Chapter
26A
PROCUREMENT[1]
Art.
I. Procurement, §§ 26A-1—26A-49
Art.
II. Materials Management, §§
26A-50—26A-53
ARTICLE
I. PROCUREMENT
Sec.
26A-1. General procurement
applicability.
(a) Except as otherwise provided, this chapter
applies to all expenditures of public monies irrespective of their source,
including federal assistance monies to this city, for the purchase of
materials, goods and services, under any contract, except that this chapter
does not apply to either grants, or contracts between the city and other
governments. Nothing in this chapter
shall prevent the city from complying with the terms and conditions of any
grant, gift, bequest or cooperative agreement.
(b) The provisions of this chapter are not
applicable to the following types of procurements that by their nature are not
applicable to the competitive process and therefore exempt from the procurement
code. However, any procurements at or in
excess of fifty thousand dollars ($50,000) require formal council approval.
(1) Professional witnesses if the purpose of such contracts is to
provide for professional services or testimony relating to an existing or
probable judicial proceeding in which the city is or may become a party or to
contracts for special investigative services for law enforcement purposes;
(2) Agreements negotiated by the city attorney or risk manager in
settlement of a claim or litigation or threatened litigation are exempt from
the provisions of this chapter;
(3) Worker's compensation payments for medical and related expenses;
(4) Works of fine art which are not physically a part of functional
construction features, and performing art entertainment;
(5) The purchase of miscellaneous books, magazines, newspapers,
subscriptions, on-line library reference services, film, videos and assorted
materials for library customer check-out purposes for which contracts by
competitive bid solicitation is not practicable. Does not include major book provider
contracts which are competitively bid;
(6) Intergovernmental payments, purchases and agreements;
(7) Public utility purchases of water, power and related services;
(8) Specialized seminar, training and educational classes;
(9) Magazine and media advertisement;
(10) Financial advisory and investment broker/dealer and related
services;
(11) Election services;
(12) Council initiated contracts;
(13) Memberships in organizations; or
(14) Political lobbyist services.
(c) The determination of procurements
considered exempt shall be made by the procurement administrator.
(d) The provisions of this chapter are not
applicable to the types of procurement described in this paragraph. However, any procurements at or in excess of
fifty thousand dollars ($50,000) require formal council approval. Procurement of architect services,
construction, construction services, construction-manager-at-risk construction
services, design-build construction services, engineer services,
job-order-contracting construction services, landscape architect services,
assayer services, geologist services, and land surveying services shall comply
with Title 34 of the Arizona Revised Statutes.
These provisions will also be utilized for the following services: construction
program management, construction management, feasibility studies, materials
testing, mapping, related data collection and analysis, infrastructure system
analysis or other related services. The
public works department, engineering division shall act as the city procurement
agency and administrator for the above listed services.
(Ord. No. 97.55, 12-11-97; Ord. No.
2005.69, 9-29-05; Ord. No. 2007.72, 10-25-07; Ord. No. 2008.63, 11-6-08)
Sec.
26A-2. Chapter
definitions, unless the context otherwise requires.
Adequate evidence means more than mere accusation but less
than substantial evidence. Consideration
shall be given to the amount of credible information available, reasonableness
in view of surrounding circumstances, corroboration and other inferences that
may be drawn from the existence or absence of affirmative facts.
Administrative directive means the document issued by the city
manager to establish administrative policy and procedures for city departments
and employees.
Affiliate means any person whose governing
instruments require it to be bound by the decision of another person or whose
governing board includes enough voting representatives of the other person to
cause or prevent action, whether or not the power is exercised. It may also include persons doing business under
a variety of names, or where there is a parent-subsidiary relationship between
persons.
Assignment of rights and duties means the rights and duties of a city
contract are not transferable or otherwise assignable without the written
consent of the procurement office.
Authorized formal contract signer means the mayor or procurement
administrator, as appropriate under the city charter and city code, once the
contract has been reviewed and approved by the city procurement office, city
risk management and the city attorney's office and awarded by the city council,
if necessary.
Award means a determination by the city that
it is entering into a contract with one or more offerors.
Bid
means an offer in response to a solicitation.
Bidder
means "offeror" who is a person who responds to a solicitation.
Brand
name or equal specification means a written description that uses one or
more manufacturers’ product name or catalog item to describe the standard of
quality, performance and other characteristics that meet city requirements and
provides for submission of equivalent products or services.
Brand
name specification means a written description limited to a list of one or
more items by manufacturers’ product name or catalog item to describe the
standard of quality, performance and other characteristics that meet city
requirements.
Business means any corporation, partnership,
individual, sole proprietorship, joint stock company, joint venture or any
other private legal entity.
Central services administrator means the person designated by the
financial services manager to administer the activities of the city procurement
office, including the duplicating and mail center and surplus property.
Change order means a written order signed by the
procurement administrator or the mayor, as necessary, who directs the
contractor to make changes that are authorized by the original city
solicitation and any resulting contract.
City means the municipal corporation now existing and known as
the City of
Confidential information means that if a person believes that a
bid, proposal, offer, specification or protest contains information that should
be withheld, a statement advising the procurement officer of this fact shall
accompany the submission and the information shall be so identified wherever it
appears. The information identified by
the person as confidential shall not be disclosed until the procurement officer
makes a written determination. The
procurement officer shall review the statement and information and shall
determine in writing whether the information shall be withheld. Such determination statement may be reviewed
by the city attorney's office and shall be approved by the procurement
administrator; and if the procurement officer determines to disclose the
information, the procurement officer shall inform the person in writing of such
determination.
Construction means the process of building, altering,
repairing, improving or demolishing any public structure or building, or other
public improvements of any kind to any public real property. Construction does
not include the routine operation, routine repair or routine maintenance of
existing structures, buildings or real property. Procurement responsibility for construction
and related architectural and engineering services are delegated to the manager
directing the activities of the public works department and set apart from the
procurement of goods and services.
Contract means all types of city agreements,
regardless of what they may be called, for the procurement of goods and
services.
Contract administrator means any person
authorized to manage, supervise, and monitor compliance with the requirements
of a contract.
Contract amendment means a written modification of a
contract or a unilateral exercise of a right contained in the contract.
Contract value means the dollar value or
estimated dollar value of single-requirement procurement or for the initial
period of a term contract.
Contractor means any person who has a contract with
the city.
Cooperative procurement means procurement conducted by, or on
behalf of, more than one eligible public procurement unit.
Cost-plus-a-percentage-of-cost
contract means the
parties to a contract agree that the fee will be a predetermined percentage of
the cost of work performed and the contract does not limit the cost and fee
before authorization of performance.
Cost-reimbursement contract means a contract under which a
contractor is reimbursed for costs which are reasonable, allowable and
allocable in accordance with the contract terms and the provisions of this
chapter, and a fee, if provided for in the contract.
Days means calendar days unless otherwise specified as business
days and shall be computed pursuant to A.R.S. § 1-243.
Debarment means the disqualification of a vendor
to receive bid solicitations or the award of a contract by the city for a
specified period of time, not to exceed three (3) years, commensurate with the
seriousness of the offense resulting from conduct, failure or inadequacy of
contract performance or causing harassment to the award or performance of a
city contract.
Descriptive
literature means
information available in the ordinary course of business that shows the
characteristics, construction or operation of an item or service offered and is
sufficient in detail to allow for the full evaluation of a product.
Designee means a duly authorized representative
of a responsible party.
Discussions means negotiations.
Eligible procurement unit means a public procurement unit or a
nonprofit educational or public health institution which follows a procurement
process comparable to the process set forth in this code.
Emergency procurement means the procurement of goods,
materials, supplies or services which are required to remedy a situation where
the health, safety, welfare or quality of welfare of the public or public
property is endangered or severely reduced if immediate corrective or
preventive action is not taken.
Evaluation committee means a selected group of people
representing the city in evaluating bid, proposal or qualifications responses
for the purpose of making a contract award; and whose responsibility is to make
fair and impartial decisions. An evaluation
committee may consist of one or more qualified individuals.
Filed means delivery to the procurement officer or to the
procurement administrator, whichever is applicable. A time/date stamp affixed to a document by
the office of the procurement officer or the procurement administrator, whichever
is applicable, shall be determinative of the time of delivery for purposes of
filing.
Financial services manager means the person responsible for
directing the activities of the city's financial services department.
Formal contract means a written contract resulting from a
formal solicitation issued by the city procurement office and, if necessary,
has been formally approved and awarded by city council.
Governing instruments means those legal documents that
establish the existence of an organization and define its powers including
articles of incorporation or association, constitution, charter and by-laws.
Grant
means the furnishings by the city of assistance, whether financial or
otherwise, to any person to support a program authorized by law. Grant does not include an agreement whose
primary purpose is to procure a specific end product, whether in the form of
goods, materials, supplies or services.
A contract resulting from such an agreement is not a grant but a
procurement contract.
Gratuities means gifts, services or money offered
or given to any officer or employee of the city or to any of their family
members with a view toward securing an unfair advantage of obtaining an order
or favorable treatment with respect to an award or contract.
Interested party means an actual or prospective bidder or
offeror whose economic interest may be affected substantially and directly by
the issuance of a solicitation, the award of a contract or by the failure to
award a contract. Whether an actual or
prospective bidder or offeror has an economic interest will depend upon the
circumstances of each case.
Invitation for bid means all documents, whether attached or
incorporated by reference, which are used for soliciting bids.
Late bid means a bid or proposal
response that is received by the city procurement office after the due date and
time stated in the city’s solicitation document or as may be modified by any
supplemental addendum; and such late bids or proposals shall be rejected and
not considered.
Legal counsel means a person licensed as an attorney
pursuant to rules of the Supreme Court, Title 17A, Arizona Revised Statutes.
Manager means a person directing the activities
of a city department.
Materials means all personal property, including,
but not limited to, equipment, supplies, printing, insurance and leases of
personal property but does not include purchase of land, acquiring a permanent
interest in land or real property or leasing land or real property.
May denotes the permissive.
Minor informality means a mistake, excluding judgmental
errors, that have negligible material effect on price, quantity, delivery or
contractual terms and waiver or correction of such mistake does not prejudice
other bidders or offerors.
Model procurement code means the comprehensive plan or
"model" for the fundamental principles of public procurement as
developed by the American Bar Association, Section of Urban, State and Local
Government Law.
Multi-step sealed bidding means a two-phase process consisting of
a technical first phase composed of one or more steps in which bidders submit
unpriced technical offers to be evaluated by the city and a second phase in
which those bidders whose technical offers are determined to be acceptable
during the first phase have their price bids considered.
Multiple award means an award of an indefinite quantity
contract for one or more similar materials or services to more than one bidder
or offeror.
Must means something is mandatory.
Negotiation means an exchange or series of exchanges
between the city and an offeror or contractor that allows the city, the offeror
or contractor to revise an offer or contract, unless revision is specifically
prohibited by this chapter or statutes.
Newspaper means a publication
regularly issued for dissemination of news of a general and public character at
stated short intervals of time. Such
publication shall be from a known office of publication and shall bear dates of
issue and be numbered consecutively. It shall not be designed primarily for
advertising, free circulation or circulation at nominal rates, but shall have a
bona fide list of paying subscribers.
Nonprofit educational or public health
institution means any
educational or public health institution, no part of the income of which is
distributable to its members, directors or officers.
Offer means a
response to a solicitation.
Offeror means a person
that responds to a solicitation.
Person means any corporation, business,
individual, union, committee, club, other organization or group of individuals.
Price analysis means the evaluation of price data.
Price data means information concerning prices,
including profit and overhead, for goods, materials and services substantially
similar to those being procured under a contract or subcontract. In this definition, "prices" refers
to offered or proposed selling prices, historical selling prices or current
selling prices of the items being procured.
