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HomeMy WebLinkAbout084 - 08/07/1990 - AMENDING CITY CODE RELATING TO PURCHASING PROCEDURES ORDINANCE NO. 84, 1990 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING CHAPTER 8, ARTICLE IV, OF THE CODE OF THE CITY OF FORT COLLINS RELATING TO PURCHASING PROCEDURES WHEREAS, the Charter of the City of Fort Collins (hereinafter "Charter") specifies certain general provisions concerning purchasing practices at Article V, Part IV; and WHEREAS, the Code of the City of Fort Collins (hereinafter "Code") contains particular methods for bidding and awarding contracts for constructing improvements and for the procurement of services and materials at Chapter 8, Article IV, ; and WHEREAS, this ordinance incorporates the requirements of the Charter and some of the methods currently existing in the Code, but also includes greater specificity and new requirements concerning the methods available for procuring materials, services, professional services and construction. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS that Article IV of Chapter 8 of the Code of the City of Fort Collins is hereby repealed in its entirety and reenacted to read as follows: ARTICLE IV. PURCHASING AND CONTRACTING Division 1 General Provisions Sec. 8-110. Procurement application. This Article shall apply to the procurement of all materials, services and professional services required or used by all departments and agencies of the city, including businesses and enterprises operated by the city, whether used in the construction of city improvements or otherwise, irrespective of the source of the funds, excepting only donations, the procurement of legal and litigation services, musical , dramatic and other fine arts performances and services or activities subject to contracts between the city and other governmental bodies. When any procurement involves the expenditure of federal or state funds, the procurement shall be conducted in accordance with any mandatory applicable federal or state laws or regulations. This Article does not create or confer any right or entitlement upon any person to bid on or receive an award of any city contract. Sec. 8-111. Purpose. The purposes of this Article are to provide for the fair and equitable treatment of all persons involved in public purchasing by the city, to -1- maximize the purchasing value of public funds, to codify and standardize the city' s purchasing procedures for the orderly and efficient administration thereof, to provide safeguards for maintaining a procurement system of quality and integrity and to foster effective, broad-based competition within the free enterprise system. Sec. 8-112. Definitions. The following words, terms and phrases, when used in this Article, shall have the meanings ascribed to them in this Section: Brand name shall mean a specification limited to one (1) or more items by manufacturers' names or catalog numbers. Change order shall mean any written modification to an existing contract authorizing changes within the scope of work, additions or deletions to the work or an adjustment to any other provision of the contract. Confidential information shall mean any information which is available to an employee only because of the employee's status as an employee of the city and which is not a matter of public knowledge or available to the public on request. Construction shall mean the process of building, improving, altering or demolishing improvements. Construction shall not include the operation, repair or maintenance of improvements. Contract shall mean any agreement enforceable by law between the city and one (1) or more outside parties, regardless of form or title, for the procurement of materials, services or construction. Cost data shall mean factual information concerning the cost of labor, material , overhead and other cost elements which are expected to be incurred or which have been actually incurred by the contractor in performing the contract. Improvements shall mean any structure, building, street, utility or other valuable addition to real property amounting to more than mere repairs or partial replacement and intended to enhance its value or utility or to adapt it for new or further purposes. Invitation for bids shall mean all documents, whether attached or incorporated by reference, utilized for soliciting bids. Legal services shall mean the advice, representation, document preparation or related services of an attorney as special counsel provided to the City upon the request of the City Attorney. Litigation services shall mean professional or other services procured by the City Attorney for the purpose of evaluating, preparing, providing or presenting evidence at the trial of any lawsuit to which the City is a -2- party. Litigation services shall not include legal services. Maintenance shall mean acts of repair, replacement or other acts necessary to keep any improvements or personal property in proper condition and good working order, to prevent decline in, failure or cessation of the existing condition of the improvement or personal property or to restore any improvement to its original condition after partial failure or destruction. This term shall not include improvements. Materials shall mean all personal property including but not limited to supplies, equipment, parts, printing and