.

History

• [Eff. 12/6/82; am 12/8/86; am and comp 12/6/90] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-250-3 Design and construction requirements

(a) All amusement rides and their structures shall be designed, constructed, and installed so as to carry safely all loads and withstand any normal stresses to which they may be subjected.

(b) All amusement rides shall be so placed or secured with blocking, cribbing, outriggers, guys, or other means as to be stable under all operating condition.

(c) The interior and exterior parts of all amusement rides with which a passenger may come in contact shall be smooth and rounded, free from sharp, rough, or splintered edges and corners with no protruding studs, bolts, screws, or other projections which might cause injury. Interior parts on or against which a person may be forcibly thrown by the action of the ride shall be adequately padded. Any ride which is self-powered and which is operated by a passenger shall have the driving mechanism guarded and locked in place to prevent the passengers from gaining access into the mechanism. Belts, bars, foot rests, and other equipment shall be provided when necessary for safe entrance, exit, and for support while the device is in operation. Equipment and fastenings shall be of sufficient strength to retain the passengers. The fastenings shall be of a type which cannot be inadvertently or accidentally released.

(d) An amusement ride shall be provided with an automatic maximum speed limiting device if capable of exceeding its maximum safe operating speed.

(e) If cars or other components of an amusement ride may collide in such a way as to cause personal injuries upon failure of normal controls, emergency brakes sufficient to prevent the collision shall be provided.

(f) On rides which make use of inclined tracks, automatic antirollback devices shall be installed to prevent backward movement of the passenger carrying unit in case of power loss or failure of the propelling mechanism.

(g) Machinery used in or with an amusement ride shall be enclosed, barricaded, or otherwise effectively guarded against contact. Guards removed for maintenance purposes shall be replaced before normal operation is resumed.

(h) Areas in which persons may be endangered by the movement or operation of an amusement ride shall be fenced, barricaded, or otherwise guarded against public intrusion.

History

• [Eff. 12/6/82; am 12/8/86; ren § 12-250-3 and comp 12/6/90] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-250-4 Access to and egress from amusement rides

(a) Safe and adequate means of access to and egress from amusement rides shall be provided. The means of access and egress shall have:

(1) Protection of users from adjacent hazards or from falling by the use of rails, enclosures, barriers, or similar means;

(2) Secure treading and supporting surface free from debris, obstruction, projection and slipping, tripping, and other hazards;

(3) Adequate clearance;

(4) Stairways or ramps provided when the difference between two levels exceeds 8 inches (20 cm); and

(5) Sufficient illumination by natural or artificial means to prevent tripping or exposure to other hazards.

(b) Stairways, landings, and ramps shall be designed, constructed, and maintained so as to sustain safely a live load of at lest 100 pounds (45.4 kg) per square foot with a safety factor of 5.

(c) Stairways and ramps shall be at least 22 inches (55 cm) wide. Stair treads shall be at least 9 inches (22.5 cm) deep exclusive of nosing, and the height of the riser shall not exceed 8 inches (20 cm). Between any two levels, the treads shall be of uniform depth and the risers of uniform height. The slope of a ramp shall not exceed one in four. The open sides of stairways, ramps, and platforms shall be provided with standard guard railing except as a safe and normal access to the device may otherwise require.

(d) The requirements of ANSI/ASME A12.1 shall apply in guarding amusement rides.

History

• [Eff. 12/6/82; am 12/8/86; am and ren § 12-250-4 and comp 12/6/90] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-250-5 Load test

(a) Amusement rides having suspended passenger seats or spaces, amusement rides normally operated at speeds or with movements creating severe centrifugal force, and amusement rides so elevated that a structural failure will likely cause injury shall be required to undergo and withstand the following load test without failure in any material respect: Each passenger seat or space shall be weighted with at least 150 pounds dead weight except that in a ride intended only for small children each seat or space shall be weighted with at least 100 pounds (45.4 kg); and while so loaded, the ride shall be operated at a maximum normal speed to test the full operation of all control devices, speed limiting devices, brakes, and other equipment provided for safety.

(b) A ride is unsafe if it fails to withstand the load test. If the ride has withstood a load test without failure in any material respect, it shall be required to be so tested again only if rebuilt, modified, or if there are reasonable grounds to believe that a further test is necessary to ensure safety and the department orders such test to be made.

(c) The load test shall be made in the presence of and under the supervision of an inspector from the department. Load test results witnessed and certified by a professional engineer or by a safety specialist approved by the department may be accepted in lieu of a test witnessed by an inspected from the department.

