[HISTORY: Adopted by the Town Council of
the Town of Westerly as indicated in article histories. Amendments
noted where applicable.]
[Adopted 8-13-1991 by Ch. No. 983 as §§ 2-161 through 2-181
of the 1991 Code]
A.Â
Purposes and policies. The regulations of this article
shall be known as the "Town of Westerly Procurement Code." This article
shall be liberally construed and applied to promote its underlying
purposes and policies, which are:
(1)Â
To simplify; clarify and modernize the regulations
governing purchasing by the Town;
(2)Â
To permit the continued expansion of purchasing policies
and practices;
(3)Â
To make as uniform as possible the regulations governing
purchasing among the various departments, agencies and offices of
the Town; and
(4)Â
To develop increased public confidence in the procedures
followed in public purchasing.
B.Â
Supplementary general principles of law applicable.
Unless displaced by the particular provisions of this article, the
principles of law and equity, including the Uniform Commercial Code
and the law merchant and the law relative to capacity to contract,
principal and agent, fraud, misrepresentation, duress, coercion, mistake,
or bankruptcy, shall supplement its provisions.
C.Â
Application of chapter. This article shall apply to
every expenditure of public monies of the Town under any contract,
grant, or like business agreement by any department, commission, council,
board, bureau, agency, authority, government corporation, or other
establishment of the Town government created by the Charter, the Town
of Westerly Code, or any state or national law or regulation requiring
the establishment of such Town activity. This chapter shall also apply
to the disposal of any Town-owned property.
A.Â
ARCHITECT-ENGINEER SERVICES
BUSINESS
COMMERCIAL ITEM
CONSTRUCTION
CONSULTANT SERVICES
CONTRACT
CONTRACT MODIFICATION
CONTRACTOR
DATA
DESIGNEE
EMPLOYEE
ESTABLISHED CATALOGUE PRICE
EXHIBIT
GOVERNMENTAL BODY
INCLUDES
INVITATION FOR BIDS
NEGOTIATE and NEGOTIATION
OPERATIONS OFFICER
PROCUREMENT
PURCHASE REQUEST
PURCHASING AGENT
SUPPLEMENTAL AGREEMENT
SUPPLIES
As used throughout this article, the words and terms
defined in this section shall have the meanings set forth below, unless
the context in which they are used clearly requires a different meaning,
or unless a different definition is prescribed for a particular section
or portion thereof:
Those professional services associated with research, development,
design and construction, alteration or repair of real property, as
well as incidental services that members of these professions and
those in their employ may logically or justifiably perform, including
studies, investigations, surveys, evaluations, consultations, planning,
programming, conceptual designs, plans and specifications, cost estimates,
inspections, shop drawing reviews, sample recommendations, preparation
of operation and maintenance manuals, and other related services.
Any corporation, partnership, individual, sole proprietorship,
joint-stock company, joint venture, or any legal entity through which
business is conducted.[1]
Any item, including both supplies and services, of a class
or kind which is regularly used for other than Town or other governmental
purposes, and is sold or traded in the course of conducting normal
business operations.
The erection, alteration, or repair (including, but not limited
to, dredging, excavating and painting) of public buildings, structures
or other improvements to real property.
Those professional services other than architect engineer
services which provide research, development, financial or legal advice
to governmental bodies in the form of studies, investigations, evaluations,
audits, consultations, plans, programs, and recommendations which
generally pertain to other than the design, construction or alteration
of real property.
All types of agreements and orders for the procurement or
disposal of supplies, services, construction, or any other item. It
includes awards and notices of award; contracts of a fixed-price,
cost, cost-plus-a-fixed-fee, or incentive types; contracts providing
for the issuance of job orders, task orders or task letters thereunder;
letter contracts; and purchase orders. It also includes supplemental
agreements with respect to any of the foregoing.
Any written alteration in the specification, delivery point,
rate of delivery, contract period, price, quantity, or other contract
provisions of any existing contract, whether accomplished by unilateral
action in accordance with a contract provision or by mutual action
of the parties to the contract. It includes bilateral actions such
as supplemental agreements, and unilateral actions such as change
orders, orders for provisional items, administrative changes, notices
of termination, and notices of the exercise of a contract option.
