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19911217 1991-36ORDINANCE NO. 1991- 36 AN ORDINANCE AMENDING AND REENACTING CHAPTER 18.1 OF THE CODE OF THE CITY OF FAIRFAX, VIRGINIA CONCERNING PURCHASING. BE IT ORDAINED by the City Council of the City of Fairfax, Virginia, that Chapter 18.1 of the Code of the City of Fairfax is hereby amended and reenacted to read in its entirety as follows: Chapter 18.1 PURCHASING Article I. In General Division 1. Purpose and Application 18.1-1. 18.1-2. 18.1-3. 18.1-4. Preamble. Purpose. Application. Effective date of chapter. Division 2. Definitions 18.1-5. Terms defined. Article II. Office of the Purchasing Agent 18.1-6. 18.1-7. 18.1-8. 18.1-9. 18.1-10. 18.1-11. Establishment of purchasing system. Authority and duties. Delegation. Unauthorized purchases. Professional services. Authority to approve purchases. Article III. Cooperative Purchasing 18.1-12. Conditions for use. Article IV. Contract Formation and Methods of Source Selection 18.1-13. 18.1-14. 18.1-15. 18.1-16. 18.1-17. 18.1-18. 18.1-19. 18.1-20. 18.1-21. 18.1-22. 18.1-22.1. 18.1-22.2. 18.1-22.3. 18.1-22.4. Competitive sealed bidding. Action on performance bond. Action on payment bonds. Alternative forms of security. Competitive negotiation. Contracting for professional services by competitive negotiation. Sole source procurement. Emergency purchases. Small purchases. Miscellaneous sources. Rejection of bids. Discrimination prohibited. Waiver of informalities. Appeals and remedies. Article V. Disposal of Surplus Property 1 1991-36 18.1-23. Procedure. Article VI. ~~.~iiiii.i~ Debarment 18.1-24. 18.1-25. 18.1-26. 18.1-27. Authority to ~~.~iiiiiiii~ debar Decision to ~~iiiiiii~ debar e~. Not~ce of decision. Finality of decision. Article VII. Ethics in Public Contracting 18.1-28. 18.1-29. 18.1-30. 18.1-31. 18.1-32. 18.1-33. 18.1-34. 18.1-35. 18.1-36. Purpose. Definitions. Prescribed participation by public employees in procurement transactions. Solicitation or acceptance of gifts. Disclosure of subsequent employment. Gifts by bidders, offerors, contractors or subcon- tractors. Kickbacks. Purchase of building materials, etc., from architect or engineer prohibited. Penalty for violation. ARTICLE I. IN ~ENERAL DIVISION I. PURPOSE AND APPLICATION Sec. 18.1-1. Preamble. [Reserved.] Sec. 18.1-2. Purpose. The purpose of this chapter is to increase public confidence in purchasing by the City of Fairfax, to encourage competition in public purchasing among vendors or contractors, to administer fairly and equitably purchasing policies among bidders and to obtain high quality goods and services at the lowest possible price. (Ord. No. 1983-2, 1-11-83) Sec. 18.1-3. Application This chapter applies to contracts for the procurement of goods, services, insurance and construction entered into by the City of Fairfax involving every expenditure for public purchasing irrespective of its source. When the procurement involves the expenditure of federal assistance or contract funds, the procurement shall be conducted in accordance with any applicable mandatory federal law and regulations. Nothing in this chapter shall prevent ~..~ ~ ..... ee3em~=yi~iii~!~ from complying with the terms and conditions of any grant, gift, or bequest which are otherwise consistent with law. Sec. 18.1-4. Effective date of chapter. 1991-36 This chapter shall become effective January 1, 1983. The provisions of this chapter shall not apply to those contracts entered into prior to January 1, 1983, which shall continue to be governed by the procurement policies and regulations of the city in effect at the time those contracts were executed. DIVISION 2. DEFINITIONS Sec. 18.1-5. Terms defined. The words defined in this section shall have the meanings set forth throughout this chapter: Brand name specification: A specification limited to one or more items by manufacturers' names or catalogue numbers. Brand name or equal specification: A specification limited to one or more items by manufacturers' names or catalogue numbers to describe the standard of quality, performance, and other salient characteristics needed to meet city requirements and which provides for the submission of equivalent products. Business: Any corporation, partner hip, !~i~Pi~i~i~i!~iii in- dividual, sole proprietorship, joint stock company'~'~'oint'"~enture or any other private entity. city Manager: City Manager of the City of Fairfax or designee. city: The City of Fairfax. City Council: The council of the City of Fairfax. Confidential information: Any information which is available to an employee only because of the employee's status as an employee of this ~i city and is not a matter of public knowledge or available to the public on request. Cons~ruction: Building, altering, repairing, improving, maintaining or demolishing any structure, building or highway, and any draining, dredging, excavation, grading or similar work upon real property. Construction managemenc contracc: A contract in which a party is retained by the owner to coordinate and administer contracts for construction services for the benefit of the owner, and may also include, if provided in the contract, the furnishing of construc- tion services to the owner. Contract: All types o f e~+-y agreements ~~iii!ii!i!iii~iiiiiiiiii~iiiiiiiiiiiiiii~ ~i~ii!iii~~, regardless o f what ~ ~i?~ili~~'"~ay'"be'"'¢'ai'~'ed', for the procurement of goods, services, insurance or construction. Contract modificacion: Any written alteration in specifications, delivery point, rate of delivery, period of performance, price, quantity, or other provision of any contract accomplished by mutual action of the parties ~f ~i~ the contract. 1991-36 Contractor: Any person having a contract with the city or e using agency thereof. ¢os~ analysis: The evaluation of cost data for the purpose of arriving at costs actually incurred or estimates of costs to be incurred, prices to be paid, and costs to be reimbursed. Oos~ da~a: 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. Cos~-reimbursemen~ con~rac~: A contract under which a contractor is reimbursed for costs which are allowable and allocable in accordance with the contract terms and the provisions of this chapter, and a fee or profit, if any. Direct or indirec~ participation: Involvement through decision, approval, disapproval, recommendation, preparation of any part of a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity. Employee: An individual drawing a salary or wages from the city whether elected or not; any noncompensated individual performing personal services for the city or any department, agency, commission, council, board or any other entity established by the executive or legislative branch of this city and noncom- pensated individual serving as an elected official of the city. Goods: Ail material, equipment, supplies, printing and automated data processing hardware and software. Governing body: The City Council. Informality: A minor defect or variation of a bid or proposal from the exact requirements of the invitation to bid, or the request for proposal, which does not affect the price, quality, quantity or delivery schedule for the goods, services, insurance or construction being procured. Insurance: A contract whereby, for a stipulated consideration, one party undertakes to compensate the other for loss on a specified subject by specified perils. Invitation for bids: Ail documents, whether attached or incorporated by reference, utilized for soliciting sealed bids. in no case ~ ~ more than ten dollars ($10.00). 