insurance; excluding, however, leases of a permanent interest in real property, securities and financial paper and water and water rights whether represented by shares of stock in ditch and irrigation companies, units of the Northern Colorado Water Conservancy District or otherwise. Price data shall mean factual information concerning prices for items substantially similar to those being procured. Prices as used in this definition shall refer to offered or proposed selling prices, historical selling prices and current selling prices. Procurement shall mean the purchasing, renting, leasing or other acquisition of any materials, services, professional services or construction. It shall also include all functions that pertain to obtaining any material , service or construction, including the description of requirements, the selection and solicitation of sources and the preparation and award of contract. Procurement shall not include the buying, purchasing, renting or leasing of real property. Professional services shall mean the furnishing of labor, time, effort or expertise by a contractor with specialized knowledge in a field, including but not limited to architecture, engineering, medicine, finance, accounting, appraisal and land surveying. Public notice shall mean any publication reasonably calculated to inform responsible bidders or offerors. Public notice shall occur for a reasonable time and may be disseminated through any means of mass communication, including, but not limited to, newspapers, other written publications, posting, television, radio, other broadcasting media, and electronic billboards. Request for proposals shall mean all documents, whether attached or incorporated by reference, utilized for soliciting proposals. Responsible bidder or offeror shall mean a person who meets the criteria specified in Section 8-159 of this Article and who has the capability in all respects to perform fully the contract requirements and the experience, integrity, reliability, capacity, facilities, equipment, insurance and credit which will ensure good faith performance. Responsive bidder or offeror shall mean a person whose bid or offer conforms in all material respects to the requirements set forth in the -3- invitation for bids or request for proposals. Services shall mean the performance of maintenance or the furnishing of labor, time or effort which does not involve the delivery of a specific end product other than a report or other item which is merely incidental to the performance of the service. Services shall not include services rendered under an employment agreements nor shall it include professional services as that term is defined in this Section. Specification shall mean any description of the physical or functional characteristics of or the nature of the material , service or construction item. It may include a description of any requirement for inspecting, testing or preparing a material , service or construction item for delivery or a procedure for determining whether the requirements are satisfied. Using agency shall mean any department, division, board or commission of the city requiring supplies, professional services, services or construction procured pursuant to this Article. Sec. 8-113. Authority and duties of Purchasing Agent. (a) The Purchasing Agent shall serve as the public purchasing official for the city, and shall be responsible for the procurement of all materials, services, professional services and construction for the city which are governed by the terms of this Article. (b) Unless otherwise provided in this Article, the Purchasing Agent may establish purchasing procedures consistent with this Article upon the written approval of the City Manager. Sec. 8-114. Procurement contrary to this Article. Except as may be otherwise provided by law, it shall be unlawful for any city officer or employee to order a procurement contrary to the provisions of this Article. Any procurement or contract so made shall be void and wholly without effect and shall not be binding upon the city in any manner. Secs. 8-115--8-135. Reserved. Division 2 Specifications Sec. 8-136. Intent. All specifications, including but not limited to design, performance and brand name specifications, shall be drafted so as to provide a clear and concise description of the material , service or construction desired. -4- Sec. 8-137. Preparation. Before any procurement, the Purchasing Agent shall cause to be prepared written specifications detailing the city's requirements for the materials, service or construction. The Purchasing Agent may request other departments or agencies of the city to prepare specifications for procurements to be made primarily for such department or agency. Sec. 8-138. Approval . (a) Specifications prepared primarily for a procurement for a specific department or agency of the city shall be approved by both the Purchasing Agent and the head of the using agency before being submitted for bid. (b) If the Purchasing Agent and head of the using agency cannot agree, the matter shall be referred to the City Manager. Sec. 8-139. Brand name specification. (a) A brand name specification may be used when the Purchasing Agent has determined that sufficient sources for competition exist for the procurement of the material and that the use of the brand name specification is not intended to limit or