The purpose of this article is to provide for the fair and equitable
treatment of all persons involved in public purchasing by the city,
to maximize the purchasing value of public funds in procurement and
to provide safeguards for maintaining a procurement system of quality
and integrity.
This article applies to contracts for the procurement of supplies,
services and construction, entered into by the City after the effective
date of this article. It shall apply to every expenditure of public
funds of the City for public purchasing irrespective of the source
of the funds. When the procurement involves the expenditure of federal
assistance or contract funds, the procurement shall be conducted in
accordance with any mandatory applicable federal law and regulations.
Nothing in this article shall prevent the City from complying with
the terms and conditions of any grant, gift or bequest that is otherwise
consistent with law.
As used in this article, the following terms shall have the
meanings indicated:
Those professional services within the scope of the practice
of architecture, professional engineering or land surveying, as defined
by the Laws of New Hampshire.
An independently managed trust in which the employee-beneficiary
has no management rights and in which the employee-beneficiary is
not given notice of alterations in or other dispositions of the property
subject to the trust.
A specification limited to one or more items by manufacturers'
names or catalog numbers to describe the standard of quality, performance
and other salient characteristics needed to meet the city's requirements
and which provides for the submission of equivalent products.
A specification limited to one or more items by manufacturers'
names or catalog numbers.
Any corporation, partnership, individual, sole proprietorship,
joint-stock company, joint venture or any other private legal entity.
A written order signed by both the Purchasing Agent and the
department manager and issued by the Purchasing Agent, directing the
contractor to make changes which the changes clause of the contract
authorizes the Purchasing Agent to order without the consent of the
contractor.
Any written alteration in specifications, delivery point,
rate of delivery, period of performance, price, quantity or other
provisions of any contract accomplished by mutual action of the parties
to the contract.
Any information which is available to an employee only because
of the employee's status as an employee of the City and is not a matter
of public knowledge or available to the public on request.
The process of building, altering, repairing, improving or
demolishing any public structure or building or other public improvements
of any kind to any public real property. It does not include the routine
operation, routine repair or routine maintenance of existing structures,
buildings or real property.
All types of City agreements, regardless of what they may
be called, for the procurement of supplies, services or construction.
Any person having a contract with the city.
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.
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.
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 article and a fee or profit, if any.
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.
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 the city; and any noncompensated individual serving as an
elected or appointed official of the city.
Any financial, monetary, economic, commercial or property privilege,
profit, gain or advantage retained or to be received by any employee
or official or any member of the employee's or official's immediate
family if certain actions or events occur. The interest that all City
taxpayers share in the honest and prudent conduct of City business
shall not, by itself, be considered a "financial interest" for the
purposes of this article.
Ownership of 100% of any property or business.
Holding a position in business, such as officer, director, trustee,
partner, employee or the like, or holding any position of management.
A payment, loan, subscription, advance, deposit of money,
service, or anything of more than nominal value, present or promised,
unless consideration of substantially equal or greater value is received.
All persons residing in the same household with an official
or employee and spouses or dependents of the official or employee,
whether or not they reside in the same household with the official
or employee.
All documents, whether attached or incorporated by reference,
utilized for soliciting sealed bids.
Any business individual, union, committee, other organization
or group of individuals.
The evaluation of price data, without analysis of the separate
cost components and profit as in cost analysis, which may assist in
arriving at prices to be paid and costs to be reimbursed.
Factual information concerning prices for items substantially
similar to those being procured. "Prices," in this definition, refer
to offered or proposed selling prices, historical selling prices and
current selling prices. The definition refers to data relevant to
both prime and subcontract prices.
The buying, purchasing, renting, leasing, negotiating or
otherwise the acquiring of any supplies, services or construction.
It also includes all functions that pertain to the obtaining of any
supply, service or construction, including description requirements,
selection and solicitation of sources, preparation and award of contract
and all phases of contract administration.
A department, agency, board, commission or committee subject
to or created by the city.
An approved list of supplies, services or construction times
described by model or catalog numbers, which, prior to competitive
solicitation, the City has determined will meet the applicable specification
requirements.
All documents, whether attached or incorporated by reference,
utilized for soliciting proposals.
A person who has the capability in all respects to perform
fully the contract requirements, and the tenacity, perseverance, experience,
integrity, reliability, capacity, facilities, equipment and credit
which will assure good faith performance.
A person who has submitted a bid which conforms in all material
respects to the requirements set forth in the invitation for bids.
The furnishing of labor, time or effort by a contractor,
not involving the delivery of a specific end product other than reports
which are merely incidental to the required performance. This term
shall not include employment agreements or collective bargaining agreements.
A United States business which is independently owned and
which is not dominant in its field of operation or affiliate or subsidiary
of a business dominant in its field of operation.
Any description of the physical or functional characteristics
or of the nature of a supply, service or construction item. It may
include a description of any requirement for inspecting, testing or
preparing a supply, service, or construction item for delivery.
All property, including but not limited to equipment, materials,
printing, insurance and leases of real property, excluding land or
a permanent interest in land.