Procurement means buying, purchasing, renting, leasing
or otherwise acquiring any materials, supplies or services. Procurement also includes all functions that
pertain to the obtaining of any material or service, including description of
requirements, selection and solicitation of sources, preparation and award of
contract, and all phases of contract administration.
Procurement administrator means the central services
administrator.
Procurement officer means any buyer, duly authorized to
enter into and administer contracts and make written determinations with
respect to city contracts; and includes an authorized representative acting
within the limits of the officer's authority.
Professional services means those services requiring
specialized knowledge, education or skill and where the qualifications of the
person(s) rendering the services are of primary importance. Professional services shall include but not
be limited to appraisers, land surveyors, attorneys, architects, engineers,
psychologists, physicians, health practitioners, auditors, systems and software
analysts and professional consultants.
Proposal means an offer
submitted in response to a solicitation.
Prospective
offeror means a person that expresses an interest in a specific
solicitation.
Public procurement unit means a political subdivision, the city,
the State of
Purchase requisition means that document, or electronic
transmission, whereby a department requests that a contract be entered into for
a specific need, and may include, but is not limited to, the description of the
requested item, estimated cost, delivery schedule, transportation data,
criteria for evaluation, and suggested sources of supply.
Qualified products list means an approved list of materials,
goods or services described by model or catalogue numbers, that, prior to
competitive solicitation, the city has determined will meet the applicable
specification requirements.
Qualified providers list means a list of service firms which have
been pre-qualified to provide a service in a specific field. Such list may be established by a competitive
sealed proposals or request for qualifications.
Requirement of good faith means that all parties involved in the
negotiation, performance or administration of city contracts are required to
act in good faith.
Request for proposals means all documents whether attached or
incorporated by reference, which are used for soliciting proposals in
accordance with procedures prescribed within this chapter.
Request for qualifications means a request by the city for detailed
information concerning the qualifications of firms to provide professional
services.
Responsible bidder or offeror means a person who has the capability to
perform the contract requirements and the integrity and reliability which will
assure good faith performance.
Responsive bidder or offeror means a person who submits a bid which
conforms in all material respects to the invitation for bids or request for
proposals.
Services means the furnishing of labor, time or
effort by a contractor or subcontractor which does not involve the delivery of
a specific end product other than required reports and performance. Services shall include but not be limited to
repair and maintenance, trades and crafts work, clerical and machine operating
functions, concession operations, food catering, etc.
Shall means something is mandatory.
Single requirement procurement means the purchase, lease, or rental of
materials or services without a known pattern of recurring need by the city.
Solicitation means an invitation for bids, a request
for technical offers, a request for proposals, a request for quotations, a
request for qualifications or any other invitation or request by which the city
invites a person to participate in a procurement process.
Spot market means a short lived market where
specific materials are subject to limited
purchase availability; or where a significantly reduced price offer
requires the material's immediate procurement to secure and obtain the item.
Subcontractor means a person who contracts to perform
work or render services to a contractor or to another subcontractor as a part
of a contract with the city.
Substantial evidence means such relevant evidence as a
reasonable person might accept as sufficient to support a particular
conclusion.
Supplementary general principles of law means that unless displaced by the
particular provisions of this chapter, the principles of law and equity,
including the uniform commercial code of this state, the common law of
contracts as applied in this state and law relative to agency, fraud,
misrepresentation, duress, coercion and mistake are applicable and supplement
the provisions of this chapter.
Suspension means an action taken by the financial
services manager temporarily disqualifying a person from participating in city
procurements.
Technical offer means unpriced written information from
a prospective contractor stating the manner in which the prospective contractor
intends to perform certain work, its qualifications, and its terms and
conditions.
Term contract means a contract for the
supply of materials or services for a specified period of time as stated within
the solicitation document and has provisions for contract cancellation, and for
additional contract renewal periods.
Term contract administration means the
monitoring of term contracts to ensure compliance with the city's contract
award and any term contract exceeding its estimated value shall be resubmitted
for review and approval by city council.
Vendor means a person or firm in the business
of selling or otherwise providing products, materials or services.
Void contract means a contract that contains unlawful
language or a contract that conflicts with the requirements of the city's solicitation.
(Ord. No. 97.55, 12-11-97; Ord. No.
2001.17, 7-26-01; Ord. No. 2005.69, 9-29-05; Ord. No. 2007.72, 10-25-07; Ord.
No. 2008.63, 11-6-08)
Sec.
26A-3. Authority of the procurement
administrator.
(a) Except as otherwise provided in this
chapter, the procurement administrator, under the direction of the financial
services manager, may adopt operational procedures, consistent with this
chapter, governing the procurement and management of all materials and services
to be procured by the city and the disposal of materials.
(b) Except as otherwise provided in this
chapter, the procurement administrator shall:
(1) Supervise and administer the procurement of all materials and
services required by the city in general conformity to procurement practices
promoted by the
(2) Establish rules and regulations for the
procurement of all materials and services for the city;
(3) Establish rules and regulations for the sale, trade, transfer or
disposal of surplus materials belonging to the city; and
(4) Prepare, issue, revise, maintain and monitor the use of
specifications for materials and services required by the city.
(c) Written determinations required by this
chapter shall be retained in the appropriate official file of the procurement
office.
(Ord. No. 97.55, 12-11-97; Ord. No.
2001.17, 7-26-01; Ord. No. 2005.69, 9-29-05; Ord. No. 2007.72, 10-25-07)
Sec.
26A-4. Procurement procedures by dollar
value.
(a) Small
purchases under $5,000. The single
requirement procurement of materials and services, of less than five thousand
dollars ($5,000) shall be made in accord with those rules and regulations set
forth and published by the city procurement administrator.
(b) Small
purchases $5,000 to $49,999. The
single requirement or term contract procurement of materials and services, of
less than fifty thousand dollars ($50,000) and greater than or equal to five
thousand dollars ($5,000) shall be made in accord with § 26A-11(b).
(c) Formal
procurements $50,000 and over. Materials,
goods and services, except as otherwise provided herein, when the single
requirement or estimated value during an initial term contract period shall be
equal or exceeding fifty thousand dollars ($50,000) shall be procured by
formal, written solicitation.
(Ord. No. 97.55, 12-11-97; Ord. No.
2005.69, 9-29-05; Ord. No. 2007.72, 10-25-07 Ord. No. 2008.63, 11-6-08)
Sec.
26A-5. Procurement authorization levels.
(a) The procurement administrator shall have
the authority to approve and sign, if necessary, procurements up to and
including forty-nine thousand nine hundred ninety-nine dollars ($49,999).
(b) Except for formal contracts requiring the
signature of the mayor, the financial services manager or designee shall have
the authority to enter into city council approved procurements equal to or
exceeding fifty thousand dollars ($50,000).
(c) The city council shall award contracts with
a value equal to or exceeding fifty thousand dollars ($50,000).
(d) During those months when the city council meets
only once, the city manager or designee shall have the authority to award and
sign contracts exceeding fifty thousand dollars ($50,000). Any award action taken shall be presented for
ratification at the next regularly scheduled city council meeting.
(Ord. No. 97.55, 12-11-97; Ord. No.
2001.17, 7-26-01; Ord. No. 2005.69, 9-29-05; Ord. No. 2007.72, 10-25-07; Ord.
No. 2008.63, 11-6-08)
Sec.
26A-6. Competitive sealed bidding.
(a) Conditions
for use. All contracts of the city
shall be awarded by competitive sealed bidding except as otherwise provided in
this chapter.
(b) Invitation
for bids. An invitation for bids
shall be issued and shall include specifications, and all contractual terms and
conditions applicable to the procurement.
(c) Public
notice. The procurement office shall
develop and maintain a method for providing adequate notice of public bid
solicitations, which shall identify the place, date and time of bid
opening. Notice of the bid solicitation
shall be posted for public inspection and a copy of the bid solicitation shall
be available for public inspection review in the procurement office. If
the solicitation is for services other than those described in A.R.S. §§ 41-2513 and 41-2578, the
notice shall include publication one or more times in a single newspaper within
this state. The publication shall be not
less than two (2) weeks before
solicitation opening and shall be circulated within the city. Bids
shall be opened no earlier than two (2) weeks from date of issue. A shorter time period may be established when
unique circumstances deem it appropriate.
A written determination shall be signed by the procurement officer and
the procurement administrator citing the reasons why a shorter time frame is
necessary.
(d) Solicitation amendment. If a solicitation is changed by a
solicitation amendment, the procurement officer shall notify suppliers to whom
the procurement officer distributed the solicitation. It is the responsibility
of the offeror to obtain any solicitation amendments. An offeror shall acknowledge receipt of an
amendment in the manner specified in the solicitation or solicitation amendment
on or before the offer due date and time.
A procurement officer shall issue a solicitation amendment to do any or
all of the following:
(1) Make changes in the solicitation;
(2) Correct defects or ambiguities;
(3) Provide additional information or instructions; or
(4) Extend the offer due date and time, if the procurement officer
determines that an extension is in the best interest of the city.
(e) Late
bids. A bid, modification or
withdrawal is late if it is received at the location designated in the
invitation for bids after the time and date set for bid opening. A late bid, modification or withdrawal shall
be rejected unless the bid, modification or withdrawal would have been timely
received but for the action or inaction of central services personnel and is
received before contract award. A late
bid shall not be opened, except (if necessary), for identification
purposes. Delivery and return of late
bids shall be handled in the following manner:
(1) If hand delivered, a late bid shall be time and date stamped,
refused and returned to the bidder with a late bid notice placed in the bid
file. A copy of the front envelope or
box cover showing the time and date stamp shall be made and retained in the
procurement file;
(2) If delivered by mail or electronically delivered (provided this
delivery method has been approved), the bid shall be time and date stamped and
filed unopened within the procurement file for thirty (30) days. The procurement administrator may discard the
document within thirty (30) days after the recorded date unless the offeror
requests the document be returned;
(3) A late bid notice shall be mailed or electronically sent to the
late bidder; and
(4) The procurement office shall determine the method for bid
issuance and for acceptable response delivery and so state in the invitation
for bids document.
(f) Bid
opening. Bids shall be opened
publicly in the presence of one or more witnesses at the time and place
designated in the invitation for bids.
The amount of each bid, and such other relevant information as the
procurement administrator deems appropriate, together with the name of each
bidder shall be recorded. This record
shall be open to public inspection. The
bids shall not be opened for public inspection until after a contract is awarded. After contract award, the bids shall be
available for public inspection, except to the extent that the withholding of
information is permitted or required by law.
If the bidder designates a portion of its bid as confidential, it shall
isolate and identify in writing the confidential portions in accordance with
procedures set forth in this chapter, but the city remains subject to the
(g) Bid
acceptance and bid evaluation. Bids
shall be unconditionally accepted without alteration or correction, except as
authorized in this chapter. Bids shall
be evaluated based on the requirements set forth in the invitations for
bids. No criteria may be used in bid
evaluation that are not set forth in the invitation for bids.
(h) Correction
or withdrawal of bids prior to award.
Correction or withdrawal of inadvertently erroneous bids before or after
bid opening may be permitted where appropriate.
Mistakes discovered before bid opening may be modified or withdrawn by
written notice received in the procurement office prior to the time set for bid
opening. After bid opening corrections
in bids shall be permitted only to the extent that the bidder can show by clear
and convincing evidence that a mistake of a non‑judgmental character was
made and that the mistake and the intended offer are evident in the uncorrected
offer; for example, an error in the extension of unit prices. After bid opening, no changes in bid prices
or other provisions of bids prejudicial to the interest of the city or fair
competition shall be permitted. All
decisions to permit the correction or withdrawal of bids shall be supported by
a written determination made by the procurement officer and approved by the
procurement administrator. In lieu of
bid correction, a low bidder alleging a material mistake of fact may be
permitted to withdraw its bid if:
(1) The mistake is clearly evident on the face of the bid document
but the intended correct bid is not similarly evident; or
(2) The bidder submits evidence which clearly and convincingly
demonstrates that a mistake was made.