History

• [Eff. 12/6/82; am 12/8/86; am and ren § 12-250-5 and comp 12/6/90] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-250-6 Identification and rating plates

Every amusement ride shall be identified by a trade or descriptive name and an identification number and there shall be firmly attached in a readily visible location a metal plate upon which there is legibly impressed the name and number of the ride, its model number if any, and the name and address of its manufacturer. Upon the same or another attached metal plate there shall be legibly impressed the maximum safe number of passengers and the maximum safe speed.

History

• [Eff. 12/6/82; ren § 12-250-6 and comp 12/6/90] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-250-7 Rebuilt and modified rides

If an amusement ride has undergone and passed the required load test and is rebuilt or modified changing its original action, the ride shall be:

(1) Re-identified by a different name, identification number, or both; and

(2) Subjected to all other provisions of this chapter as if it were a new ride not previously used, including a load test.

History

• [Eff. 12/6/82; am 12/8/86; ren § 12-250-7 and comp 12/6/90] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-250-8 Assembly and disassembly

(a) Parts of amusement rides and their structures shall be properly aligned and shall not be bent, distorted, cut, or otherwise injured to force a fit.

(b) Parts which are excessively worn or which have been materially damaged shall not be used.

(c) An inspection of all fastening and locking devices shall be made after assembly to ensure that they have been properly installed.

(d) Broken, damaged, and unsuitable tools and equipment shall not be used. Electrically operated tools shall be grounded during use unless their construction is such that special grounding is not required for safety.

(e) Assembly and disassembly of amusement rides and temporary structures shall be carried on under illumination sufficient to permit the work to be safely performed and inspected.

History

• [Eff. 12/6/82; am and ren § 12-250-8 and comp 12/6/90] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-250-9 Location notice

If any person intends to use or operate an amusement ride at any location available to the public, the department shall be notified in writing at least 5 days prior to the use or operation of the ride. The written notification shall state, at a minimum, the following:

(1) The specific dates when the ride is to be used or operated;

(2) The location where the ride is to be used or operated; and

(3) The identification type and number of the ride.

If an unscheduled or emergency use or operation of a ride makes it not possible to give a 5-day notice, the notice shall be given to the department immediately by telephone.

History

• [Eff. 12/6/82; am 12/8/86; ren § 12-250-9 and comp 12/6/90] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-250-10 Electrical safety requirements

(a) All electrical wiring, equipment, and apparatus used for amusement rides or for lighting shall be properly and legally installed, operated, and maintained, as required by NFPA 70 and local ordinances.

(b) No employee shall be suffered or permitted to work in such proximity to any part of electrical power circuits that the employee may contact the same in the course of the work unless protected against shock by de-energizing the circuit, grounding it, or guarding it by effective insulation. If protection is supplied by de-energizing the circuit, the switch controlling the circuit shall be locked out to prevent inadvertent closing.

(c) The outlets of electric power lines carrying more than 120 volts shall be clearly marked to show their voltage.

(d) All electric transformer sub-stations shall be properly enclosed and proper warning signs shall be posted.

(e) Electrical apparatus and wiring located outdoors shall be of such quality and so constructed or protected that exposure to weather will not interfere with its normal operation or endanger life or property.

(f) Elevated power lines crossing access or other roads within the grounds of the carnival, circus, fair, amusement parks, or other areas where the amusement rides are located shall be so suspended as to provide minimum vertical clearance of 12 feet (3.6 m) from the road surface and minimum horizontal clearance of 3 feet (90 cm) from each side of the normal passage space of vehicles.

(g) Wiring laid on or under surfaces traversed by vehicular or pedestrian traffic shall be adequately protected against wear and abrasion. Buried cables shall be Type UF as required by Article 339 of NFPA 70.

(h) Temporary electric wiring if suspended shall be so supported that its protective insulation will not be damaged.

(i) All electrical installations shall be properly grounded. All electrical cords shall be of the heavy duty type and shall contain an identifying grounding conductor in addition to the current-carrying conductors. The size of grounding conductor shall comply with Table 250-94 of NFPA 70.

(j) Bare wires and other uninsulated current-carrying parts shall be guarded against accidental contact by means of proper location or by a fence or other barrier.

(k) Conductors shall be provided with over-current protective devices according to load and current-carrying capacity. No such device shall be installed on neutral or grounding conductors.

(l) Where electrical power is supplied for an amusement ride by a privately operated generating system, the generator and all equipment shall be properly grounded if the system incorporates a ground.

(m) All receptacles and attachment caps shall be of the grounding type.

