Chapter 3.20 PURCHASING CODE

This chapter may be referred to as the “purchasing code,” and is adopted pursuant to the authority identified in each ordinance codified herein, including Cal. Gov’t Code §§ 4525 et seq., 37103, 37350 et seq., 53060, and 54201 et seq., as well as the police power set forth in Article XI, Section 7 of the California Constitution. This purchasing code implements, and is consistent with, the requirements of state law, including requirements for public works construction (primarily identified in the California Public Contract Code), for private development construction (primarily identified in the Subdivision Map Act, and the subdivision ordinance), and for real property acquisition and disposition. (Ord. 2494 § 1, 12-3-02. 1990 Code § 2-9100.)

3.20.020 Definitions.

As used in this chapter:

“Bid deadline” means the date and time of bid submittal and bid opening.

“Bidders list” means a list, or series of lists, incorporated into the purchasing regulations which identifies qualified contractors potentially available to perform specified categories of work. This specifically includes the list of qualified contractors required by Cal. Pub. Cont. Code § 22034.

“Contract” means a set of promises between two or more parties which is legally enforceable. The term “contract” shall include all of the various types of contracts identified in this chapter, such as contracts for: acquisition or disposition of personal property or real property, services, public project construction, private development construction, settlement of claims, and contract amendments.

“Contractor” means a private party with which the city contracts for the acquisition of property or services, for the construction of public projects, or for the disposition of property. For the purpose of this chapter, the term “contractor” may be used in its general sense to refer to a party which might otherwise be referred to with a more specific term. For example, the term “contractor” shall be used to refer to: “vendor” or “supplier” for the city’s acquisition of personal property, or “grantor” or “lessor” for the city’s acquisition of real property, or “grantee” or “tenant” for the city’s disposition of real property, or “consultant” for services, or “developer” for private development construction.

“Emergency” means a sudden, unexpected occurrence that poses a clear and imminent danger, requiring immediate action to prevent or mitigate the loss or impairment of life, health, property, or essential public services.

“Fair market value” means the value of property, as determined by the city manager, in accordance with the property valuation principles of eminent domain law set forth in Cal. Civ. Proc. Code § 1263.320. The city manager is authorized to establish methods of evaluating property in accordance with these principles, and documenting these methods in the purchasing regulations.

“Grant” means any offer to or from the city of property (in the form of a grant, donation, or gift), in return for which no monetary compensation is required. For the purpose of this chapter, acceptance of the grant, including any relevant terms and conditions, forms a contract.

“Lease” means any contract for the use of property for a limited period of time.

“Local-owned business” means a business which has applied for and paid a business tax and registration tax (pursuant to Fremont Municipal Code Title 5), and which is identified within the city of Fremont by the State of California Board of Equalization for the purpose of the California sales tax area code number.

“Personal property” means all property not defined as real property, including all things (including specially manufactured goods) which are movable at the time of contracting for sale, such as all supplies, materials, equipment, and goods; as defined by Cal. Civ. Code § 663.

“Price contract” means a contract where it is agreed to purchase personal property or services for an anticipated need at a predetermined price or price discount from a price list.

“Private development construction” means a project by which work is performed at the cost of a contractor (private developer) as a condition of the private developer’s right to develop private property, which work may include public works construction, grading, or private improvements.

“Property” means all personal property and all real property, as defined by Cal. Civ. Code § 654.

“Public agency” means any public agency as defined by Cal. Gov’t Code § 6500, including federal, state, county, and local government agencies (such as schools and special districts).

“Public bulletin board” means the locations designated by the city manager as the places where the city posts the public notices required by this chapter.

“Public project” means all public projects as defined by Cal. Pub. Cont. Code § 22002, including all works of construction, reconstruction, erection, alteration, renovation, improvement, demolition, and repair work involving any publicly owned, leased, or operated facility (including plants, buildings, structures, ground facilities, utility systems, real property, streets and highways, or other public work improvements).

“Public work” means all public works as defined by Cal. Lab. Code § 1720, including all construction, alteration, demolition, installation, or repair work done under contract and paid for in whole or in part out of public funds.