4 1991-36 Nonprofessional services: Any services not specifically iden- tified as professional services in the ~ definition ~ Professional services: Work performed by an independent con- tractor within the scope of the practice of accounting, ~~ ii~~i architecture, land surveying, landscape architecture, ~A~',-'"~Ad'icine, optometry, ~ ~ ............... ~ ......... ~ Person: Any business, individual, union, committee, club, other organization, or group of individuals. Pricing da~a: Factual information concerning prices for items substantially similar to those being procured. Prices in this definition refer to offer or proposed selling prices, historical selling prices and current selling prices. The definition refers to data relevant to both prime and subcontract prices. Publl¢ bod~: Any legislative, executive or judicial body, agency, office, department, authority, post, commission, committee, institution, board, or political subdivision created by law to exercise some sovereign power or to perform some governmental duty, and empowered by law to undertake the activities described in this chapter. Qualified produc~s lis~: An approved list of goods, services, or construction items described by model or catalogue number, which prior to competitive solicitation, the city has determined will meet the applicable specification requirements. Requesc for proposals: Ail documents, whether attached or incorporated by reference, utilized for soliciting proposals. Responslble bidder or offeror: A person who has the capability, in all respects, to perform fully the contract requirements and the moral and business integrity and reliability which will assure good faith performance, and who has been prequalified, if required. Responslve bidder: A person who has submitted a bid which conforms in all material respects to the invitation to bid. Services: Any work performed by an independent contractor wherein the service rendered does not consist primarily of acquisition of equipment or materials, or the rental of equipment, materials or supplies. Sheltered workshop: A work-oriented rehabilitative facility with a controlled working environment and individual goals which utilizes work experience and related services for assisting the handicapped person to progress toward normal living and a pro- ductive vocational status. 5 1991-36 Specification: Any description of the physical or functional characteristics, or of the nature of a good, service or con- struction item. It may include~iii~iiii!iii~iiiiiiiiiiiiiii~iiiiiiiiii~iiiii~~~i~ii a description of any requirement for inspecting, testing, or preparing a good, service or construction item for delivery. Using agency: Any department, agency, commission, g~g!~i~ bureau, or other unit ~ ~i~ the city government requiring goods, services, insurance or construction as provided for in this chapter. ARTICLE II. OFFICE OF THE PURCHASING AGENT Sec. 18.1-6. Establishment of purchasing system. There is hereby created a purchasing system to operate under the direction and supervision of the~,,,~--~--~ !~i~~. Nothing contained in this chapter shall prev~"""'~""'~'~ Manager from .designating a responsible person ~i~i~i.i.l.i.i~.~.i.i.i.i.i~i~i~ to perform the duties of pur'chas'ihg'"'ageht, h.~ direction subject to ~ Sec. 18.1-7. Authority and duties. (a) Principal public purchasing offxc~al. The i~i~ii!ili~~i shall serve as the principal public pur'ch~s'ih~ official for the City of Fairfax and shall be responsible for the procurement of goods, services, insurance and construction in accordance with this chapter, as well as the management and disposal of supplies. (b) DuCies. In accordance with this chapter, the ~ (1) Purchase or supervise the purchasing of all goods, services, insurance and construction needed by the City of Fairfax; (2) Exercise general supervision over all other inventories of goods belonging to the City of Fairfax; (3) Sell, trade or otherwise dispose of surplus goods belonging to the city; (4) Establish and maintain programs for specifications development, contract administration and inspection and acceptance, in cooperation with the public agencies using the goods, services, i~i~~ and construction; (5) Establish additional rules and regulations as needed to further the intent of this chapter; (6) To perform other duties as assigned by the City Manager. (c) the power and duty to: 6 1991-36 (1) Purchase or contract for all goods, services, insurance and construction required by using agency, except as provided herein; (2) Ensure preparation and enforcement of standard specifications; (3) Ensure the inspection of all deliveries of goods, services, or construction purchased through him to determine their conformance with the order of contract; (4) Act to procure for the city the highest quality in goods, services, insurance and construction at the least expense to the city; (5) Endeavor to obtain as full and open competition as possible on all purchases and sales; (6) Keep informed of current developments in the field of purchasing, prices, market conditions, and new products; (7) Secure for the city the benefits of research done in the fields of purchasing by other governmental jurisdictions, national societies, national trade associations, and by private business and organiza- tions; (8) Prepare and adopt standard purchase nomenclature for the using ~~i~ departments and for goods; (9) Prepare, adopt, and maintain a vendor's file containing catalogues, description of commodities, prices and discounts; (10) Prepare and adopt consistent with this chapter and with approval of the City Manageri~ii operational procedures relating to the execution of his duties; (11) Maintain a current file of sources of goods, services, insurance and construction to be known as a "bidders list" to which vendors can request to be included; (12) Not issue any order for delivery on a purchase until it has been certified, after pre-audit, that there is to the credit of the using agencies concerned a sufficient unencumbered appropriation balance, in excess of all unpaid obligations, to defray the amount of such order. Sec. 18.1-8. Delegation. With the approval of the City Manager, the goods, services, or construction items to other city employees, if such delegation is deemed necessary for the effective procurement of those items. 1991-36 Sec. 18.1-9. Unauthorized purchases. ~i~ shall purchase or contract for any goods, services, insurance or construction within the purview of this chapter other than by and through the ccmptrcllcr i~!