This article shall be known as the "City Purchasing Code" and
may be cited as such.
For the purposes of this article, the following terms, phrases,
words and their derivations shall have the following meanings:
The formal process involving the solicitation of written
bids as a means of achieving the bid most advantageous to the City
for the goods and services desired by the City. Bid solicitation shall
not be intended as an offer to purchase, but instead as an invitation
for the vendor to make an offer.
[Amended 5-24-2023 by Ord. No. 2023.05.10-005]
A purchase occasioned by a potential threat to public health,
safety or to property, or a potential loss of revenue or potential
liability, or significant and unforeseen disruption of operations.
[Amended 5-24-2023 by Ord. No. 2023.05.10-005]
Competitive bidding process where vendors submit written
bids in a sealed envelope. Written bids shall be considered an offer
by the Vendor to enter into a contract.
[Added 5-24-2023 by Ord. No. 2023.05.10-005]
The complete array of purchases of the City, including but
not limited to supplies, commodities, equipment, construction materials
and labor, consulting services, and training.
A purchase made by the Purchasing Agent by combining two
or more departmental requisitions in one purchase order.
Quotation(s) obtained from the vendor(s) in writing or by
oral communication.
The list of vendors who have qualified to bid on City purchases.
The lowest responsible and responsive bid taking into consideration
the price, the quality of the commodity or service and the service
reputation and experience of the bidder.
The total cost of goods or services, including all determinable
associated costs, e.g., construction, engineering, delivery, setup
and training. Where the purchase consists of small, frequent charges,
the aggregate twelve-month cost of goods or services shall be used
to determine the anticipated amount of a purchase and the applicability
of the specific sections of the Purchasing Code.
[Amended 5-24-2023 by Ord. No. 2023.05.10-005]
The document used to accomplish and document approval of
the City’s purchase of goods and/or services.
[Amended 5-24-2023 by Ord. No. 2023.05.10-005[1]]
An offer issued by a vendor or prospective vendor providing
a definite and fixed price and all other of vendor’s proposed
terms for the City’s purchase of a good or service.
[Added 5-24-2023 by Ord. No. 2023.05.10-005]
The quantity and qualitative standards set by department
heads as a guide to the Purchasing Agent and as a measure of quality
that successful vendors must achieve. Specifications shall not unnecessarily
restrict purchases as to trade name or eliminate bids being submitted
on items that have the same specifications without a specific trade
name, except where ongoing operational needs of a department require
the procurement of a particular standard, format, compatible feature,
or brand.
[Amended 5-24-2023 by Ord. No. 2023.05.10-005]
[1]
Editor's Note: This ordinance also repealed the former definition
of "sealed formal bid," which immediately followed this definition.
[Amended 5-24-2023 by Ord. No. 2023.05.10-005]
The purpose of this article shall be to standardize the purchasing
procedures of the City and to ensure the public interest is protected,
thereby increasing savings and protecting taxpayers and ratepayers,
to set forth the duties and responsibilities of the department heads
in order to foster interdepartmental cooperation and trust with the
office of the Purchasing Agent, and to assign overall responsibility
for purchasing to the Purchasing Agent.
This article shall apply to all purchases for all departments and agencies of the City pursuant to § C6-16 of the Dover City Charter.
Credit cards issued by the City may be used for the purchase
of goods and services pursuant to administrative regulations on the
use of credit cards.
[Amended 5-24-2023 by Ord. No. 2023.05.10-005]
No purchases shall be made until such time as the Council has
approved the necessary appropriation or, in the case of federal or
state grants to the City, the grant award has been received. The Purchasing
Agent shall verify the availability of funds to be used for a purchase
of or greater than $3,000 prior to issuance of a purchase order. The
Finance Director shall certify the availability of funds of all purchases
to be approved by the City Council prior to its vote.
[Amended 5-24-2023 by Ord. No. 2023.05.10-005]
All goods and services in an amount of or greater than $3,000
shall be requisitioned by department heads to the Purchasing Agent
by a prescribed requisition system to be provided and overseen by
the Finance Department.