restrict competition. (b) A brand name specification may also be used to describe the standard of quality, performance and other salient characteristics of a material in lieu of a description of its physical or functional characteristics. In such cases, the solicitation shall contain explanatory language that the use of a brand name is for the purpose of describing the standard desired and that the substitution of equivalent materials is permitted. Secs. 8-140--8-155. Reserved. Division 3 Contract Formation and Award Sec. 8-156. Methods of source selection. All procurements subject to the terms of this Article shall be awarded by competitive sealed bidding pursuant to Section 8-157, except as provided in: (1) Section 8-158 concerning awards by competitive sealed proposals; and (2) Section 8-160 concerning awards authorized by negotiation or prior competitive bid. -5- Sec. 8-157. Competitive sealed bidding. (a) Procurements accomplished pursuant to this Section shall be awarded to the lowest responsive and responsible bidder after competitive sealed bidding. (b) An invitation for bids shall be issued and shall include specifications and all contractual terms and conditions applicable to the procurement. (c) Public notice shall be given and shall include the bid title, place, date and time of bid opening. (d) All bids shall be opened in public at the time and place stated in the invitation for bids. The amount of each bid and such other relevant information as the Purchasing Agent deems appropriate, together with the name of each bidder, shall be recorded. Thereafter, the record of bids and each bid shall be available for public inspection in the office of the Purchasing Agent in the same manner as are other public records. In the event of good cause as determined by the Purchasing Agent, bid openings may be postponed. (e) Bids shall be unconditionally accepted without alteration or correction, except as authorized in subparagraph (g) of this Section. Bids shall be evaluated based on the requirements set forth in the invitation for bids, which may include criteria and/or processes for determining acceptability, such as inspection, provision of sample materials, testing, quality, workmanship, delivery and suitability for a particular purpose. Those criteria that will affect the bid price shall be objectively measurable, such as discounts, transportation costs and total or life cycle costs. The invitation for bids shall set forth all evaluation criteria to be used. No criteria may be used in bid evaluation that are not set forth in the invitation for bids. (f) Correction or withdrawal of inadvertently erroneous bids before or after bid opening, or cancellation of awards or contracts based on such bid mistakes, may be authorized when deemed appropriate by the Purchasing Agent. (1) Mistakes discovered before bid opening may be corrected or withdrawn in writing by the bidder. Any such corrections or notices of withdrawal must be received in the office designated in the invitation for bids prior to the time set for bid opening. (2) After bid opening, the following provisions shall apply: a. A low bidder alleging a material mistake of fact may be permitted by the Purchasing Agent to correct its bid if the mistake is clearly evident on the face of the bid document and the intended correct bid is similarly evident. -6- b. A low bidder alleging a material mistake of fact may be permitted by the Purchasing Agent to withdraw its bid: (i) if the mistake is clearly evident on the face of the bid but the intended correct bid is not similarly evident or (ii) if the mistake is not clearly evident on the face of the bid but the bidder submits evidence to the Purchasing Agent which clearly and convincingly demonstrates that a mistake was made, in which case the bidder must show the nature of the mistake and the bid price actually intended. (3) No changes in bid prices or other provisions of bids prejudicial to the interests of the city or fair competition shall be permitted. (4) All decisions to permit the correction or withdrawal of bids or to cancel awards or contracts based on bid mistakes will be supported by a written determination made by the Purchasing Agent. (g) The contract shall be awarded with reasonable promptness by written notice to the lowest responsive and responsible bidder whose bid meets the requirements and criteria set forth in the invitation for bids. If the lowest responsive and responsible bid exceeds budgeted funds and either time constraints or economic considerations preclude resolicitation of work of a reduced scope, the Purchasing Agent is authorized to negotiate an adjustment of the bid price with the lowest responsive and responsible bidder or to modify the scope of work, so as to bring the bid within the amount of available funds. Sec. 8-158. Competitive sealed proposals. (a) Procurements for the following are eligible for award by competitive sealed proposals: (1) For materials and services when the Purchasing Agent determines in writing that the use of competitive sealed bidding is either not practicable or not advantageous to the city; and (2) For professional services. (b) Procurements accomplished pursuant to this Section shall be solicited through a request for proposals. (c) Public notice shall be given and shall include the proposal title, place, date and time of proposal