~~iiii~!ii!~~ and any purchase order or contract made contrary to the provisions hereof is not approved and the city shall not be bound thereby. Sec. 18.1-10 Professional services. No contract for professional services may be awarded without prior approval of the City Council. Contracts for legal services, expert witnesses, court reporters, and other services associated with litigation or regulatory proceedings may be entered into without competitive sealed bidding, competitive sealed proposals, competitive selection procedure for services, or other source selection and contract formation requirements of this ~hapter, sec. 18.1-11 Authority to approve purchases. No contract for construction in excess of fifteen thousand dollars ($15,000.00) may be awarded without prior approval of City Council. Unless otherwise provided in this chapter, there will be no city Council approvee~ needed for any purchases in which funds were budgeted and are still available. The c~mptr~llcr ~~ 9i~.i.i.i.~~ will be responsible for awarding all purchases up to the amount of five thousand dollars ($5,000.00). city Manager approval ARTICLE III. COOPERATIVE PURCHASIN~ Sec. 18.1-12 Conditions for use. The city may participate in, sponsor, conduct or administer a cooperative purchase agreement with one or more other public bodies for the purpose of combining requirements to increase efficiency or reduce administrative expenses. Any joint purchasing ARTICLE IV. CONTRACT FORMATION AND METHODS OF SOURCE SELECTION Sec. 18.1-13. Competitive sealed bidding. 8 1991-36 (a) (b) (c) (d) Conditions for use. Any ~ purchase ~iiii!i~i~i~iiiiii~ goods, i~~!::i~ii~ services, supplies, materials, equipment or to contract for construction work .... ~ .... ~- ~~????~;~??~~ five ~ thousand dollars ( $~ ~?~~'~'"'""~'~'~'~"~"'""~'~ handl ~'~'~-through compet i~ive seal ed Competitive bid~inE on sta¢e-aid projects. No contract for the construction of any building or for an addition to or improvement of an existing building ~iliiii~iiiii~ for which state funds of one .........~-~,,~ ~v~, ...... be used for all or part of the cost of construction shall be let except after competitive bidding · ng for bids and letting of the contract shall confo~, mutatis mutandis, to this chapter. No person or fi~ shall be eligible to bid on any such contract, ~~$???~~ nor to have the same awarded to him or ~'~ ~h'6'"'"'~'&'s'been engaqed as architect or engineer for the same project. Employment discrimination by contracror prohibited. Every contract of over ten thousand dollars ($10,000.00) shall include the provisions in (1)and (2) below: (1) During the performance of this contract, the contractor agrees as follows: ae The contractor will not discriminate against any employee or applicant for employment because of race, religion, color, sex or national origin, except where religion, sex or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of the contractor. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause. 1991-36 be The contractor, in all solicitations or advertisements for employees placed by or on behalf of the contractor, will state that such contractor is an equal opportunity employer. Notices, advertisements and solicitations placed in accordance with federal law, rule or regulation shall be deemed sufficient for the purpose of meeting the requirements of this section. (e) (2) The contractor will include the provisions of the foregoing paragraphs a, b and c in every subcontract or purchase order of over ten thousand dollars ($10,000.00), so that the provisions will be binding upon each subcontractor or vendor. Notice of invitation go bid. Notice inviting bids shall be published once in at least one newspaper of general circulation in the city at least ten (10) days preceding the last day set for the receipt of proposals ~. The c~mptr~l l~r i~i~i~i~i!!ii~iiiiii~i~~iiiiii~ she 11 advert ice al 1 invitations ...... ~'~ ............. ~'~'~ ............. ~ ...... ~'~ ...... ~ted on the public bulletin board in the comptroller's ~ii~~!iiii~iiiii~i~~ii~ii~ office. The newspaper notice required herein shall include a general description of the articles to be purchased or sold, shall state where bid blanks and specifications may be secured, and the time and place for opening bids. The comptroller ~~i!iiiiii~iiiiiiii~i~~ shall also solicit sealed bids from:':'~':':~:~':~:'~'"":':~'~'~:~'~'~"~'~"~"~'"'""~"~ospective suppliers who have re~ested their names to be added to a "bidders list" which the comptroller ~~.~.~.~.~.~?.~.~.~.~~ shall maintain, by sending other notice as will acquaint them with the proposed purchase or sale. In any case, invitations sent to the vendors on the bidders' list shall be limited to commodities that are similar in character and ordinarily handled by the trade group to which the invitations are sent. (f) Use of brand names. Unless otherwise provided in the invitation to bid, the name of a certain brand, make or manufacturer does not restrict bidders to the specific brand, make or manufacturer named; it conveys the general style, type, character, and quality of the article desired, and any article which the~~-"~ ~"~ ~i~ in its sole discretion determines to be the equal of that specified, considering quality, workmanship, economy of operation, and suitability for the purpose intended, shall be accepted. 10 1991-36 (1) Bid bonds on construction con~rac~s. Except in cases of emergency, all bids or proposals for construction contracts in excess of twenty-five thousand dollars ($25,000.00) shall be accompanied by a bid bond from a surety company selected by the bidder which is legally authorized to do business in Virginia, as a guarantee that if the contract is awarded to such bidder, that bidder will enter into the contract for the work mentioned in the bid. The amount of the bid bond shall not exceed five percent (5%) of the amount bid. (2) No forfeiture under a bid bond shall exceed the lesser of (i) the difference between the bid for which the bond was written and the next low bid, or (ii) the face amount of the bid bond. Bonds for ocher ~han consgruc~lon con~rac~s. At the · , ,.., ~ ~ ~- ~ ~ 1 '~ A ~ !'"? :!":':':::':':::':'":" ""i::'":?":'"i:i:i:i::':'":::' i:i:!'.i:!'"i' ::::::::::::::::::::::::::::::::::::::: discretion of the ..... ~ ....... to submit with their bid a bid bond, or a certified check, (in an amount to be determined by the .... .~. HA '~ ~ ~ !''"i~i":'::::'"::i':''':'' ..... ~. ....... ~~?~~:.,.,) and specified in the invitati6~ {o bid' WhiCh shall be forfeited to the city as liquidated damages upon the bidder's failure to execute a contract awarded to him or upon the bidder ' s failure to furnish any required performance or payment bonds in connection with a contract awarded to him. The ~ ~ cessful bidders to furnish a performance bond and/or a successful bidder, in amounts to be determined by the invitation to bid, to ensure the satisfactory completion of the work for which a contract or purchase order is awarded. 