“Purchasing code” means this chapter.

“Purchasing regulations” means written regulations approved by the city manager in accordance with Section 3.20.050.

“Real property” means land and that which is affixed to, incidental to, or appurtenant to land, as defined by Cal. Civ. Code § 658.

“Services” means the performance of work by an independent contractor of the city; provided, however, “services” specifically exclude employee services and exclude the performance of work for “public projects.” “Services” specifically include all professional services, such as those identified in Cal. Gov’t Code § 4525 (attorneys, physicians, consultants, teachers, trainers, architects, engineers, landscape architects, construction managers, environmental, land surveyors, appraisers, accountants, financial advisers); as well as other professional services such as insurance brokers and bankers; nonprofessional services such as cleaning and maintenance; and any “public works” not within the definition of “public projects.”

“Subdivision Map Act” means Cal. Gov’t Code §§ 66410 et seq.

“Subdivision ordinance” means Fremont Municipal Code Title 17.

“UPCCAA” means the Uniform Public Construction Cost Accounting Act, as set forth in Cal. Pub. Cont. Code §§ 22000 et seq., in particular, the requirements of Cal. Pub. Cont. Code § 22034. (Ord. 2494 § 1, 12-3-02; Ord. 8-2011 § 1, 7-12-11. 1990 Code § 2-9101.)

3.20.030 Purpose and goals of purchasing code.

(a) The purpose of this chapter is to establish a system for the acquisition of property and services, for the construction of public projects, and for the disposition of property which, based on the circumstances of a particular project, meets the following goals:

(1) Obtains the most cost-effective result for the city, which avoids improvidence, extravagance, and any other waste of public funds or public property, and which also achieves an appropriate balance between the costs and benefits of maximizing quality within available resources.

(2) Takes into consideration all reasonably available relevant information regarding the range of types, effectiveness, quality, and costs of potential property, services, public projects, and contractors available to achieve the city’s project goals. Depending upon the particular requirements of the project (and the more particular procedures identified in this chapter), the information to be considered shall include data gathered from one or more of the following sources: similar city projects, other public agencies, professional journals, private businesses, outreach to potential contractors, and private businesses, competitive bids, formal or informal quotes, proposals, or qualification statements.

(3) Guards against favoritism, fraud, corruption, and conflicts of interest.

(4) Efficiently uses city resources in the preparation, approval, administration, and enforcement of contracts which are effective tools in achieving the city’s goals.

(b) All city contracts shall be prepared in a manner consistent with all state and federal laws, in particular the requirements for public works construction, public project construction, and private development construction, real property acquisition and disposition, and the requirements related to funding received from other public agencies.

(c) All city contracts, and the purchasing regulations, shall implement the purpose and goals identified in this section.

(d) Any contract made, or purported to be made, by the city in violation of this chapter shall be void and of no force or effect. (Ord. 2494 § 1, 12-3-02. 1990 Code § 2-9102.)

3.20.040 Effect of dollar limits.

(a) The dollar limits identified in this chapter as thresholds for determining the authority of the city manager to execute a contract on behalf of the city are per contract.

(b) The dollar limits identified in this chapter as thresholds for determining the method of contract solicitation are per contract.

(c) For each contract, the dollar limits identified in this chapter (for both the authority of the city manager and the method of contract solicitation) shall be the greater of: (1) the total dollar amount of the city’s commitment to pay a contractor; or (2) the total dollar amount of a contractor’s commitment to pay the city; or (3) the estimated fair market value of property acquired or disposed. For the purpose of determining dollar limits pursuant to this chapter, a “commitment” to pay includes the amount designated in a contract as a “not to exceed” amount, or an estimated payment amount, even though the city’s actual contractual obligation is based on actual hours performed at an hourly rate.

(d) It shall be unlawful to split, or separate into smaller contracts, any contract for the purpose of evading the dollar amounts identified in this chapter. (Ord. 2494 § 1, 12-3-02; Ord. 8-2011 § 2, 7-12-11. 1990 Code § 2-9103.)