(i) Mistakes discovered after award -
contractor responsibility. If a
mistake in the offer is discovered after the award, the offeror may request
withdrawal or correction in writing and shall include all of the following in
the written request:
(1) Explanation of the mistake and any other relevant information;
(2) A request for correction including the corrected offer or a
request for withdrawal; and
(3) The reasons why correction or withdrawal is consistent with fair
competition and in the best interest of the city.
(j) Mistakes discovered after award – city’s
responsibility. Based on the
considerations of fair competition and the best interest of the city, the
procurement administrator may:
(1) Allow correction of the mistake, if the resulting dollar amount
of the correction is less than the next lowest offer;
(2) Cancel all or part of the award; or
(3) Deny correction or withdrawal.
(k) Mistakes discovered after award – re-award
option. After cancellation of all or
part of an award, if the offer acceptance period has not expired, the
procurement administrator may award all or part of the contract to the next
lowest responsible and responsive offeror, based on the considerations of fair
competition and the best interest of the city.
Any decision that allows for the correction of a mistake or the
cancellation of a contract shall be supported by a written determination made
by the procurement officer and approved by the procurement administrator.
(l) Extension of offer acceptance period. To extend the offer acceptance period, a
procurement officer shall notify offerors in writing of an extension and
request written concurrence from all offerors.
To be eligible for a contract award, an offeror shall submit written
concurrence to the extension. The
procurement officer shall not consider the offer from an offeror who fails to
respond to the notice of extension.
(m) Contract
award. The contract shall be awarded
by the city council on the recommendation of the procurement administrator with
appropriate written notice to the lowest responsible and responsive bidder
whose bid conforms in all material respects to requirements and criteria set
forth in the invitation for bids:
(1) In evaluating the bids, and for purposes of determining the low
bidder, the procurement office shall include the amount of applicable business
privilege tax, except that the amount of city business privilege tax shall not
be included in the evaluation. Tempe
privilege tax that is to be paid (returned) to the city shall be considered as
a pass-through cost and calculated as zero expense to the city for evaluation
purposes;
(2) In the event the low responsive and responsible bid for a
purchase exceeds available funds as certified by the procurement officer and
budget office, and such bid does not exceed such funds by more than five
percent (5%), the procurement office is authorized, when time or economic
considerations preclude re‑solicitation of work of a reduced scope, to
negotiate an adjustment of the bid price with the low responsive and
responsible bidder, in order to bring the bid within the amount of available
funds. Any such negotiated adjustment
shall be based only upon eliminating independent deductive items specified in
the invitation for bids;
(3) After contract award, bids shall be available for public
inspection, except to the extent that the withholding of information is
permitted or required by law. If the
bidder designates a portion of its bid as confidential, it shall isolate and
identify in writing the confidential portions as designated in the definition
of
confidential information, but the city remains subject to the
(4) The city, at its option, may not recommend for award the bid of
a vendor who is in default on the payment of city taxes, licenses or other
monies due the city at the time of bid opening;
(5) The city, at its option, may not recommend for award the bid of
a vendor who has defaulted on a previous contract with the city; or has
defaulted on a similar contract with another jurisdiction or public entity
during a past three (3) year period;
(6) If there are two (2) or more low responsive bids from
responsible bidders that are identical in price and that meet all the
requirements and criteria set forth in the invitation for bids, award may be
made by a coin toss; and
(7) The procurement office shall procure recycled materials in
accord with ordinances, resolutions and administrative directives of the
city.
(Ord. No. 97.55, 12-11-97; Ord. No.
2007.72, 10-25-07; Ord. No. 2008.63, 11-6-08)
Sec.
26A-7. Multi-step sealed bidding.
(a) General. When it is considered impractical to
initially prepare a specification to support an award based on price, an
invitation for bids may be issued requesting the submission of unpriced offers
to be followed by an invitation for bids limited to those bidders whose offers
have been determined to be technically acceptable under the criteria set forth
in the first solicitation.
(b) Multi-step
sealed bidding. Multi-step sealed
bidding shall be initiated by the issuance of an invitation for bids. The multi-step invitation for bids shall
state:
(1) That unpriced technical offers are requested;
(2) Whether priced bids are to be submitted at the same time as
unpriced technical offers; if they are, such priced bids shall be submitted in
a separate sealed envelope;
(3) That it is a multi-step sealed bid procurement, and priced bids
will be considered only in the second phase and only from those bidders whose
unpriced technical offers are found acceptable in the first phase;
(4) The criteria to be used in the evaluation of the unpriced
technical offers;
(5) That the city, to the extent the procurement officer finds
necessary, may conduct oral or written discussions of the unpriced technical
offers;
(6) That bidders may designate those portions of the unpriced
technical offers which contain trade secrets or other proprietary data which
are to remain confidential; and
(7) That the item being procured shall be furnished in general
accordance with the bidder's technical offer as found to be finally acceptable
and shall meet the requirements of the invitation for bids.
(c) Amendments
to the invitation for bids. After
receipt of unpriced technical offers, amendments to the invitation for bids
shall be distributed only to bidders who submitted unpriced technical offers,
and they shall be permitted to submit new unpriced technical offers or to amend
those submitted. If, in the opinion of
the procurement officer, having obtained the procurement administrator's
approval, a contemplated amendment will significantly change the nature of the
procurement, the invitation for bids shall be cancelled and a new invitation
for bids issued.
(d) Receipt
and handling of unpriced technical offers.
Unpriced technical offers shall not be opened publicly but shall be
opened in front of two (2) or more procurement officials. Such offers shall not be disclosed to
unauthorized persons. Bidders may
request non-disclosure of trade secrets and other proprietary data identified
in writing.
(e) Evaluation
of unpriced technical offers. The
unpriced technical offers submitted by bidders shall be evaluated solely in
accordance with the criteria set forth in the invitation for bids. The unpriced technical offers shall be
categorized as:
(1) Acceptable;
(2) Potentially acceptable, that is, reasonably susceptible of being
made acceptable; or
(3) Unacceptable. The
procurement officer shall record in writing the basis for finding an offer
unacceptable and make it part of the procurement file.
(f) Initiation
of phase two. The procurement
officer may initiate phase two of the procedure if, in the procurement
officer's opinion, there are sufficient acceptable unpriced technical offers to
assure effective price competition in the second phase without technical
discussions. If the procurement officer
finds that such is not the case, the procurement officer shall issue an
amendment to the invitation for bids or engage in technical discussions.
(g) Discussion
of unpriced technical offers. The
procurement officer may conduct discussions with any bidder who submits an
acceptable or potentially acceptable technical offer. During the course of such discussions the
procurement officer or members of the evaluation team shall not disclose any
information derived from one unpriced technical offer to any other bidder. Once discussions are begun, any bidder who has
not been notified that its offer has been finally found unacceptable may submit
supplemental information amending its technical offer at any time until the
closing date established by the procurement officer. Such submission may be made at the request of
the procurement officer or upon the bidder's own initiative.
(h) Notice
of unacceptable unpriced technical offer.
When the procurement officer determines a bidder's unpriced technical
offer to be unacceptable, such offeror shall not be afforded an additional
opportunity to supplement its technical offer.
(i) Mistakes
during multi-step sealed bidding.
Mistakes may be corrected or bids may be withdrawn during phase one at
any time. During phase two, mistakes may
be corrected or withdrawal permitted in accordance with subsection (c) above.
(j) Procedure
for phase two initiation. Upon the
completion of phase one, the procurement officer shall either:
(1) Open priced bids submitted in phase one (if priced bids were
required to be submitted) from bidders whose unpriced technical offers were
found to be acceptable; or
(2) If priced bids have not been submitted, technical discussions
have been held, or amendments to the invitations for bids have been issued,
invite each acceptable bidder to submit a priced bid.
(k) Procedure
for phase two conduct. Phase two
shall be conducted as any other competitive sealed bid procurement except:
(1) No public notice need be given of this invitation to submit
priced bids because such notice was previously given;
(2) After award the unpriced technical offer of the successful
bidder shall be disclosed as follows.
The procurement officer shall examine written requests of
confidentiality for trade secrets and proprietary data in the technical offer
of such bidder to determine the validity of any such requests. If the parties do not agree as to the
disclosure of data, the procurement officer shall inform the bidder in writing
what portions of the unpriced technical offer will be disclosed and that,
unless the bidder protests under § 26A-21, the offer will be so disclosed. Such technical offer shall be open to public
inspection subject to any continuing prohibition on the disclosure of
confidential data; and
(3) Unpriced technical offers of bidders who are not awarded the
contract shall not be open to public inspection unless the procurement
administrator determines in writing that public inspection of such offers is
essential to assure confidence in the integrity of the procurement process as
provided for within this chapter with respect to the possible disclosure of
trade secrets and proprietary data.
(Ord. No. 97.55, 12-11-97)
Sec.
26A-8. Competitive sealed proposals.
(a) Conditions
for use. When the procurement
officer with the approval of the procurement administrator, determines that the
use of an invitation for bids is either not practicable or not advantageous to
the city, a contract may be entered into by use of a request for
proposals.
(b) Request
for proposals. Request for proposals
shall be issued and shall include desired specifications, and all contractual
terms and conditions applicable to the procurement.
(c) Public
notice. Adequate public notice of
the request for proposals shall be given in the same manner as provided in §
26A-6(c).
(d) Solicitation
amendments. Solicitation amendments
shall be handled in the same manner as described in § 26A-6(d).
(e) Receipt
of proposals. Proposals shall be
opened publicly in the presence of one or more witnesses at the time and place
designated in the request for proposals.
The name of each offeror shall be read.
All other information contained in the proposals shall be confidential
so as to avoid disclosure of contents prejudicial to competing offerors during
the negotiation process. Proposals shall
be open for public inspection only after contract award. A proposal, modification or withdrawal is
late if it is received at the location designated in the request for proposal
after the time and date set for proposal opening. A late proposal, late modification or late
withdrawal shall be rejected, unless the proposal, modification or withdrawal
would have been timely received but for the action or inaction of central
services personnel and is received before contract award. Prior to the scheduled opening, the
procurement department may open an offer to identify the offeror. If this occurs, the staff member shall record
the reason for opening the offer, the date and time the offer was opened, and
the solicitation number. The offer shall
be secured and retained for public opening.
(f) Correction
and withdrawal of proposals prior to award.
Correction and withdrawal of proposals prior to award shall be handled
in the same manner as provided in § 26A-6(g).
(g) Mistakes discovered after award. Mistakes discovered after award shall be
handled in the same manner as provided in § 26A-6(i), (j) and (k).
(h) Evaluation
factors. The request for proposals
shall state the relative importance of price and other evaluation factors. Specific numerical weighing is not
required. Evaluation factors may include
but are not limited to categories such as price, quality, experience,
expertise, qualifications, method of approach, responsiveness, financial
strength, etc.
(i) Extension of the offer and acceptance period. Extension of the offer and acceptance period
shall be handled in the same manner as described in § 26A-6(l).
(j) Clarifications of offers. The purpose for clarifications is to provide
for a greater mutual understanding of the offer. Clarifications are not negotiations and
material changes to the request for proposal or offer shall not be made by
clarification. The procurement officer
may request clarifications from any offeror(s) at any time after receipt of
offers. Clarifications may be requested
orally or in writing. If clarifications
are requested orally, the offeror shall confirm the request in writing. A request for clarifications shall not be
considered a determination that the offeror is susceptible for award. Any clarifications shall be retained in the
procurement file.