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 comptr~llcr ~i~~iiiii!~iii~~ deems appropriate, together with the name of each bidder shall be recorded; the record and each bid shall be open to public inspection. 11 1991-36 (1) (2) (3) (4) (5) (6) Withdrawal of bid due to error. A bidder for a public construction contract, other than a contract for construction or maintenance of public highways, may withdraw his bid from con- sideration if the price bid was substantially lower than the other bids due solely to a mistake therein, provided the bid was submitted in good faith, and the mistake was a clerical mistake as opposed to a judgment mistake, and was actually due to an unintentional arithmetic error or an unintentional omission of a quantity of work, labor or material made directly in the compilation of a bid, which unintentional arithmetic error or unintentional omission can be clearly shown by objective evidence drawn from inspection of original work papers, documents and materials used in the preparation of the bid sought to be withdrawn. The procedure for bid withdrawal ~iiiiiii~iiiiiii~iiiiiiii~~ mus~ be stated ' instruct~'~'"":'~'~'""~'~l~~'"'~~i~~ for in the ...... ~ :.:~:::.:.:.:~.:.~ .................. ~:.:~ ............................................ ~ ...... biddin~ ~. The procedure for w~thdrawal of bids is tha{ ':'~'":'bidder-must give notice in writing 5 ii!iiiiii i iiiiiiiii iii!iiiii of his claim of right to withdraw his bid within two (2) business days after the ....... ~-- ................................................................................................. openingii~ii procadure. The procedures for the withdrawal of bids for other No bid may be withdrawn under this section when the result would be the awarding of the contract or another bid of the same bidder or of another bidder in which the ownership of the withdrawing bidder is more than five (5) percent. If a bid is withdrawn under the authority of this section, the lowest remaining bid shall be deemed to be the low bid. No bidder who is permitted to withdraw a bid shall, for compensation, supply any material or labor to or perform any subcontract or other work agreement for the person or firm to whom the contract is awarded or otherwise benefit, directly or indirect- ly, from the performance of the project for which the withdrawn bid was submitted. ' ~" ~i~ denies the withdrawal of If the governing a bid under the provisions of this section, it shall notify the bidder in writing stating the reasons for Bid evaluation. In determining the "lowest respon- sible bidder," in addition to price, the comptroller ~i~.~~i:?~i.i~i~i.i.l.i~.~.~ shal 1 cons ider: 12 1991-36 (1) (2) (3) (4) (5) (6) (7) (8) (9) The ability, capacity and skill of the bidder to perform the contract or provide the service required; Whether the bidder can perform the contract or provide the service promptly, or within the time specified, without delay or interference; The character, integrity, reputation, judgment, experience, and efficiency of the bidder; The quality of performance of previous contracts or services; The previous and existing compliance by the bidder with laws and ordinances relating to the contract or service; The sufficiency of the financial resources and ability of the bidder to perform the contract or provide the service; The quality, availability and adaptability of the goods, or services to the particular use required; The ability of the bidder to provide future maintenance and service for the use of the subject of the contract; The number and scope of conditions attached to the bid. (10) Life cycle costing if appropriate. (2) (1) Bid award. Bids shall be awarded to the lowest responsive and responsible bidder. When the terms and conditions of multiple bids are so provided in the invitation to bid, awards may be made to more than one bidder. Unless cancelled or rejected, a responsible bid from the lowest responsible bidder shall be accepted as submitted except that if the bid from the lowest responsible bidder exceeds available funds, the city may negotiate with the apparent low bidder to obtain a contract price within available funds. Tie bids. In the case of a tie bid, preference shall be given to goods, services and construction produced in -~--~--- ~-~-- =========================== provided by persons, firms or corporations Virginia persons, firms or corporationS~i otherwise the tie shall be decided by lot. 13 1991-36 (2) (1) (2) (1) Whenever any bidder is a resident of any other state and such state under its laws allows a resident contractor of that state a preference, a like preference may be allowed to the lowest responsible bidder who is a resident of Virginia. ¢ontracC pricing arrangement. Subject to the limitations of this section, any type of contract which is appropriate to the procurement and which will promote the best interests of the city may be used. of-cost contract or a cost-plus-a-percentage-of- construction-cost contract!~i~i arc prohibited. A cost reimbursement contract may be used only when a determination is made in writing that such contract is likely to be less costly to the city than any other type or that it is impracticable to obtain the goods, service, or construction item required under such a contract. MulCi- term concracc$· Specified period. Unless otherwise provided by law, a contract for goods, services or insurance may be entered into for any period of time deemed to be in the best interests of the city provided the term of the contract and conditions of renewal or extension, if any, are included in the solicitation and funds are available for the first fiscal period at the time of contracting. Payment and performance obligations for succeeding fiscal periods shall be subject to the availability and appropriation of funds therefor. Cancellation due to unavailability of funds in succeeding fiscal periods. When funds are not appropriated or otherwise made available to support continuation of performance in a subsequent fiscal period, the contract shall be cancelled. Con~rac~ modi£ica~ion. A public contract may include provisions for modification of the contract during performance, but no fixed-price contract may be increased by more than ten (10) percent of the amount of the contract or ten thousand dollars ($10,000.00), whichever is greater, with~i the advance written approval of .... ~ ......... ~ -~ ........................ Retainage on construction con~rac~s. In any public contract for construction which provides for progress payments in installments based upon an estimated percentage of completion, the contractor shall be paid at least ninety-five (95) percent of the earned sum when payment is due, with not more than five (5) percent being retained to assure faithful performance of the contract. All amounts withheld may be included in the final payment. 14 1991-36 (2) Any subcontract for construction which provides for similar progress payments shall be subject to the same limitations. 