[Amended 5-24-2023 by Ord. No. 2023.05.10-005]
A.
Small purchases of less than $3,000 may be executed by informal,
direct purchasing by the head of a department, or designee, on forms
or a requisition system provided by the Purchasing Agent, provided
however that the Purchasing Agent shall have ongoing ability to supervise,
spot check, and if necessary disapprove and terminate such purchases.
B.
Small purchases shall not be used if it is known or estimated, based
on historic experience, that the aggregate twelve-month total cost
of said purchases may exceed $3,000.
C.
Department heads should take the appropriate steps to attain the
best pricing and other terms practical when using purchase orders.
[Amended 5-24-2023 by Ord. No. 2023.05.10-005]
A.
Notwithstanding
the informal bidding and Purchasing Agent approval requirements stated
elsewhere in this article, Department Heads may make emergency purchases
not exceeding $25,000. All attempts shall be made to obtain the most
competitive price and other terms within the time available. The department
head shall be responsible for notifying the Purchasing Agent and City
Manager of any emergency purchase as soon as practicable and in no
event later than two calendar days.
B.
Notwithstanding
the formal bidding and City Council approval requirements stated elsewhere
in this article, the City Manager may authorize emergency purchases
of up to $50,000 when there exists occasion for an emergency purposes
within the meaning of this article as determined by the City Manager.
All attempts shall be made to obtain the most competitive price and
other terms within the time available. The City Manager shall report
all such emergency purchases to the City Council at its next regular
meeting.
[Amended 5-24-2023 by Ord. No. 2023.05.10-005]
A.
Informal bidding using quotations shall be required for purchase
amounts of $3,000 to $24,999.99. Informal bidding shall consist of
receiving a minimum of three quotations whenever possible. Unless
the vendor submitting a quotation states otherwise, vendors shall
honor their submitted quotation for a period of at least thirty days.
B.
Verbal or oral quotations shall be required for purchase amounts
from $3,000 to $9,999.
C.
Written quotations from vendors are required for purchase amounts
from $10,000 to $24,999.99.
D.
Oral, verbal and written quotations may be solicited by telephone,
direct mail, direct conversation or by electronic means, and documented
by the person obtaining the quotations.
E.
The Purchasing
Agent shall solicit, or verify the solicitation of, at least three
vendors’ quotations when available on every informal bidding
purchase unless exempted by the provisions of this article. The purchase
shall be awarded to the vendor whose quotation is deemed by the Purchasing
Agent in his or her discretion to be the most advantageous to the
City of Dover. Quotations may be rejected at the discretion of the
Purchasing Agent. In the event fewer than three quotations are received,
the City Purchasing Agent may award the purchase on the basis of the
quotation deemed by the Purchasing Agent most advantageous to the
City of those submitted or may order a new procurement process or
defer the procurement to a more appropriate time.
F.
The Purchasing
Agent may waive informal bidding for good cause documented by the
Purchase Agent in writing.
[Amended 5-24-2023 by Ord. No. 2023.05.10-005]
[Amended 5-24-2023 by Ord. No. 2023.05.10-005]
Formal bidding shall not apply to the following:
A.
Purchases made through the State of New Hampshire, other governmental
agencies, or cooperative buying groups. The Purchasing Agent may,
with approval by the City Manager, waive bidding procedures when purchasing
can be accomplished through the State of New Hampshire or at state
bid prices, other governmental agencies or cooperative buying groups.
B.
Regional purchasing. The Purchasing Agent may participate in solicitations
to bid conducted by the City of Dover or another city or town or other
entity where the goal is to bid for goods and services for more than
one city, town or other government entity subject to other provisions
of the Purchasing Code.
C.
Sole-source purchases where the proposed purchase is manufactured
or provided by only one entity, and/or the City has already committed
to a certain product, manufacturer, brand, or service provider.
D.
Purchases under extensions of contracts when the same or lower price
is extended for another year or part of a year, or where the Purchasing
Agent is able to negotiate a mutually acceptable price increase that
is no greater than the most recent Consumer Price Index-Boston published
by the United States Department of Labor.