Any person having a contract with the Town.
Recorded information, regardless of form or characteristic.
As used for example in the phrase "the Town Council or its
designee" may include one or more officials.
Includes any individual drawing a salary from any governmental
body of the Town, whether elected or not and any nonsalaried person
performing services for any governmental body of the Town.
A price included in a catalogue, price list, schedule, or
other form that is regularly maintained by the manufacturer or vendor
of an item and is either published or otherwise available for inspection
by customers, stating prices at which sales are currently, or were
last, made to a significant number of buyers constituting the general
public.
A document attached to a procurement instrument, referenced
by its capital letter identifier in a line or subline item in the
procurement instrument schedule, which establishes deliverable requirements
in the attached document as an alternative to establishing an extensive
list of line or subline items in the procurement instrument schedule.
Any department, commission, council, board, bureau, committee,
institution, legislative body, agency, government corporation, authority,
activity, or other establishment of the Town government.
Includes but is not limited to.
A document to be furnished to prospective bidders for the
purpose of bidding, and all documents related thereto describing the
requirements of the governmental body.
When applied to the making of purchases and contracts, refers
to making purchases and contracts without competitive sealed bidding,
and may refer to both competitive and noncompetitive negotiation.
Any person who, either by virtue of his/her position or by
appointment in accordance with this article, is currently an Operations
Officer with the authority to enter into and administer contracts
and make determinations and findings with respect thereto, or with
any part of such authority. The term also includes the authorized
representative of the Operations Officer acting within the limits
of this authority.
[Amended 2-13-2006 by Ord. No. 1563]
Includes purchasing, renting, leasing, or otherwise obtaining
supplies or services, construction, or any other item. It also includes
all functions that pertain to the obtaining of such supplies, services,
construction and items, including description (but not determination)
of requirements, selection and solicitation of sources, preparation
and award of contract, and all phases of contract administration.
That document whereby a requiring activity (governmental
body) requests that a contract be obtained for a described item, and
may include, but is not limited to, the technical description of the
requested item, delivery schedule, transportation, criteria for evaluation
of solicitations, suggested sources of supply, and inputs to any required
determination and finding made pursuant to any section of this article.
[Amended 9-21-2015 by Ch. No. 1845]
Any person who, either by virtue of his/her position or by
appointment in accordance with this article, is currently a Purchasing
Agent with the authority to enter into and administer contracts approved
by the Town Manager or designee and make determinations and findings
with respect thereto, or with any part of such authority. The term
also includes the authorized representative of the Purchasing Agent
acting within the limits of this authority.
[Added 9-21-2015 by Ch.
No. 1845]
Any contract modification which is accomplished by mutual
action of the parties.
All property, except land or interest in land.
[1]
Editor's Note: The former definition of "change order," as
amended, which immediately followed, was repealed 9-21-2015 by Ch.
No. 1845.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
A.Â
Office established, consolidated position. There is
established a joint position effective 2011, the office of Purchasing
Agent, who shall be appointed by the Town Manager and School Superintendent
and who shall have the authority to enter into and administer contracts,
approved by the Town Manager or designee, for the Town subject to
restrictions imposed by this article. He/She shall purchase any and
all supplies, services, construction, vehicles, equipment, insurance,
and other items required by all departments of the Town within the
appropriation restrictions imposed by the annual operating budget
and capital improvement budget.
B.Â
Specific duties of the Purchasing Agent. In addition
to all other powers and duties set forth in this article, the Purchasing
Agent shall have the power, and his/her duties shall be:
(1)Â
(Reserved)
(2)Â
(Reserved)
(3)Â
To enter into contracts of all kinds and to execute
all instruments necessary or convenient to the carrying out of their
operations.
(4)Â
To determine and promulgate, with the approval of
the Town Manager and within the restrictions imposed by this article,
the methods and procedures to be used for purchasing supplies, materials,
equipment, vehicles, construction, insurance, and other items for
the Town including, but not limited to, requisition, delivery, acceptance
or rejection, and storage.