Any department, commission, board or public agency requiring
supplies, services or construction procured pursuant to this article.
Procurement information shall be a public record to the extent
provided in New Hampshire RSA 91-A:4 and 91-A:5 and shall be available
to the public as provided in such statute, with the exception that
private proprietary information shall not be considered a public record.
[Amended 7-22-1996 by Ord. No. 07.96.7]
As authorized in Section 4:09 of the Laconia City Charter, the
Purchasing Specialist shall act as purchasing agent for all departments
and employees of the city.
A.
In accordance with this article, and subject to the supervision of
the City Manager, the Purchasing Agent shall:
(1)
Procure or supervise the procurement of all supplies, services, and
construction needed by the city.
(2)
Exercise direct supervision over the city's central stores and general
supervision over all other inventories of supplies belonging to the
city.
(3)
Sell, trade or otherwise dispose of surplus supplies 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 supplies, services and construction.
Consistent with this article, and with the approval of the City
Manager, the Purchasing Agent may adopt operational procedures relating
to the execution of his\her duties.
A.
Conditions for use. All contracts of the City shall be awarded by competitive sealed bidding except as otherwise provided in this section, Competitive sealed bidding, and § 5-42, Contracting for designated professional services; § 5-43, Small purchases; § 5-44A, Sole-source procurement; § 5-44B, Emergency procurement; § 5-66A, Public announcement; and § 5-66B, Selection process, of this article.
B.
Invitations for bids. An invitation for bids shall be issued and
shall include specifications and all contractual terms and conditions
applicable to procurement.
C.
Public notice. Public notice of the invitation for bids shall be
given a reasonable time, not less than 10 calendar days prior to the
date set forth therein for the opening of bids. Such notice shall
include publication in a newspaper of general circulation at least
10 calendar days prior to bid opening. The public notice shall state
the place, date and time of bid opening.
D.
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 Purchasing Agent deems appropriate, together with the name of each bidder shall be recorded; the record and each bid shall be open to public inspection in accordance with § 5-36.
E.
Bid acceptance and bid evaluation. Bids shall be unconditionally
accepted without alteration or correction, except as authorized in
the Article. Bids shall be evaluated based on the requirements set
forth in the invitation for bids, which may include criteria to determine
acceptability, such as inspection, testing, quality, workmanship,
delivery and suitability for a particular purpose. Those criteria
that will affect the bid price and be considered in evaluation for
award shall be objectively measurable, such as discounts, transportation
costs and total or life-cycle costs. The invitation for bids shall
set forth the 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 bids; cancellation of awards. 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 permitted where appropriate. Mistakes discovered before bid
opening may be modified if withdrawn by written or telegraphic notice
received in the office designated in the invitation for bids prior
to the time set for bid opening. After bid opening, corrections in
bids shall be permitted only to the extent that the bidder can show
by clear and convincing evidence that a mistake of a nonjudgmental
character was made, the nature of the mistake and the bid price actually
intended. After bid opening, no changes in bid prices or other provisions
of bids prejudicial to the interest of the City or fair competition
shall be permitted. In lieu of bid correction, a low bidder alleging
a material mistake of fact may be permitted to withdraw its bid if:
(1)
The mistake is clearly evident on the face of the bid document but
the intended correct bid is not similarly evident; or
(2)
The bidder submits evidence which clearly and convincingly demonstrates
that a mistake was made. All decisions to permit the correction or
withdrawal of bids or to cancel awards or contracts based on bid mistakes
shall be supported by a written determination made by the purchasing
agent.
G.
Award. The contract shall be awarded with reasonable promptness by
appropriate written notice to the lowest responsible and responsive
bidder whose bid meets the requirements and criteria set forth in
the invitation for bids. In the event the low responsive and responsible
bid for a construction project exceeds available funds as certified
by the Fiscal Officer and such bid does not exceed such funds by more
than 5%, the Purchasing Agent is authorized to negotiate an adjustment
of the bid price with the low responsive and responsible bidder, in
order to bring the bid within the amount of available funds. Any such
negotiated adjustment shall be based only upon eliminating independent
deductive items specified in the invitation for bids.
H.
Multistep sealed bidding. When it is considered impractical to prepare
initially a purchase description to support an award based on price,
an invitation for bids may be issued requesting the submission of
unpriced offers to be followed by an invitation for bids limited to
those bidders whose offers have been determined to be technically
acceptable under the criteria set forth in the first solicitation.
A.
Conditions for use. When the Purchasing Agent determines, in writing,
that the use of competitive sealed bidding is either not practicable
or not advantageous to the city, a contract may be entered into by
use of the competitive sealed proposals method.
B.
Request for proposals. Proposals shall be solicited through a formal
and written request for proposals.
C.
Public notice. Public notice of the request for proposals shall be given in the same manner as provided in § 5-40C, competitive sealed bidding public notice, provided that the minimum shall be 10 calendar days.
D.