(k) Determination of not susceptible for
award. A procurement officer may
determine at any time during the evaluation period and before award that an
offer is not susceptible for award. The
procurement officer shall notify the offeror in writing of the final
determination that the offer is not susceptible for award unless the purchasing
officer determines that notification to the
offeror would compromise the city’s ability to negotiate with other offerors. A determination of non-susceptibility shall
be based on the following (but not
limited to):
(1) A legal offer has not been submitted due to the lack of an
authorized signature on the designated offer form; or
(2) The offer is not within the competitive range in comparison to
other offers based on the scoring of evaluation criteria as set forth in the
solicitation.
(l) Negotiations with responsible offerors. If negotiations are conducted, negotiations
shall be conducted with all offerors determined to be reasonably susceptible
for award. Negotiations may be conducted orally or in writing. If oral negotiations are conducted, the
offeror shall confirm the negotiations in writing. Offerors may revise offers based on
negotiations provided that any revision is confirmed in writing. The city may conduct negotiations with
responsible offerors to improve offers in such areas as cost, price,
specifications, performance or terms, to achieve best value for the city based
on the requirements and the evaluation factors set forth in the
solicitation. Once negotiations are
initiated, an offeror may withdraw an offer at any time before the final
proposal revision due date and time by submitting a written request to the
procurement officer. The procurement
officer shall
ensure there is no disclosure of one offeror’s price or any information derived
from competing offers to another offeror.
(m) Final proposal revisions. The procurement officer shall request written
final proposal revisions from any offeror with whom negotiations have been
conducted. Final proposal revisions
shall be requested only once, unless the city procurement administrator makes a
written determination that it is advantageous to the city to conduct further
negotiations or change the city’s requirements.
The procurement officer shall include in the written request:
(1) The date, time and place for submission of final proposal
revisions; and
(2) A statement that if offerors do not submit a written notice of
withdrawal or a written final proposal revision, their last revision shall be
accepted as their final proposal revision.
(n) Contract
award. Award shall be made by the
city council on the recommendation of the procurement administrator to the
responsible offeror whose proposal is determined in writing to be the most
advantageous to the city, taking into consideration price and the evaluation
factors set forth in the request for proposals.
No other factors or criteria shall be used in the evaluation. The contract file shall contain the basis on
which the award is made. After contract
award, the proposals shall be open for public inspection except to the extent
that the withholding of information is permitted or required by law. If the offeror designates a portion of its
proposal as confidential, it shall isolate and identify in writing the
confidential portions, but the city remains subject to the
(Ord. No. 97.55, 12-11-97; Ord. No.
2005.69, 9-29-05; Ord. No. 2007.72, 10-25-07; Ord. No. 2008.63, 11-6-08)
Sec.
26A-9. Contracting for professional
services.
(a) A contract for professional services may be
awarded by means of competitive sealed proposals, by an invitation for bids or
by limited source selection if the manager of the using department determines
in writing that the nature of the service presents such limited competition
that a competitive process cannot reasonably be used or, if used, will result
in a substantially higher cost to the city, will otherwise impair the city's
financial interests or will substantially impede the city's administrative
functions or the delivery of services to the public; or if only one provider
has the experience and capability to successfully perform the contract. The manager of the department shall be
responsible for making a limited source determination, prepare and sign a
written limited source justification for not seeking competition and transmit
the justification to the procurement office for review.
(b) Unless the manager of the department makes
a limited source determination that is approved by the procurement officer and
procurement administrator, the procurement office shall issue competitive
solicitations for professional services.
(c) Professional and personal service contracts
requiring formal city council approvals shall be reviewed by the city risk
management division and city attorney’s office before signing.
(Ord. No. 97.55, 12-11-97; Ord. No.
2001.17, 7-26-01; Ord. No. 2005.69, 9-29-05; Ord. No. 2007.72, 10-25-07; Ord.
No. 2008.63, 11-6-08)
Sec.
26A-10. Selection procedure for legal
counsel.
(a) Conditions
for use. Except as otherwise
provided in this chapter, the services of legal counsel may be procured by a
request for qualifications approach.
(b) Statement
of qualifications. Persons engaged
in providing the services of legal counsel may submit statements of
qualifications and expressions of interest in providing such services. The city may specify a uniform format for
statements of qualifications. Persons
may amend these statements at any time by filing a new statement.
(c) Public
announcement. Adequate notice of the
need for legal services shall be given by the city attorney. The notice shall describe the services
required, list the types of information and data required of each offeror, and state
the relative importance of particular qualifications.
(d) Discussions. For legal services, the city attorney or a
designee of such officer, may conduct discussions with any offeror who has
submitted a proposal to determine such offeror's qualifications for further
consideration. Discussions shall not
disclose any information derived from proposals submitted by other offerors.
(e) Award. Award of legal service contracts with a
dollar value requiring city council approval, shall be made by the mayor and
council to the offeror determined in writing by the city attorney or designee
to the best qualified provider and after negotiation of compensation determined
to be fair and reasonable.
(Ord. No. 97.55, 12-11-97)
Sec.
26A-11. Small purchases.
(a) General. Any contract not exceeding the dollar value
requiring formal bidding may be made by the procurement office in accordance
with the small purchase procedures authorized in this section. Contract requirements shall not be
artificially divided so as to constitute a small purchase under this section.
(b) Small
purchases between $5,000 and $49,999.
Insofar as it is practical for small purchases equal to or in excess of
five thousand dollars ($5,000), but less than fifty thousand dollars ($50,000),
no less than three (3) businesses shall be solicited to submit quotations. Award shall be made to the responsible bidder
submitting the quotation that is most advantageous to the city and conforms in
all material respects to the solicitation.
The names of the businesses submitting quotations, and the date and
amount of each quotation, shall be recorded and maintained as a public
record. Verbal or written quotes shall
be received from vendors when the total quote value is under fifteen thousand
dollars ($15,000). Written quotes shall
be received from vendors when the total quote value is over fifteen thousand
dollars ($15,000) but under fifty thousand dollars ($50,000).
(c) Small
purchases under $5,000. The
procurement administrator shall adopt operational procedures for making small
purchases of less than five thousand dollars ($5,000). Such operational procedures shall provide for
obtaining adequate and reasonable competition for the materials, goods and services
being purchased.
(Ord. No. 97.55, 12-11-97; Ord. No.
2005.69, 9-29-05; Ord. No. 2007.72, 10-25-07; Ord. No. 2008.63, 11-6-08)
Sec.
26A-12. Sole source procurement.
(a) A purchase may be made or contract awarded
by the procurement office without competition when a department manager, procurement
officer and procurement administrator determines in writing, after conducting a
good faith review of available sources, that there is only one reasonable and
practicable source for the required material or service. The department requesting the sole source
procurement shall provide written evidence to support a sole source
determination. The procurement officer
will participate with the department in the conduct of negotiations, as
appropriate, to price, delivery and terms.
The procurement officer may require the submission of cost or pricing
data in connection with a purchase or award under this section. Sole source procurement shall be avoided,
except when no reasonable alternative sources exist. A record of sole source procurements shall be
maintained as a public record.
(b) The following items may be approved for
sole source procurement:
(1) Interface upgrades, add-on parts and components to existing,
city owned equipment which requires total compatibility assurance; license
renewals for city owned software, and repair and maintenance for city owned
equipment and software for which it is technologically and cost effective to
procure from the original seller or manufacturer;
(2) Materials
for resale in city concession operations which are purchased in response to
customer demands;
(3) Spot market purchases which are evidenced to provide a
substantial savings to the city and which are approved by the procurement
administrator or a party delegated by the procurement administrator to review
the justification for spot market purchase requests. Such spot market purchases to be
requisitioned and obtained through the procurement office. Any purchase of a dollar amount requiring
council approval shall be submitted for review at the next scheduled council
meeting date;
(4) Specialized computer software for network infrastructure
applications which have been technically reviewed, tested and justified by the
city's information technologies division, and which are obtainable from a
single source. This shall not apply to
individual PC software obtainable from multiple suppliers; or
(5) Professional services, as determined by the department manager,
shall be reviewed by the procurement administrator and the city attorney.
(Ord. No. 97.55, 12-11-97; Ord. No.
2001.17, 7-26-01; Ord. No. 2007.72, 10-25-07; Ord. No. 2008.63, 11-6-08)
Sec.
26A-13. Emergency procurements.
Notwithstanding
any other provisions of this chapter, a department manager or designee may make
or authorize others to make emergency procurements of materials, goods or
services when there exists a threat or severe impairment to the quality of
public health, welfare or safety, or if a situation exists which makes
compliance with established procurement processes impracticable, unnecessary or
contrary to the public interest; provided that such emergency procurements
shall be made with such competition as is practicable under the
circumstances. An emergency procurement
shall be limited to those materials, goods or services necessary to satisfy the
emergency need. A written determination
of the basis for the emergency and for the selection of the particular
contractor shall be submitted to the procurement office and included in the
purchase file. Any emergency procurement
exceeding the dollar limit for council approval shall be scheduled for review
at the next available council meeting.
(Ord. No. 97.55, 12-11-97; Ord. No.
2001.17, 7-26-01; Ord. No. 2007.72, 10-25-07)
Sec.
26A-13.1. Reverse auction bidding.
(a) Conditions
for use. When the procurement
officer, with the approval of the procurement administrator determines it is
advantageous to the city, a contract for goods, services, or information
services may be subject to reverse auction bidding. Reverse auction bidding could include
electronic bidding, over the internet in a real-time, competitive bidding
event. Reverse auction bidding may be
used for any of the solicitation processes described within the procurement
ordinance including request for quotations, invitation for bids, and request
for proposals.
(b) Public
notice. The procurement office shall
select a solicitation process and follow the procedures provided for in this
chapter. Any public notice of a
solicitation process utilizing the reverse auction option will clearly indicate
that pricing will be established separately via an
independent bidding event. Firms will be
directed to not include pricing with initial submittals. Qualified firms will be invited to
participate in a separate reverse auction bidding event to be announced as to
time and date after offer submission.
(c) Bid
opening. Offers shall be received
and recorded in accordance with the procedures provided for in this chapter for
the solicitation process selected by the procurement officer.
(d) Bid
acceptance, bid evaluation and contract award. The procedure for bid acceptance, bid
evaluation and contract award shall follow the procedures for the selected
procurement process as outlined in this chapter except:
(1) When using an invitation for bid process, the submitted offers
will be reviewed to determine those firms that are considered responsible and
responsive to the published solicitation.
Only those firms determined to be responsive and responsible will be
moved forward to the pricing step using the reverse auction bidding event. The qualified firms will receive direction
from the city on how the pricing step will be accomplished. The reverse auction bidding event will be
conducted by the city or via a qualified reverse auction contractor. Once the reverse auction biding event is
completed, the city will finalize the evaluation process by determining the
lowest responsive and responsible bidder; or
(2) When using a request for proposal process, the submitted offers
will be evaluated and scored in accordance with published evaluation criteria
with the exception of cost. Once the
initial scoring has been finalized, the city will determine which firms are
considered susceptible for award. Only
those firms determined susceptible for award will be invited to participate in
the reverse auction bidding event to determine the price component. Once the reverse auction bidding event is
complete, the city will finalize the scoring matrix. The city will have the option of entering
into discussions with those firms determined susceptible for award. Interviews may be conducted as well to ensure
full understanding of offers. Best and
final offers may also be requested as outlined in this chapter. Award will be made to the most advantageous
offer.
(Ord. No. 2008.63, 11-6-08)
Sec.
26A-14. Cancellation of solicitations.