(n) Each electrically powered amusement ride shall be effectively grounded. The grounding shall be made effective as to all non-currentcarrying metal parts which may become energized and which are exposed to contact by any person.

(o) Each electrically operated amusement ride not designed to be controlled directly by the passenger shall be provided with a disconnect power switch placed within easy reach of the operator.

History

• [Eff. 12/6/82; am and ren § 12-250-10 and comp 12/6/90; am 7/6/98] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-250-11 Air compressors and equipment

Air compressor tanks and equipment used in connection therewith shall be constructed, equipped, operated, maintained, inspected, and tested as required by part 10 of this title.

History

• [Eff. 12/6/82; am and ren § 12-250-11 and comp 12/6/90] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-250-12 Fire prevention and protection

(a) Approved fire extinguishers shall be provided when necessary to secure reasonable and adequate protection from fire hazards.

(b) Flammable waste such as oily rags and other flammable materials shall be placed in covered metal containers which shall be kept in easily accessible locations. The containers shall not be kept at or near exits or under amusement rides.

(c) Gasoline and other volatile liquids and flammable gases shall be stored and handled in compliance with chapters 12-74 and 12-75.

History

• [Eff. 12/6/82; am and ren § 12-250-12 and comp 12/6/90] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-250-13 Operation of amusement rides

(a) It shall be the responsibility of the manager to ensure that the operator of each amusement ride is a responsible person at least 18 years of age who has been properly instructed in the safe operation of the amusement ride.

(b) It shall be the responsibility of the manager to post all necessary warning and danger signs. Such signs shall be conspicuously located where they will render the most effective protection, shall be of sufficient size to be legible at a distance of not less than 6 feet (1.8 m), and shall be illuminated as required for good visibility. On those amusement rides where there is a greater than normal possibility of passengers being thrown from the ride, permanent notices shall be posted in locations visible to all passengers warning them that restraining devices are required to be tight.

(c) It shall be the responsibility of the operator to ensure that the restraining devices for all passengers have been properly fastened and adjusted prior to placing the ride in motion.

(d) The operator shall remain in the immediate vicinity of the operating controls at all times while the amusement ride is in motion.

History

• [Eff. 12/6/82; am and ren § 12-250-13 and comp 12/6/90] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 12-250-14 Availability of standards

(a) ANSI/ASME A12.1 is available from the American National Standards Institute, 1430 Broadway, New York, N.Y. 10018.

(b) ANSI/NFPA 70 is available from National Fire Protection Association, Batterymarch Park, Quincy, MA 02269.

History

• [Eff. 12/6/82; am 12/8/86; ren § 12-250-14 and comp 12/6/90] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

State Procurement Office State Procurement Office

Hawaii Public Procurement Code Hawaii Public Procurement Code

Chapter 122 SOURCE SELECTION AND CONTRACT FORMATION

Haw. Code R. tit. 3, State Procurement Office, Hawaii Public Procurement Code, ch. 122, subch. 13.5

History

• The adopted version of this subchapter by Hawaii Administrative Rules Listing of Filings, 2024-01, January, eff. 1/5/2024 is not yet available.

Building Code Council Building Code Council

Haw. Code R. tit. 3, Building Code Council, State Fire Code State Fire Code

HAWAII STATE FIRE CODE

Effective Date: January 19, 2021

RULES OF GENERAL APPLICABILITY

Haw. Code R. tit. 3, Building Code Council, State Fire Code State Fire Code

HAWAII STATE FIRE CODE

Effective Date: January 19, 2021

RULES OF GENERAL APPLICABILITY

State Procurement Office State Procurement Office

Hawaii Public Procurement Code Hawaii Public Procurement Code

Haw. Code R. tit. 3, State Procurement Office, Hawaii Public Procurement Code, ch. 127 ASSISTANCE TO SMALL BUSINESS (RESERVED)

Building Code Council Building Code Council

State Elevator Code State Elevator Code

Subtitle 8 DIVISION OF OCCUPATIONAL SAFETY AND HEALTH

Part 11 ELEVATORS AND RELATED SYSTEMS

Chapter 234.1 PLATFORM LIFTS AND STAIRWAY CHAIRLIFTS

Haw. Code R. § 512-234.1-1 Code adoption

American Society of Mechanical Engineers A18.1-2011, is adopted by reference and made a part of this chapter and applies to all new platform lifts and stairway chairlifts.

History

• [Eff JUN 30 2014] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

Haw. Code R. § 512-234.1-2 Existing platform lifts and stairway chairlifts

(a) Existing platform lifts and stairway chairlifts shall comply with American Society of Mechanical Engineers A18.1 - 1999, Safety Standard for Platform Lifts and Stairway Chairlifts, as copyrighted and published in 1999 by the American Society of Mechanical Engineers, Three Park Avenue, New York, NY 10016-5990.