Receipt of proposals. No proposals shall be handled so as to permit
disclosure of the identity of any offeror or the contents of any proposal
to competing offerors during the process of negotiation. A register
of proposals shall be prepared containing the name of each offeror,
the number of modifications received, if any, and a description sufficient
to identify the item offered. The register of proposals shall be open
for public inspection only after-contract award.
E.
Evaluation factors. The request for proposals shall state the relative
importance of price and other evaluation factors.
F.
Discussion with responsible offerors and revisions to proposals.
As provided in the request for proposals, discussions may be conducted
with responsible offerors who submit proposals determined to be reasonably
susceptible of being selected for award for the purpose of clarification
to assure full understanding of and conformance to the solicitation
requirements. Offerors shall be accorded fair and equal treatment
with respect to any opportunity for discussion and revision of proposals
and such revisions may be permitted after submissions and prior to
award for the purpose of obtaining best and final offers. In conducting
discussions, there shall be no disclosure of the identity of competing
offerors or of any information derived from proposals submitted by
competing offerors.
G.
Award. Award shall be made to the responsible offeror whose proposal
is determined in writing to be the most advantageous to the city,
taking into consideration price and the evaluation factors set forth
in the request for proposals. No other factors or criteria shall be
used in the evaluation. The contract file shall contain the basis
on which the award is made.
A.
Authority. For the purpose of procuring the services of professionals,
such as but not limited to accountants, medical professionals as defined
by the laws of New Hampshire, the requesting department shall first
consult with the Purchasing Agent. This section shall not govern the
appointment of the City Solicitor or staff to the City Solicitor's
office or legal counsel retained by the City Council.
B.
Selection procedure.
(2)
Statement of qualifications. Persons engaged in providing the designated types of professional services shall submit written statements of qualifications in accordance with Subsection B(3) below.
(3)
Public announcement and form of request for proposals. Public notice of the need for such services shall be given by the Purchasing Agent, after receiving a written request from the City department requiring the services. The request for proposals shall describe the services required and list the types of information and data required of each offeror and state the relative importance of particular qualifications. A public notice shall be made no less than 10 calendar days prior to the City receiving the statement of qualifications from a source listed in Subsection A. All submissions to the request for proposal shall be in the following manner. All submissions shall be in two parts. The first shall detail the qualifications of the submitter to perform the work outlined in the RFP. Once a decision has been made concerning which submissions are qualified, those determined to be qualified shall be requested to submit a full proposal detailing how they will approach the project and their estimate of cost. Only those firms determined to be qualified by the reviewers shall be permitted to submit a proposal.
(4)
Discussions. The head of a department procuring the required professional
services or a designee of such officer may, after the advertised deadline
and with the assistance of the Purchasing Agent, conduct discussions
with any offeror who has submitted a proposal to determine such offeror's
qualifications for further consideration. Discussions shall not disclose
any information derived from proposals submitted by other offerors.
(5)
Award. Award shall be made to the offeror determined in writing by
the department head procuring the required professional services and
Purchasing Agent or a designee of such official to be the best qualified
based on the evaluation factors set forth in the request for proposals
and negotiation of compensation determined to be fair and reasonable.
If compensation cannot be agreed upon with the best qualified offeror,
then negotiations will be formally terminated with the selected offeror.
If proposals were submitted by one or more other offerors determined
to be qualified, negotiations may be conducted with such other offeror
or offerors in the order of their respective qualification ranking,
and the contract may be awarded to the offeror then ranked best qualified
in the amount of compensation as determined to be fair and reasonable.
A.
General. Any single purchase, not exceeding $4,999, shall be made
in accordance with the small purchase procedures authorized in this
section. Contract and/or purchase requirements shall not be artificially
divided so as to constitute a small purchase under this section.
B.
Purchases to $999. The Purchasing Agent, acting through a department
head, is authorized to purchase materials, goods and services in an
amount not to exceed $999 without following the provisions of other
applicable sections of the Article; provided, however, that the department
head seeks the best possible cost to the City for the material, good
or service.
C.
Purchases from $1,000 to $4,999. The Purchasing Agent is authorized
to purchase materials, goods and services in an amount not to exceed
$4,999, provided that adequate written documentation is maintained
to ensure competition and to properly account for the funds expended.
Adequate written documentation shall include, but not be limited to,
written information concerning the source of the purchase (vendor)
and amount and at least two other written quotations from a viable
vendor for the same material, goods or services.
D.
Purchases over $5,000. Every contract or purchase of material, goods or services in an amount of $5,000 or more shall be governed by § 5-40, Competitive sealed bidding; § 5-41, Competitive sealed proposals; or § 5-42, Contracting for designated professional services, except those purchases permitted according to § 5-44, Sole-source and emergency procurement.
A.
A contract may be awarded without competition when the Purchasing
Agent determines in writing to the City Manager and after conducting
a good faith review of available sources that there is only one source
for the required supply, service or construction item. The Purchasing
Agent shall conduct negotiations, as appropriate, as to price, delivery
and terms. A record of sole-source procurement shall be maintained
as a public record and shall list each contractor's name, the amount
and type of each contract, a listing of the item(s) procured under
each contract and the identification number of each contract file.