Article II. Duties and Authority of City Manager

3.20.050 Purchasing regulations.

(a) The city manager shall establish, update, and maintain current written purchasing regulations which implement the purposes, goals, and requirements of this chapter. The purchasing regulations shall be subject to review and approval as to form by the city attorney.

(b) The city manager may delegate, in writing, the duties and authority set forth in this chapter to other qualified city employees.

(1) Standard procedures and guidelines for implementing all duties and authority of the city manager identified in this chapter, as well as implementing the purpose and goals of this chapter.

(2) Identification of any delegation of duties or authority from the city manager to other qualified city employees.

(3) Standard forms (and procedures for their use) for the acquisition of property and services, the construction of public projects, and the disposition of property, including bidding documents, requests for proposals, requests for qualifications, standard specifications, form contracts, insurance requirements, bonds, purchase orders, and amendments.

(4) Bidders lists of qualified contractors for various types of projects.

(5) Implementation of the city’s policy regarding the purchase of goods based on post-consumer content, reuse, and waste reduction attributes.

(6) Procedures by which the city may allow the use of electronic communications to satisfy any requirements set forth herein for writings, documents, mailings, or notices.

(d) A copy of the purchasing regulations shall be maintained on file in the office of the city clerk. (Ord. 2494 § 1, 12-3-02. 1990 Code § 2-9200.)

3.20.060 Duties of city manager.

The city manager shall:

(a) Actively solicit names and information regarding potential contractors qualified to provide services, property, or the construction of public projects to the city; and establish, update, and maintain a current written bidders list of qualified contractors (according to categories of work) for various types of projects.

(b) Establish procedures to maximize coordination of purchases into a lesser number of large transactions in order to take advantage of cost savings for bulk purchases of commonly used goods or services, and in order to minimize unnecessary administrative time by eliminating repetitive purchasing of small transactions over time.

(c) Establish procedures to monitor each contractor’s compliance with contract requirements, including inspections and acceptance of complete performance. (Ord. 2494 § 1, 12-3-02. 1990 Code § 2-9201.)

3.20.070 Authority of city manager to sign contracts.

(a) The city manager is authorized to take all steps necessary to prepare contract documents, prior to final signature, in accordance with the procedures set forth in this chapter, including: requesting proposals, inviting bids, applying for grants, and negotiating contract terms.

(b) The city manager is authorized to execute any contract on behalf of the city; provided, that the contract is: covered by sufficient unencumbered funds appropriated in the adopted budget, in writing, prepared in accordance with all other requirements of this chapter, approved as to form by the city attorney, and included within one of the following categories:

(1) City Council Delegation. Any contract which the city council has authorized the city manager to execute on behalf of the city pursuant to ordinance, resolution, or other action of the city council.

(2) Legislative Recess. Any contract which the city council has authorized the city manager to execute on behalf of the city during any legislative recess or break; provided, however, at the first city council meeting following the legislative recess or break, the city manager shall report to the city council the contracts which were actually executed.

(3) Services. Any contract for services in an amount of $100,000 or less. Contracts for services that are awarded by the city manager for an initial term of one year or less may be renewed by the city manager for additional one-year terms provided the contract amount, including any change orders or amendments, does not exceed $100,000 in any one year. It is expected that service contracts will be competitively solicited on a regular basis as appropriate (i.e., every three to five years).

(4) Personal Property Acquisition. Any contract for personal property acquisition in an amount of $100,000 or less.

(5) Personal Property Disposition. Any contract for personal property disposition in an amount of $100,000 or less.

(6) Real Property Acquisition. Any contract for real property acquisition or use in an amount of $100,000 or less, or for any acceptance of an offer of dedication, regardless of amount, as a condition of development of private property.

(7) Real Property Disposition (by Grant in Fee or Easement). Any contract for real property disposition, including any grant in fee or easement but excluding any lease, in an amount of $100,000 or less.

