Kentucky

Key Agency(ies):  

• The Kentucky Finance and Administration Cabinet (FAC) is the principal agency responsible for procurement in the Commonwealth of Kentucky. The FAC includes several divisions relevant to procurement.

Key Statute:

• The Kentucky Model Procurement Code (KMPC) is codified at Kentucky Revised Statutes Annotated (KRSA) Chapter 45A.
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Key Regulations:

• Implementing regulations for the KPMC are found at Title 200, Chapter 5 of the Kentucky Administrative Regulations (Ky. Admin. Regs.).
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• The Finance and Administration Cabinet Manual of Policies and Procedures (FAP Manual) is incorporated by reference as 200 Ky. Admin. Regs. § 5:021 and governs procurement procedures for all state agencies.
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Procurement Types/Highlights:

• Competitive Sealed Bidding
• Competitive Negotiation
• Noncompetitive Negotiation
• Small Purchases
• Emergency Purchases
• Sole Source Procurements

Bid Protests:

Regulations Governing Bid Protests:

• Bid protest procedures are governed by Ky. Rev. Stat. Ann. § 45A.285.

Eligible Protesters:

• Any actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation or selection for award of a contract may file a protest with the secretary of the Finance and Administration Cabinet.

Timeliness Rules:

• A protest or notice of other controversy must be filed promptly and in any event within two calendar weeks after such aggrieved person knows or should have known of the facts giving rise to the protest.

Protest Process:

• All protests or notices of other controversies must be in writing, and the secretary of the Finance and Administration Cabinet must promptly issue a written decision stating the reasons for the action taken.
• A copy of the decision shall be mailed or otherwise furnished to the aggrieved party.
• The decision by the secretary is final and conclusive unless it is clearly erroneous, arbitrary, capricious, or contrary to law.
• In the event of a timely filed protest, the commonwealth cannot proceed with the solicitation or award unless the secretary or a designee makes a written and adequately supported determination that continuation of the procurement is necessary to protect substantial interests of the commonwealth.

Appeals:

• An application for judicial review can be made in Franklin Circuit Court when the secretary’s decision regarding a bid protest is clearly erroneous, arbitrary, capricious, or contrary to law.

Claims: 

• Prior to the institution of any action in court concerning a contract, claim, or controversy, the secretary of Finance and Administration Cabinet has authority to settle, compromise, pay, or otherwise adjust the claim by or against, or controversy with a contractor relating to a contract entered into by the secretary on behalf of the commonwealth or any agency.
• Any person, firm, or corporation having a lawfully authorized written contract with the commonwealth may bring an action against the commonwealth on the contract, including but not limited to actions either for breach of contract or for enforcement of the contract or for both.
• Contract claim appeals may be taken to the court of appeals from the Franklin Circuit Court under the same conditions and under the same practice as appeals are taken from judgment in civil cases rendered by circuit courts.

Suspension & Debarment:

• Penalties for violation of the various provisions of the Kentucky Model Procurement Code (KPMC) are set forth at Ky. Rev. Stat. Ann. § 45A.990.
• Regulations concerning disciplinary action for failure to perform and debarment are found at 200 Ky. Admin Regs § 5:315.
• The secretary of the Finance and Administration Cabinet may impose disciplinary action for failure to perform and may debar contractors in accordance with the regulations.
• Disciplinary actions for failure to perform and debarment are governed by administrative regulations promulgated by the secretary of the Finance and Administrative Cabinet.

Interesting/Distinctions: 

• Kentucky’s bid protest process is centralized under the secretary of Finance and Administration Cabinet. The secretary’s decision is final unless it is “clearly erroneous, arbitrary, capricious, or contrary to law,” and judicial review is available in the Franklin Circuit Court.

The Finance and Administration Cabinet may prequalify suppliers as responsible prospective contractors for particular types of supplies, services, and construction. Responsibility determinations are made in accordance with administrative regulations, and failure to supply information may result in a finding of non-responsibility.