B.
Notwithstanding any other provisions of this article, the Purchasing
Agent may make or authorize others to make emergency procurement of
supplies, services or construction items when there exists a threat
to public health, welfare or safety, provided that such emergency
procurement shall be made with such competition as is practicable
under the circumstances.
C.
A written determination, made by the City Manager, shall determine
the basis for the emergency and shall be included in the contract
file. As soon as practicable, but no longer than 10 days following
the emergency, a record of each emergency procurement shall be made
and shall set forth the contractor's name, the amount and type of
the contract, a listing of the item(s) procured under the contract
and the identification number of the contract file.
A.
An invitation for bids, a request for proposals or other solicitation
may be canceled or any or all bids or proposals may be rejected in
whole or in part as may be specified in the solicitation when it is
for good cause and in the best interests of the city. The reasons
therefor shall be made part of the contract file.
B.
Each solicitation issued by the City shall state that the solicitation
may be canceled and that any bid or proposal may be rejected in whole
or in part for good cause when in the best interests of the city.
Notice of cancellation shall be sent to all businesses solicited.
The notice shall identify the solicitation, explain the reason for
cancellation and, where appropriate, explain that an opportunity will
be given to compete on any resolicitation for any future procurement
of similar times. Reasons for rejection shall be provided upon request
by unsuccessful bidders or offerors.
A.
Determination of nonresponsibility. If a bidder or offeror who otherwise
would have been awarded a contract is found nonresponsible, a written
determination of nonresponsibility, setting forth the basis of the
finding, shall be prepared by the Purchasing Agent. The unreasonable
failure of a bidder or offeror to supply promptly information in connection
with an inquiry with respect to responsibility may be grounds for
a determination of nonresponsibility with respect to such bidder or
offeror. A copy of the determination shall be sent promptly to the
nonresponsible bidder or offeror. The final determination shall be
made part of the contract file and be made a public record.
B.
Right of nondisclosure. Proprietary information furnished by a bidder
or offeror pursuant to this section shall not be disclosed by the
City outside of the office of the Purchasing Agent, without prior
written consent by the bidder or offeror. Each bidder shall be required,
as a part of their bid, to clearly identify those items or information
that is to be considered as proprietary for the purposes of this section.
B.
Exceptions. The submission cost or pricing data relating to the award
of a contract is not required when:
(1)
The contract price is based on adequate price competition;
(2)
The contract price is based on established catalog prices or market
prices;
(3)
The contract price is set by law or regulation; or
(4)
It is determined in writing by the Purchasing Agent that the requirements
of this section may be waived and the determination states the reasons
for such waiver.
C.
Required submissions relating to change orders or contract modifications.
A contractor shall submit cost or pricing data prior to the pricing
of any change order or contract modification, including adjustments
to any contract awarded by competitive sealed bidding, whether or
not cost or pricing data was required in connection with the initial
pricing of the contract, when the change or modification involves
aggregate increases or aggregate decreases in cost plus applicable
profits that are expected to exceed $25,000.
D.
Exceptions. The submission of cost or pricing data relating to the
pricing of a change order or contract modification is not required
when:
(1)
Unrelated and separately priced adjustments for which cost or pricing
data would not be required are consolidated for administrative convenience;
or
(2)
It is determined in writing by the Purchasing Agent that the requirements
of this section may be waived and the determination states the reasons
for such waiver.
E.
Certification required. A contractor, actual or prospective, required
to submit cost or pricing data in accordance with this section, shall
provide a written certification that, to the best of his/her knowledge
and belief, the cost or pricing data submitted was accurate, complete
and current as of a mutually specified date prior to the award of
the contract or the pricing of the change order or contract modification.
F.
Price adjustment provision required. Any contract award, change order
or contract modification under which the submission and certification
of cost or pricing data is required shall contain a provision stating
that the price to the city, including profit or fee, shall be adjusted
to exclude any significant sums by which the City finds that such
price was increased because the contractor-furnished cost or pricing
data was inaccurate, incomplete or not current as of the date agreed
upon between the City and the contractor.
Should the Purchasing Agent deem it necessary, a cost analysis or price analysis may be conducted prior to award of the contract other than one awarded under § 5-40, Competitive sealed bidding. Should one be so ordered, a written record of such cost analysis or price analysis shall be made a part of the contract file.
Bid and performance bonds or other security may be requested
for supply contracts or service contracts as the purchasing agent
or department head deems advisable to protect the city's interests.
Any such bonding requirements shall be set forth in the solicitation.
Bid or performance bonds shall not be used as a substitute for a determination
of a bidder or offeror's responsibility.
A.
General authority. 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, provided
that the use of a cost-plus-a-percentage-of-cost contract is prohibited.
B.
Multiterm contracts.