(8) Real Property Disposition (by Lease or Use Agreement). Any contract for real property disposition by lease (or use agreement) in an amount of $100,000 or less. The term of any such lease or use agreement shall not exceed 12 months; provided, however, the city manager may approve a lease term of up to three years if supported by a written determination of special circumstances which constrain alternate (nonlease) uses of the property during the extended term.

(9) Real Property Disposition (Conveyance to Public Utility or Public Agency). Any contract for real property disposition, regardless of amount, including any grant in fee or easement, and any lease or property use agreement, to a public utility or public agency necessary to provide services to or implement construction, operation or maintenance of a city facility or approved project. A project is approved when it has been included in an approved capital improvement plan or budget, funds are appropriated and a decision to proceed with the project has been made in accordance with the California Environmental Quality Act.

(10) Public Project Construction. Any contract for public project construction in an amount of $100,000 or less.

(11) Private Development Construction. Any contract for private development construction, with public improvements of an estimated cost of $100,000 or less, or as otherwise authorized by Title 17 (Subdivisions).

(12) Contracts Wholly Funded by Private Parties. Any contract for goods or services, regardless of amount, when funded wholly by a private (nongovernmental) party.

(13) Claim Settlement.

(A) Any contract in an amount of $50,000 or less for the settlement of a claim made against the city pursuant to Cal. Gov’t Code §§ 900 et seq.; provided, that the contract is also executed by the city attorney. (See Cal. Gov’t Code § 935.4.)

(B) Any contract in an amount of $100,000 or less for the settlement of administrative or judicial proceedings that do not involve claims made against the city pursuant to Cal. Gov’t Code §§ 900 et seq.; provided, that the contract is also executed by the city attorney.

(14) Utility Service or Work. Any contract for utility service or for work performed by a utility to provide utility services to or implement construction, operation or maintenance of a city facility or approved project, regardless of amount, consistent with any approved budget or appropriation of funds. A project is approved when it has been included in an approved capital improvement plan, or budget, funds are appropriated and a decision to proceed with the project has been made in accordance with the California Environmental Quality Act.

(15) Contract Amendments or Change Orders.

(A) City Manager Awarded Contracts. Any amendment or change order to an existing contract originally awarded or executed by the city manager, as long as the total contract amount, including all amendments or change orders, does not exceed the amount of $100,000. An annual contract renewal in accordance with subsection (b)(3) of this section shall not be subject to the limitations of this section.

(B) Council Awarded Contracts. Unless otherwise specifically delegated by the city council at the time of contract award, any amendment or change order to an existing contract originally awarded by the city council, as long as the total aggregate amount of amendments or change orders for the contract are in an amount of 20 percent or less of the original contract amount.

(16) Contract Assignments. The city manager may approve and sign assignments of contracts previously approved by the council when he or she has determined that the proposed assignee has the ability, capacity, experience and skill and is otherwise qualified to perform the contract.

(17) Emergencies. Any contract necessary to resolve an emergency pursuant to Section 3.20.290.

(18) Indemnity Agreements. With the concurrence of the risk manager and the city attorney, the city manager is authorized to execute indemnity agreements in either of the following circumstances:

(A) An indemnity agreement to allow the city to use the property of any public agency, private organization or person; provided, that the indemnity is limited to claims, losses, damages, or injuries arising directly from the city’s use of the property; or

(B) An indemnity agreement where the contract amount does not exceed $100,000.

(19) Purchase Orders Under a Price Contract. The city manager may make purchases of any amount under a price contract authorized pursuant to Section 3.20.105.

(20) Other Contracts. Any contract not specifically identified in this section for which the city’s commitments under the contract are in an amount of $100,000 or less. (Ord. 2494 § 1, 12-3-02; Ord. 8-2011 § 3, 7-12-11. 1990 Code § 2-9202.)

3.20.080 Authority of city attorney to sign contracts.

The city attorney is authorized to prepare and execute any legal services contract on behalf of the city for which sufficient unencumbered funds are appropriated in the adopted budget; provided, that the contract: is in writing, and meets the purpose and goals set forth in Section 3.20.030. Legal services contracts shall include, but not be limited to, contracts for the services of attorneys, experts and investigators. (Ord. 2494 § 1, 12-3-02; Ord. 8-2011 § 4, 7-12-11. 1990 Code § 2-9203.)