(b) Where the application for the installation of a platform lift or stairway chairlift was filed with the department before the effective date of this chapter and the applicant is unable to comply with the current requirements, the director may grant a temporary variance without publication of a legal notice provided the applicant meets all other requirements of section 12-229-16.1.

History

• [Eff JUN 30 2014] (Auth: HRS § 397-4) (Imp: HRS § 397-4)

State Procurement Office State Procurement Office

Hawaii Public Procurement Code Hawaii Public Procurement Code

Chapter 122 SOURCE SELECTION AND CONTRACT FORMATION

Haw. Code R. tit. 3, State Procurement Office, Hawaii Public Procurement Code, ch. 122, Procurements Approved for Sole Source (01/18/07) Procurements Approved for Sole Source (01/18/07)

The following list of Sole Source procurements, pursuant to HAR § 3-122-81, has been approved by the procurement policy board:

| Sole Source No. | Sole Source | | --- | --- | | 1 | Rental of booth space for exhibits at conventions and trade shows when organized by a single sponsor. Criteria: When rental is available only through a single organizer or sponsor of the convention or trade show. | | 2 | For the repair, replacement, installation (connection, activation or hookup), or relocation of public utility company equipment or facilities. Criteria: When the equipment or facilities are owned or controlled by utility companies such as an electric, telephone, gas, or cable television company. | | 3 | Annual license renewal and maintenance for computer software. Criteria: When the license renewal and maintenance can be obtained from only a single source, normally the developer of the software. | | 4 | Procurement of computer software conversions, modifications, and maintenance for existing programs from the manufacturer of the software. Criteria: When the conversion, modification, or maintenance can only be obtained from the manufacturer of the software. | | 5 | Transcripts of court proceedings. Criteria: When the transcripts of court proceedings are only available from the respective assigned court reporter provided by the Judiciary. | | 6 | Repair and maintenance services and supplies from the original equipment manufacturer or its designated representative; when the manufacturer or its designated representative is required to provide the services and supplies to retain the manufacturer's warranty or guarantee. Criteria: When the services or supplies can only be obtained from the manufacturer or its designated representative to retain the manufacturer's warranty or guarantee. | | 7 | Procurement of equipment upgrades from the original manufacturer to existing equipment and information technology hardware, when the upgrades can only be obtained from the manufacturer. Criteria: When the upgrades are available only from the manufacturer. |

History

• 01/18/07

Haw. Code R. tit. 3, State Procurement Office, Hawaii Public Procurement Code, ch. 122, Procurements Approved for Competitive Sealed Proposals (07/13/06) Procurements Approved for Competitive Sealed Proposals (07/13/06)

The following goods, services, or constructions may be procured by Competitive Sealed Proposals, pursuant to HAR § 3-122-45, and has been approved by the procurement policy board

| No. | Competitive Sealed Proposal | | --- | --- | | 1 | Consulting services in the areas of software and telecommunications. | | 2 | Travel agency services to include air and ground transportation, and lodging services. | | 3 | Computer software and hardware systems. | | 4 | Design and build construction projects. |

History

• 07/13/06

Building Code Council Building Code Council

State Elevator Code State Elevator Code

Subtitle 8 DIVISION OF OCCUPATIONAL SAFETY AND HEALTH

Part 11 ELEVATORS AND RELATED SYSTEMS

Chapter 229 GENERAL, ADMINISTRATIVE, AND LEGAL PROVISIONS

Haw. Code R. tit. 3, Building Code Council, State Elevator Code, subtit. 8, pt. 11, ch. 229, exh. A ELEVATOR AND KINDRED EQUIPMENT INSTALLATION AND ALTERATION FEES

January 1, 2021

| Alterations¹: Involving only the replacement of a single (1) major component (such as a car door operator, valve, a jack or a cylinder) | $234 | | --- | --- | | Involving only cosmetic changes (such as car interior modernizations) Involving two or more major components and/or subsystems: | $410 | | 1-3 Floors | $738 | | 4-9 Floors | $796 | | 10-19 Floors | $866 | | 20-29 Floors | $925 | | 30-39 Floors | $995 | | 40 or more Floors | $1,112 | | New Installations²: Dumbwaiter or material lift | $615 | | Escalator, moving walk, or moving ramp | $615 | | Platform lifts or stairway chairlifts Elevator: | $615 | | 1-3 Floors | $738 | | 4-9 Floors | $796 | | 10-19 Floors | $866 | | 20-29 Floors | $925 | | 30-39 Floors | $995 | | 40 or More Floors | $1,112 | | Personnel hoists | $527 | | Temporary use permits (construction car) | $527 | | Additional Inspections: Normal workday, up to two hours | $400/day | | Normal workday, more than two hours | $800/day | | Overtime hours, up to two hours | $800/day | | Overtime hours, more than two hours | $1,600/day | | Building Plan Reviews | $234 |