(1)
Specified period. Unless otherwise provided by law, a contract for
supplies or services 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)
Determination prior to use. Prior to the utilization of a multiterm
contract, it shall be determined in writing:
(3)
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 canceled, and the contractor shall be reimbursed
for the reasonable value of any nonrecurring costs incurred but not
amortized in the price of the supplies or services delivered under
the contract. The cost of cancellation may be paid from any appropriations
available for such purposes.
A.
Contract clauses. All City contracts for supplies, services and construction
shall include provisions necessary to define the responsibilities
and rights of the parties to the contract. The purchasing agent, after
consultation with the City Solicitor, may issue clauses appropriate
for supply, service or construction contracts, addressing among others
the following subjects:
(1)
The unilateral right of the City to order, in writing, changes in
the work within the scope of the contract;
(2)
The unilateral right of the City to order, in writing, temporary
stopping of the work or delaying performance that does not alter the
scope of the contract;
(3)
Variations occurring between estimated quantities of work in contract
and actual quantities;
(4)
Defective pricing;
(5)
Liquidated damages;
(6)
Specified excuses for delay or nonperformance;
(7)
Termination of the contract for default;
(8)
Termination of the contract in whole or in part for the convenience
of the city;
(9)
Suspension of work on a construction project ordered by the city;
and
(10)
Site conditions differing from those indicated in the contract or
ordinarily encountered, except that a differing-site-conditions clause
need not be included in a contract:
B.
Price adjustments.
(1)
Adjustments in price resulting from the use of contract clauses required by Subsection A of this section shall be computed in one or more of the following ways:
(a)
By agreement on a fixed price adjustment before commencement
of the pertinent performance or as soon thereafter as practicable;
(b)
By unit prices specified in the contract or subsequently agreed
upon;
(c)
By the costs attributable to the events or situations under
such clauses with adjustments or profit or fee, all as specified in
the contract or subsequently agreed upon;
(d)
In such other manner as the contracting parties mutually agree;
or
(e)
In the absence of agreement by the parties, by a unilateral determination by the City of the costs attributable to the events or situations under such clauses with adjustment of profit or fee as computed by the city, as accounted for in accordance with §§ 5-47 and 5-48 and subject to the provisions of §§ 5-71 through 5-74, appeals and remedies.
C.
Standard clauses and their modification. The Purchasing Agent, after
consultation with the City Solicitor, shall establish standard contract
clauses for use in City contracts.
A contract administration system designed to ensure that a contractor
is performing in accordance with the solicitation under which the
contract was awarded and the terms and conditions of the contract
shall be maintained by each department managing a contract.
(Reserved)
The City may, at reasonable times, inspect the part of the plant
of business or worksite of a contractor or subcontractor at any tier
which is pertinent to the performance of any contract awarded or to
be awarded by the city.
A.
Audit of cost of pricing data. The City may, at reasonable times and places, audit the books and records of any contractor who has submitted cost or pricing data pursuant to § 5-47, Cost or pricing data, to the extent that such books, documents, papers and records are pertinent to such cost or pricing data. Any person who receives a contract, change order or contract modification for which cost or pricing data is required shall maintain such books, documents, papers and records that are pertinent to such cost or pricing data for three years from the date of final payment under the contract.
B.
Contract audit. The City shall be entitled to audit the books and
records of a contractor or subcontractor at any tier under any negotiated
contract or subcontract other than a firm-fixed-price contract to
the extent that such books, documents, papers and records are pertinent
to the performance of such contract or subcontract. Such books and
records shall be maintained by the contractor for a period of three
years from the date of final payment under the prime contract and
by the subcontractor for a period of three years from the date of
final payment under the subcontract.
When, for any reason, collusion or other anticompetitive practices
are suspected among any bidders or offerors, a notice of the relevant
facts shall be transmitted to the County Attorney for investigation
and/or prosecution.
A.
Contract file. All determinations and other written records pertaining
to the solicitation, award or performance of a contract shall be maintained
for the City in a contract file by the Purchasing Agent.
B.
Retention of procurement records. All procurement records shall be
retained and disposed of by the City in accordance with the New Hampshire
Right to Know Law, RSA 91:A.
All specifications shall be drafted so as to promote overall
economy for the purposes intended and encourage competition in satisfying
the city's needs and shall not be unduly restrictive. The policy enunciated
in this section applies to all specifications, including but not limited
to those prepared for the City by architects, engineers, designers
and draftsmen.
(Reserved)
A.
Use. Brand name or equal specifications may be used when the Purchasing
Agent determines in writing that:
(1)
No other design or performance specification or qualified products
list is available;
(2)
Time does not permit the preparation of another form of purchase
description, not including a brand name specifications;
(3)
The nature of the product or the nature of the city's requirements
makes use of a brand name or equal specification suitable for the
procurement; or
(4)
Use of a brand name or equal specification is in the city's best
interests.
B.
The use of brand name or equal specifications shall not be intended
to limit or restrict competition but shall be permitted for description
when bidding for materials, goods and/or services.
A.