15 1991-36 (1) Upon the award of any public construction contract exceeding twenty-five thousand dollars ($25,000.00) awarded to any prime contractor, such contractor shall furnish to the city the following bonds: A performance bond in the sum of the contract amount conditioned upon the faithful per- formance of the contract in strict conformity with the plans, specifications and conditions of the contract. A payment bond in the sum of the contract amount. Such bond shall be for the protection of claimants who have and fulfill contracts to supply labor or materials to the prime contractor to whom the contract was awarded, or to any subcontractors, in the prosecution of the work provided for in such contract, and shall be conditioned upon the prompt payment for all such material furnished or labor supplied or performed in the prosecution of the work. "Labor or materials" shall include public utility services and reasonable rentals of equipment, but only for periods when the equipment rented is actually used at the site. (2) Each of such bonds shall be executed by one or more surety companies selected by the contractor which are legally authorized to do business in Virginia. (3) (4) Bonds shall be made payable to the City~--F~-~. Each of the bonds shall be filed with the ~~:.: designated office or official thereof. (5) (6) Nothing in this section shall preclude the com- ptrol ler ~~iiii~i~i:~iii:~i~ from requiring payment or perfo~'~'~'~'~'"'"'~'6'~'~'~'"'"'"~'~'~'"'"'~'~er contracts Nothing in this section shall preclude such contractor from requiring each subcontractor to furnish a payment bond with surety thereon in the sum of the full amount of the contract with such subcontractor conditioned upon the payment to all persons who have and fulfill contracts which are directly with the subcontractor for performing labor and furnishing materials in the prosecution of the work provided for in the subcontract. Sec. 18.1-14. Action on performance bond. No action against the surety on a performance bond shall be brought unless within one year after (i) completion of the contract, including the expiration of all warranties and guaran- tees, or (ii) discovery of the deficit or breach of warranty, if the action be for such. 16 1991-36 Sec. 18.1-15. Actions on payment bonds. (a) Subject to the provisions of subsection (b) hereof, any claimant who has performed labor or furnished materials in accordance with the contract for which a payment bond has been given, and who has not been paid in full therefor before the expiration of ninety (90) days after the day on which such claimant performed the last of such labor or furnished the last of such materials for which he claims payment, may bring an action on such payment bond to recover any amount due him for such labor or material, and may prosecute such action to final judgment and have execution on the judgment. The obligee named in the bond need not be named a part~ to such action. (b) Any claimant who has a direct contractual relationship with any subcontractor from whom the contractor has not required a subcontractor payment bond but who has no contractual relation- ship, express or implied, with such contractor, may bring an action on the contractor's payment bond only if he has given written notice to such contractor within one hundred eighty (180) days from the day on which the claimant performed the last of the labor or furnished the last of the materials for which he claims payment, stating with substantial accuracy the amount claimed and the name of the person for whom the work was performed or to whom the material was furnished. Any claimant who has a direct contractual relationship with a subcontractor from whom the contractor has required a subcontractor payment bond but who has no contractual relationship, express or implied, with such contractor, may bring an action on the subcontractor's payment bond. Notice to the contractor shall be served by registered or certified mail, postage prepaid, in an envelope addressed to such contractor at any place where his office is regularly maintained for the transaction of business. Claims for sums withheld as retainages with respect to labor performance or materials furnished, shall not be subject to the time limitations stated in this subsection. (c) Any action on a payment bond must be brought within one year after the day on which the person bringing such action last performed labor or last furnished or supplied materials. Sec. 18.1-16. Alternative forms of security. (a) In lieu of a bid, payment, or performance bond, a bidder may furnish a certified check or cash escrow in the face amount required for the bond. Sec. 18.1-17. Competitive negotiation. (a) De£lnicion o£compeci~iveneEo~ia~lon. Competitive negotiation is a method of source selection which involves individual discus- sions between the city and the offeror on the basis of responses to the city's request for proposals. The source selection method of competitive negotiation incorporates 18.1-3 in addition to the provisions outlined herein and in 18.1-18. 17 1991-36 (b) Condit:ions for use. Upon a determination L.~::i::::::::~ii::::i~i~iiiii~::ii::::::~i::::!!::~ in writing that competitive sealed ~'~'~'~'~'~"'"~"~"""~'~"~'~'~'~'""'~'{""'""~'~'6'~'~able or not ~~ advantageous to ~.~~::.~::. goods, se~lces, ~nsurancA- procured by competitive negotiation. The writing shall ~ocument the basis for this determination. (C) Reques~ for proposals. Request for proposals shall be in writing and indicate in general terms that which is sought to be procured, specifying the factors which will be used in evaluating the proposal and containing or incorporating by reference the other applicable contractual terms and conditions, including any unique capabilities or qualifications which will be required of the contractor. Estimated costs may be requested at this time. (d) Publlc no~ice. At least ten (10) days prior to the date set for receipt of proposals, public notice shall be given by posting in a public area normally used for posting of public notices or ~ by publication in a newspaper of general circulation in the area in which the contract is to be performed or both directly from potential contractors. (e) Evaluation facrors and award. Selection shall be made of two (2) or more offerors deemed to be fully qualified and best suited among those submitting proposals, on the basis of the factors involved in the request for proposals, including price if so quoted in the request for proposal. Negotiations shall then be conducted with each of the offerors so selected. Price shall be considered, but need not be the sole determining factor. After negotiations have been conducted with each offeror so selected, the City Manager shall select the offeror which, in his opinion, has made the best proposal, and shall award the contract to that offeror. Should the City Manager determine in writing and in his sole discretion that only one offeror is fully qualified, or that one offeror is clearly more highly qualified than the others under consideration, a contract may be negotiated and awarded to that offeror. Sec. 18.1-18. Contracting for professional services by competitive negotiation. (a) Au~hor1~y. Professional services mey ~i~i be procured by competitive negotiation. The process includes ~ii~iiii~ii~~i~ ~~iiiiiiii~i!i?!!i! 18.1-13 and 18.1-17. (b) Discussion and award. The City Manager shall engage in individual discussions with at least three (3) offerors deemed fully qualified, responsible and suitable on the basis of initial responses and with emphasis on professional competence, to provide the required services. Repetitive informal interviews shall be permissible. Such offerors shall be encouraged to elaborate on their qualifications and performance data or staff expertise pertinent to the proposed project as well as alternative concepts. 