There are limited circumstances that warrant exemption from the competitive solicitation process. These include any of the following:
- Emergency Exemption
- Sponsored Research Exemption (SRE)
- Sole Source Exemption
- Annual Certification Exemptions
- Construction Direct Purchase Program
- Miscellaneous Exemptions
When the delay resulting from or in lieu of the competitive solicitation process would result in a condition which threatens the health, safety of persons or animals, the preservation of property, or a vital University function, the department must prepare an Emergency Exemption Requisition using the Emergency Request form within SpearMart. When a waiver of competition for emergencies is issued by the President of the University for specific instances (pandemic, weather event, etc.) a purchase may be submitted directly for approval by Procurement under the declaration. The Sr. Vice President of Finance and Administration (or designee) is the final approval authority for emergency purchases of $75,000 or more.
Sponsored Research Exemption
When the Principal Investigator certifies that a purchase from a particular supplier is necessary for the efficient or expeditious prosecution of a research project, purchases using Contract and Grant funds may be exempted from the competitive solicitation requirement. To initiate such a request, the requisitioning department must submit a memorandum with appropriate documentation detailing the circumstances and conditions pertaining to the research project to the Vice President for Research and complete a Sponsored Research Exemption Request Form. At the same time, the requisitioning department must enter a Requisition for the covered commodity or service into SpearMart and submit it to Procurement Services. To alert Procurement Services that the department has applied for an SRE, there must be a note to that effect in comments. An SRE will not be issued if a contractor is allowed to begin a contractual service before the SRE is approved.
As part of the SRE approval process, the Principal Investigator will provide sufficient information to allow the Vice President for Research to conduct a cost and price analysis to document that the price charged is acceptable. Once the SRE is approved, Procurement Services will post the proposed purchase for 72 business hours. After the posting period has expired and no objections have been filed, Procurement Services will immediately issue a PO. If the SRE is not approved, Procurement Services will proceed with the competitive solicitation process unless the requisitioning department opts to cancel the requisition.
Sole Source Exemption
When a commodity or service is in excess of $10,000 or more and only available from one source in which no suitable equivalent is available, the Chief Procurement Officer or a designee may waive the competitive solicitation requirement. The term "Sole Source " is strictly construed to mean absolutely no other source for the commodity or service is available, including dealers, resellers, or distributors. The "Sole Source" process is not a quick process and should not be adopted by requisitioning departments in order to facilitate getting a PO issued quickly. If the department wishes to purchase a specific brand of equipment, the department must advise the Procurement Specialist and the two will work together to determine if a competitive solicitation is needed or if further documentation to support the Sole Source needs to documented. In many instances, it is quicker to issue a competitive solicitation than to document a sole source. The University follows the Federal Uniform Guidance, 2CFR, 200 Procurement Standards, which are furnished to ensure that such materials and services are obtained in an effective manner and in compliance with the provisions of applicable Federal statutes and executive orders. Therefore, for sponsored activities, exempting as a sole source, requires stringent detailed documentation. For more information on Sole Sources and Uniform Guidance click here.
For additional information please view this PowerPoint on Sole Sources and Uniform Guidance Requirements.
"No Substitutes; No Alternates; No Equivalents"
Departments must distinguish between situations where the commodity or service itself is available from only one supplier, and situations where the commodity or service may be available from more than one supplier, but the requisitioning department can justify not considering alternate or equivalent products for this purchase. In a "no substitutes" situation the Sole Source process is not applicable. However, prior to preparing a "no substitutes" requisition, Procurement Services recommends that the department contact the appropriate Procurement Specialist to discuss the "no substitutes" issue prior to preparing and submitting a requisition in SpearMart. The requisitioning department may proceed with entering the requisition(s) so long as a detailed justification is entered in the Comments section.