E.
Purchases under intergovernmental agreements or contracts which require
use of procurement procedures consistent with the provisions of this
section.
A.
The Purchasing Agent shall report exceptions to the bidding and award
requirements to the City Manager.
B.
All purchases of goods and services of $10,000 or more shall be reported
to the City Council by the City Manager on a monthly basis following
said purchases.
[Amended 5-24-2023 by Ord. No. 2023.05.10-005]
C.
For any
proposed purchase requiring City Council approval, and for which formal
bidding has resulted in the submission of fewer than two bids, the
City Manager or Purchasing Agent shall explain, to the extent known
and practicable, the reason(s) or likely reason(s) for the number
of formal bids actually received.
[Added 5-24-2023 by Ord. No. 2023.05.10-005]
Payments and purchases exempt from the bidding and City Council
approval requirements due to their nature or other statutory provisions
include:
A.
Utility consumption costs, including electrical, natural gas, water
and sewer.
B.
Telecommunication charges.
C.
Advertising.
D.
Postage.
E.
Federal, state and local taxes.
F.
Court or administrative agency judgments, fines, and/or civil penalty
assessments.
[Amended 5-24-2023 by Ord. No. 2023.05.10-005]
G.
Workers' compensation claims.
H.
Debt service payments.
I.
Police special investigative costs where disclosure may jeopardize
an investigation.
J.
Expert consulting
for litigation.
[Added 5-24-2023 by Ord. No. 2023.05.10-005]
K.
The Purchasing
Agent is authorized to issue change orders or contract amendments
up to a cumulative amount of $25,000 for changes in scope or quantity
of an existing purchase. Change orders for a vendor may be permitted
up to the limits of the available appropriation when the services
are within the original scope of services.
[Added 5-24-2023 by Ord. No. 2023.05.10-005]
All purchases of goods and services of $25,000 or more shall
be approved or rejected by majority vote of the City Council prior
to the awarding of such purchases. The City Manager is authorized
to sign a contract containing the terms and conditions of the bid
award. The amount of the authorization shall be limited so as not
to exceed available funding.
[Amended 5-12-2021 by Ord. No. 2021.04.28-004; 5-24-2023 by Ord. No. 2023.05.10-005]
The procedure for formal bidding is established as follows:
A.
Formal bidding shall be initiated by the Purchasing Agent with a
notice of solicitations for bidding sent to vendors and/or by advertising.
The notice shall contain specifications and/or scopes of services
as to quantity and quality, date and time for the closing of bids,
the date and time for opening bids, and other details regarding the
bidding process. All solicitations shall note that all purchases are
subject to the conditions set forth in the City Purchasing Code.
B.
The Purchasing Agent shall solicit at least three vendors when available
on every purchase requiring formal bidding unless exempted by the
provisions of this article. Bids shall be awarded to the vendor whose
bid is the most advantageous to the City of Dover as determined by
the Purchasing Agent and, if required, the City Council. Bids may
be rejected at the discretion of the Purchasing Agent or City Council.
In the event fewer than three bids are received, the City Purchasing
Agent may, with City Council approval where required, award the purchase
on the basis of the bid most advantageous to the City of those submitted
or may order a rebidding.
C.
Technical specifications for bids shall state information as broadly
as practicable, yet shall be specific enough to describe the requirements
of the purchase. Nontechnical specifications for bids shall state
the quality required in general terms.
D.
Formal bids shall be submitted by qualified vendors before the bidding
deadline, but may be withdrawn by any bidder before the deadline.
After the bidding deadline, the Purchasing Agent shall receive no
further bids, and no bidder shall withdraw a bid. Bidders shall honor
their submitted bid for a period of at least thirty days. As part
of any bid, all bidders shall expressly state any exception to the
bidding requirements and/or additional proposed terms, or else said
bidder shall be deemed to have knowingly and irrevocably waived any
such exception or additional proposed term. The City shall have custody
of all bids submitted pursuant to this Purchasing Code.
E.