(5)Â
To transfer to or between governmental bodies of the
Town or to sell, trade or otherwise dispose of supplies, material
and equipment of those bodies which are surplus, obsolete or unused,
and to make proper adjustments to the accounts of the governmental
bodies concerned in accordance with the Town of Westerly purchasing
manual.
(6)Â
To recommend criteria and procedures to obtain more
economical operation of all procurement functions of the Town.
(7)Â
With the approval of the Town Manager, to publish
rules and regulations pursuant to this article governing the procurement
of common items used by more than one activity of the Town, including
the time, manner and form of making such procurement.
(8)Â
Establish, consistent with this article, the form,
time and manner of submission of bids and proposals for contracts,
and the terms and conditions which shall be included in such contracts.
(9)Â
Establish and maintain a program of testing and inspecting
to ensure that material, supplies, services, equipment, construction,
insurance and other items contracted for meet specifications; employ
inspectors and make contracts for testing within the restrictions
imposed by operating or capital budgets. If any using activity determines
that any supplies, materials, equipment, construction or insurance
received did not meet specifications, it shall promptly notify the
Purchasing Agent, in writing, detailing the reasons why it believes
the specifications were not met. The Purchasing Agent shall immediately
determine whether or not the reported items, material or services
meet the specifications, and his/her decision shall be final to the
using activity. When he/she finds that the contract specifications
or conditions have not been complied with, he/she shall take such
action, with the advice and assistance of the Town Solicitor, against
the defaulting contractor as may be deemed just and appropriate.
(10)Â
To have access to department maintained usage figures
on the consumption and use of supplies, material, services and equipment
purchased for all Town governmental bodies and furnish all such bodies,
upon request, the relevant usage and consumption figures maintained
for that activity. The Purchasing Agent is directed to cooperate with
the Town Board of Finance, the office of the Town Manager, and the
office of the Superintendent of Schools in the preparation of usage
and consumption data for supplies, material, services and equipment
for purposes of budget preparation and control. He/she may require
additional data and reports from governmental bodies as necessary,
and may contract for statistical processing necessary for the maintenance
and compilation of the statistics required by his/her office.
(11)Â
To file contract documents and reports required by
this article with the Town Clerk upon execution of the contracts or
at the times specified for reports.
A.Â
Ways of making contracts. Except as otherwise authorized,
procurement and construction contracts shall be made by:
(1)Â
Competitive sealed bid;
(2)Â
Competitive negotiation;
(3)Â
Noncompetitive negotiation;
(4)Â
Small purchase procedures; and
(5)Â
Qualification-based
selection (QBS) process for architects and/or engineers pursuant to
RIGL 45-55-8.1, and program managers, construction managers, or construction
managers at risk pursuant to RIGL 45-55-8.2.
[Added at time of adoption of Code (see Ch. 1, General Provisions,
Art. I)]
B.Â
Competitive bidding. Contracts exceeding the amount provided in § 49-8 shall be made by competitive sealed bidding, unless they are professional engineering/architectural services pursuant to Subsection A(5), when the configuration or performance specifications, or both, may be sufficiently defined to permit award on the basis of the lowest evaluated price, as determined in accordance with objective, measurable criteria set forth in the invitation for bids, and when available sources, the time and place of performance, and other conditions are appropriate for the use of competitive sealed bidding.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
C.Â
Adequate public notice of invitation for bids. The
invitation for bids shall be given adequate public notice, in a newspaper
of general circulation, and/or electronically on the Town's website
of not less than seven days and not more than 21 days. The Purchasing
Agent shall determine if publication in a newspaper of state-wide
circulation is warranted. The Purchasing Agent may waive the twenty-one-day
maximum limit for adequate public notice, in writing, but, in accordance
with current state law, the seven-day minimum notice may not be waived.