The Purchasing Agent shall designate in the bid documents the appropriate
method of contracting management for a particular project. In determining
which method to use, the Purchasing Agent shall consider the city's
requirements, its resources and the potential contractor's capabilities.
B.
The Purchasing Agent shall execute and include in the contract file
a written statement setting forth the facts which led to the selection
of a particular method of construction contracting management for
each project.
A.
Requirement for bid security. Bid security shall be required for
all competitive sealed bidding for construction contracts when the
price is estimated to exceed $25,000. Bid security shall be a bond
provided by a surety company authorized to do business in the State
of New Hampshire or the equivalent in cash or otherwise supplied in
a form satisfactory to the city. Nothing herein shall prevent the
requirement of such bonds on construction contracts under $25,000
when circumstances warrant.
B.
Amount of bid security. Bid security shall be in an amount equal
to at least 5% of the amount of bid.
C.
Rejection of bids for noncompliance with bid security requirements.
When the invitation for bids requires security, noncompliance requires
that the bid be rejected unless it is determined that the bid fails
to comply only in a nonsubstantial manner with the security requirements.
A.
When required amounts. When a construction or service contract is
awarded in excess of $25,000, the following bonds or security shall
be delivered to the City and shall become binding on the parties upon
the execution of the contract:
(1)
A performance bond satisfactory to the city, executed by a surety
company authorized to do business in the state or otherwise secured
in a manner satisfactory to the city, in an amount equal to 100% of
the price specified in the contract for the full term of the contract;
and
(2)
A payment bond satisfactory to the city, executed by a surety company
authorized to do business in the state or otherwise secured in a manner
satisfactory to the city, for the protection of all persons supplying
labor and material to the contractor or its subcontractors for the
performance of the work provided for in the contract. The bond shall
be in an amount equal to 100% of the price specified in the contract
for the full term of the contract.
B.
Reduction of bond amounts. After written approval from the City Manager,
the Purchasing Agent is authorized to reduce the amount of performance
and payment bonds to 50% of the contract price for each bond when
a written determination is made that it is in the best interests of
the City to do so.
C.
Authority to require additional bonds. Nothing in this section shall be construed to limit the authority of the City to require a performance bond or other security in addition to those bonds or in circumstances other than specified in Subsection A of this section.
D.
Suits on payment bonds, right to institute. Unless otherwise authorized
by law, any person who has furnished labor or material to the contractor
or subcontractors for the work provided in the contract for which
a payment bond is furnished under this section and who has not been
paid in full within 90 days from the date on which that person performed
the last of the labor or supplied the material shall have the right
to sue on the payment bond for any amount unpaid at the time the suit
is instituted and to prosecute the action for the amount due that
person. However, any person having a contract with a subcontractor
of the contractor but no express or implied contract with the contractor
furnishing the payment bond shall have a right of action upon the
payment bond upon giving written notice to the contractor within 90
days from the date on which that person performed the last of the
labor or supplied the material. That person shall state in the notice
the amount claimed and the name of the party to whom the material
was supplied or for whom the labor was performed. The notice shall
be served by registered mail, postage prepaid, in an envelope addressed
to the contractor at any place the contractor maintains an office
or conducts business.
E.
Suits on payment bonds, where and when brought. Unless otherwise
authorized by law, every suit instituted upon a payment bond shall
be brought in the Laconia District or Superior Court, the jurisdiction
in which the construction contract was to be performed.
Any person may request and obtain from the City a certified
copy of a bond upon payment of the cost of reproduction of the bond
and postage, if any. A certified copy of a bond shall be prima facie
evidence of the content, execution and delivery of the original.
Each request for a contract modification, change order or contract
price adjustment of in excess of 5% of the original contract price
shall first obtain the prior written approval of the City Manager,
after receiving a written report from the Director of Finance as to
the effect of the contract modification, change order or contract
price adjustment on the total contract budget.
Public announcement and selection process.
A.
Public announcement. It is the policy of the City to publicly announce
all requirements for architect, engineer and land surveying services
and to award such contracts on the basis of demonstrated competence
and qualifications at fair and reasonable rates. In the procurement
of architect, engineer and land surveying services, the Purchasing
Agent shall request specific firms to submit a statement of qualifications
and performance data according to the two-step process outlined below.
In addition, a public notice shall be published in a local newspaper
advising of the city's interest in seeking architectural, engineering
and/or land surveying services.
B.
Selection process. The selecting of architects, engineers and land
surveyors shall be in two parts and according to the following guidelines:
(1)
Statement of qualifications. Each firm responding to the RFP shall first submit a statement of qualifications listing at a minimum, a description of the size, experience, staff of the firm, technical competence of the firm, past record of performance on similar contracts, financial stability, time constraints with respect to meeting the deadline and a statement concerning whether there is a real or perceived conflict of interest. Once submitted, the City shall establish a review committee of no less than three administrative officials to review each submitted statement of qualifications. The committee shall then determine which of the submitted firms are most qualified according to the criteria established by the city. Only those firms deemed most qualified by the evaluation committee shall be permitted to submit a proposal according to Subsection B(2) below. Those firms who were not deemed most qualified shall be provided written notice of the reasons they were not qualified.