In accordance with RSA 447:16, the Purchasing Agent shall require
security from vendors for construction projects estimated to be in
excess of the dollar amounts stated in RSA 447:16, as may be amended
from time to time.
(1)
The elements of a purchase to be secured include, but are not limited
to, the following:
(a)
A
bid bond in the minimum amount of 5% of the bid price from the time
of bid opening until signing of the contract to offset the cost of
accepting the next lowest qualified bidder, in case of default by
the bidder.
(b)
A
performance bond in the amount of 100% of the contract price to ensure
compliance with and completion of the contract.
(c)
A
labor and materials bond in the amount of 100% of the contract price
to ensure payment to suppliers and subcontractors by the contractor.
(2)
The form of the security shall be prescribed by the Purchasing Agent
and may consist of, but is not limited to, bonds issued by surety
companies licensed within the United States, certified checks and
irrevocable letters of credit at banks acceptable to the City. Except
as required by RSA 447:16, the Purchasing Agent may waive the bond
requirements on a case-by-case basis with the approval of the City
Manager. The Purchasing Agent may include security requirements for
public works projects the costs of which are below the dollar amounts
specified in RSA 447:16, as may be amended from time to time, and
in other types of purchases where doing so is advantageous to the
City, with the approval of the City Manager.
F.
In each and every case where bids are presented to the City Council
for award, information presented to the City Council shall include
solicitation information and bid amounts.
G.
The Purchasing Agent shall open bids, read them in public, inspect
them and process for award. In determining the bid most advantageous
to the City, the Purchasing Agent shall, whenever possible, analyze
the bids so that the bids are compared on an equitable basis as determined
in the sole discretion of the Purchasing Agent.
H.
The formal bid procedure may be waived by a majority vote of the
City Council.
I.
In conducting
formal bidding, the Purchasing Agent may develop standard bidding
instructions for all bids or, if needed or deemed advisable, specific
bidding instructions for individual bids. The Purchasing Agent may,
but is not required to, reject all bids determined to be non-compliant
with the bid instructions.
[Amended 5-24-2023 by Ord. No. 2023.05.10-005]
The Purchasing Agent is authorized and may rebid any or all
items that have been noticed for bidding where fewer than three bids
have been received, or where no bid most advantageous to the City
has been received, or for other good cause, as determined within the
Purchasing Agent’s discretion.
[Amended 5-24-2023 by Ord. No. 2023.05.10-005]
The City Manager is designated as the sole authorized contracting
officer of the City, though the City Manager may assign a temporary
designee to contract for the City where the City Manager is unavailable.
Execution of a written contract or contract change order accompanying
a purchase order or purchase change order shall occur only after the
contract has been reviewed as to form by legal counsel and funding
confirmed by the Finance Director or designee. Purchases involving
contracts are subject to all other provisions of the Purchasing Code.
All purchases made by the City shall be subject to the following
conditions:
A.
All purchases shall be awarded on the basis of the bid most advantageous
to the City.
B.
All purchases shall be subject to the reservation of the right by
the City to accept or reject any or all bids.
C.
In the event of a tie for low bid for equally qualified bidders where
one bid is not considered most advantageous over another, preference
for award shall be given to any bidder who is located within Dover.
D.
When an award of purchase shall be recommended to other than the
low bidder, the Purchasing Agent shall submit such recommendation
to the City Manager for approval or disapproval. Should the City Manager
reject such recommendation, the award shall be made to the bid most
advantageous to the City, unless all bids are rejected.
E.
Any automatic
renewal term or “Evergreen clause” stated in any Vendor-drafted
contract where the City is a party shall be deemed an option of the
City at each renewal interval to either accept or reject the contract
renewal, and shall not be enforceable against the City unless and
until the City expressly and in writing accepts each subsequent contract
renewal.
[Added 5-24-2023 by Ord. No. 2023.05.10-005]
F.
The submission
of a bid or the provision of commodities or services by a vendor shall
constitute acceptance of any requirements or specifications set forth
in this article and the terms stated on any bid instructions, purchase
order, agreement, or other document issued by the City to procure
the commodity or service.