18 1991-36 costs, including where appropriate, design, construction and life ............ = ................ Proprietary ~nformat~on from competing offerors shall not be disclosed to the public or to competitors. At the conclusion of discussion, outlined herein, on the basis of evaluation factors published in the request for proposal and all information developed in the selection process to this point, the City Manager shall select in the order of pre- ference two (2) or more offerors whose professional qualifications and proposed services are deemed most meritorious. Negotiations shall then be conducted, beginning with the offeror ranked first. If a contract satisfactory and advantageous to the city can be negotiated at a price considered fair and reasonable, the award shall be made to that offeror. Otherwise, negotiations with the offeror ranked first shall be formally terminated and negotiations conducted with the offeror ranked second, and so on until such a contract can be negotiated at a fair and reasonable price. Should the City Manager determine in writing and in h&s i~!~ sole dis- is :.'' '+:+:.'' :.:' '.:-:+:+:+:-:.:+:+:.:.:.:.:.:+:.:' '.:+:,.:.:.'' '.:*:.:.:.:+:-:' '.:.:.i:!:i:~:~:~:i:i:i:i:i::.:.:.:.:.:.:.:.:.'-.:.' ....-.-.......-.................................... · cretion that only one offeror i~i~i~!iiiiiii~i~i~i~iiiiii~iiiii~iiiiii~ others under consideration, a contract may be negotiated and awarded to that offeror. Sec. 18.1-19. Sole source procurement. Upon a determination in writing that there is only one source practicably available for that which is to be procured, ~~~.i~.!.~!~.i.i.i.~!~.!.!~i.!.i.i~~.!.i.!.~i~.i.i.i.~~!!~!~ a contract may be negotiated and awarded to that source without competitive sealed bidding or competitive negotiation. The writing shall document the basis for this determination. The e~~i~i~iiii~i~iiii~~~ shall submit a quarterly report to the City Council that lists each sole source procurement in excess of two thousand dollars ($2,000.00). Sec. 18.1-20. Emergency purchases. In case of emergency, a contract may be awarded without competitive sealed bidding or competitive negotiation; however, such procurement shall be made with such competition as is pract icabl e under the c i rcumstances ~iiiiiii~~i~iii~iiiiiii~iiii~~ ~~ii~ii A written determination of the basis for the emergency and for the selection of the particular contractor shall be included in the contract file. An emergency shall be deemed to exist when a breakdown in machinery or equipment and/or a threatened termination of essential services or a dangerous condition develops, or when any unforeseen circumstances arise causing curtailment or diminution of an essential service or where materials or services are needed to prevent loss of life or property. 19 1991-36 The comptroller ~~i!iiiiii~!~!iii!ii~~ shall submit to the City Council on a quarterl~':':':':~:~:~'~'~:':':':':~:':':':'~:'~':~'~'"'""~'~'"'""~'ny emergency purchases in excess of two thousand dollars ($2,000.00). Sec. 18.1-21. Small purchases. Any ~i~i~i~i~i~i~ii~iiii~ contract not ......... ~ .... ~~?i~i~i~i~9 ~~iiiiii~ thousand dollars ($i~!~i!ii!i~i~i!~!!~i~) ~a~ be made i~"'~'6'~'~ ~"'"~'~ purchase procedure~'"~i.i.i.i.i.~~i.i.i.!!i~~.~.i.i.i.i.i~i~~ ~i~8.i.i.i.!~!!i.lii~~:~:~!,!.!.!~.~:~. Contract requirements shall not be artificially divided so as to constitute a small purchase under this section. Insofar as it is practical, no less than three (3) businesses shall be solicited to submit quotations i~i~iiiiiiiiiii~i~i~ ~~. Award shall be made to the business offering the lowest acceptable quotation. The name of the business submitting a quotation, and the date and amount of each quotation, shall be recorded and maintained as a public record. These ~i~!~i~~ requirements do not apply for purchases under t~o i~i~i hundred dollars ($i~00.00). Sec. 18.1.-22. Miscellaneous sources. The following transactions are hereby exempt provisions of this chapter: from the Purchases from the state penitentiary or state contracts or from the state purchasing department warehouse. Legal services associated with actual or potential litigation. Purchases for special police work when the chief of police certifies to the ~ ~~iii~i~?~ii?~iiiii~~ that items are needed for undercover police operations. Purchases from nonprofit sheltered workshops serving the handicapped. Sec. 18.1-22.1. Rejection of bids. An invitation for ~ bid~, 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 when the .... ~-~- ~~?~?~iiii~ ~~ determines that it is in the best interest of the city to do so. The reasons therefore shall be --~ ..... ~ -~ ~ ...... ~ Sec. 18.1-22.2. Discrimination prohibited. In the solicitation or awarding of contracts,..~ ..... ~.~=~:- ~z=-~-' ~i.i.i.i.i.~ shall ~ discriminate because of the race, religion, color, sex, or national origin of the bidder or offeror. (Ord. No. 1983-2, 1-11-83) Sec. 18.1-22.3 Waiver of informalities. waive any informalities Sec. 18.1-22.4 Appeals and remedies. 20 1991-36 (a) Ineligibility. Any bidder, offeror or contractor refused permission to, or disqualified from, participation in public contractors shall be notified in writing. This decision shall be final unless the bidder, offeror, or contractor appeals within thirty (30) days of receipt by instituting legal action ~9~i~iiiiii~i~~ili~i~i- If, upon appeal, it is determined that with the Constitution of Virginia, statutes or regulations, the sole relief shall be restoration of eligibility. (b) Appeal of denial of withdrawal of bid. A decision denying withdrawal of bid under the provisions of section 18.1-13 shall be final and conclusive unless the bidder appeals the decision within ten (10) days after receipt of the decision by instituting legal action ~iiiiiiiii~iiiiii~/~~iiiiiiiiiii~~iiiiiiiii~- If no bid bond was posted,'""~'"-'~'~--~'~'~"-'~~ ~'~'"'~ bid under the provisions of section 18.1-13 prior to appealing, shall deliver to the court a certified check or cash bond in the amount of the difference between the bid sought to be withdrawn and the next low bid. Such security shall be released only upon a final determination that the bidder was entitled to withdraw the bid. If, upon appeal, it is determined that the decision refusing withdrawal of the bid was arbitrary or capricious and clearly erroneous the sole relief shall be withdrawal of the bid. (c) Determination of nonresponsibility. Any bidder who despite being the apparent low bidder, is determined not to be a respon- sible bidder for a particular contract shall be notified in writing. Such notice shall be final unless the bidder appeals the decision within ten (10) days by instituting legal action /ii!ii~i~i~iiiiii!