(2)
Those firms deemed most qualified by the evaluation committee will be requested to submit a proposal listing, at a minimum, their approach to the project, description of the types of services to be provided, allocation of resources to each aspect of the project, time frames within the firm intends to complete each aspect of the project and an estimate of cost to provide these services. The city's evaluation committee, described in Subsection B(1), shall then review this submission. The evaluation committee shall then rank the submitting firms from highest score to lowest score according to the evaluation criteria. (Cost shall be considered as an evaluation criteria.) Once the final rankings have been made, the Purchasing Agent shall begin negotiations with the firm ranked first by the evaluation committee. The top ranked firm shall be deemed the lowest responsible proposal. Should the Purchasing Agent be unable to reach agreement on a contract and price with the firmed deemed lowest responsible proposal, the Purchasing Agent is authorized to proceed to negotiate with the next ranked firm. Should the City not be able to negotiate a contract with any of the qualified firms, the Purchasing Agent is authorized to readvertise the project.
C.
The City reserves the right to suspend the requirements of this procedure
when, in the opinion of the Purchasing Agent, that it is not in the
city's best interest to follow this procedure. The Purchasing Agent
shall file his reasons, in writing, with the City Manager who shall,
in writing, approve or reject the Purchasing Agent's recommendation.
A.
After reasonable notice to the person involved and reasonable opportunity
for that person to be heard, the Purchasing Agent, after consulting
with the City Solicitor, is authorized to debar a person for cause
from consideration for award of contracts. The debarment shall be
for a period of not more than three years. After consultation with
the City Attorney, the Purchasing Agent 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. The suspension shall be for a period not
to exceed three months.
B.
The causes for debarment include:
(1)
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.
(2)
Conviction under state or federal statutes of embezzlement, theft,
forgery, bribery, falsification or destruction 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.
(3)
Conviction under state or federal antitrust statutes arising out
of the submission of bids or proposals.
(4)
Violation of contract provisions, as set forth below, of such character
which is regarded by the Purchasing Agent to be so serious as to justify
debarment action:
(a)
Deliberate failure without good cause to perform in accordance
with the specifications or within the time limit provided in the contract;
or
(b)
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.
(5)
Any other cause the Purchasing Agent determines to be so serious
and compelling as to affect responsibility as a City contractor, including
debarment by another governmental entity for any cause listed in this
article.
(6)
For violations of the city's Code of Ethics.
The Purchasing Agent shall issue a written decision to debar
or suspend. The decision shall state the reasons for the action taken
and inform the debarred or suspended person involved of their rights
concerning an administrative appeal and review of this decision by
the City Manager.
A.
A decision under § 5-68, Decision to debar or suspend, shall be final and conclusive, unless the debarred or suspended person, within 10 days after receipt of the decision, files a written appeal to the City Manager.
B.
Should an appeal be filed with the City Manager as authorized in § 5-67, the City Manager shall and within 30 days following the filing of the appeal, conduct an administrative hearing to gather facts and circumstances concerning the decision of the Purchasing Agent to debar or suspend a contractor or vendor. Present for this hearing shall be the city's Purchasing Agent and the contractor or vendor and/or a representative of the contractor or vendor to represent their interests in the hearing. Within 10 days after the date of the hearing, the City Manager shall issue his decision, in writing, to all parties to the hearing. The City Manager's decision shall be final.
A.
Right to protest. Any actual or prospective bidder, offeror, or contractor
who is aggrieved in connection with the solicitation or award of a
contract may protest to the City Manager. Protestors must first seek
resolution of their complaints with the Purchasing Agent. A protest
with respect to an invitation for bids or request for proposals shall
be submitted in writing prior to the opening of bids or the closing
day of proposals, unless the aggrieved person did not know and should
not have known of the facts giving rise to such protest prior to bid
opening or the closing date for proposals. In that event, the protest
shall be submitted within three calendar days after such aggrieved
person knows or should have known of the facts giving rise thereto.
B.
Stay of procurement during protests. In the event of a timely protest under Subsection A of this section, the Purchasing Agent shall not proceed further with the solicitation or award of the contract until the City Manager makes a determination in the record that the award of a contract without delay is necessary to protect substantial interests of the city.
A.
Decision of the Purchasing Agent. All claims by a contractor against
the City relating to a contract, except bid protests, shall be submitted
in writing to the Purchasing Agent for a decision. The contractor
may request a conference with the Purchasing Agent on the claim. Claims
include, without limitation, disputes arising under a contract and
those based upon breach of contract, mistake, misrepresentation or
other cause for contract modification or recision.
B.
Notice to the contractor of the Purchasing Agent's decision. The decision of the Purchasing Agent shall be promptly issued in writing and shall be immediately mailed or otherwise furnished to the contractor. The decision shall state the reasons for the decision reached, and shall inform the contractor of its appeal rights under Subsection C of this section.
