Loading...
20011023 2001-14ORDINANCE NO. 2001- 14 AN ORDINANCE AMENDING CHAPTER 2, ARTICLE VI, DIVISION 3, OF THE CODE OF THE CITY OF FAIRFAX, VIRGINIA, PERTAINING TO PURCHASING AND SURPLUS PROPERTY. BE IT ORDAINED, by the City Council of the City of Fairfax, that Chapter 2, Article VI, Division 3, of the Code of the City of Fairfax, Virginia, is hereby amended by adding the language in bold type and by deleting the language stricken as follows: DIVISION 3.PURCHASING, SURPLUS PROPERTY* Sec. 2-321. Definitions. The following words, terms and phrases when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Professional services means work performed by an independent contractor within the scope of the practice of accounting, actuarial services, architecture, land surveying, landscape architecture, law, dentistry, medicine, optometry, pharmacy or professional engineering. Sec. 2-330. 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 division. Contracting for professional services by competitive negotiation shall be subject to the provisions of section 2-356. In cases where the fee for provision of professional services is not expected to exceed $5,999 $20~000, upon written request of the city manager by motion, the city council may delegate authority to the city manager to select, negotiate and contract with a professional or consultant on behalf of the city. Sec. 2-331. Authority to approve purchases. (a) No contract for construction in excess of $ ! 5,909 $30~000 may be awarded without prior approval of city council. (b) Unless otherwise provided in this division, there will be no city council approval needed for any purchases in which funds were budgeted and are still available. The director of finance will be responsible for awarding all purchases up to the amount of $5,009 $10~000. City manager approval is required above that amount. As used in this section, the term "purchases" shall not include professional services. Sec. 2-351. Competitive sealed bidding. (a) Conditions for use. Any purchase or lease of goods, insurance, services, supplies, materials, equipment or to contract for construction work expected to exceed $!9,900 $30~000 shall be handled through competitive sealed bidding or competitive negotiation under section 2-355. (b) Competitive bidding on state-aid projects. No contract for the construction of any building or for an addition to or improvement of an existing building by the city for which state funds of $ ! 5,900 $30,000 or more, either by appropriation, grant-in-aid or loan, are used or are to be used for all or part of the cost of construction shall be let except after competitive sealed bidding or after competitive negotiation. The procedure for the advertising for bids and letting of the contract shall conform, mutatis mutandis, to this division. No person or firm shall be eligible to bid on any such contract, submit a proposal therein, nor to have the bid awarded to him or it who has been engaged as architect or engineer for the same project. (c) Public inspection of certain records. Except as provided in Code of Virginia, § ! !.52 2.2-4342 and unless exempt from mandatory disclosure under Code of Virginia, § 2.! 349 2.2-3700 et seq., all public records relating to procurement transactions shall be open to the inspection of any citizen, or any interested person, firm or corporation, in accordance with Code of Virginia, § 2. ! 349 2.2-3700 et seq. (d) Employment discrimination by contractor prohibited. Every contract of over $10,000.00 shall include the provisions in subsections (d)(1) and (2) of this section: (1) During the performance of this contract, the contractor agrees as follows: a. The contractor will not discriminate against any employee or applicant for employment because of race, religion, color, sex, national origin, age, disabili .ty or any other basis prohibited by state law relating to discrimination in employment, except where ~ er nafiena! efigin there is a bona fide occupational qualification reasonably necessary to the normal operation of the contractor. A faith-based organization contracting with the city (i) shall not discriminate against any recipient of goods, services, or disbursements made pursuant to a contract authorized by Code of Virginia § 2.2-4343.1 on the basis of the recipient's religion, religious belief~ refusal to participate in a religious practicer or on the basis of race, age, color, gender or national origin and (ii) shall be sub.iect to the same rules as other organizations that contract with the city. to account for the use of the funds provided; however, if the faith-based organization segregates public funds into separate accounts, only the accounts and programs funded with public funds shall be subject to audit by the city. Nothing in clause (ii) shall be construed to supercede or otherwise override any other applicable state law. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscriminating clause. b. 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. c. 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. (2) The contractor will include the provisions of subsection (d)(1) of this section in every subcontract or purchase order of over $10,000.00, so that the provisions will be binding upon each subcontractor or vendor. (e) Notice of invitation to bid. Notice inviting bids shall be published once in at least one newspaper of general circulation in the city at least ten days preceding the last day set for the receipt of bids. The director of finance also shall advertise all invitations to bid by notice posted on the public bulletin board in the director of finance's office. The newspaper notice required herein shall include a general description of the articles to be purchased or sold and shall state where bid blanks and specifications may be secured, and the time and place for opening bids. The director of finance shall also solicit sealed bids from all responsible prospective suppliers who have requested their names to be added to a bidders list, which the director of finance shall maintain, by sending another 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 city 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. (g) Preference for purchase of recycled paper and paper products. In determining the award of any contract for paper or paper products through competitive sealed bidding, the city may award the contract to the lowest responsible bidder offering recycled paper or paper products of a quality suitable for the purpose intended, so long as the bid price is not more than ten percent greater