Article III. Contract Procurement Methods

3.20.090 Personal property acquisition.

(a) Contracts for personal property acquisition may include labor incidental to the purchase of goods, such as set-up, installation, and testing, and are subject to the following procedures:

(1) Each contract for personal property acquisition in an amount of more than $25,000 shall be subject to the formal bidding requirements set forth in Article IV of this chapter.

(2) Each contract for personal property acquisition in an amount of more than $5,000 and less than or equal to $25,000, shall be subject to the informal bidding requirements set forth in Section 3.20.240.

(b) Each contract for the acquisition of personal property by acceptance of grant shall be subject to the following requirements:

(1) Each offer of a grant of property with an estimated fair market value of more than $2,500 shall be made in writing identifying the name of the person making the grant, the property offered, and the date on which the offer was made; and the city’s acceptance therefor shall be made in writing identifying the estimated value of the property offered, and the date of the city’s acceptance.

(2) The city’s acceptance of each offer of a grant of property with an estimated fair market value of $2,500 or less shall be made in writing identifying the name of the person making the grant, the property offered, the date on which the offer was made, the estimated value of the property offered, and the date of the city’s acceptance. (Ord. 2494 § 1, 12-3-02; Ord. 16-2004 §§ 1, 2, 12-7-04/eff. 1-5-05; Ord. 8-2011 § 5, 7-12-11. 1990 Code § 2-9300.)

3.20.100 Personal property disposition.

(a) Each contract for personal property disposition shall be subject to the requirements of any applicable state or federal law, shall be supported by a written determination by the city manager that the subject property is surplus to the needs of the city, and shall meet the purpose and goals set forth in Section 3.20.030.

(b) Each contract for personal property disposition for less than fair market value shall be supported by a written determination by the city manager that the disposition will serve a legitimate public purpose, and the disposition will not result in a gift of public funds. (Ord. 2494 § 1, 12-3-02. 1990 Code § 2-9301.)

3.20.105 Price contracts.

(a) The city may enter into a price contract where it is agreed that the city may make future purchases of personal property or services at a predetermined price or price discount from a price list, provided the contract is let by an appropriate competitive procurement process. If it is anticipated that the city will purchase personal property or services in an amount of $100,000 or more pursuant to the price contract, then the city council shall approve the price contract.

(b) Once a price contract is established, the city may purchase the goods or services from the awarded contractor without first undertaking additional competitive solicitation.

(d) The city manager may make purchases of any amount under a price contract; provided, that the purchase is covered by sufficient unencumbered funds appropriated in the adopted budget. (Ord. 8-2011 § 6, 7-12-11. 1990 Code § 2-9301.1.)

3.20.110 Real property acquisition and disposition.

(a) Each contract for real property acquisition and real property disposition shall be subject to the requirements of any applicable state or federal law, and shall meet the purpose and goals set forth in Section 3.20.030.

(b) Each contract for real property disposition for less than fair market value shall be supported by a written determination by the city manager that the disposition will serve a legitimate public purpose, and the disposition will not result in a gift of public funds. (Ord. 2494 § 1, 12-3-02. 1990 Code § 2-9302.)

3.20.120 Services.

(a) Each contract for services in an amount of more than $100,000 shall be subject to the competitive negotiation process as set forth in this chapter.

(b) Each contract for services in an amount of $100,000 or less shall be subject to the minor project process as set forth in this chapter. (Ord. 2494 § 1, 12-3-02. 1990 Code § 2-9303.)

3.20.130 Public project construction.

Each contract for public project construction shall be subject to the procedures of the Uniform Public Construction Cost Accounting Act (UPCCAA) commencing at Cal. Pub. Cont. Code § 22000, as it may be amended from time to time. Each contract for public project construction shall also be subject to all applicable requirements of state and federal law, including all provisions of the California Public Contract Code applicable to local agency public works contracts not in conflict with the UPCCAA.