The invitation for bids, including specifications and attachments,
shall permit such full and free competition as is consistent with
acceptable procurement practices as required by applicable state law
and municipal ordinance for the procurement of the supplies and services
required.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
D.Â
Opening and award. All bids shall be filed, in writing,
with the Purchasing Agent at the time and place stated in the invitation
for bids, and shall be opened publicly at the time and place stated
therefor in the invitation for bids. Awards shall be made with reasonable
promptness by written notice to the responsible, conforming low bidder.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
E.Â
Responsible bidder.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
(1)Â
For the purpose of this section, a "responsible" bidder
or offerer shall mean a bidder or offerer determined by the Purchasing
Agent:
(a)Â
To possess, or be able to acquire prior to performance,
sufficient financial ability to adequately perform the contract;
(b)Â
To have under its employ, or to be able to secure
prior to performance, the services of sufficient personnel with the
experience necessary to adequately perform the contract;
(c)Â
To have, or to be able to acquire prior to performance,
the equipment, facilities and capacity necessary to adequately perform
the contract; and
(d)Â
To have had an overall satisfactory record in the
performance of such prior public contracts as the bidder or offerer
may have had.
(2)Â
The requirements of this section may be waived by
the Purchasing Agent when he/she shall determine in writing prior
to award that the supplies and services to be procured are available
from only one source.
F.Â
Determination of responsibility. The Purchasing Agent may make such investigations as may be reasonably necessary to determine the responsibility of a prospective contractor in accordance with Subsection E. The failure of any bidder or offerer promptly to supply information requested by the Purchasing Agent in the course of such an investigation shall constitute grounds for a determination of nonresponsibility with respect to that bidder or offerer. Information disclosed by a bidder or offerer pursuant to this section may not be disclosed outside of the office of the Director of Finance without the prior written consent of the disclosing bidder or offerer.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
G.Â
Prequalification of bidders. The Purchasing Agent
is authorized to employ a method whereby suppliers wishing to prequalify
to do business with the Town and to receive invitations for bids and
requests for proposals are assured the opportunity to do so, provided
that prequalification of a supplier will not foreclose the Town from
determining between the time of the bid opening or receipt of offers
and the making of an award, that a prequalified supplier is not responsible
or that suppliers who are not prequalified as of the time of bid opening
or receipt of offers are responsible. Suppliers seeking to prequalify
in order to receive invitations for bids or requests for proposals
may present evidence that they have the financial and technical ability,
resources and facilities to act as suppliers to the Town. The Town
may consider the following additional criteria in determining qualifications:
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
A.Â
How used. Whenever the Purchasing Agent shall determine in writing that the use of competitive sealed bidding as prescribed in § 49-4 is not feasible or practicable, and except as provided in §§ 49-6 and 49-8, contracts may be made by competitive negotiations in accordance with the provisions of this section.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
B.Â
Use after competitive sealed bidding. Notwithstanding § 49-4, contracts may be competitively negotiated for supplies or services for which it is determined:
(1)Â
That the bid prices received after competitive sealed
bidding either are unreasonable as to all or part of the requirements,
or were not independently reached in open competition and for which
each responsible bidder has been notified of the intention to negotiate
and is given reasonable opportunity to negotiate;
(2)Â
The negotiated price is lower than the last rejected
bid of any responsible bidder; and
(3)Â
The negotiated price is the lowest negotiated price
offered by any responsible supplier.
C.Â
Requests for proposals; public notice. The request
for proposals shall be given adequate public notice in the same manner
as that specified for invitations for bids. The requests for proposals,
including specifications and attachments, shall permit such full and
free competition as is consistent with the procurement of the supplies
and services required.
D.Â
Evaluation factors. When the award is not to be made
primarily on the basis of price, the solicitation shall indicate the
relative importance of the significant evaluation factors expected
to be considered for award.
E.Â
Discussion with all responsible offerers. Written
or oral discussions shall be conducted with all responsible offerers
who submit offers determined by the Purchasing Agent to be reasonably
susceptible of being selected for award. Such discussions shall be
conducted so as to afford each such offerer an equal opportunity to
compete for the contemplated award. Discussions shall not disclose
any information from a competitor's proposal that would enable another
offerer to improve his/her proposal as a result thereof. Discussions
need not be conducted:
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
(1)Â
With respect to prices, where such prices are fixed
by law or regulation, except that consideration shall be given to
competitive terms and conditions;
(2)Â
Where time of delivery or performance will not permit;
or
(3)Â
Where it can be clearly demonstrated and documented
from the existence of adequate competition or accurate prior cost
experience with the supply or service that acceptance of an initial
offer without discussion would result in fair and reasonable prices,
and the solicitation notifies all offerers of the possibility that
awards may be made on the basis of the initial offers.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
Contracts may be made by noncompetitive negotiation
only when competition is not feasible, as determined in writing prior
to award by the Purchasing Agent.