(a) Cancellation
of solicitation. An invitation for
bids, a request for proposals or other solicitation may be cancelled, or any or
all bids or proposals may be rejected in whole or in part as may be specified
in the solicitation at any time before award, when it is in the best interests
of the city. Each solicitation issued by
the city shall state that the solicitation may be cancelled and that any bid or
proposal may be rejected in whole or in part when in the best interests of the
city. When a solicitation is cancelled
prior to opening, notice of cancellation shall be sent to all businesses
solicited; identify the solicitation; briefly explain the reason for
cancellation; and where appropriate, explain that an opportunity will be given
to compete on any re‑solicitation or any future procurements of similar
materials or services. If the
solicitation has been canceled prior to opening, the city shall not open any
offers received. The city may discard
the offers after thirty (30) days from the notice of solicitation cancellation,
unless the offeror requests the offer be returned.
(b) Cancellation
of solicitation prior to opening. As
used in this section, "opening" means the date and time set for
opening of bids, receipt of unpriced technical offers in multi-step sealed
bidding, or receipt of proposals in competitive sealed proposals. Prior to opening, a solicitation may be
cancelled in whole or in part when the procurement officer with the approval of
the procurement administrator determines in writing that such action is in the
city's best interest for reasons including, but not limited to:
(1) The city no longer requires the materials or services;
(2) The city no longer can reasonably expect to fund the
procurement;
(3) Proposed amendments to the solicitation would be of such
importance that a new solicitation is desirable; or
(4) It is in the best interests of the city.
(Ord. No. 97.55, 12-11-97; Ord. No.
2007.72, 10-25-07; Ord. No. 2008.63, 11-6-08)
Sec.
26A-15. Rejection of bids or proposals
after opening.
(a) After opening but prior to award, all bids
or proposals may be rejected in whole or in part when the procurement officer
with the approval of the procurement administrator determines in writing that
such action is in the city's best interest for reasons including, but not
limited to:
(1) The materials or services being procured
are no longer required;
(2) Ambiguous or otherwise inadequate specifications were part of
the solicitation;
(3) The solicitation did not provide for consideration of all
factors of significance to the city;
(4) Prices exceed available funds and it would not be appropriate to
adjust quantities to come within available funds;
(5) All otherwise acceptable bids or proposals received are at
clearly unreasonable prices;
(6) There is reason to believe that the bids or proposals may not
have been independently arrived at in open competition, may have been
collusive, or may have been submitted in bad faith; or
(7) Necessary or proposed amendments to the solicitation would be of
such importance that a new solicitation may be desirable and is in the best
interests of the city.
(b) When a solicitation is rejected or
cancelled after opening, notice of rejection or cancellation shall be provided
to all businesses that submitted bids or proposals, and may be separately sent
or included as an explanation in a subsequent solicitation of the need. The reasons for cancellation or rejection
shall be made a part of the procurement file and shall be available for public
inspection. The city shall retain offers
received under the canceled
solicitation in the procurement file. If
the city intends to issue another solicitation within six (6) months after
cancellation of the procurement and provided an award recommendation was not
published to the city’s external web site, the city shall withhold the offers
from public inspection. After award of a
contract under the subsequent solicitation, the city shall make offers
submitted in response to the cancelled solicitation available for public
inspection except for information determined to be confidential as allowed
herein.
(c) A bid or proposal may be rejected if:
(1) The bidder is determined to be non‑responsible; or
(2) The bid is non‑responsive.
(d) A proposal or quotation may be rejected if:
(1) The person responding to the solicitation is determined to be
non‑responsible;
(2) It is unacceptable;
(3) The proposed price is unreasonable; or
(4) It is otherwise not advantageous to the city.
(e) Reasons for rejection shall be provided
upon request by unsuccessful bidders or offerors.
(Ord. No. 97.55, 12-11-97; Ord. No.
2007.72, 10-25-07; Ord. No. 2008.63, 11-6-08)
Sec.
26A-16. Responsibility of bidders and
offerors.
(a) Determination
of non‑responsibility. If a
bidder or offeror who otherwise would have been awarded a contract is found non‑responsible,
a written determination of non‑responsibility, setting forth the basis of
the finding, shall be prepared by the procurement officer. The unreasonable failure of a bidder or
offeror to promptly supply information in connection with an inquiry with respect
to responsibility may be grounds for a determination of non‑responsibility
with respect to such bidder or offeror.
The final determination shall be made part of the contract file and be
made a public record.
(b) Right
of non-disclosure. Information
furnished by a bidder or offeror pursuant to this section shall not be
disclosed by the city outside of the department, or using agency, without prior
written consent by the bidder or offeror, to the extent allowed by law.
(c) Factors
used to demonstrate bidder or offeror responsibleness. For a bidder or offeror to be considered
responsible, the bidder or offeror shall demonstrate to the satisfaction of the
city, its capability to perform an awarded contract in a satisfactory and
timely manner, based on requirements stated in the city's bid solicitation
which may include but not be limited to whether the proposed bidder or offeror:
(1) Has
sufficient and acceptable financial, business, personnel or other resources,
including subcontractors;
(2) Has a successful record of performance and integrity, which may
include past contracts with the city or other public agencies;
(3) Is legally licensed, certified or otherwise legally qualified to
contract with the city at the time of the response to the solicitation; and
(4) Has supplied all necessary information concerning its
responsibility to meet city requirements for contract responsibleness.
(d) Procurement
responsibility criteria. The
procurement officer may establish specific responsibility criteria for a
particular procurement. Any specific
responsibility criteria shall be set forth in the solicitation.
(e) Pre‑qualification. Prospective contractors may be pre‑qualified
for particular types of materials, goods or services. Prospective contractors have a continuing
duty to provide the procurement office with information on any material change
affecting the basis of pre‑qualification.
(f) Bid
and contract security, material or service contracts. The procurement officer may require the
submission of security to guarantee faithful bid and contract performance. Security shall be in the form specified
within the city's bid solicitation, and may include but not be limited to a
performance bond, fidelity bond or irrevocable letter of credit. In
determining the amount and type of security required for each contract, the
procurement officer shall consider the nature of the performance and the need
for future protection to the city. The
requirement for security must be included in the invitation for bids or request
for proposals. Failure to timely submit
security in the amount and type of security required may result in the
rejection of the bid or proposal.
(Ord. No. 97.55, 12-11-97; Ord. No.
2007.72, 10-25-07; Ord. No. 2008.63, 11-6-08)
Sec.
26A-17. Types of contracts.
(a) General. Subject to the limitations of this
section, any type of contract which will promote the best interests of this
city may be used.
Cost-plus-a-percentage-of-cost contracts shall not be used unless unique
circumstances support the use of this type of contract mechanism. A cost-reimbursement contract may be used
only if a determination is made in writing by the procurement officer that such
contract is likely to be less costly to the city than any other type or that it
is impracticable to obtain the materials, goods or services required except
under such a contract.
(b) Contract
administration. A contract
administration system designed to insure that a contractor is performing in
accordance with the solicitation under which the contract was awarded, and the
terms and conditions of the contract, shall be maintained.
(c) Approval
of accounting system. Except with
respect to firm fixed-price contracts, the procurement officer may require that
the proposed contractor's accounting system is adequate to allocate costs in
accordance with generally accepted cost accounting principles prior to award of
a contract.
(d) Multi-term
contracts. Unless otherwise provided
by law, a contract for materials or services may be entered into for a period
of time as deemed to be in the best interest of this city, if the term of the
contract and conditions of renewal or extension, if any, are included in the
solicitation and monies are available for the first fiscal period at the time
of contracting. Payment and performance obligations for succeeding fiscal
periods are subject to the availability and appropriation of monies.
(e) Right
to inspect plant. The city may, at
reasonable times, inspect the part of the plant or place of business of a
contractor or any subcontractor which is related to the performance of any
contract awarded or to be awarded by the city.
(f) Right
to audit records. The city may, at
reasonable times and places, audit the books and records of:
(1) Any person, vendor or contractor who submits cost or pricing
data to the extent that the books and records relate to the cost or pricing
data. Any person, vendor or contractor
who receives a contract, change order or contract modification for which cost
or pricing data is required shall maintain the books and records that relate to
the cost or pricing data for three (3) years from the date of final payment
under the contract, unless a shorter period is otherwise authorized in writing
by the procurement officer; and
(2) Any contractor or subcontractor under any contract or
subcontract to the extent that the books and records relate to the performance
of the contract or subcontract. The
books and records shall be maintained by the contractor for a period of three
(3) years from the date of final payment under the prime contractor and by the
subcontractor for a period of three (3) years from the date of final payment
under the subcontract, unless a shorter period is otherwise authorized in
writing by the financial services manager.
(g) Reporting
of anti‑competitive practices.
If for any reason collusion or other anti‑competitive practices
are suspected among any bidders or offerors, a notice of the relevant facts
shall be transmitted to the procurement administrator and the city
attorney. This section does not require
a law enforcement agency conducting an investigation into such practices to
convey such notice to the procurement administrator.
(h) Prospective
bidders notice. The following
pertains to bidder notices:
(1) The procurement office shall provide for the issuing of public
bid solicitation notices as may be compiled and maintained on a prospective
bidders list, placed for electronic inquiry, or placed for public
advertisement. Inclusion of the name of
a person on a bidders list shall not indicate whether the person is responsible
concerning a particular procurement or otherwise capable of successfully
performing a city contract;
(2) Persons desiring to be included on the prospective bidders list
shall notify the procurement office.
Upon notification, the procurement office shall provide the person with
a bidder registration form. The person
shall complete the bidder registration form and return it to the procurement
office. Within thirty (30) days after
receiving the bidder registration form, the procurement office shall add the
person to the prospective bidders list unless the procurement administrator
makes a written determination that inclusion is not advantageous to the city;
and
(3) Persons that fail to respond to invitations for bids or requests
for proposals for two (2) consecutive solicitations of similar material, goods
or services may be removed from the applicable bidders list after mailing a
notice to the business. Persons may be
reinstated upon written request.
(i) Contract
form and execution. All contracts
entered into under this chapter shall be executed in the name of the city by
the procurement office or the mayor, as necessary, and may be approved as to
form by the city attorney. When
necessary, some contracts are required to be countersigned by the city clerk.
(j) Efficient
resource procurement and utilization.
It shall be encouraged that printed
material produced by a contractor in the performance of a contract shall,
whenever practicable, be printed on recycled paper, labeled as printed on
recycled paper and printed on both sides.
(Ord. No. 97.55, 12-11-97; Ord. No.
2001.17, 7-26-01; Ord. No. 2007.72, 10-25-07; Ord. No. 2008.63, 11-6-08)
Sec.
26A-18. Specifications.
(a) Definition. As used in this section,
"specification" means any description of the physical or functional
characteristics, or of the nature of a material, good or service. Specification may include a description of
any requirement for inspecting, testing or preparing a material, good or
service for delivery.
(b) Maximum
practicable competition. All
specifications shall seek to promote overall economy for the purposes intended
and encourage competition in satisfying the city's needs and shall not be
unduly restrictive. No person preparing
specifications shall receive any direct or indirect benefit from the
utilization of such specifications. To
the extent practicable and unless otherwise permitted by this chapter, all
specifications shall describe the city's requirements in a manner that does not
unnecessarily exclude a material, good or service.
(c) Proprietary
specifications. Proprietary
specifications shall not be used unless the procurement officer with the
approval of the procurement administrator determines in writing that such
specifications are required by demonstrable technological justification and
that it is not practicable or advantageous to use a less restrictive
specification. Past success in the
material's performance, traditional purchasing practices or inconvenience of
drawing specifications do not justify the use of proprietary
specifications. If a proprietary
specification is determined to be appropriate, the specification shall include
the following:
(1) A
description of the essential characteristics of the products and materials so
specified; and
(2) A statement indicating the city's intent to consider alternative
products or materials which have the described essential characteristics if
such alternative products or materials are identified.
(d) Submitting
a bid for alternative products or materials.