(a) Changes in Dollar Limits. In the event that the monetary limits specified in Sections 22032 and 22034 of the UPCCAA are amended by the State Legislature or adjusted by the State Controller pursuant to Section 22020 of the UPCCAA, such amendment or adjustment in the monetary limits shall prevail and apply in place of the monetary limits specified in subsections (b), (c), (d) and (e) of this section.

(b) Formal Bidding. Each contract for public project construction in an amount of more than $200,000 shall be subject to the formal bidding process as set forth in Section 22037 of the UPCCAA. This includes a notice inviting formal bids published by the city in a newspaper at least 14 calendar days before the bid deadline. This also includes a notice mailed to the construction trade journals as specified by the California Uniform Construction Cost Accounting Commission in accordance with Section 22036 of the UPCCAA at least 30 calendar days before the bid deadline.

(c) Informal Bidding. Each contract for public project construction in an amount of more than $60,000, and less than or equal to $200,000, shall be subject to the informal bidding process as set forth in Section 22034 of the UPCCAA as follows:

(1) Bidder’s List. A list of qualified contractors identified according to categories of work shall be developed and maintained in accordance with the provisions of Section 22034 of the UPCCAA and criteria promulgated from time to time by the California Uniform Construction Cost Accounting Commission.

(2) Notice Inviting Informal Bids. A notice inviting informal bids (describing the project in general terms, how to obtain more detailed information about the project, and the time and place for the submission of bids) shall be mailed at least 10 calendar days before the bid deadline to the qualified contractors on the relevant bidders list. The city shall also endeavor, but shall not be required, to provide prior notice of informally bid projects to the construction trade journals as specified by the California Uniform Construction Cost Accounting Commission in accordance with Section 22036 of the UPCCAA. If, after following the sole source exception procedures set forth in Section 3.20.300, the product or service is determined to be proprietary in nature such that it can be obtained only from a certain contractor or contractors, the notice inviting informal bids may be sent exclusively to such contractor or contractors.

(d) If all bids received pursuant to the informal bidding process are in excess of $200,000, the city council may, by passage of a resolution by a four-fifths vote, award the contract, at $212,500 or less, to the lowest responsible bidder, if it determines that the original cost estimate of the city was reasonable.

(e) Minor Project Process. Each contract for public project construction in an amount of $60,000 or less shall be subject to the minor project process as set forth in Section 3.20.260. (Ord. 2494 § 1, 12-3-02; Ord. 8-2011 § 7, 7-12-11; Ord. 03-2019 § 1, 2-19-19. 1990 Code § 2-9304.)

3.20.135 Actions under the subletting and subcontracting fair practices.

In the event that the city is requested or required to take actions in accordance with the requirements of the Subletting and Subcontracting Fair Practices Act, commencing at Cal. Pub. Cont. Code § 4100, including conducting hearings and making determinations regarding the substitution of subcontractors, the city manager shall designate the individual or individuals authorized to take actions as the city’s awarding authority or duly authorized officer. Determinations made in accordance with this section by the city manager’s designee shall be final and conclusive. Therefore, such determinations shall not be subject to the appeal hearing process set forth in Article VIII of this chapter or the appeal process set forth in Chapter 1.25 and are only subject to such judicial review as may be available under state or federal law. (Ord. 8-2011 § 8, 7-12-11. 1990 Code § 2-9304.1.)

3.20.137 Review of plans and specifications.

(a) City Council Adoption of Plans and Specifications. The city council shall adopt the working details, drawings, plans, and specifications prepared for every public project or public work of more than $100,000.

(b) City Engineer Review of Plans and Specifications. The city engineer is delegated authority to and shall review and approve the working details, drawings, plans, and specifications prepared for every public project or public work which may affect the design or operation of public improvements and were not adopted by the city council pursuant to subsection (a) of this section.

(c) In cases of emergency, work to repair or replace public facilities may proceed prior to adoption of the working details, drawings, plans and specifications. (Ord. 8-2011 § 9, 7-12-11. 1990 Code § 2-9304.2.)