[Added 5-24-2023 by Ord. No. 2023.05.10-005]
G.
Purchases
of information technology systems, software, and similar goods and
services shall include as an incorporated contract document the City’s
Vendor Cybersecurity Agreement as prepared by the City’s Director
of Information Technology, Purchasing Agent, and City Attorney, which
may be amended from time to time and which may likewise be negotiated
with respect to a specific procurement and vendor, or may be waived
with approval of the City Manager.
[Added 5-24-2023 by Ord. No. 2023.05.10-005]
H.
The following
terms stated in favor of a vendor in a City agreement are found to
be against the public interest and not for the well-being of the City,
and shall not be authorized and, if and to the extent any agreement
where the City is party recites such terms, then those terms shall
be unauthorized, null, void, and of no effect unless specifically
authorized by vote of City Council:
[Added 5-24-2023 by Ord. No. 2023.05.10-005]
(1)
Any
contractual indemnity in favor of the vendor for the vendor’s
negligence or fault;
(2)
Any
choice of law provision precluding the applicability of laws outside
New Hampshire, except for applicable federal law;
(3)
Any
exclusive venue provision requiring the City to enforce the agreement
in a judicial district outside New Hampshire;
(4)
Any
limitation of vendor’s liability, limitation of City’s
remedy, or cap on damages against vendor, any of which operates to
relieve the vendor of performing the promised services or providing
the promised goods;
(5)
Any
waiver of the City’s legal immunities or the protections within
RSA chapter 507-B.
(6)
Any
time-based limitation on asserting a claim arising out of the contract,
other than the statutes of limitation, if any, in New Hampshire.
All department heads shall:
A.
Determine acceptable quality of good and supplies to be purchased.
B.
Cooperate with the Purchasing Agent in establishing lists of approved
specifications and vendors.
C.
Share knowledge of special factors which will implement a policy
designed to enable the City to minimize cost and maximize quality.
D.
Supply the Purchasing Agent with a list of estimated annual requirements
of frequently used supplies, thereby fostering group purchasing.
E.
Prepare requisitions with a view toward group purchasing and keep
corresponding records to facilitate debiting on City financial records.
F.
Be empowered to reject any good or service on grounds of high cost
or low quality, and provide the Purchasing Agent with a detailed written
report explaining the reasons for such rejection.
H.
Foster regular purchasing procedures to minimize direct purchases.
Any transfer of City assets, waiving or abatement of fees, or
performance of City services in exchange for goods and services to
be received by the City shall be deemed a purchase and shall be subject
to the provisions of the Purchasing Code as determined by the fair
market value of the City assets, fees, and/or services being exchanged.
In the case of contracts for the construction, reconstruction,
alteration, repair, or refurbishing of real property where the estimated
cost of the project is in excess of $100,000, a determination of the
responsibility of interested contractors may precede the issuance
of invitations to bid. Invitations to bid shall be issued only to
firms which have, in the Purchasing Agent's sole determination, been
prequalified. The prequalification process shall include the following:
A.
The ability, capacity, and skill of the bidder to perform the contract
or provide the service required.
B.
Whether the bidder can perform the contract or provide the service
promptly, or within the time specified, without delay or interference.
C.
The character, integrity, reputation, judgment, experience, and efficiency
of the bidder.
D.
The quality of performance of previous contracts or services.
E.
The previous and existing compliance by the bidder with laws and
ordinances relating to the contract or service.
F.
The sufficiency of the financial resources and ability of the bidder
to perform the contract or provide the service.
G.
The quality, availability, and adaptability of the supplies or contractual
services to the particular use required.
H.
The ability of the bidder to provide future maintenance and service
for the use of the subject of the contract.
I.
The number and scope of conditions attached to the bid.
J.
The amount of total direct and indirect costs which would accrue
to the City on account of the bid.
K.
Any other special considerations not contrary to the law.
