Chapter 16.12
SOURCE SELECTION AND CONTRACT FORMATION

Sections:

16.12.010    Competitive sealed bidding.

16.12.020    Competitive sealed proposals.

16.12.030    Small purchases.

16.12.040    Sole source procurement.

16.12.050    Emergency procurements.

16.12.060    Cancellation of invitations for bids or requests for proposals.

16.12.070    Responsibility of bidders and offerors.

16.12.080    Cost or pricing data.

16.12.090    Authority to contract.

16.12.100    Types of contracts.

16.12.110    Cost reimbursement provisions.

16.12.120    Approval of accounting system.

16.12.130    Right to inspect plant.

16.12.140    Right to audit records.

16.12.150    Reporting of anticompetitive practices.

16.12.160    Borough procurement records.

16.12.170    Multi-year contracts.

16.12.010 Competitive sealed bidding.

A. All contracts of the borough shall be awarded by competitive sealed bidding except as otherwise provided in this section and FNSBC 16.08.040, 16.08.050, 16.12.020, 16.12.030, 16.12.040, 16.12.050, 16.32.010, 16.32.020, 16.32.030, 16.32.040 and 16.32.050.

B. An invitation for bids shall be issued and shall include specifications and all contractual terms and conditions applicable to the procurement.

C. Adequate public notice of the invitation for bids shall be given a reasonable time prior to the date set forth therein for the opening of bids which shall provide for a minimum of at least 15 calendar days. Such notice may include publication in a newspaper of general circulation a reasonable time prior to bid opening. The public notice shall state the date and time of bid opening.

D. 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 chief procurement officer deems appropriate, together with the name of each bidder, shall be recorded. The record and each bid shall be opened to public inspection.

E. Bids shall be unconditionally accepted without alteration or correction, except as authorized in this title. Bids shall be evaluated based on the requirements set forth in the invitation for bids. 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, such as inspection, testing, quality, workmanship, delivery, and suitability for a particular purpose. No criteria may be used in bid evaluation that are not set forth in the invitation for bids.

F. 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 or withdrawn by written or facsimile notice received in the office designated in the invitation for bids prior to the time set for bid opening. After bid opening, no changes in bid prices or other provisions of bids prejudicial to the interest of the borough or fair competition shall be permitted.

G. The contract shall be awarded with reasonable promptness by written notice to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the invitation for bids.

H. When it is considered impractical to initially prepare 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. (Ord. 2002-29 § 11, 2002; Ord. 94-084 § 2, 1994; Ord. 93-019 § 2, 1993; Ord. 92-070 §§ 2, 3, 1992; Ord. 92-012 § 2, 1992; Ord. 89-44 § 3, 1989; Ord. 82-69, 1982. 2004 Code § 16.30.010.)

16.12.020 Competitive sealed proposals.

A. When the chief procurement officer determines in writing that the use of competitive sealed bidding is either not practicable or not advantageous to the borough, a contract may be entered into by use of the competitive sealed proposals method. Competitive sealed proposals may be used for construction management at-risk contracts.

B. Proposals shall be solicited through a request for proposals.

C. Adequate public notice of the request for proposals shall be given in the same manner as provided in FNSBC 16.12.010(C), provided the minimum time shall be 30 calendar days.

D. 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.

E. The request for proposals shall state the relative importance of price and other evaluation factors.

F. 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.

G. Award shall be made to the responsible offeror whose proposal is determined in writing to be the most advantageous to the borough 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. (Ord. 2002-29 § 12, 2002; Ord. 87-022 § 2, 1987; Ord. 82-69, 1982. 2004 Code § 16.30.020.)

16.12.030 Small purchases.

A. Any contract not exceeding $20,000 may be made in accordance with small purchase procedures; provided, however, that contract requirements shall not be artificially divided so as to constitute a small purchase under this section. If, however, the procurement is solely utilizing road service area funds, the small purchase procedures may be used for any contract not exceeding $50,000.

B. Insofar as it is practical, no less than three businesses shall be solicited to submit quotations. Award shall be made to the business offering the lowest acceptable quotation. The name of the business submitting a quotation, and the date and amount of each quotation, shall be recorded and maintained as a public record. (Ord. 2011-22 § 2, 2011; Ord. 94-084 § 4, 1994; Ord. 82-83, 1982; Ord. 82-69, 1982. 2004 Code § 16.30.030.)

16.12.040 Sole source procurement.

A contract may be awarded without competition when the chief procurement officer determines in writing, after conducting a good faith review of available sources, that there is only one source for the required supply, service or construction item. The chief procurement officer or his designee shall conduct negotiations, as appropriate, as to price, delivery, and terms. A record of sole source procurements shall be maintained that lists 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. (Ord. 2002-29 § 13, 2002; Ord. 82-69, 1982. 2004 Code § 16.30.040.)