Persons desiring to submit bids for alternative products or
materials for prior approval, shall submit such products and any support
information in the time specified by the bid solicitation, prior to the
scheduled bid opening date. The city
shall consider and either approve or reject bids submitted and shall comply
with the following requirements:
(1) If in the time specified in the bid solicitation, the city has
approved any alternative products or materials, the bid solicitation shall be
modified to include the alternative products or materials, and the city shall
issue an addendum to all registered and known bidders at least ten (10)
calendar days prior to the bid opening deadline; and
(2) If the city rejects an alternative product or material, it shall
give notice of the rejection to the bidder proposing the alternative product or
material as required by the time specified in the bid solicitation, and prior
to the bid opening date. The rejection
notice shall include a description of the rejected product or material.
(e) Accepted
commercial specifications. To the
extent practicable, the city shall use accepted commercial specifications and
shall procure standard commercial materials.
(f) Brand
name or equal specification. A brand
name or equal specification may be used when the procurement officer determines
that use of brand name or equal specifications is advantageous to the city.
(g) Brand
name specification. A brand name
specification may be prepared and utilized only if the procurement officer
makes a determination that only the identified brand name item will satisfy the
city's needs.
(h) Ozone-producing
agents. To the extent practicable
and where applicable, specifications shall promote products which are
documented and evaluated to have low or no-content of reactive organic
compounds (ozone-producing agents).
(i) Conservation. Where the city considers practicable,
cost effective and applicable, specifications shall promote the use of recycled
content, recyclability, energy consumption and conservation.
(Ord. No. 97.55, 12-11-97; Ord. No.
2007.72, 10-25-07)
Sec.
26A-19. Contract clauses.
(a) Contract
clauses. All city contracts for
materials, goods or services shall include provisions necessary to define the
responsibilities and rights of the parties to the contract. The procurement administrator, after
consultation with the city attorney, may issue clauses appropriate for
material, good or service contracts, addressing among others the following
subjects:
(1) The unilateral right of the city to order in writing changes in
the work within the scope of the contract;
(2) The unilateral right of the city to order in writing temporary
stopping of the work or delaying performance that does not alter the scope of
the contract;
(3) Variations occurring between estimated quantities of work in
contract and actual quantities;
(4) Defective pricing;
(5) Liquidated damages;
(6) Specified excuses for delay or nonperformance;
(7) Termination of the contract for default;
(8) Termination of the contract in whole or in part for the
convenience of the city; and
(9) Site conditions differing from those indicated in the contract,
or ordinarily encountered; except that a differing site conditions clause need
not be included in a contract that is negotiated, when the contractor provides
the site or design, or when the parties have otherwise agreed with respect to
the risk of differing site conditions.
(b) Price
adjustments. Adjustments in price
where allowed by the terms and conditions of a bid solicitation or contract
shall be computed in one or more of the following ways:
(1) By agreement on a fixed price adjustment before commencement of
the pertinent performance or as soon thereafter as practicable;
(2) By unit prices specified in the contract or
subsequently agreed upon;
(3) 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;
(4) By published price reduction or if applicable to contract,
profit sharing advantage to the city concurrent with announcements to other
customers, as may be specified in the contract or subsequently agreed upon;
(5) In such other manner as the contracting parties may mutually
agree;
(6) In the absence of agreement by the parties, by a unilateral
determination by the city of the costs attributable to the events or situations
with adjustment of profit or fee as computed by the city; or
(7) A contractor shall be required to submit cost or pricing data if
any adjustment in contract price is requested and permitted by the bid
solicitation or contract.
(c) Standard
clauses and their modification. The
procurement administrator, after consultation with the city attorney, may
establish standard contract clauses for use in city contracts. If the procurement administrator establishes
any standard clauses addressing the subjects set forth in subsection (a) above,
such clauses may be varied provided that any variations are supported by a
written determination that states the circumstances justifying such variations,
and provided that notice of any such material variation be stated in the
invitation for bids or request for proposals.
(Ord. No. 97.55, 12-11-97; Ord. No.
2007.72, 10-25-07)
Sec.
26A-20. Cost principles.
(a) Cost
principles. The procurement office
shall establish cost principles which shall be used to determine the
allowability of incurred costs for the purpose of reimbursing costs under
contract provisions which provide for the reimbursement of costs.
(b) Cost
or pricing data. The submission of
current cost or pricing data may be required in connection with an award in
situations in which analysis of the proposed price is essential to determine
that the price is reasonable and fair.
Any contract, change order or contract modification under which cost or
pricing data is required shall contain a provision that the price to the city
shall be adjusted to exclude any significant amounts by which the city finds
that the price was increased because the contractor-furnished cost or pricing
data was inaccurate, incomplete or not current as of the date agreed on between
the parties. Such adjustment by the city
may include profit or fee.
(c) Contract
pricing. The requirements of this
section need not be applied to contracts if any of the following apply:
(1) The contract price is based on adequate
price competition;
(2) The contract price is based on established catalogue prices or
market prices;
(3) Contract prices are set by law or regulation; or
(4) It is determined by the procurement administrator that the
requirements of this section may be waived, and the reasons for the waiver are
stated in writing.
(Ord. No. 97.55, 12-11-97; Ord. No.
2007.72, 10-25-07)
Sec.
26A-21. Protest procedure.
(a) Right
to protest. Any actual or
prospective bidder, offeror or contractor who believes they are aggrieved in
connection with the solicitation or award of a contract may file a protest with
the procurement office. All protests
shall be filed with the procurement officer, with a copy of the protest being
delivered to the procurement administrator.
The procedures for filing the protest are set forth herein.
(b) Resolution
of bid protests. The procurement
officer shall have the authority to resolve protests. Appeals from the decisions of the procurement
officer may be made to the procurement administrator as set forth herein.
(c) Filing
of a protest. Any protest shall be
in writing and shall include the following information:
(1) The name, current address and telephone number of the protester;
(2) The signature of the protester or its representative;
(3) Identification of the solicitation or contract number;
(4) A detailed statement of the legal and factual grounds of the
protest including copies of relevant documents; and
(5) The form of relief requested.
(d) Time
for filing protests. The time for
filing protests shall be as follows:
(1) If a protest is
based upon any alleged improprieties occurring in a solicitation prior to the
deadline date of a solicitation response, such a protest must be filed prior to
the deadline date. Otherwise, any
protests based on any alleged improprieties in a solicitation during this time
frame will be deemed waived;
(2) If a protest is based upon any alleged improprieties occurring
upon or after the deadline date for a solicitation response, such protest must
be filed prior to the award of the contract.
Otherwise, any protests based on any alleged improprieties during this
time frame will be deemed waived;
(3) Protests concerning alleged improprieties that do not exist in
the initial solicitation but that allegedly exist in the subsequently incorporated
addendum to the solicitation shall be filed by the next deadline date for
receipt of addendum responses;
(4) Protests concerning awards shall be filed within ten (10)
business days after the contract has been awarded. The city typically publishes award
recommendations five (5) days prior to council review; and
(5) The procurement officer may grant any
written requests for extensions of time to file a protest if the request for an
extension of time sets forth good cause as to why the extension is necessary;
why the protest could not be filed within the times set forth herein; and the
request is submitted prior to the expiration of time for filing the original
protest. If the extension of time
request is not filed prior to the expiration of time for filing the original
protest, the extension and protest will be deemed to be denied and/or
waived. The ruling on the request for
extension shall be set forth in writing setting forth the basis for the grant
or denial and, if granted, setting forth the deadline by which the protest must
be filed.
(e) Notice
of protest. The procurement officer
shall immediately give notice of the protest to all interested parties.
(f) Stay
of procurements during the protest.
In the event of a timely protest as set forth herein, the procurement
administrator shall make a written decision to:
(1) Proceed or not proceed with the
solicitation process, award or contract execution or performance;
(2) Stay or not stay all or part of the
procurement award or contract performance, based upon the best interests of the
city; and
(3) The procurement administrator shall provide
the protestor, procurement officer and any other interested party with a copy
of the written decision as to whether or not to stay the award or contract
execution or performance.
(g) Decision
by the procurement officer. The
procurement officer shall:
(1) Unless extended as provided herein, issue a written decision no
later than ten (10) business days after a protest has been filed. The decision shall contain an explanation of
the basis of the decision;
(2) Transmit a copy of the decision to the protester, by certified
mail, return receipt requested or by electronic transmission that provides
evidence of receipt; and
(3) Extend the time limit for a decision by the procurement officer
for a reasonable time not to exceed thirty (30) calendar days. The procurement officer shall notify the
protester in writing that the time for the issuance of a decision has been
extended and the date by which a decision will be issued. If the procurement officer fails to issue a
timely decision, the protester may proceed as if the procurement officer had
issued an adverse decision.
(h) Remedies. Remedies shall be addressed as follows:
(1) If the procurement office sustains the protest in whole or part
and determines that a solicitation, proposed contract award or awarded contract
does not comply with the procurement code, the procurement office shall
implement an appropriate remedy;
(2) In determining an appropriate remedy, the procurement office
shall consider all the circumstances surrounding the procurement or proposed
procurement including, but not limited to, the seriousness of the procurement
deficiency, the degree of prejudice to other interested parties or to the
integrity of the procurement system, the good faith of the parties, the extent
of performance, costs to the city, the urgency of the procurement and the
impact of the relief on the using department's mission and other relevant
issues;
(3) An appropriate remedy may be to decline an option to renew the
contract, to terminate the contract and reissue the solicitation, to issue a
new solicitation and award a contract consistent with the procurement code, or
to seek relief as determined to be in the best interests of the city and in
conformity with city procurement; and
(4) If the procurement officer denies the protest, then the
procurement office may lift any stays previously placed on the award or
contract execution or performance and may continue with the solicitation,
awarding the contract or allowing the successful bidder or respondent to begin
executing the contract previously awarded.
(i) Appeals
to the procurement administrator. A
written appeal from a decision entered or deemed to be entered by the
procurement officer shall be filed with the procurement administrator no later
than ten (10) business days from the date the decision of the procurement
officer is sent by certified mail, return receipt requested or by electronic
transmission that provides evidence of receipt and the appellant shall also
file a copy of the appeal with the procurement officer.
(j) Content of appeal. The appeal shall contain:
(1) The information set forth in subsection (c) above;
(2) A copy of the decision of the procurement officer; and
(3) The precise alleged factual or legal error in the decision of
the procurement officer from which an appeal is taken.
(k) Notice
of appeal. The procurement office
shall immediately give notice of the appeal to the recommended or awarded
offeror. Interested parties shall have
the right to request copies of the appeal.
The recommended or awarded offeror has the right to participate in the
proceedings.
(l) Stay
of procurement during appeal. In the
event of a timely appeal as set forth herein, the procurement administrator
shall make a written decision to:
(1) If a stay has already been issued, continue the stay. The stay can be lifted if the procurement
administrator makes a written determination that the award of a contract or a
notice to proceed with contract performance is necessary to protect the best
interests of the city; and
(2) If a stay was not previously issued, the procurement
administrator may, after reviewing the procurement officer’s decision and the
appeal, stay the procurement if it is determined that a stay is in the best
interests of the city.
(m) Procurement
administrator report. The financial
services manager shall require the procurement administrator to file a final
report on the appeal within fifteen (15) business days from the date the appeal
is filed and provide copies of the administrator’s report to the appellant by
certified mail, return receipt requested and the recommended or awarded
offeror. The report may contain copies
of:
(1) The appeal;
(2) The bid or proposal submitted by the appellant;
(3) The bid or proposal of the firm that is being considered for
award;
(4) The solicitation, including the specifications or portions
relevant to the appeal;
(5) The abstract of bids or proposals or relevant portions;
(6) Any other documents that are relevant to the protest; and
(7) A statement by the procurement officer setting forth findings,
actions, recommendations and any additional evidence or information necessary
to determine the validity of the appeal.