opening. (d) Proposals shall be opened so as to avoid disclosure of contents to competing offerors during the process of negotiation. A register of proposals shall be maintained containing the name of each offeror and shall -7- be open for public inspection after the award of the contract in the office of the Purchasing Agent in the same manner as are other public records. (e) The request for proposals shall state evaluation factors and their relative importance. (f) After proposal opening, interviews may be conducted with the highest ranked responsible offeror or offerors for the purpose of clarification and to assure full understanding of, and responsiveness to, solicitation requirements. Offerors selected for interview shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals. Revisions may be permitted after submissions and prior to award in order to reflect clarifications in the proposal 's scope of work or contract amount. In conducting interviews, there shall be no disclosure by the city or any officer, employee or committee thereof, of any information derived from proposals submitted by competing offerors. (g) The contract shall be awarded with reasonable promptness by written notice to the responsible offeror whose proposal is determined in writing to be the most advantageous to the city, taking into consideration the evaluation factors set forth in the request for proposals. No other factors or criteria shall be used in the evaluation. (h) The Purchasing Agent is authorized to negotiate the final price and precise scope of work with the selected offeror. Sec. 8-159. Responsibility of bidders and offerors. (a) In determining whether a bidder or offeror is responsible, the following shall be considered: (1) The ability, capacity and skill of the bidder or offeror to perform the contract or provide the services required; (2) Whether the bidder or offeror can perform the contract or provide the service promptly and within the time specified without delay or interference; (3) The character, integrity, reputation, judgment, experience and efficiency of the bidder or offeror; (4) The quality of the bidder's or offeror's performance of previous contracts or services; (5) The previous and existing compliance by the bidder or offeror with laws and ordinances relating to the contract or service; (6) The sufficiency of the financial resources and ability of the bidder or offeror to perform the contract or provide the service; -8- (7) The quality, availability and adaptability of the materials and services to the particular use required; (8) The ability of the bidder or offeror to provide future maintenance and service for the use of the subject of the contract; (9) Any other circumstances which will affect the bidder's or offeror's performance of the contract. (b) In addition to the authority for rejection found in Sections 8-157, 8-158, 8-159, 8-162, 8-163, and 8-165 of this Article, the Purchasing Agent shall have the authority to reject all bids or proposals or any portions thereof when the interests of the city and the public will be served thereby. All such decisions will be supported by a written determination made by the Purchasing Agent. (c) No bidder or offeror shall be in default on the performance of any other contract with the city or in the payment of any taxes, licenses or other monies due to the city. Sec. 8-160. Exemptions to use of competitive bid or proposal . (a) Minor purchases. (1) The Purchasing Agent shall have the power to negotiate without formal competition for the purchase of any materials , professional services, services or construction not exceeding a cost of fifteen thousand dollars ($15,000. ) . (2) Such negotiated purchases shall be made in the open market, but wherever practical or advantageous, the Purchasing Agent shall obtain quotes from at least three (3) suppliers. Negotiated purchases of materials, services or construction shall be awarded to the person supplying the lowest responsible and responsive quote. (3) The purchasing procedures adopted pursuant to Section 8-113 of this Article may authorize the purchase of materials, services or professional services in the open market by other departments or agencies of the city, provided that no such purchase shall exceed a cost of one thousand dollars ($1000.) . (4) No contract will be divided so as to constitute a minor purchase under this Subsection (a) . (b) Emergency purchases. (1) In the case of an apparent emergency requiring the immediate purchase of materials, professional services, services or construction, the City Manager shall have the power to authorize -9- the Purchasing Agent to secure necessary items in the open market regardless of the amount of the expenditure. (2) In no event shall the contract price exceed commercially reasonable prices. (3) A full written report of the circumstances of all emergency purchases over fifty thousand dollars (b50,000. ) shall be made by the City Manager to the City Council . The report shall be received by the City Council in an open meeting, and such report shall be open to public inspection. (c) Construction change orders. One (1) or more change orders to an existing construction contract which do not exceed a cumulative cost of fifteen percent (15%) of the original contract awarded pursuant to an invitation for bids may be executed without competition. (d) Miscellaneous