¹ Where alterations to four or more units at the same location are identical, the fee for each additional alteration permit (beyond the initial four) shall be reduced by fifty percent. The applications shall be submitted at the same time to qualify for the fee reduction.

² For elevators which have considerable rise but few openings, such as observation or deep-well elevators, each ten feet of vertical rise shall be considered one floor for the purpose of determining installation or alteration permit fees.

History

• [Eff 1/1/2021]

Haw. Code R. tit. 3, Building Code Council, State Elevator Code, subtit. 8, pt. 11, ch. 229, exh. B ELEVATOR AND KINDRED EQUIPMENT INSPECTION FEES

January 1, 2021

| Permit and Renewal Inspection Fees¹: | | | --- | --- | | Dumbwaiter or material lift | $176 | | Escalator, moving walk, or moving ramp | $264 | | Platform Lift or Stairway Chairlift | $264 | | Hydraulic Elevator - Holed | $322 | | Hydraulic Elevator - Holeless | $322 | | Hydraulic Elevator - Roped Holeless | $381 | | Traction Elevators: 1-3 Floors | $293 | | 4-9 Floors | $322 | | 10-19 Floors | $351 | | 20-29 Floors | $410 | | 30-39 Floors | $498 | | 40 or more Floors | $585 | | Personnel Hoist | $351 | | Temporary Use Permit (Construction Car) | $351 | | Safety, Load, or Internal Test (Witness Fees): | | | Category 3 Test | $381 | | Category 3 Test with Safety Overspeed Valve | $439 | | Category 3/5 Test for Roped Hydraulic | $498 | | Category 5 Test | $498 | | Category 5 with Counterweight Test | $615 | | Escalator, Internal | $498 |

¹ For elevators which have considerable rise but few openings, such as observation or deep-well elevators, each ten feet of vertical rise shall be considered one floor for the purpose of determining permit renewal inspection fees.

Permit renewal and witness [fess] fees are per inspection, which may constitute one day or part of the day. If the inspector is required to return on another day or at another time on the same day, additional fees shall be assessed at the rate of $400 per day for up to two hours and $800 per day for more than two hours. Fees for overtime hours shall be $800 per day for up to two hours and $1,600 per day for more than two hours.

History

• [Eff 1/1/2021]

Haw. Code R. tit. 3, Building Code Council, State Elevator Code, subtit. 8, pt. 11, ch. 229, exh. C INSPECTION AND TEST INTERVALS (IN MONTHS)

January 1, 2017

| Equipment Type | Permit Renewal | Category 3 | Category 5 | | --- | --- | --- | --- | | Electrical Elevators | 12 | N/A | 60 | | Hydraulic Elevators | 12 | 36 | N/A | | Escalators and Moving Walks^[1] | 12 | 36 | N/A | | Dumbwaiters | 12 | 36 | 60 | | Material Lifts | 12 | 36 | 60 | | Platform Lifts and Stairway Chairlifts | 12 | N/A | N/A | | Inclined Elevators | 12 | 36 | 60 | | Screw-Column Elevators | 12 | 36 | 60 | | Roof-top Elevators | 12 | 36 | 60 | | Limited-use/Limited-Application Elevators | 3 | 36 | 60 | | Construction Cars | 3 | 36 | 60 | | Personnel Hoists^[2] | 3 | N/A | N/A | | Amusement Rides | 6 | N/A | N/A |

¹ Internal inspections of escalators and moving walks shall be performed at intervals of 36 months.

² Personnel hoists shall be load tested at intervals of 3 months.

Where an equipment is listed under both Category 3 of 36 months and Category 5 of 60 months, the appropriate testing interval is dependent on whether the lifting mechanism is rope or hydraulic or a combination of rope and hydraulic.

History

• [Eff 1/1/2017]

Haw. Code R. tit. 3, Building Code Council, State Building Code State Building Code

State Building Code Council

HAWAII STATE EXISTING BUILDING CODE

Effective Date: November 17, 2020

Haw. Code R. tit. 3, Building Code Council, Fire Protection System Inspection Forms Fire Protection System Inspection Forms

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