[Amended 5-24-2023 by Ord. No. 2023.05.10-005]
The Purchasing Agent shall reserve the right to reject any and
all bids, together with the right to negotiate with the bidder submitting
the bid most advantageous to the City for a lower price and/or other
terms consistent with this article as deemed acceptable by the Purchasing
Agent and City Attorney.
[Amended 5-24-2023 by Ord. No. 2023.05.10-005]
In the purchase of accounting, architectural, auditing, engineering,
legal and medical services and purchases of independent professional
consultant services for personnel, data processing, insurance, actuarial,
planning, management, and other comparable professions, the following
procedures may be followed:
A.
An invitation shall be developed which will include a description
of the scope of services and desired result and which shall request
qualifications and an expression of interest.
B.
The invitation shall be given adequate public notice by posting in
two public places, and by publication in a newspaper of general circulation.
C.
Depending on the scope of the project, up to six applicants shall
be selected to submit formal proposals.
D.
The Purchasing Agent shall develop a request for proposals, including
terms, conditions, and other requirements and identifying the purpose
of the work, the result desired, the specific work components the
consultant is expected to perform, and the responsibilities of the
applicant and the City.
E.
Proposals shall be evaluated and selection made on the basis of demonstrated
competence and qualification for the services required at a fair and
reasonable price. In addition to price, and where applicable to a
particular project, one or more of the following factors shall be
used in evaluating proposals:
(1)
Specific experience with similar projects.
(2)
Specific experience with earlier phases of the same project.
(3)
Background and experience of staff members who would be assigned
to the job.
(4)
Availability.
(5)
Locality of the firm.
(6)
Ability to communicate ideas.
(7)
Ability to supply all of the major disciplines necessary to perform
the work.
(8)
Qualifications of subcontractors.
(9)
Conceptual designs.
(10)
Accuracy of the firm in estimated time and cost requirements.
(11)
Other
as defined by Purchasing Agent.
F.
Interviews may be a part of the selection process.
G.
On award, all contracts for professional services shall be formalized
in a written agreement signed by the applicant and the City Manager.
A.
Any actual or prospective bidder who is aggrieved in connection with
the solicitation or award of a bid or contract may protest and seek
resolution of 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 time for the opening of bids on
the closing day for 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 proposal. In that event,
the protest shall be submitted within three calendar days after the
aggrieved person knows or should have known of the facts giving rise
thereto.
B.
If a satisfactory resolution of the protest is not achieved by submitting
a complaint with the Purchasing Agent, the person submitting the protest
shall submit a written appeal to the City Manager within three calendar
days of a decision by the Purchasing Agent.
C.
Purchasing procedures shall be stayed pending a decision of the City
Manager unless the City Manager decides that the award of a contract
is necessary to protect substantial interests of the City.
Solicitations utilized by the City or any agency thereof for
the purpose of soliciting bids, proposals or price quotations or providing
instructions to bidders shall contain the following language: "The
City of Dover supports the concept of purchasing products that are
biodegradable, can be or have been recycled, or are environmentally
sound. Due consideration will be given to the purchase of such products.
If you are bidding on any such products which qualify, please so indicate
in a cover sheet by item number and description."
No employee, officer, or agent of the City shall participate
in the award or administration of a contract in which he or she or
any member of his or her immediate family has an interest. No such
employee, officer, or agent shall participate in the award or administration
of a contract with any person, firm, partnership, or corporation in
which he or she or any member of his or her immediate family is an
officer or employee or is about to become an officer or employee.
No employee, officer, or agent of the City who is participating
or is about to participate in the award or administration of a contract
shall either solicit or accept any pecuniary benefit from any firm,
person, partnership, or corporation involved in such contract. For
the purpose of this section, the definition of "pecuniary benefit"
shall mean any advantage in the form of money, property, commercial
interest, or anything else, the primary significance of which is economic
gain.
Procurement information shall be a governmental record to the
extent provided in New Hampshire RSA 91-A:4 and 91-A:5 and shall be
available to the public. Proprietary information shall be considered
a governmental record.
Nothing in this Purchasing Code is intended to invalidate or
in any way limit the term of any contract or special service agreement
lawfully made prior to the effective date of this article.