(n) Extension
for filing of report. The
procurement administrator may make a request to the financial services manager
in writing for an extension of the time period setting forth the reason for the
extension request. The financial
services manager’s determination on the request shall be in writing, state the
reasons for the determination and, if an extension is granted, set forth a new
date for the submission of the procurement administrator’s report. The procurement administrator shall notify
the appellant in writing that the time for the submission of the report has
been extended and the date by which the report will be submitted.
(o) Response
to report. The appellant may file a
response to the report with the procurement administrator no later than ten
(10) business days after certified receipt of the report. Copies of the
response shall be provided by the appellant to the procurement officer and the
financial services manager.
(p) Decision
of procurement administrator. Unless
extensions are provided as set forth herein, the procurement administrator
shall issue a written decision no later than fifteen (15) business days after
appellant’s certified receipt of report if no response is filed or no later
than fifteen (15) business days after the procurement office receives a
response.
(q) Extension
for filing of decision. The
procurement administrator may make a request to the financial services manager
in writing for an extension of the time period setting forth the reason for the
extension request. The financial
services manager’s determination on the request shall be in writing, state the
reasons for the determination and, if an extension is granted, set forth a new
date for the submission of the procurement administrator’s decision. The procurement administrator shall notify
the appellant in writing that the time for the issuance of the decision has
been extended and the date by which the decision will be issued.
(r) Appeals
to financial services manager. A
protester wishing to appeal a decision of the procurement administrator shall
file an appeal with the financial services manager no later than ten (10)
business days from the date the procurement administrator decision is delivered
by certified mail, return receipt requested to the protester/appellant. The appellant may request that the financial services manager or his
designee hold a hearing on the appeal before a hearing panel. The financial
services manager shall have the sole discretion to decide whether to hold a
hearing before a hearing panel.
(s) Dismissal
before hearing. The financial
services manager or his designee shall dismiss, upon a written decision, an
appeal before scheduling a hearing if:
(1) The appeal does not state a valid basis for protest;
(2) The appeal is filed in an untimely manner; or
(3) The appeal attempts to raise issues not raised in the original
protest.
(t) Hearing. The financial services manager may decide to
allow a hearing on the appeal of the decision of the procurement administrator.
The hearing shall be conducted by a panel consisting of the financial services
manager or his designee, a representative from the city attorney's office and
representatives from one or more city departments as determined appropriate by
the city. The protester and the
recommended or contract awarded firm(s) may be invited to attend the
hearing. The decision made by a majority
of the panel after the protest hearing shall be final. The panel shall issue a written decision no
later than ten (10) business days after the conclusion of the panel hearing,
unless the financial services manager agrees in writing to an extension of
time.
(u) Remedies. If, after the hearing, the hearing panel sustains
the appeal in whole or part and determines that a solicitation, proposed award
or award does not comply with procurement requirements and this chapter,
remedies shall be implemented as appropriate and consistent with the law.
(Ord. No. 97.55, 12-11-97; Ord. No.
2001.17, 7-26-01; Ord. No. 2005.69, 9-29-05; Ord. No. 2007.72, 10-25-07; Ord.
No. 2008.63, 11-6-08)
Sec.
26A-22. Resolution of contract claims
and controversies.
(a) Authority
to resolve contract disputes. The
procurement officer administering the contract shall have the authority to
settle and resolve contract disputes.
Appeals from decisions of the procurement officer may be made to the
procurement administrator as set forth below.
The settlement or resolution of a dispute in excess of ten percent (10%)
of the total contract award amount, up to thirty thousand dollars ($30,000)
requires the prior written approval of the procurement administrator. Settlement or resolution of those equal to or
over thirty thousand dollars ($30,000) requires the written approval of the
financial services manager or his designee.
(b) Procurement
officer's decision. If a dispute
cannot be resolved by mutual agreement and a contractor submits a written
request for a final decision, the procurement officer shall issue a written
decision no later than sixty (60) calendar days after the request is
filed. Before issuing a final decision,
the procurement officer shall review the facts pertinent to the dispute and
secure any necessary assistance from legal, fiscal and other advisors.
(c) Final
decision. The procurement officer
shall furnish a copy of the final decision to the contractor, by certified
mail, return receipt requested or by any other method that provides evidence of
receipt with a copy to the procurement administrator. The decision shall include:
(1) A description of the dispute;
(2) A reference to the pertinent contract
provision;
(3) A statement of the factual areas of agreement or disagreement;
(4) A statement of the procurement officer's decision, with
supporting rationale; and
(5) A paragraph that substantially states that "this is the
final decision of the procurement officer.
This decision may be appealed to the procurement administrator. If you appeal, you must file a written notice
of appeal with the financial services manager no later than thirty (30)
calendar days from the date you receive this decision."
(d) Issuance
of a timely decision. The
procurement officer may extend the time limit for issuance of a final decision
for disputes exceeding thirty thousand dollars ($30,000) for a reasonable time not to exceed thirty (30) calendar
days. The procurement officer shall
notify the contractor in writing that the time for the issuance of a decision
has been extended and the date by which a decision shall be issued. The time limit for decisions may not be
extended for disputes amounting to less than thirty thousand dollars
($30,000). Unless the procurement
officer extends the time limit, if the procurement officer fails to issue a
decision within sixty (60) calendar days after the request on a dispute is
filed, the contractor may proceed as if the procurement officer had issued an
adverse decision.
(e) Appeals
to the procurement administrator. An
appeal from a final decision of a procurement officer, or the failure of the
procurement officer to timely issue a decision on a dispute shall be filed with
the procurement administrator no later than thirty (30) calendar days from the
date the procurement officer’s final decision is delivered to the contractor,
return receipt requested. The appellant
shall also file a copy of the appeal with the procurement officer. The appeal shall contain a copy of the
decision of the procurement officer and the basis for the precise factual or
legal error in the decision of the procurement officer from which an appeal is
taken. The procurement administrator may
assign the dispute to a hearing or to mediation services or to arbitration in
accordance with this section and discussion with the city attorney. The procurement administrator shall notify
the appellant of the decision to assign the dispute within fifteen (15)
business days after the date an appeal is filed.
(f) Controversies
involving city claims against a contractor.
All contract claims asserted by the city against a contractor that are
not resolved by mutual agreement shall promptly be referred by the procurement
officer to the procurement administrator for a hearing, mediation or
arbitration in accordance with this section and discussion with the city
attorney.
(g) Hearing. Hearings on appeals of final decisions shall
be conducted in accordance with § 26A-21.
(h) Mediation. Contract claims and controversies may be
resolved utilizing mediation services if the financial services manager in
consultation with the city attorney’s office determines the use of such
services is in the best interest of the city.
(i) Arbitration. Contract claims and controversies may be
resolved utilizing arbitration if the financial services manager in
consultation with the city attorney’s office determines the use of arbitration
is in the best interest of the city. The claim or controversies shall be
settled by arbitration in accordance with current commercial arbitration rules
of the American Arbitration Association or, at the option of the city, in
accordance with the provisions of the Title 12, Chapter 9, Article I, Arizona
Revised Statutes.
(Ord. No. 97.55, 12-11-97; Ord. No.
2001.17, 7-26-01; Ord. No. 2005.69, 9-29-05; Ord. No. 2007.72, 10-25-07)
Sec.
26A-23. Debarment and suspension.
(a) Authority
to debar or suspend. The financial
services manager has the sole authority to debar or suspend a person from
participating in city procurements.
(b) Initiation
of debarment. Upon receipt of
information concerning a possible cause for debarment, the financial services
manager shall investigate the possible cause.
If the financial services manager has a reasonable basis to believe that
a cause for debarment exists, the financial services manager may propose
debarment.
(c) Debarment
or suspension causes. The causes for
debarment or suspension shall be limited to the following:
(1) Conviction of any person or any affiliate of any person for
commission of a criminal offense arising out of obtaining or attempting to
obtain a public or private contract or subcontract, or in the performance of
such contract or subcontract;
(2) Conviction of any person or any affiliate of any person under
any statute of the federal government, this state or any other state for
embezzlement, theft, fraudulent schemes and artifices, fraudulent schemes and
practices, bid rigging, perjury, forgery, bribery, falsification or destruction
of records, or receiving stolen property; or any other offense indicating a
lack of business integrity or business honesty which currently, seriously and
directly affects responsibility as a city contractor and which conviction
arises out of or obtaining or attempting to obtain a public or private contract
or subcontract, or in the performance of such contract or subcontract;
(3) Conviction or civil judgment finding a violation by any person
or affiliate of any person under state or federal antitrust statutes arising
out of the submission of bids or proposals;
(4) Violations of contract provisions within three (3) years of
current debarment action, as set forth below, of a character which are
reasonably deemed to be so serious as to justify debarment action and which
include abandonment of a contract without good cause; knowingly failing without
good cause to perform in accordance with the specifications or within the time
limit provided in the contract; or failure to perform or unsatisfactory
performance in accordance with the terms of one or more contracts, except that
failure to perform or unsatisfactory performance caused by acts beyond the
control of the contractor shall not be considered to be a basis for debarment;
or
(5) Any other cause that the financial services manager reasonably
determines to be so serious and compelling as to affect responsibility as a
city contractor, including suspension or debarment of such person or any
affiliate of such person by another governmental entity for any cause listed in
this section.
(d) Matters
not proper for debarment or suspension.
Any conviction or judgment dated more than three (3) years prior to the
notice of suspension or notice of proposed debarment shall not be a basis for
any debarment or suspension of a person or an affiliate of a person.
(e) Period
of debarment. The period of time for
a debarment shall not exceed three (3) years from the date of the debarment
determination. If debarment is based
solely upon debarment by another governmental agency, the period of debarment
may run concurrently with the period established by that other debarring
agency.
(f) Notice. If the financial services manager proposes
debarment, the financial services manager shall notify the person in writing
within seven (7) business days by certified mail, return receipt requested, of
the proposed debarment and that the person and affected affiliates have the
right to a hearing which shall be scheduled in accordance with this article.
(g) Notice
to affiliates. If the financial
services manager proposes to debar an affiliate of the person, the affiliate
shall have a right to appear in any hearing on the proposed debarment to show
mitigating circumstances. The affiliate
shall file a written request for a hearing to the financial services manager no
later than ten (10) business days of receipt of the notice of proposed
debarment. Failure to provide a written
request for a hearing within the ten (10) business day period shall be a waiver
of the right to a hearing.
(h) Imputed
knowledge. The financial services
manager may attribute improper conduct to an affiliate for purposes of
debarment where the impropriety occurred in connection with the affiliate's
duties for or on behalf of, or with the knowledge, approval or acquiescence of,
the contractor. The financial services
manager may attribute improper conduct of a person or its affiliate having a
contract with a contractor for purposes of debarment where the impropriety
occurred in connection with the person's duties for or on behalf of, or with
the knowledge, approval or acquiescence of, the contractor.
(i) Reinstatement. The financial services manager may at any
time after a final decision on debarment reinstate a debarred person or rescind
the debarment upon a determination that the cause upon which the debarment is
based no longer exists. Any debarred
person may request reinstatement by submitting a petition to the financial
services manager supported by documentary evidence showing that the cause for
debarment no longer exists or has been substantially mitigated. The financial services manager may require a
hearing on the request for reinstatement. The decision on reinstatement shall
be in writing no later than thirty (30) days after the request is filed and may
specify the factors on which it is based.
(j) Suspension. If adequate evidence for debarment exist,
the financial services manager may suspend a person from receiving any
award. The financial services manager
shall not suspend a person pending debarment unless sufficient reasons require
suspension to protect city interests.