than the bid price of the low responsive and responsible bidder offering a product that does not qualify as recycled paper as defined herein. For the purposes of this section, "recycled paper and paper products" means any paper or paper products meeting the EPA Recommended Content Standards as defined in 40 CFR 250. (h) Bid bonds on construction contracts. (1) Except in cases of emergency, all bids or proposals for construction contracts in excess of $25,000 $50~000 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 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. (i) Bonds for other than construction contracts. At the discretion of the director of finance, all bidders on a single procurement may be required to submit with their bid a bid bond or a certified check (in an amount to be determined by the director of finance and specified in the invitation to bid) which shall be forfeited to the city as liquidated damages upon the bidder's failure to furnish any required performance or payment bonds in connection with a contract awarded to him. The director of finance may require successful bidders to furnish a performance bond and/or a payment bond in a form approved by the director of finance and the city attorney at the expense of the successful bidder in amounts to be determined by the director of finance and specified in the invitation to bid, to ensure the satisfactory completion of the work for which a contract or purchase order is awarded. (j) Bid opening. Bids may 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 director of finance deems appropriate, together with the name of each bidder, shall be recorded. The record and each bid shall be open to public inspection. (k) Withdrawal of bid due to error. (1) A bidder for a public construction contract, other than a contract for construction or maintenance of public highways, may withdraw his bid from consideration 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 as set forth herein must be stated in the advertisement for bids. The procedure for withdrawal of bids is that the bidder must give notice in writing to the director of finance of his claim of right to withdraw his bid within two business days after, and excluding, the day of the bid opening. (2) The procedures for the withdrawal of bids for other than construction contracts shall be the same as for construction contracts. (3) 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 percent. (4) Ifa bid is withdrawn under the authority of this section, the lowest remaining bid shall be deemed to be the low bid. (5) 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 indirectly, from the performance of the project for which the withdrawn bid was submitted. (6) If the city denies the withdrawal of a bid under the provisions of this section, it shall notify the bidder in writing stating the reasons for its decision and award the contract to such bidder at the bid price, provided such bidder is a responsible and responsive bidder. (1) Bid evaluation. In determining the lowest responsible bidder, in addition to price, the director of finance shall consider: (1) The ability, capacity and skill of the bidder to perform the contract or provide the service required; (2) Whether the bidder can perform the contract or provide the service promptly, or within the time specified, without delay or interference; (3) The character, integrity, reputation, judgment, experience, and efficiency of the bidder; (4) The quality of performance of previous contracts or services; (5) The previous and existing compliance by the bidder with laws and ordinances relating to the contract or service; (6) The sufficiency of the financial resources and ability of the bidder to perform the contract or provide the service; / (7) The quality, availability and adaptability of the goods, or services to the particular use required; (8) The ability of the bidder to provide future maintenance and service for the use of the subject of the contract; (9) The number and scope of conditions attached to the bid; (10) Life cycle costing if appropriate. (m) Bid award. (1) 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. (2) 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. (n) Tie bids. (1) In the case of a tie bid, preference shall be given to goods, services and construction produced in the city or provided by persons, firms or corporations of the city, if such a choice is available; or goods, services, and construction produced in the state or provided by state persons, firms or corporations; otherwise the tie shall be decided by lot. (2) 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 this state. (o) Contract 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. Except in case of emergency affecting the public health, safety or welfare, no contract shall be awarded on the basis of a cost-plus-a- percentage-of-cost contract or a cost-plus-a-percentage-of-construction-cost contract. 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. (p) Multiterm contracts. (1) 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. (2) 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. (q) Contract modification. 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 twen .ty percent of the amount of the contract or $ ! 0,000 $20~000, whichever is greater, without the advance written approval of the city council. (r) Retainage on construction contracts. (1) 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 95 percent of the earned sum when payment is due, with not more than five percent being retained to assure faithful performance of the contract. All amounts withheld may be included in the final payment. (2) Any subcontract for construction which provides for similar progress payments shall be subject to the same limitations. (s) Deposit of retained funds on certain construction contracts. For public contracts of $200,000.00 or more directly between the city and the contractor for construction of highways, roads, streets, bridges, parking lots, demolition, clearing, grading, excavating, paving, pile driving, miscellaneous drainage structures, and the installation of water, gas, sewer lines and pumping stations where portions of the contract price are to be retained, the bid proposal shall include an option for the contractor to use an escrow account procedure for utilization of the retainage funds by so indicating in the space provided in the proposal documents. If the contractor elects to use the escrow account procedure, the escrow agreement form included in the bid proposal and contract