(1) As used in this section, unless the context otherwise requires, "environmentally preferable products" means products that have a lesser or reduced adverse effect on human health and the environment when compared with competing products that serve the same purpose. The product comparison may consider such factors as the availability of any raw materials used in the product being purchased and the availability, use, production, safe operation, maintenance, packaging, distribution, disposal, or recyclability of the product being purchased.
All invitations for bids for products shall include language that describes the availability of the purchasing preference for environmental products. In connection with the purchase of products, a governmental body shall award the contract to a bidder who offers environmentally preferable products subject to the conditions specified in subsection (3) of this section unless the specifications used in the solicitation contain environmentally preferable product criteria. This preference does not apply to the purchase of services, including construction services.
The preference specified in subsection (2) of this section shall apply only if all of thefollowing conditions are met and selecting an environmentally preferable product would not otherwise be disadvantageous to the state upon consideration of these conditions, singly or in combination:
The quality of the environmentally preferable products meets the specification of thebid.
The environmentally preferable products are suitable for the use required by the purchasing entity.
Any bidder able to offer environmentally preferable products is able to supply suchproducts in sufficient quantity, as indicated in the invitation for bids.
The bid price for environmentally preferable products does not exceed the lowest bidprice for products that are not environmentally preferable by more than five percent.
The head of the governmental body or other official charged by law with the duty topurchase products has made a determination that the governmental body is able to purchase the environmentally preferable products out of the governmental body's existing budget without any further supplemental or additional appropriation.
If the bid price for environmentally preferable products exceeds the bid price forproducts that are not environmentally preferable by more than five percent, a governmental body may award the contract to a bidder who offers environmentally preferable products where the governmental body demonstrates, on the basis of assessments such as the costs of ownership and a life-cycle analysis, that long-term savings to the state will result from environmentally preferable purchasing in accordance with the requirements of this section. Nothing in this section shall require that a governmental body perform an analysis of the costs of ownership or a lifecycle analysis in connection with the purchase of any products.
(a) Any bidder that seeks to qualify for the preference created by subsection (2) of this section shall provide documentation to the governmental body inviting the bid that the products offered by the bidder are environmentally preferable. This requirement may be satisfied by submission of any of the following:
A life-cycle analysis conducted on the applicable product that has been conducted inaccordance with applicable standards as determined by the purchasing governmental body or by the international organization for standardization or any successor organization;
A reference to an existing environmentally preferable product list maintained by astate or the federal government that contains the product; or
A reference to a nationally recognized third-party certification entity that has certified the product as environmentally preferable on the basis of a valid life-cycle analysis. The governor's energy office or successor office shall maintain a list of certification entities.
The governmental body may rely in good faith on any form of documentation thatsatisfies the requirement of subsection (5)(a) of this section.
Notwithstanding any other provision of this section, if none of the forms of documentation specified in subsection (5)(a) of this section apply to the product being purchased, the requirements of this section shall not apply to the purchase of the product.
(6) In connection with any cost of ownership analysis or life-cycle analysis undertaken in connection with any purchase under this section of a product that involves the replacement of existing electrical, natural gas, or steam service, the cost analysis shall consider any stranded utility costs.
Source: L. 2017: Entire part added with relocated provisions, (HB 17-1051), ch. 99, p. 321, § 28, effective August 9.
Editor's note: This section is similar to former § 24-103-207.5 as it existed prior to 2017. For a detailed comparison of this section, see the comparative tables located in the back of the index.