16.12.050 Emergency procurements.

Subject to the provisions of Chapter 2.16 FNSBC and notwithstanding any other provisions of this title, the chief procurement officer may make or authorize others to make emergency procurements of supplies, services or construction items when there exists a threat to public health, welfare or safety; provided, that such emergency procurements shall be made with such competition as is practicable under the circumstances. A written determination of the basis for the emergency and for the selection of the particular contractor shall be included in the contract file. As soon as practicable, 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. (Ord. 2002-29 § 14, 2002; Ord. 82-69, 1982. 2004 Code § 16.30.050.)

16.12.060 Cancellation of invitations for bids or requests for proposals.

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 interest of the borough. The reasons therefor shall be made part of the contract file. Each solicitation issued by the borough 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 borough. Notice of cancellation shall be sent to all businesses solicited. The notice shall identify the solicitation, explain the reasons for cancellation, and, where appropriate, explain that an opportunity will be given to compete on any resolicitation or any future procurement of similar items. Reasons for rejection shall be provided upon request of unsuccessful bidders or offerors. (Ord. 82-69, 1982. 2004 Code § 16.30.060.)

16.12.070 Responsibility of bidders and offerors.

A. Responsibility of Bidders and Offerors.

1. To the extent warranted under the circumstances, including but not limited to the value and size of the procurement, and the bidder’s or offeror’s past record of contract performances, the chief procurement officer shall review, prior to award, the responsibility of a bidder or offeror. This review shall consider all relevant circumstances, including whether the bidder or offeror possesses the financial ability, resources, skills, qualifications, capability, and business integrity necessary to perform the contract.

2. If a bidder or offeror who otherwise would have awarded a contract is found nonresponsible, a written determination of nonresponsibility setting forth the basis of the finding shall be prepared by the chief procurement officer. The unreasonable failure of a bidder or offeror to promptly supply 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.

3. A bidder or offeror is responsible for purposes of this section if they have the capability to fully perform the contract requirements in all respects and possess the integrity and reliability which will assure good faith performance.

4. Information furnished by a bidder or offeror pursuant to this section shall not be disclosed by the borough outside of the office of the chief procurement officer without prior written consent by the bidder or offeror unless such disclosure is otherwise required by law.

B. Prequalification of Suppliers. Prospective suppliers may be prequalified for particular types of supplies, services and construction. The chief procurement officer shall determine the method of submitting prequalification information and the information required to be prequalified. Unless an emergency exists or the contract is for a small purchase, a procurement cannot be limited to prequalified suppliers unless public notice of the procurement was given in sufficient time for any interested firms to prepare necessary submissions and become prequalified. The fact that a prospective contractor has been prequalified does not necessarily represent a finding of responsibility. (Ord. 2002-29 § 15, 2002; Ord. 82-69, 1982. 2004 Code § 16.30.070.)

16.12.080 Cost or pricing data.

A. A prospective contractor shall, except as provided in subsection (B) of this section, submit cost or pricing data and shall certify that, to the best of its knowledge and belief, the cost or pricing data submitted was accurate, complete, and current as of a mutually determined specified date prior to the date of:

1. The pricing of any contract awarded by competitive sealed proposals, by sole source procurement authority, or for architectural and engineering services; or

2. The pricing of any change order or contract modification expected to exceed $5,000.

B. The submission of cost or pricing data is not required where:

1. The contract price is based on adequate price competition;

2. The contract price is set by law or regulation;

3. It is determined in writing by the chief procurement officer that the requirements of this section may be waived, and the determination states the reasons for such waiver;

4. The contract is not expected to exceed $5,000;

5. The contract price is based on established catalogue prices or market prices; or

6. Unrelated and separately priced adjustments for which cost or pricing data would not be required are consolidated for administrative convenience.

C. Any contract award, change order, or contract modification under which the submission and certification of cost or pricing data are required shall contain a provision stating that the price to the borough, including profit or fee, shall be adjusted to exclude any significant sums by which the borough 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 borough and the contractor.

D. When a borough construction project has, within a 30-calendar-day period of time, change orders which cumulatively, in total, exceed $50,000, all such change orders with their appropriate detail shall be provided to the assembly as an item of information by the mayor.

1. Where such cumulative change orders result in an effective and/or intrinsic change in either the design or utilization of the structure, the mayor shall provide information on the affected changes.

2. Within this section, terms shall be defined as follows:

a. “Cumulative” means all change orders occurring within the 30 calendar days added together.

b. “Thirty calendar days” means any sequential period of 30 days on the calendar including Saturdays, Sundays and holidays. (Ord. 2002-29 § 16, 2002; Ord. 89-091 §§ 2, 3, 1990; Ord. 82-69, 1982. 2004 Code § 16.30.080.)