~i~i~. If, upon appeal, it is determined that ~'-"~'~'~'~'~'~'~'~'""~'~'""~'"~'~'~ry or capricious, and the award of the contract in question has not been made, the sole relief shall be a finding that the bidder is a responsible bidder for the contract '~'"'"'~'~~'~'~'~'~'-'"bidder for a particular contract shall proceed under this subsection only, and may not protest the award or proposed award under any other section or subsection. (d) Protest of award or decision ~o award. (1) Any bidder or offeror may protest the award or decision to award a contract by instituting legal action no later than ten (10) days after the award or the announcement of the decision to award, whichever occurs first. The award or decision shall be reversed only if the petitioner establishes that the proposed award or the award is not an honest exercise of discretion, but rather is arbitrary or capriciousii~ii ~ ~ ...... d ...... ~ ~ ~- ....... ~ No protest shall lie for a claim that the selected bidder or offeror is not a responsible bidder or offeror. If, prior to an award, it is determined that the decision to award is arbitrary or capricious, then the sole relief shall be a finding to that effect. Therefore, the proposed award shall be cancelled or revised to comply with the law. If, after an award, it is determined that 21 1991-36 (e) (f) (g) (h) an award of a contract was arbitrary or capricious, then the sole relief shall be as follows: be Where the award has been made but performance has not begun, the performance of the contract may be enjoined. Where the award has been made and performance has begun, the City Council may declare the contract void upon a finding that this action is in the best interest of the public. Where a contract is declared void, the performing contractor shall be compensated for the cost of performance up to the time of such declara- tion. In no event shall the performing contractor be entitled to lost profits. (2) Where the City Council, ~iiiiiiii!i~ o~ an official b ~ ..... ~ ~ ~"~ ........ ~ ~ - "~':'; =========r==========================?=~:::::~:~:~.:'.:.~.:?.: determines' designated y ~ ~ ..................................................... ~ a that there is probable cause to believe that decision to award was based on fraud or corruption or on an act in violation of Article VII of this chapte~i~iithe City Council ~ designated official may institute legal action to enjoin the award of the contract to a particular bidder. Effec~ of appeal upon concrac~. Pending final determination of a protest or appeal, the validity of a contract awarded and accepted in good faith in accordance with this chapter shall not be affected by the fact that a protest or appeal has been filed. S~ay of award durinE promes~. An award need not be delayed for the period allowed a bidder or offeror to protest, but in the event of a timely protest, no further action to award the contract will be taken unless there is a written determination that proceeding without delay is necessary to protect the public interest or unless the bid or offer would expire. Con~racrual disputes. Contractual claims, whether for money or ot~er relief, ~hall be ma~e ~.:.:.:.:.~!~~.i.i.l.i.~.~.i.i,i.i~.~~ no late'~'""~'~'~"-SlX~"-'('~')"'-'days after final payment. No relief shall be awarded on any such contractual claim unless written notice of the intention to make such claim is submitted to the ~ ~i~i~ iii~!~iiiiii~~ within five (5) days of the ::::::::::::::::::::::::::::::: :.:.:: :.:,: ::::::::::::::::::::::::::::::::: .:.: :+: ........ ~ ':' .:..:.:.:.:.:.:.:,:.: occurrence g~v~ng r~se to the claim or within five (5) days of the beginning of the work upon which the claim is based. Nothing herein shall preclude a contract from requiring submission of an invoice for final payment within a certain time after completion and acceptance of the work or acceptance of the goods. Pendency of claims shall not delay payment of amounts agreed due in the final payment. Lefal action. If injunctive relief is granted, the court, upon request of the public body, shall require the posting of reasonable security to protect the~-'~ ~;- 22 1991-36 (2) Nothing herein shall be construed to prevent e public body ~iiiiiii~ from instituting legal action against a contractor. ARTICLE V. DISPOSAL OF SURPLUS PROPERTY Sec. 18.1-23. Procedure. Ail sales of property pursuant to this section shall be sold on the basis of competitive bids wherever feasible to obtain the highest price. in his discretion. Sec. 18.1-24. Authority to ~~iiiiiii~ debar or suspend. After consultation with the city attorney, the City Council is authorized to suspend a person from consideration for award of contracts if there is probable cause to believe that the person has engaged in any activity which might lead to debarment. After reasonable notice to the person involved and reasonable opportunity for that person to be heard, the City Council after consulting with the city attorney is authorized to debar a person for cause from consideration for award of contracts. The debarment shall not be for a period of more than three (3) years. The suspension shall not be for a period exceeding three (3) months. The causes for debarment include: (a) Conviction for commission of a criminal offense as an incident to obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract; (b) Conviction under state and federal statutes of embezzle- ment, theft, forgery, bribery, falsification or destruc- tion of records, 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; (c) Conviction under state or federal antitrust statutes; (d) Violation of contract provisions, as set forth below, of a character which is regarded by the City Council to be so serious as to justify debarment action: (1) (2) Deliberate failure without good cause to perform in accordance with the specifications or within the time limit provided in the contract; or A recent record of failure to perform or of unsatisfactory performance in accordance with the terms of one or more contracts; provided 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; 23 1991-36 (e) Any other cause the City Council determines to be so serious and compelling as to affect responsibility as a city contractor including debarment by another governmen- tal entity for any cause in this chapter; and for violation of the ethical standards set forth in this chapter. Sec. 18.1-25. Decision to i~~ ~ debar or au:pond. The City Council shall issue a written decision to debar or suspcnd. The decision shall state the action taken and inform the dcbarrcd or suspended person involved of his rights concerning judicial or review. Sec. 18.1-26. Notice of decision. A copy of the decision required by section 18.1-25 (decision to ~~.i.!.!.!.!.!