[1]
Editor's Note: Former § 49-7, Report
of procurement actions taken under noncompetitive negotiations, was
repealed 2-13-2006 by Ch. No. 1563.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
Contracts not expected by the Purchasing Agent
at the time proposals are solicited to exceed the Boston Regional
Consumer Price Index adjusted amount per RIGL 45-55-9 for construction
and all other purchases may be negotiated by simplified small purchase
procedures under such regulations as the Purchasing Agent may promulgate.
Such regulations shall include such requirements for obtaining competition
as set forth in the Town of Westerly Purchasing Manual.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
Notwithstanding any other provisions herein,
in case of actual emergency, any department may purchase directly
any supplies, materials or equipment whose immediate procurement is
essential to prevent delays in the work of the department which vitally
affects the safety, health or convenience of citizens. In any such
case, the head of such department shall, within 24 hours, notify the
Town Manager and send to the Purchasing Agent a requisition together
with full written explanation of the circumstances of the emergency,
which shall be filed by the Purchasing Agent as a permanent and public
record of the purchase. The Town Manager shall notify the Town Council
of the emergency purchase at its next regular meeting. The Purchasing
Agent shall prescribe the procedure under which such emergency purchases
shall be made in the Town of Westerly Purchasing Manual.
A.Â
Certification. A prime contractor or any subcontractor
thereunder shall be required to submit cost or pricing data under
the circumstances listed below and shall be required to certify that,
to the best of its knowledge and belief, the cost or pricing data
submitted was accurate, complete and current prior to:
(1)Â
The award of any negotiated prime contract.
(2)Â
The pricing of any change order.
(3)Â
The award of subcontract at any tier, where the prime
contractor and each higher tier subcontractor have been required to
furnish such certificate.
(4)Â
The pricing of any change order or modification to
a subcontract covered by this section.
B.Â
Price adjustment. Any prime contract or change or
modification under which such certificate is required shall contain
a provision that the price to the Town, including profit or fee, shall
be adjusted to exclude any significant sums by which it may be determined
by the Town Council or its designee that such price was increased
because the contractor or subcontractor who was required to furnish
such a certificate furnished cost or pricing data that, as of the
date of agreement of the negotiated price, was inaccurate, incomplete,
or noncurrent, provided that the requirements of this section need
not be applied to contracts or subcontracts where the price negotiated
is based on adequate price competition, established catalog or market
prices of commercial items sold in substantial quantities to the general
public, prices set by law or regulation, or in exceptional cases where
the Town Council or its designee determines that the requirements
of this section may be waived, and states in writing the reasons for
such determination.
A.Â
Cost reimbursement. The cost-plus-a-percentage-of-cost system of contracting shall not be used. Subject to this limitation and subject to Subsections B through E, the Purchasing Agent may, in negotiating contracts under §§ 49-5 and 49-6, use any kind of contract, including cost-plus-fixed-fee, as may be required by the facts and circumstances of particular types of procurement and which will promote the best interest of the Town.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
B.Â
Use of cost-reimbursement type. No cost-reimbursement contract may be made under §§ 49-5 and 49-6 unless the Purchasing Agent determines that such contract is likely to be less costly to the Town than any other kind of contract, or that it is impracticable to obtain property or services of the kind or quality required except under such a contract.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
C.Â
Prior notice regarding use of cost-reimbursement type
subcontract. Each cost-reimbursement type contract shall provide for
notice to the Purchasing Agent by the contractor before the making
under the prime contract of:
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
D.Â
Determination of accounting system. No contract type authorized for use pursuant to Subsection A, or variations authorized thereunder, except the firm-fixed-price type contract, may be used unless and until the Purchasing Agent has determined that the proposed contractor's accounting system will permit timely development of all necessary cost data in the form required by the specific contract type contemplated, and that the contractor's accounting system is adequate to allocate costs in accordance with generally accepted accounting practices.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
E.Â
Cost principles. All cost-reimbursement type contracts
shall contain a provision that only costs determined to be allowable
in accordance with the cost principles set forth in regulations to
be adopted will be reimbursable.