exemptions. (1) A contract for materials, professional services or services may be awarded without competition if the Purchasing Agent determines in writing that one (1) or more of the following conditions exists: i. There exists only one responsible source; b. Although there exists more than one (1) responsible source, a competitive process cannot reasonably be used or, if used, will result in a substantially higher cost to the city, will otherwise injure the city's financial interests or will substantially impede the city's administrative functions or the delivery of services to the public; c. A particular material or service is required to maintain interchangeability or compatibility as a part of an existing integrated system; d. A particular material , professional service or service is required in order to standardize or maintain standardization for the purpose of reducing financial investment or simplifying administration; e. The material is perishable; f. The material qualifies as an object of fine art; g. A particular material is required to match materials in use, so as to produce visual harmony; -10- h. A particular material is required to enable use by a specific individual ; i . A particular material is prescribed by a professional advisor. j . The material , professional service or service is the subject of a change order. (2) The Purchasing Agent shall submit each determination made under this Subsection (c) to the City Manager, who shall approve or reject the procurement. (3) The City Manager shall submit all procurements under this Subsection (c) which exceed a cost of fifty thousand dollars ($50,000. ) to the City Council in an open meeting for final approval . (4) Any procurement approved under this Section by the City Manager or the City Council may be used as the basis for a negotiated purchase of additional quantities of the same materials or services at any time within a period of two (2) years from the date of approval ; provided, however, that subsequent procurements may be expressly limited to a specific number of purchases or a period of less than two (2) years. (e) Materials, certain services and construction competitively bid within twenty-four (24) months. In any case where the city has, within the preceding twenty-four (24) months, pursuant to an invitation for bids, awarded a contract for the procurement of any materials or for the procurement of services, professional services or construction bid on a unit price basis, the Purchasing Agent may negotiate with the successful bidder for the purchase of additional quantities of the materials or units of services or construction. No such procurement shall be made at a price higher than the previous award. Sec. 8-161. Bid and performance bonds. (a) When deemed necessary by the Purchasing Agent, bid bonds or other equivalent security shall be required and the invitation for bids or request for proposals shall describe the requirements. Unsuccessful bidders or offerors shall be entitled to the return of any cash deposit. Unless a specific extension is granted in writing, a successful bidder or offeror shall forfeit any bid bond or equivalent security required by the Purchasing Agent upon its failure to enter into a contract within fifteen (15) days after the award. -11- (b) All contracts for construction, the cost of which exceed the sum of fifty thousand dollars ($50,000. ) , shall require a performance bond or other equivalent security. (c) Nothing in this section shall be construed to limit the authority of the city to require additional bonds or security. Sec. 8-162. Other procedural prerequisites for award of contracts. (a) In the case of a contract for procurement primarily for the use of a specific department or agency of the city, the head of such using agency or designee thereof shall also approve an award before written notice of the award is sent. (b) In any case where competitive sealed bids or proposals are required by this Article and less than three (3) are received, the Purchasing Agent shall submit a written report and recommendation to the City Manager, who shall approve the award or reject all bids or proposals submitted. (c) The Purchasing Agent shall not award any contract or finalize any procurement until the Financial Officer has determined that appropriations for the using agency include a sufficient unencumbered balance in excess of all unpaid obligations to defray the cost of such procurement, excepting only: (1) Cases of emergency under Section 8-160(b) ; and (2) Cases where revenue to pay the bidder or offeror will be raised through the performance of the contract. (d) No contract for the acquisition of property or the construction of improvements or other expenditures which is to be financed by bonds or other obligations shall be effective until the proceeds of the bonds or obligations have been received by the Financial Officer. Improvements to be paid for by special assessments are excepted from this requirement. (e) In any case where two (2) or more bids are received for the same total amount of unit price and are otherwise eligible for award, the low bidder shall be determined by any method which will , in the judgment of the Purchasing Agent, discourage the submission of tied bids. Sec. 8-163. Prequalification of bidders and offerors. Any person desiring to receive invitations