~ debar cr suspend) shall be mailed or otherwise furnished immediately to the ~~iiii~ debarred~-~ ~----~-~ person. Sec. 18.1-27. Finality of decision. A decision under section 18.1-25 (decision to ~i~!i!iii~ debar ~T-e~~) shall be final and conclusive, unless ~'~" '~~!ii?~i~ debarred or suspended person within ten (10) days afte~'"'~"~'~"~"~'~'""~ the decision takes an appeal to the City Council or commences a timely action in court in accordance with applicable law. ARTICLE VII. ETHICS IN PUBLIC CONTRACTING Sec. 18.1-28. Purpose. The provisions of this article supplement, but do not supersede, other provisions of law including, but not limited to, the ~iiiiiii~iiiiii~i!ili!i~~ Virginia Conflict of Interests Act, the Virginia Governmental Frauds Act and articles 2 and 3 of chapter 10 of title 18.2 of the Code of Virginia. The provisions of this article apply notwithstanding the fact that the conduct described may not constitute a violation of the ~i~iiii~iiii~ ~~! Virginia Conflict of Interests Act. ' ......................................................................................................... Sec. 18.1-29. Definitions. The words defined in this section shall have the meanings set forth below throughout this article. Immediately family: A spouse, children, parents, brothers and sisters, and any other person living in the same household as the employee. official responsibility: An administrative or operating autho- rity, whether immediate or final, to initiate, approve, disapprove or otherwise affect a procurement transaction, or any claim resulting therefrom. Pecuniary in~eresr arising from ~he procurement: A .... ~ ~ f ......... 1 24 1991-36 Proouremen~ ~ransac~ion: All functions that pertain to the obtaining of any goods, services or construction, including description of requirements, selection and solicitation of sources, preparation and award of contract, and all phases of contract administration. Public employee: Any person employed by a governing body, including elected officials or appointed members of governing bodies. Sec. 18.1-30. Pr~scribed participation by public employees in procurement transactions. action shall participate ~n that transaction on behalf of the governing body when the employee knows that: (a) The employee is contemporaneously employed by a bidder, offeror or contractor involved in the procurement transaction; or (b) The employee, the employee's partner, or any member of the employee's immediate family holds a position with a bidder, offeror or contractor such as an officer, director, trustee, partner or the like, or is employed in a capacity involving personal and substantial participation in the procurement transaction, or owns or controls an interest of more than five (5) percent; or (c) The employee, the employee's partner, or any member of the employee's immediate family has a pecuniary interest arising from the procurement transaction; or (d) The employee, the employee's partner, or any member of the employee's immediate family is negotiating or has an arrangement concerning, prospective employment with a bidder, offeror or contractor. Sec. 18.1-31. Solicitation or acceptance of gifts. No public employee having official responsibility for a procurement transaction shall solicit, demand, accept, or agree to accept from a bidder, offeror, contractor or subcontractor any payment, loan, subscription, advance, deposit of money, services or anything of more than nominal or minimal value, present or promised, unless consideration of substantially equal or greater value is exchanged. The city may recover the value of anything conveyed in violation of this section. Sec. 18.1-32. Disclosure of subsequent employment. No public employee or former public employee having official responsibility for procurement transactions shall accept employment with any bidder, offeror or contractor with whom the employee or former employee dealt in an official capacity concerning procure- ment transactions for a period of one year from the cessation of employment by the city unless the employee, or former employee, provides written notification to the City Council prior to commencement of employment by that bidder, offeror or contractor. 25 1991-36 Sec. 18.1-33. Gifts by bidders, offerors, contractors or sub- contractors. No bidder, offeror, contractor or subcontractor shall confer upon any public employee having official responsibility for a procurement transaction any payment, loan, subscription, advance, deposit of money, services or anything of more than nominal value, present or promised, unless consideration of substantially equal or greater value is exchanged. Sec. 18.1-34. Kickbacks. (a) No contractor or subcontractor shall demand or receive from any of his suppliers or his subcontractors, as an inducement for the award of a subcontract, or order, any payment, loan, subscription, advance, deposit of money, services or anything, present or promised, unless consideration of substantially equal or greater value is exchanged. (b) No subcontractor or supplier shall make, or offer to make, kickbacks as described in this section. (c) No person shall demand or receive any payment, loan, subscription, advance, deposit of money, services or anything of value in return for an agreement not to compete on a public contract. (d) If a subcontractor or supplier makes a kickback or other prohibited payment as described in this section, the amount thereof shall be conclusively presumed to have been included in the price of the subcontract or order and ultimately borne by the city and will be recoverable from both the maker and recipient. Recovery from one offending party shall not preclude recovery from other offending parties. Sec. 18.1-35. Purchase of building materials, etc., from architect or engineer prohibited. Except in cases of emergency, no building materials, supplies or equipment for any building or structure constructed by or for the city shall be sold by or purchased from any person employed as an independent contractor by the city to furnish architectural or engineering services, but not construction, for such building or structure, or from any partnership, association or corporation in which such architect or engineer has a pecuniary interest. Sec. 18.1-36. Penalty for violation. Willful violation of any provision of this article shall constitute a Class I misdemeanor. Upon conviction, any public employee, in addition to any other fine or penalty provided by lawi~ii shall forfeit his employment. This ordinance will become effective immediately upon adoption by the City Council. 26 1991-36 INTRODUCED:. December 10, 1991 PUBLIC HEARING:... December 17, 1991 ADOPTED: December 17, 1991 ATTEST: 27