3.20.140 Private development construction.

Each contract for private development construction shall be subject to the procedures of the Subdivision Map Act and local ordinance (including the subdivision ordinance and other relevant provisions of Titles 17 and 18). (Ord. 2494 § 1, 12-3-02. 1990 Code § 2-9305.)

3.20.150 Settlement of claims.

Each contract for the settlement of a claim against the city shall meet the purpose and goals set forth in Section 3.20.030. (Ord. 2494 § 1, 12-3-02. 1990 Code § 2-9306.)

3.20.160 Procurement of other contract types.

Each contract for any type of project or undertaking which is not otherwise identified in this article, including a contract to acquire both personal property and services where the services are more than an incidental component of the contract, shall be subject to the following requirements:

(a) Each contract in an amount greater than $100,000 shall, in the discretion of the city manager, be subject to the formal bidding process as set forth in Section 3.20.170 or the competitive negotiation process as set forth in Section 3.20.250, except to the extent superseded by the requirements of state or federal law.

(b) Each contract in an amount of more than $25,000 and less than or equal to $100,000 shall, in the discretion of the city manager, be subject to the informal bidding process as set forth in Section 3.20.240 or the competitive negotiation process as set forth in Section 3.20.250, except to the extent superseded by the requirements of state or federal law.

(c) Each contract in an amount greater than $5,000 and less than or equal to $25,000 shall be subject to the minor project process as set forth in Section 3.20.260, except to the extent superseded by the requirements of state or federal law. (Ord. 2494 § 1, 12-3-02; Ord. 8-2011 § 10, 7-12-11. 1990 Code § 2-9307.)

3.20.165 Alternative contracting methods.

(a) The city manager may approve alternative selection, evaluation and award procedures for a specific contract or class of contracts, except public project contracts, in accordance with this section.

(b) The approval of an alternative contracting method shall be based upon the following:

(1) The nature of the contract or class of contracts for which the alternative contracting method is requested.

(2) Information demonstrating the substantial cost savings, enhancement in quality or performance, or other public benefit that will result from use of the alternative contracting method.

(3) Information demonstrating that approval of the request would meet the purpose and goals of the purchasing code set forth in Section 3.20.030 and would substantially promote the public interest in a manner that could not be achieved by complying with the competitive procurement methods otherwise applicable under this chapter.

(4) A description of the proposed alternative contracting method.

(c) The requesting department shall prepare a request for use of an alternative contracting method and submit it to the purchasing manager. The request shall include the information described in subsection (b) of this section. Upon review and approval by the purchasing manager and city manager, the city may use the approved alternative section, evaluation and award procedures for the specific contract or class of contracts. (Ord. 8-2011 § 11, 7-12-11. 1990 Code § 2-9308.)

3.20.167 Specification by brand or trade name.

(a) Except as provided in subsection (b) of this section, no specifications for any public works project, including public projects and maintenance projects, shall call for a material, product, thing, or service by specific brand or trade name unless the specification is followed by the words “or equal.”

(b) The provisions of subsection (a) of this section shall not apply if the city manager has determined in writing that a particular material, product, thing, or service may be designated by specific brand or trade name for any of the purposes described in Cal. Pub. Cont. Code § 3400(b) as it may be amended from time to time. The city manager’s determination shall state the facts reviewed and the reasons supporting the decision. The city manager’s determination shall be described in the invitation for bids or request for proposals for the public works project. (Ord. 8-2011 § 12, 7-12-11. 1990 Code § 2-9309.)

Article IV. Formal Contract Procurement by Competitive Bidding

3.20.170 Formal bidding requirements.

Each contract subject to formal bidding requirements, specifically excluding public project construction identified in Section 3.20.130, and excluding exceptions identified in Article VII of this chapter, shall comply with this article. (Ord. 2494 § 1, 12-3-02. 1990 Code § 2-9400.)

3.20.180 Notice inviting bids.

(a) The city shall issue a written notice inviting bids at least 10 calendar days before the bid deadline, by posting the notice on the designated public bulletin boards, and by mailing the notice to qualified potential contractors on the bidders list, and by such other means which, in the discretion of the city manager, provide notice to a reasonable number of potential contractors.