for bids or requests for proposals from the city may submit to the Purchasing Agent such information as the Purchasing Agent may require to determine that person ' s acceptability as a bidder or offeror. The Purchasing Agent may maintain one (1) or more lists compiled from such submittals and may utilize the same in lieu of public notice for soliciting competitive sealed bids or competitive sealed proposals; provided, however, that the Purchasing Agent may use such list in lieu of public notice only if public notice of the -12- prequalification procedure and intended use of the list has been given within the preceeding twenty-four (24) months. Sec. 8-164. Cooperative procurement plans. The Purchasing Agent shall have the authority to join with other units of government in cooperative procurement plans when the best interests of the city would be served thereby. Competitive sealed bids or sealed proposals received by any other governmental agency shall be the equivalent of bids or proposals received by the city and may be the basis for any procurement by the city. Sec. 8-165. Solicitations or awards in violation of law. (a) If, prior to the bid opening or the closing date for receipt of proposals, the Purchasing Agent determines that a solicitation is in violation of federal , state or municipal law, then the solicitation shall be canceled or revised to comply with applicable law. (b) If, after the bid opening or the closing date for receipt of proposals, the Purchasing Agent determines that a solicitation or a proposed award of a contract is in violation of federal , state or municipal law, then the solicitation or proposed award shall be canceled. (c) If, after an award, the Purchasing Agent, after consultation with the City Attorney, determines that a solicitation or award of a contract was in violation of applicable law: (1) If the person awarded the contract has not acted in violation of Article IV, Section 9 of the Charter, the contract may be ratified and affirmed if it is determined by the Purchasing Agent that doing so is in the best interests of the city, or the contract may be terminated and the person awarded the contract shall be compensated for the actual costs reasonably incurred under the contract, prior to the termination; (2) If the person awarded the contract has acted in violation of Article IV, Section 9 of the Charter, the contract may be declared null and void, if such action is in the best interest of the city. Secs. 8-166--8-185. Reserved. Division 4 Contract Administration Sec. 8-186. Multi-year contracts. (a) No contract for services or professional services, including all renewals, shall be made by the city for a period longer than two (2) years, -13- unless authorized by ordinance, which ordinance shall not be passed as an emergency ordinance. (b) Multi -year contracts shall be expressly contingent upon the annual budgeting and appropriation of sufficient funds on an annual basis or by nonlapsing appropriation. (c) When funds are not appropriated or otherwise made available to support the continuation of the city's performance in a subsequent fiscal period, the contract shall be cancelled. Sec. 8-187. Multiple source award. A multiple source award may be made when an award to two (2) or more bidders or offerors for similar supplies or services is necessary for adequate delivery, service or product compatibility. Sec. 8-188. Right to inspect plant. The city may inspect the plant, place of business or work site of any contractor or subcontractor which is pertinent to the performance of any contract awarded or to be awarded by the city. Sec. 8-189. Right to audit records. (a) The city may, at reasonable times and places, audit the books and records of any contractor who has submitted cost or pricing data to the extent such books, documents, papers and records are pertinent to cost or pricing data. (b) The city shall be entitled to audit the books and records of any contractor or subcontractor when a negotiated contract is not a firm, fixed-price contract. Secs. 8-190--8-205. Reserved. Division 5 Resolution of Controversies Sec. 8-206. Resolution of controversies. (a) The Purchasing Agent is authorized, after consultation with the City Attorney, to settle and resolve any questions regarding: (1) Any protest concerning the solicitation or award of a contract; (2) Debarment or suspension from consideration for award of contracts; and (3) Any controversy arising between the city and a contractor by virtue of a contract between them, including, without limitation, controversies based upon breach of contract , mistake , -14- misrepresentation or any other cause for contract modification or rescission. (b) Any decision of the Purchasing Agent authorized by this section shall be subject to appeal de novo to the financial Officer and, thereafter, appeal to a court of competent jurisdiction. (c) This authority shall be exercised pursuant to procedures established pursuant to Section 8-113 which shall provide for an expeditious resolution of the controversy. Introduced, considered favorably on first reading, and ordered published in summary form this 17th day of July, A.D. 1990, and to be presented for final passage on the 04k7th y of Augus , A.D. 1990. M or ATTEST: City Clerk Passed and adopted on final readin this 7th day of August, A.D. 1990. Mayor ATTEST: City Clerk -15-