A.Â
Specified period. Unless otherwise provided in the
resolutions making appropriations therefor, the Purchasing Agent may
contract to procure all known requirements for particular supplies
or services for periods of not more than three years and two successive
twelve-month renewal periods if funds for the first fiscal year of
the contemplated contract are available at the time of contracting.
Payment and performance obligations for succeeding fiscal years shall
be made subject to the availability of appropriations therefor.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
B.Â
Determination prior to use. Prior to the utilization
of a multiyear contract, the purchasing officer shall determine:
C.Â
Cancellation. If the Town Council fails to make funds
available for continuation of performance of the contract for any
fiscal year after the first fiscal year, the contract shall be canceled
and the contractor shall be reimbursed for the reasonable value of
such nonrecurring costs as have been incurred, but have not been amortized
in the price paid for supplies and services delivered prior to the
effective date of the cancellation. The costs of cancellation may
be paid from:
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
When he/she determines that it is in the best
interest of the Town, the Purchasing Agent may cancel any invitation
for bids or other solicitation, or reject any or all bids or proposals
received prior to the award of a contract.
A.Â
Plant inspection. The Town may inspect the plant of
a contractor under any contract awarded or to be awarded by the Town,
and of any subcontractor thereunder.
B.Â
Audit. The Town shall be entitled, through its authorized
auditing firm or agency, to audit the books and records of a contractor
under all negotiated contracts other than firm-fixed-price contracts
awarded by the Town, and of any subcontractor thereunder where the
subcontractor and each higher tier subcontractor are under other than
firm-fixed-price subcontracts, and such books and records shall be
maintained by the contractor for a period of three years from the
date of final payment under the contract.
C.Â
Extended period of audit. For the purpose of evaluating the accuracy, completeness and currency of cost or pricing data required to be submitted under § 49-10, any authorized representative of the Town, including its authorized auditing firm or agency, shall have the right, until the expiration of three years after final payment under the prime contract, to examine all books, records, documents, and other data of the contractor or subcontractor relating to the negotiation, pricing or performance of the contract or subcontract.
A.Â
Finality. Determinations, findings and decisions required
by this section may be made with respect to contracts individually
or with respect to classes of related or similar contracts. Such decisions
shall be final and conclusive unless they are fraudulent, arbitrary
or capricious, so grossly erroneous as necessarily to imply bad faith,
or not supported by substantial evidence.
B.Â
In writing. Each determination or decision shall be
based upon written findings of the officer making the determination
or decision, and shall be retained in the official contract file.
D.Â
By the Town Solicitor. No contract of any type in
excess of $10,000 shall be awarded by the Purchasing Agent unless
it shall have been submitted through the Town Manager to the Town
Solicitor and shall have received the Town Solicitor's written authorization
on its form, content and compliance with the provisions of this article.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
E.Â
Failure of the Town Solicitor to render an opinion.
If, within 10 days of receipt of a proposed contract, the Town Solicitor
has not rendered an opinion or has not submitted a written statement
of his/her inability to render such an opinion, the Purchasing Agent
may proceed to the award of the contract with the written approval
of the Town Manager.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
A.Â
Specification standardization. The Purchasing Agent
shall have responsibility for issuing and maintaining the Town's contract
specifications for supplies and services other than construction.
He/She shall:
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
(1)Â
Prepare and issue standard specifications for supplies
and services commonly required by the Town;
(2)Â
Revise all standard specifications to conform to all
technical and scientific advances pertaining to the supplies and services
described in those specifications;
(3)Â
Standardize all specifications to the greatest extent
practicable; and
(4)Â
Establish and, as necessary, revise guidelines for
drafting specifications, standards of measurement and sampling, testing
and inspection procedures in order to maximize competition.
B.Â
Maximum practicable competition. All specifications
shall be drafted so as to assure the maximum practicable competition
to fulfill the Town's requirements.