(k) Period
and scope of suspension. Unless
otherwise agreed to by the parties, the period of suspension shall not be more
than thirty-five (35) business days without satisfying the notice requirements.
(l) Suspension
notice, hearing, determination and appeal.
The financial services manager shall notify the person suspended by
personal service or certified mail, return receipt requested. The notice of suspension shall state:
(1) The basis for suspension;
(2) The period, including dates, of the suspension;
(3) That bids or proposals shall not be solicited or accepted from
the person and, if received, will not be considered; and
(4) That the person is entitled to a hearing on the suspension if
the person files a written request for a hearing with the financial services
manager no later than thirty (30) business after receipt of the notice.
(m) Suspended
party request for hearing. If a
suspended party requests a hearing, the hearing officer shall arrange for a
prompt hearing unless the city attorney determines that a hearing at such time
is likely to jeopardize an investigation.
Unless both parties agree to an extension, the hearing shall not be
delayed longer than three (3) months after notice of suspension. A hearing
requested under this section shall be conducted, to the extent practicable, in
accordance with this chapter.
(n) Master
list for suspension and debarment.
The financial services manager shall maintain a master list of
debarment, suspensions and voluntary exclusions under this chapter. The master list shall include a separate
section listing persons voluntarily excluded from participation in city
contracts. The master list shall show as
a minimum the following information:
(1) The names and vendor number of those persons whom the city has
debarred or suspended under this chapter;
(2) The
basis of authority for the action;
(3) The period of debarment or suspension, including the expiration
date;
(4) The name of the debarring or suspending agency, if the city's
debarment or suspension is based on debarment or suspension by another
governmental agency; and
(5) A separate section listing persons voluntarily excluded from
participation in state contracts.
(o) Hearing
procedures. If a hearing is required
or permitted, the financial services manager may appoint a hearing
officer. The hearing officer shall
arrange for a prompt hearing and notify the parties in writing of the time and
place of the hearing. The hearing shall
be conducted in an informal manner without formal rules of evidence or
procedure. The hearing officer may:
(1) Hold pre‑hearing conferences to settle, simplify or
identify the issues in a proceeding, or to consider other matters that may aid
in the expeditious disposition of the proceeding;
(2) Require parties to state their positions concerning the various
issues in the proceeding;
(3) Require parties to produce for examination those relevant
witnesses and documents under their control;
(4) Rule on motions and other procedural items on matters pending
before such officer;
(5) Regulate the course of the hearing and conduct of participants;
(6) Establish time limits for submission of motions or memoranda;
(7) Impose appropriate sanctions against any
person failing to obey an order under these procedures, which may include
refusing to allow the person to assert or oppose designated claims or defenses,
or prohibiting that person from introducing designated matters in evidence;
excluding all testimony of an unresponsive or evasive witness; and expelling
the person from further participation in the hearing;
(8) Take official notice of any material fact not appearing in
evidence in the record, if the fact is among the traditional matters of
judicial notice;
(9) Administer oaths or affirmations; and
(10) A transcribed record of the hearing shall be made available at
cost to the requesting party.
(p) Recommendation
by the hearing officer. The hearing
officer shall make a recommendation to the financial services manager based on
the evidence presented. The
recommendation shall include findings of fact and conclusions of law. The financial services manager may affirm,
modify or reject the hearing officer's recommendation in whole or in part, may
remand the matter to the hearing officer with instructions, or make any other
appropriate disposition.
(q) Final
decision by the financial services manager.
A decision by the financial services manager shall be final. The decision shall be sent within twenty (20)
days after the conclusion of the hearing to all parties by personal service or
certified mail, return receipt requested.
The decision shall state that any party adversely affected may within
ten (10) days request a rehearing with the financial services manager.
(r) Rehearing
of financial services manager's decision.
Any party, including a procurement officer, who is aggrieved by the
financial services manager's decision may file a written request for rehearing
of the decision specifying the particular grounds. The request for rehearing shall be filed with
the financial services manager within ten (10) days after receipt of the
decision and shall include any supporting affidavits. The request shall be clearly designated as a
"request for rehearing."
Rehearings shall be addressed as follows:
(1) The financial services manager shall within five (5) days after
the request is filed notify interested parties of the request by personal
service or certified mail, return receipt requested;
(2) An interested party may within ten (10) days after receipt of
the notice file a response including opposing affidavits;
(3) Any argument not raised in the request or in a response is
waived;
(4) The financial services manager may require the filing of written
briefs and may provide for oral argument;
(5) A rehearing of the decision may be granted for irregularity in
the proceedings before the financial services manager or an abuse of discretion
by the financial services manager, depriving the requesting party of a fair
hearing; misconduct of the financial services manager, his staff or the hearing
officer or any party; accident or surprise that could not have been prevented
by ordinary prudence; newly discovered material evidence that could not with
reasonable diligence have been discovered and produced at the original hearing;
excessive or insufficient penalties; error in the admission or rejection of
evidence or other error of law occurring at the hearing; or showing that the
decision is not justified by the evidence or is contrary to law;
(6) The financial services manager's decision concerning a request
for rehearing shall be in writing and shall state the basis of the
decision. A decision granting a
rehearing shall specify with particularity the grounds on which the rehearing
is granted, and the date, time and place of the rehearing. The rehearing shall cover only those matters
specified in the decision; and
(7) The financial services manager, within the time for filing a
request for rehearing under this section, may on his own initiative order a
rehearing of his decision for any reason for which he might have granted a
rehearing on request of a party.
(s) Exclusive
remedy. Notwithstanding any law to
the contrary, this article shall provide the exclusive procedure for asserting
a claim or cause of action against this city arising in relation to any
procurement conducted under this chapter.
(Ord. No. 97.55, 12-11-97; Ord. No.
2001.17, 7-26-01; Ord. No. 2007.72, 10-25-07)
Sec.
26A-24. Intergovernmental and
cooperative procurement.
(a) Applicability. Agreements entered into pursuant to this
article shall be limited to the areas of procurement or materials management.
(b) Intergovernmental
procurement agreements approval. All
agreements entered into pursuant to this article shall be approved by the
financial services manager or designee or city council as necessary.
(c) Cooperative
purchasing authorized. The city may
either participate in, sponsor, conduct or administer a cooperative purchasing
agreement for the procurement of any materials, goods or services with one or
more eligible procurement units in accordance with an agreement entered into
between the participants. Parties under
a cooperative purchasing agreement may:
(1) Sponsor, conduct or administer a cooperative agreement for the
procurement or disposal of any materials, goods or services;
(2) Cooperatively use materials or services;
(3) Commonly use or share warehousing facilities, capital equipment
and other facilities;
(4) Provide personnel, except that the requesting eligible
procurement unit may pay the public procurement unit providing the personnel
the direct and indirect cost of providing the personnel, in accordance with the
agreement;
(5) On request, make available to other public procurement units
informational, technical or other services that may assist in improving the
efficiency or economy of procurement.
The public procurement unit furnishing the informational or technical
services has the right to request reimbursement for the reasonable and
necessary costs of providing such services; and
(6) The activities described in paragraphs 1 through 5 do not limit
the activities of parties under a cooperative purchasing agreement.
(Ord. No. 97.55, 12-11-97; Ord. No.
2001.17, 7-26-01; Ord. No. 2007.72, 10-25-07)
Secs.
26A-25—26A-49. Reserved.
ARTICLE
II. MATERIALS MANAGEMENT
Sec.
26A-50. Materials management
responsibilities and powers, auctions, offenses.
(a) The financial services manager or his
designee shall be responsible for establishing guidelines for the
administration of the materials management function, including the sale, trade,
transfer or disposal of surplus materials belonging to the city.
(b) The financial services manager shall have
the responsibility and authority to establish rules and regulations to govern:
(1) The management of materials during their entire life cycle;
(2) The acquisition and distribution of city surplus or excess
materials;
(3) The sale, lease or disposal of surplus or excess materials by
public auction, competitive sealed bidding, spot bidding, trade-in, negotiated
sale, sale at posted prices, auction, trade or transfer, to another public
entity, retail sales outlet, or other appropriate methods designated by city
rules, regulations and procedures;
(4) The purchase or acquisition of any surplus or excess materials
by city employees or the disposal of surplus or excess materials by city
departments;
(5) The transfer of excess or surplus fixed asset materials for the
purpose of reutilization within the city; and
(6) Rules of attendance and participation at auctions, including
expulsion and debarment from an auction or an auction call for bids. Such regulations shall also include
procedures for immediate suspension or expulsion of an attendee or participant
on grounds specified in the city's rules and regulations. A violation of such rules and regulations is
punishable as provided in § 1-7 of the city code.
(Ord. No. 97.55, 12-11-97; Ord. No.
2001.17, 7-26-01; Ord. No. 2005.69, 9-29-05)
Sec.
26A-51. Disposition of surplus or excess
materials generally.
(a) The financial services manager or his
designee may act on behalf of the city in all matters pertaining to
establishing rules, regulations and procedures for the disposition of excess or
surplus materials.
(b) Unless otherwise authorized by law or city
ordinances, rules or regulations, no using department shall transfer, sell,
trade, or otherwise dispose of materials owned by the city without written
authorization of the department head and the financial services manager or
designee in accordance with the city's rules, regulations and procedures.
(c) A using department shall notify the
financial services manager or his designee of all excess and surplus fixed
asset materials on such forms and at such times as prescribed by established
city rules, regulations and procedures.
The financial services manager or his designee shall determine the fair
market value of excess and surplus fixed asset materials.
(Ord. No. 97.55, 12-11-97; Ord. No.
2001.17, 7-26-01; Ord. No. 2005.69, 9-29-05)
Sec.
26A-52. Methods of disposal for surplus
or excess materials.
(a) Surplus or excess materials may be offered
for sale or lease through competitive sealed bidding, spot bidding, trade-in,
sale at posted prices, auction, negotiated sale, or trade, to another public
entity, retail sales outlet, or transferred for public purpose as designated by
city rules, regulations and procedures.
(b) Competitive sealed bidding shall be
advertised and conducted in accordance with city ordinances, rules and
regulations.
(1) Copies of the invitation for bid sales shall be available at the
city procurement office. The notice for invitation for bid sales 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 for bid opening. Bids
shall be opened and read in public; and
(2) The award shall be made in accordance with the invitation for
bid sales to the highest responsive and responsible bidder if the price offered
by such bidder is acceptable to the financial services manager or his
designee. If the financial services
manager or his designee determines that the bid is not advantageous to the
city, the bids may be rejected in whole or in part. The financial services manager may again
solicit bids or may negotiate the sale if the negotiated sale price is higher
than the highest responsive and responsible bidder's price.
(c) No employee of a disposing department shall
directly or indirectly purchase or agree with another person to purchase
surplus or excess materials if the employee is, or has been, directly or
indirectly involved in the purchase, disposal, maintenance, operation or
preparation for sale of the surplus or excess material. Sworn police officers are exempt from this
requirement solely for when they elect to purchase their duty gun as stipulated
in subsection (e) below.
(d) No employee, nor agent or relative of an
employee, of the city's financial services department shall purchase or
acquire, directly or indirectly, any city surplus or excess or scrap property.
(e) Sworn police officers may purchase their
duty handgun for one dollar ($1) upon retiring in good standing with twenty
(20) or more years of service with the city.
(Ord. No. 97.55, 12-11-97; Ord. No.
2001.17, 7-26-01; Ord. No. 2005.69, 9-29-05; Ord. No. 2008.63, 11-6-08)
Sec.
26A-53. Allocation of proceeds from
sale, disposal of excess or surplus materials.
All
monies received from sale of city surplus or excess materials shall be
deposited in the city general fund or other appropriate fund unless otherwise
prescribed by law.
(Ord. No. 97.55,
12-11-97; Ord. No. 2005.69, 9-29-05)