To initiate a Sole Source request, the requisitioning department must submit one of the applicable from within SpearMart:
- Non-Catalog Request - Sole Source (for products or services)
- Services Request - Fixed (paying supplier a fixed $ amount - complete the Sole Source Section)
- Services Request - Variable (paying supplier a rate [$/hr or $/day etc.] - complete the Sole Source Section)
- Software Request (for software - complete the Sole Source Section)
Sole Source justifications must provide detailed documentation that the commodity or service is not available from another source, and must not simply restate that the item or service is not available from another source. In addition, continuity of research nor price is a justification for approval of a Sole Source. Requisitioning departments should contact the appropriate Procurement Category Manager to work out the logistics of Sole Source requests on a case-by-case basis.
Procurement Services must research and benchmark each Sole Source request. This may involve activities such as contacting suppliers deemed capable of supplying the requisitioned commodity or service to determine in writing, if they can offer a commodity or service that will meet the specifications on the Requisition. This can be a lengthy process and may take up to several weeks to complete. If a supplier other than the one listed on the General Requisition as the Sole Source for the purchase appears to meet the required specifications, a competitive solicitation may be required. If no other possible supplier is identified, Procurement Services will:
- Obtain a written quotation from the sole supplier if not supplied by the requisitioning department.
- Prepare a Cost & Price Analysis; based on information supplied by the requisitioning department and the supplier, documenting the fact that the price offered by the supplier is reasonable and acceptable when compared with a similar item.
- Obtain benchmarking from other peers.
- Prepare documentation for the file justifying the Sole Source status and the method used to establish that status.
- If the purchase is $75,000 or more, publicly post for 72 hours (not counting weekends and holidays) a notice of the decision to issue the Purchase Order without a competitive solicitation.
- Issue a Purchase Order.
As a rule of thumb for Sole Source:
- The item is available only from a single source or only one solution exists to meet the University’s needs and only one supplier can provide the technology and/or services required for the solution which is considered unique.
- Competition is not available and deemed inadequate after Procurement issues a formal solicitation.
- The public exigency or emergency for the requirement will not permit a delay resulting from competitive solicitation.
- A law or grant requires a single source and specifies a specific contractor.
Examples of circumstances which do not justify a Sole Source procurement:
- Single supplier’s capability to deliver in the least amount of time.
- Proprietary solutions. Proprietary procurements are defined as those in which there is only one solution available to meet the University’s needs; however, multiple suppliers may provide the technology goods and/or services required for the solution.
- Lack of advance planning for adequate transition. In other words, creating an emergency does not support urgent and compelling circumstances.
- Price: Any price components, including preferred pricing, claim of best price, and/or budgetary constraints or historical precedence or claim of best price. Only current competitive bidding in the open market substantiates best possible pricing.
- Department/Researchers/ Faculty working with a specific supplier to create custom/specialized equipment, thereby bypassing a competitive market.
Annual Certification Exemptions
Florida State University Board of Trustees Regulation FSU-2.015 authorizes the Chief Procurement Officer to develop an Annual Certification List to serve as a waiver of the competitive solicitation requirement for commodities/services that are frequently purchased and are available from a single source.
Departments, including departments with delegated procurement authority, are not to assume that an exemption will be made until Procurement Services reviews all necessary information concerning the purchase and makes the official determination. Exemptions are not allowed for sponsored activities and FSU must follow the Uniform Guidance, 2CFR, 200 Procurement Standards for those transactions.
Annual Certification List of Exemptions:
- Maintenance service and repair or replacement parts available from a single source for existing equipment and systems when no other manufacturer’s parts or services can be utilized and no other service provider is available.
- Copyrighted and single source instruction materials, tapes, publications, manuscripts, films and personal library collections.
- Purchase of insurance.
- Fees for accreditation agencies and registries that have no identifiable marketplace competition.
- Live animals and animal feed for instructional and research efforts wherein the selection must be determined by the “expert opinion of the buyer,” in consideration of genetic background, quality, body weight, and special diet condition to attain the research or instructional objective.