shall be executed and submitted to the city within 15 calendar days after notification. If the escrow agreement form is not submitted within the 15- day period, the contractor shall forfeit his rights to the use of the escrow account procedure. In order to have retained funds paid to an escrow agent, the contractor, the escrow agent, and the surety shall execute an escrow agreement form. The contractor's escrow agent shall be a trust company, bank or savings institution with its principal office located in the commonwealth. The escrow agreement and all regulations promulgated by the city entering into the contract shall be substantially the same as that used by the state department of transportation. This subsection shall not apply to public contracts for construction for railroads, public transit systems, runways, dams, foundations, installation or maintenance of power systems for the generation and primary and secondary distribution of electric current ahead of the customer's meter, the installation or maintenance of telephone, telegraph or signal systems for public utilities and the construction or maintenance of solid waste or recycling facilities and treatment plants. Any such public contracts for construction with the city, which includes payment of interest on retained funds, may require a provision whereby the contractor, exclusive of reasonable circumstances beyond the control of the contractor stated in the contract, shall pay a specified penalty for each day exceeding the completion date stated in the contract. Any subcontract for such public project which provides for similar progress payments shall be subject to the provisions of this subsection. (t) Performance and payment bonds. (1) Upon the award of any public construction contract exceeding $25,000 $50~000 awarded to any prime contractor, such contractor shall furnish to the city the following bonds: a. A performance bond in the sum of the contract amount conditioned upon the faithful performance of the contract in strict conformity with the plans, specifications and conditions of the contract. b. 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 the state. (3) Bonds shall be made payable to the city. (4) Each of the bonds shall be filed with the director of finance or a designated office or official thereof. (5) Nothing in this section shall preclude the director of finance from requiring payment or performance bonds for other contracts so long as such requirement is set forth in the invitation to bid or request for proposal. (6) 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. 2-355. Competitive negotiation. (a) Scope. The source selection method of competitive negotiation incorporates section 2-323 in addition to the provisions outlined in this section and section 2-356. (b) Conditions for use. Upon a determination made in advance by the city and set forth in writing that competitive sealed bidding is either not practicable or not fiscally advantageous to the public, and concurrence in such determination by the director of finance, goods, services, insurance or construction may be procured by competitive negotiation. The writing shall document the basis for this determination. (c) Request 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) Public notice. At least ten 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 and by publication in a newspaper of general circulation in the area in which the contract is to be performed so as to provide reasonable notice to the maximum number of offers that can be reasonably anticipated to submit proposals in response to the particular request. Public notice may also be published on the Department of General Services' central electronic procurement web site and other appropriate web sites. In addition, proposals may be solicited directly from potential contractors. (e) Evaluation factors and award. Selection shall be made of two 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. 2-357. Sole-source procurement. (a) Upon a determination in writing that there is only one source practicably available for that which is to be procured, and upon concurrence therein by the director of finance, 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. Sec. 2-358. Emergency purchases. (a) 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 practicable under the circumstances as determined by the director of finance. A written determination of the basis for the emergency and for the selection of the particular contractor shall be included in the contract file. (b) 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. Sec. 2-359. Small purchases. Any single or term contract not expected to exceed $ !O,OOO $30~000 may be made in accordance with small purchase procedures not requiring competitive sealed bids or competitive negotiation. 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 businesses shall be solicited to submit quotations for small purchases. 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 solicitation requirements do not apply for purchases under $500.00 $2~000. Sec. 2-362. Discrimination prohibited. (1) In the solicitation or awarding of contracts, the city shall not discriminate because of the race, religion, color, sex, national origin, age, disability or any other basis prohibited by state law related to discrimination in employment of the bidder or offeror. The city shall also comply with Code of Virginia § 2.2-4343.1. (2) Neither the city's selection of a charitable or faith-based provider of services nor the expenditure of funds under this contract is an endorsement of the provider's charitable or religious character, practices~ or expression. No provider of services may discriminate against any recipient of such services on the basis of religion, a religious belief or a refusal to actively participate in a religious practice. If any objections to a particular provider exist because of its religious character, a different provider may be requested. If a recipient believes that its rights have been violated, the recipient shall have the right to discuss the complaint with the provider or notify the appropriate city official. BE IT FURTHER ORDAINED, that this ordinance shall become effective upon adoption as provided by law. INTRODUCED: PUBLIC HEARING: ENACTED: October 9, 2001 October 23, 2001 October 23, 2001 The vote to adopt was recorded as follows: Councilman Coughlan Councilman Greenfield Councilman Lederer Councilman Petersen Councilman Rasmussen Councilman Silverthome Vote Aye Aye Aye Absent Aye Aye ATTEST: (_.F~~ MAYOR~~ DATE ~iiy~lerk