C.Â
Prohibition against restrictive specifications. No
specifications shall be drawn which describe in any way a product
which is proprietary to one company unless:
(1)Â
No other kind of specification is practicable for
the Town to describe its requirements;
(2)Â
Such a specification includes language which specifically
permits an equivalent product to be supplied. Such a specification
shall include a description of the essential characteristics of the
product; and
(3)Â
The Purchasing Agent shall approve, in writing, any
and all proprietary purchases prior to award.
[Amended 9-21-2015 by Ch. No. 1845]
A.Â
Selection of methods of construction contracting.
The Town Council shall provide for the consideration of as many alternative
methods of procurement of construction contracting as are feasible,
acting upon the recommendation of the Town Manager, to select the
most efficient method of construction contracting for a particular
project; provided, however, that those officials 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 in each instance. The methods of construction procurement
referred to herein include, but are not restricted to:
(1)Â
Management by one contractor, including turnkey;
(2)Â
The use of multiple prime contractors under the supervision
of a construction manager; and
(3)Â
The coordination and supervision of construction operations
by the department, agency or activity of the Town responsible for
the performance of the work.
B.Â
Requirement for bid security. In the procurement of
construction, bidders shall provide a bond or other form of bid guarantee
satisfactory to the Purchasing Agent. Bid security shall be required
for all contracts expected to exceed $50,000 and for all other contracts
at the determination of the Purchasing Agent.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
C.Â
Amount of bid security. The Purchasing Agent shall
determine the percentage or amount which in his/her best judgment,
when applied to the bid price, will produce a guaranteed amount adequate
to protect the Town from loss should the successful bidder fail to
execute such further contract documents and bonds as may be required.
In no case shall the required bid security be less than 5% of the
amount bid.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
E.Â
Rejection of bids for noncompliance with bid guarantee
requirements. When the solicitation requires that bids be supported
by a bid security, noncompliance requires rejection of the bid.
[Amended 2-13-2006 by Ord. No. 1563]
F.Â
Contract performance and payment bonds. Before any
contract exceeding $50,000 in amount for the construction, alteration
or repair of any public building or public work or improvement of
this Town is awarded to any person, he/she shall furnish to the Town
the following bonds which shall become binding upon the parties upon
the award of the contract to such person, who is hereinafter designated
as "contractor," provided the Purchasing Agent may require a performance
and payment bond for contracts of lesser value.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
(1)Â
A performance bond executed by a surety company authorized
to do business in this state, or by other form of surety, either of
which is satisfactory to the Town, in the amount equal to 100% of
the contract price as it may be increased from time to time.
(2)Â
A payment bond executed by a surety company authorized
to do business in this state, or otherwise supplied, satisfactory
to the Town for the protection of all persons supplying labor and
material for the performance of the work provided for in the contract.
The bond shall be in the amount of 100% of the total of the contract
price as it may be increased from time to time.
G.Â
Authority to require additional bonds. Nothing in this section shall be construed to limit the authority of the Town to require a performance bond or other security in addition to those bonds, or in circumstances other than those circumstances, specified in Subsection F.
H.Â
Where bonds filed. Bonds payable to the Town shall
be filed in the Finance Office.
[Amended 9-21-2015 by Ch. No. 1845]
I.Â
Certified copies of bonds. The Finance Director is
authorized and directed to furnish, to any person making application
therefor, a certified copy of the bond, which copy shall be prima
facie evidence of the contents, execution and delivery of the original.
Applicants shall pay for such certified copies such reasonable fees
as the Finance Director shall set.
[Amended 9-21-2015 by Ch. No. 1845]
A.Â
General policy. It is the policy of this Town to publicly
announce all requirements for architectural and engineering services
and to negotiate contracts for architectural and engineering services
on the basis of demonstrated competence and qualification for the
type of professional services required, and at fair and reasonable
prices. The same policies pertain to nonarchitectural-engineering
consultant services where fee schedules are involved or such professions
will not submit competitive proposals (bids).
B.Â
Selection. In the procurement of architectural and
engineering or other consultant services, the Purchasing Agent shall
encourage firms engaged in the lawful practice of their professions
to submit annually a statement of qualifications and performance data.