C.
Finality of Purchasing Agent's decision; contractor's right to appeal.
The Purchasing Agent's decision shall be final and conclusive unless,
within three calendar days from the date of the receipt of the decision,
the contractor mails or otherwise delivers a written notice to the
City Manager or commences an action in a court of jurisdiction.
D.
Failure to render timely decision. If the Purchasing Agent does not
issue a written decision, within five calendar days after written
request for a final decision or within such longer period as may be
agreed upon between the parties, then the aggrieved party may proceed
as if an adverse decision had been received.
The Purchasing Agent is authorized to settle any protest regarding
the solicitation or award of a City contract or any claim arising
out of the performance of a City contract, prior to an appeal to the
City Manager or the commencement of an action in a court of competent
jurisdiction; provided, however, that any settlement requiring the
expenditure of any City funds shall require the prior written approval
of the City Manager.
A.
Prior to bid opening or closing date for receipt of proposals. If
prior to the bid opening or the closing date for receipt of proposals,
the Purchasing Agent, after consultation with the City Solicitor,
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.
Prior to award. If after bid opening or the closing date for receipt
of proposals, the Purchasing Agent, after consultation with the City
Solicitor, 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.
After award. If, after an award, the Purchasing Agent, after consultation
with the City Solicitor, determines that a solicitation or award of
a contract was in violation of applicable law, then:
(1)
If the person awarded the contract has not acted fraudulently or
in bad faith:
(a)
The contract may be ratified and affirmed, provided that it
is determined that doing so is in the best interests of the city;
or
(b)
If the person awarded the contract has acted fraudulently or
in bad faith the contract may be declared null and void or voidable,
if such action is in the best interests of the city.
Nothing in this article shall prohibit the Purchasing Agent
from purchasing from valid state, municipal or federal purchasing
contracts or participating in cooperative purchasing with any of the
same.
A.
Gratuities. It shall be unlawful and unethical for any person to
offer, give or agree to give any City employee or former City employee
or for a City employee or former City employee to solicit, demand
or accept from another person a gratuity or an offer of employment
in connection with any decision, approval, disapproval, recommendation
or preparation of any part of a program requirement or purchase request,
influencing the content of any specification or procurement standard,
rendering of advice, investigation, auditing or in any other advisory
capacity in any proceeding or application, request for ruling, determination,
claim or controversy or other particular matter, pertaining to any
program requirement or a contract or subcontract or to any solicitation
or proposal therefor.
B.
Kickbacks. It shall be unlawful and unethical for any payment, gratuity
or offer of employment to be made by or on behalf of a subcontractor
under a contract to the prime contractor or higher tier subcontractor
or any person associated therewith as an inducement for the award
of a subcontract or order.
C.
Contract clause. The prohibition against gratuities and kickbacks
shall be conspicuously set forth in every contract and solicitation
therefor.
It shall be a violation of this article for a person to be retained
or to retain a person to solicit or secure a City contract upon an
agreement or understanding for a commission, percentage, brokerage
or contingent fee, except for retention of bona fide established commercial
selling agency for the purpose of securing business.
It shall be a violation of this article for any City employee
to become or be, while a City employee, an employee of any person
or firm contracting with the City by whom the employee is employed
or to bid on or receive a contract from the city.
It shall be a violation of this article for any employee or
former employee knowingly to use confidential information for actual
or anticipated personal gains or for the actual or anticipated personal
gain of any other person.
A.
Employees. The City Manager may impose any one or more of the following
sanctions on a City employee for violations of the ethical standards
in this article:
A.
Whenever any personal property, owned by the City and in the possession
of its departments is determined to be beyond its useful life, has
been replaced or is to be replaced or is in a condition that it is
no longer of use to the departmental operation, then the head of the
department shall certify, in writing, to the Purchasing Agent that
certain itemized property is no longer of service to the City and
may be sold, then, and only then, may the property be disposed of
by the Purchasing Agent.
B.
Once the written certification has been received by the Purchasing
Agent, the Purchasing Agent shall formulate a list of property to
be disposed of and forward this list to the City Manager. The City
Manager shall then approve and sign the list authorizing its disposition.
C.
The sale of personal property shall occur according to the following
procedure:
(1)
All sales shall be conducted by sealed competitive bidding.
(2)
The Purchasing Agent shall advertise the sale of this property, in
a newspaper of general circulation, no less than 10 days prior to
the date when sealed bids are due.
(3)
The advertisement shall describe the property in a manner that adequately
describes the property and the date, time and location when the bids
are due and to be opened.
(4)
The City shall be the final authority in determining the bid in the
best interest of the City and shall reserve the right to reject any
and all bids.
(5)
No sale of such property shall be made where other provisions are
made for the disposition of such property under law or ordinance.
(6)
Nothing in this section shall prohibit the City from disposing of personal property by direct sale or gift to another political subdivision, nonprofit or charitable organization or to deliver personal property to the semiannual state auction for sale, provided that the property so disposed shall have been identified according Subsections A and B.