16.12.090 Authority to contract.

A. Every borough contract, contract modification, or change order is subject to the prior approval of the borough assembly or finance committee of the borough assembly, when the amount exceeds $100,000. The mayor may enter into contracts, contract modifications or change orders without borough assembly or finance committee approval when the contract amount is not expected to exceed $100,000. For the purposes of this section, the contract amount shall include the total of all contract, contract modifications, and change order amounts.

B. In the event that a contract modification or change order causes the total value of the contract to exceed the signatory authorities specified above, then an information copy of the change order and/or the contract amendment will be provided to the chairman of the finance committee.

C. Every expenditure from the vehicle and equipment fleet fund not on the vehicle replacement schedule for that current fiscal year is subject to prior approval of the borough assembly or finance committee of the borough assembly when the contract amount exceeds $50,000. (Ord. 2002-29 § 18, 2002; Ord. 99-044 § 2, 1999; Ord. 90-063 § 2, 1990; Ord. 85-008 § 3, 1985. 2004 Code § 16.30.095.)

16.12.100 Types of contracts.

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 borough may be used; provided, that the use of a cost-plus-a-percentage-of-cost contract or a cost-plus-a-percentage-of-construction-cost contract is prohibited. A cost-reimbursement contract may be used only when a determination is made in writing that such contract is likely to be less costly to the borough than any other type or that it is impracticable to obtain the supply, service or construction item required except under such a contract. However, the borough may enter into a construction management at-risk contract when recommended by the public works director; provided, that the construction manager is at risk for the actual contract costs incurred in performance of that contract. (Ord. 2002-29 § 19, 2002; Ord. 82-69, 1982. 2004 Code § 16.30.100.)

16.12.110 Cost reimbursement provisions.

Cost reimbursement provisions shall only obligate the borough to reimburse reasonable costs, allocable to the contractor, either directly or indirectly, that are accounted for in accordance with generally accepted accounting principles. (Ord. 82-69, 1982. 2004 Code § 16.30.110.)

16.12.120 Approval of accounting system.

Contractors shall submit appropriate documentation prior to the award of contracts in which the borough agrees to reimburse costs, confirming that:

A. 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

B. The proposed contractor’s accounting system is adequate to allocate costs in accordance with generally accepted accounting principles. (Ord. 2002-29 § 20, 2002; Ord. 82-69, 1982. 2004 Code § 16.30.120.)

16.12.130 Right to inspect plant.

The borough may, at reasonable times, inspect the part of the plant, place 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 borough. (Ord. 82-69, 1982. 2004 Code § 16.30.130.)

16.12.140 Right to audit records.

A. The borough may, at reasonable times and places, audit the books and records of any contractor who has submitted cost or pricing data pursuant to FNSBC 16.12.080 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. The borough shall be entitled to audit the books and records of a contractor or a 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. (Ord. 82-69, 1982. 2004 Code § 16.30.140.)

16.12.150 Reporting of anticompetitive practices.

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 borough attorney, borough mayor, and borough assembly. (Ord. 2002-29 § 21, 2002; Ord. 82-69, 1982. 2004 Code § 16.30.150.)

16.12.160 Borough procurement records.

A. All determinations and other written records pertaining to the solicitation, award or performance of a contract shall be maintained for the borough in a contract file by the chief procurement officer.

B. All procurement records shall be retained and disposed of by the borough in accordance with records retention guidelines and schedules approved by the borough assembly. If a contract is being funded in whole or in part by assistance from a federal agency, then all procurement records pertaining to that contract shall be maintained for three years from the closeout date of the assistance agreement or the final disposition of any controversy arising out of the assistance agreement. (Ord. 2002-29 § 22, 2002; Ord. 82-69, 1982. 2004 Code § 16.30.160.)

16.12.170 Multi-year contracts.

A. Unless otherwise provided by law, a contract for supplies or services may be entered into without assembly approval for any period of time deemed to be in the best interests of the borough 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 thereafter.

B. Assembly approval shall be required for any multi-year contract for which funding beyond the first fiscal period at the time of contracting is dependent on any financial assumptions or conditions other than the availability and appropriation of funds by the assembly.

C. A multi-year contract is authorized where:

1. Estimated requirements cover the period of the contract and are reasonably firm and continuing; and

2. Such a contract will serve the best interests of the borough by encouraging effective competition or otherwise promoting economies in borough procurement.

D. When funds are not appropriated or otherwise made available to support continuation of performance in a subsequent fiscal period, the contract shall be cancelled and the contractor shall be reimbursed for the reasonable value of any non-recurring 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.

E. The total contract value for multi-year service area contracts for services shall be considered to be the estimate of the cost of providing the service for one fiscal year. (Amended during 2016 republication; Ord. 2013-22 § 2, 2013; Ord. 2002-29 § 23, 2002; Ord. 2001-19 § 3, 2001; Ord. 97-025 § 2, 1997; Ord. 81-22 § 2, 1981. 2004 Code §§ 14.01.151(C), 16.30.170.)