The Town Manager or the Superintendent of Schools, for each proposed
project, shall evaluate current statements of qualifications and performance
data on file within the Town, together with those that may be submitted
by other firms regarding the proposed project, and shall conduct discussions
with no less than three firms regarding anticipated concepts and the
relative utility of alternative methods of approach for furnishing
the required services and then shall select therefrom, in order of
preference, no less than three of the firms deemed to be most highly
qualified to provide the services required and shall submit, together
with a written statement describing the criteria used to select them,
the three firms for approval by the Town Council.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
C.Â
Negotiation. The Purchasing Agent shall negotiate
a contract with the highest qualified firm for architectural, engineering,
or consultant services at compensation which the Town Council determines
to be fair and reasonable to the Town. In making this determination,
the Town Council shall take into account the estimated value of the
services to be rendered, the scope, complexity, and professional nature
thereof. Should the Purchasing Agent be unable to negotiate a satisfactory
contract with the firm considered to be the most qualified at a price
the Town Council determines to be fair and reasonable to the Town,
negotiations with that firm shall be formally terminated. The Purchasing
Agent shall then undertake negotiations with the second-most qualified
firm. Failing accord with the second-most qualified firm, the Purchasing
Agent shall formally terminate negotiations. The Purchasing Agent
shall then undertake negotiations with the third-most qualified firm.
Should the Purchasing Agent be unable to negotiate a satisfactory
contract with any of the selected firms, the Town Council, upon the
recommendation of the Town Manager or the Superintendent of Schools,
shall select additional firms in order of their competence and qualification
and the Purchasing Agent shall continue negotiations in accordance
with this section until an agreement is reached.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
A.Â
Applicability. The Purchasing Agent shall propose
for inclusion in this article cost principles and procedures based
upon generally accepted accounting principles which will provide for
adequate cost and price analysis in any one of the following situations
and such others as may foster the best interest of the Town:
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
(2)Â
Whenever a change to an existing contract requires an equitable adjustment to contract price of estimated costs, as provided by § 49-18 and such regulations as may be promulgated under it;
(3)Â
Whenever a contract is terminated for either default of the contractor or the convenience of the Town as provided by § 49-18 and such regulations as may be promulgated under it;
(4)Â
Whenever costs are reimbursed to a contractor under
a cost-reimbursement type contract; and
(5)Â
Which will provide for the determination and allowance
of cost incurred in the performance of a contract when such action
is required by a contract clause.
B.Â
General rule. The Town shall pay fair and reasonable prices for those supplies and services (including construction) it procures. Prices shall be established generally on the basis of free and open market price competition. Where prices are not established on such basis, the determination, negotiation or allowance of costs is required and cost analysis must be performed. Such cost analysis shall be made in conformance with generally accepted accounting principles, and the cost principles adopted pursuant to Subsection A and the results of such analysis shall be documented in writing prior to the award of the contract.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
A.Â
Cooperative purchasing agreements. Nothing in this
article shall prevent the Purchasing Agent from entering into and
participating in cooperative purchasing agreements with the state
government or with other local governments. He/She may participate
in or sponsor, conduct and/or administer a cooperative purchasing
agreement for the acquisition of supplies, services, including architectural
and engineering, construction or any manner of item with any other
public purchasing activity in the state, provided that the essential
requirements of this article are thereby met and the interest of the
Town best served.
B.Â
Effect of federal grants upon procurement policies.
If federal grant requirements differ from the provisions of this article,
nothing in this article shall absolve the Purchasing Agent or any
other official from the obligation to fully comply with the terms
and conditions of the federal grant requirements.
No portion of this article, nor any regulation
made pursuant to its provisions, shall change in any way any contract
commitment by the Town, nor of a contractor to the Town, which was
in existence on the effective date of this article.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
No provision of a regulation promulgated by
the Purchasing Agent as authorized herein shall be considered to be
incorporated by operation of law in any Town contract without the
consent of both parties to the contract to such incorporation; provided,
however, that the parties to the contract may give such consent to
incorporation by reference at any time after the contract has been
entered upon and without the necessity of consideration passing to
either party.
[Adopted 8-20-2012 by Ch. No. 1776]
No contract for services or products may be issued to a vendor
if they have amounts due the Town that are more than 30 days past
due.
An exception to this § 49-23 will be made if the vendor has a valid payment agreement with the Town and is current on the terms of the agreement.