- Proprietary computer software, accessories and supplies, including expendable items from a single source for existing equipment and systems where no other manufacturer’s product can be used. This includes software licenses.
- Technical instruments and supplies for medical instruction, medical research and health care wherein the single source selection is determined by the “expert opinion of the user directly responsible for the establishment of the objective served by the acquisition.” The file of each such purchase will be adequately documented to support the determination.
- Services involving officiating during sport events or activities pursuant to educational accreditation.
- Executive air charters where availability is limited due to inventory as long as selected provider meets University established insurance requirements.
- Used equipment and supplies.
- Cable Services subject to regulatory oversight or geographical service limitations.
- Renovations, modifications, maintenance or repair services for leased office or laboratory space which are specifically provided for in the lease agreement and/or are required to be accomplished by the owner/landlord and subsequent reimbursed by the University.
- Memberships / Subscriptions (excluding software) that are essential to support the business of the University.
- Acquisition of student recruitment services.
- Affiliation agreements with hospitals and other health care providers required for the Florida State University clinical education programs.
- Services provided by foreign suppliers for services taking place outside the United States. This includes translation/interpreter services in foreign countries.
- Rental of booth space for exhibits at conventions and trade shows when organized by a single sponsor.
- Continuation of services by a specific supplier which exceeds the competitive solicitation threshold as long as Procurement Services is in the process of conducting a competitive solicitation for those services.
Construction Direct Purchase Program
Commodities to be incorporated into any public work (as that term is defined in FL Admin. Code R. 12A-1.094 as authorized under Section 212.08(6), F.S.[tax-exempt purchase] which are procured by the University in accordance with the requirements of the University’s direct purchase program are not subject to any further competitive solicitation.
Miscellaneous exemptions include:
- Artistic services
- Academic reviews
- Auditing services, including those services needed to address audit, financial, and fraud-related compliance, controls, and investigative matters, or such other related services.
- Legal services, including attorney, paralegal, expert witness, appraisal, arbitrator or mediator services
- Health services involving examination, diagnosis, treatment, prevention, medical consultation or administration. Prescriptive assertive devices for medical, developmental or vocational rehabilitation including, but not limited to prosthetics, esthetics, and wheelchairs, provided the devices are purchased on the basis of an established fee schedule or by a method that ensures the best price, taking into consideration the needs of the client
- Services provided to persons with mental or physical disabilities by not-for-profit corporations organized under the provisions of s. 501(c)(3) of the Internal Revenue Code or services governed by the provisions of the Office of Management and Budget Circular A-122
- Medicaid services delivered to an eligible Medicaid recipient by a health care provider who has not previously applied for and received a Medicaid provider number from the Department of Children and Family Services. This exception will be valid for a period not to exceed 90 days after the date of delivery to the Medicaid recipient and shall not be renewed
- Family placement services
- Training and education services
- Advertising, except for media placement services
- Services or commodities provided by governmental agencies, another University in the State University System, direct support organizations of the university, political subdivisions or independent colleges and universities
- Contracts entered into after a public and open competitive solicitation by any State of Florida agency or department, the Federal Government, other states, political subdivisions, cooperatives or consortia, or any independent college or university for the procurement of commodities and contractual services, when it is determined to be cost-effective and in the best interest of the University
- Goods or services purchased with auxiliary funds authorized for such purchases, in direct support of specific programs, conferences, workshops, or continuing education events offered to the general public, for which fees have been collected to pay all expenses associated with the program or event
- Purchases from firms or individuals who are prescribed by state or federal law or specified by a granting agency
- Regulated utilities and government-franchised services
- Regulated public communications, except long distance telecommunication services or facilities
- Extension of an existing contract
- Renewal of an existing contract if the terms of the contract specify renewal option(s)
- Purchases for resale
- Accounting Services
- Implementation/programming/training services available only from the owner of copyrighted software or its contracted supplier
- Contracts or services provided by not-for-profit support and affiliate organizations of the University, direct support organizations, health support organizations, and faculty practice plans