(b) The notice inviting bids shall, at a minimum, include:

(1) The bid deadline, including the date, time, and place of the bid submittal and bid opening.

(2) A general description of the requirements of the project for which the city is inviting bids.

(3) An identification of how to obtain a copy of the invitation for bids and more detailed information about the project. (Ord. 2494 § 1, 12-3-02. 1990 Code § 2-9401.)

3.20.190 Invitation for bids.

The city shall prepare a written invitation for bids which shall, at a minimum, include:

(a) A copy of the notice inviting bids.

(b) A complete description of the project requirements (and request for bid amount) identifying, at a minimum, deliverables, quantities, and schedule, using one or both of: project specifications or performance criteria.

(c) An identification of the procedures required for submittal of bids to the city, including the bid deadline, the acceptable form of the bid documents, and ensuring the security of the bid.

(d) An identification of all documents which bidders are required to submit with each bid. The required bid documents shall include the bid form, and, at the discretion of the city manager, may include any or all of the following elements:

(1) Bid security (in the form of a surety bond or other form of security acceptable to the city and identified in the invitation) which is subject to forfeiture upon a failure of the lowest responsible bidder to execute the required contract documents.

(2) Documentation of bidder qualifications and responsibility to perform in accordance with the project requirements.

(e) The city may modify the invitation for bids, after the issuance of the notice inviting bids and prior to the bid deadline, only by written addendum provided to each contractor who received a copy of the invitation for bids.

(f) A complete package of contract documents which will be signed by the contractor and the city upon award of the contract to the lowest responsible bidder. This package shall include one or both of a contract document or purchase order form, and, at the discretion of the city manager, may include any or all of the following elements:

(1) Performance security (in the form of a surety bond or other form of security acceptable to the city and identified in the invitation) which is subject to forfeiture upon a breach of contract.

(2) Insurance.

(3) Warranty.

(4) Licenses (including the payment of city business tax and registration tax).

(g) The “firm offer period” shall be identified as the number of days after the bid deadline within which all bids shall be considered by the city to be firm offers, and within which no bids may be withdrawn by any bidder without the written consent of the city in accordance with Section 3.20.200. The firm offer period may be any number of days determined by the city manager to be reasonable for a particular project, and will typically be 60 days. The firm offer period identified in the invitation for bids may be modified only at the request of the city and the written approval of the affected bidders.

(h) A description of the process by which the city will compare bids to determine the lowest responsible bidder in accordance with Section 3.20.210, specifically including the objective criteria by which the city will calculate the bid amount to determine the lowest monetary bid. (Ord. 2494 § 1, 12-3-02. 1990 Code § 2-9402.)

3.20.200 Submittal and withdrawal of bids.

(a) No bid shall be submitted which is collusive or sham, or the result of any collusion or conspiracy. No bid shall be submitted which is the result of any agreement or discussion with any other person to submit a collusive or sham bid, or to fix prices, or to refrain from bidding, or to secure any advantage against the city. Any bid which violates this subsection shall be rejected by the city.

(b) After a bid is received by the city, it may not be modified.

(c) After a bid is received by the city, it may be withdrawn only if the bidder submits a written request to withdraw, and the written request is received by the city prior to the bid deadline specified in the invitation for bids. The withdrawal of a bid shall not prejudice the right of a bidder to submit a new bid, provided the new bid is submitted in accordance with the requirements of this chapter and the requirements of the invitation for bids.

(d) After the bid deadline, no bidder shall withdraw a bid during the firm offer period identified in the invitation for bids, unless the bidder provides documentation to the satisfaction of the city of all of the following requirements:

(1) The bidder made a clerical error in filling out the bid, and the error was not due to an error in judgment or carelessness in determining the project requirements.

(2) The clerical error caused the bid to be materially different than the bidder intended the bid to be.

(3) The bidder provided the city written notice within five days after the bid deadline of the mistake, specifying in detail the nature of the mistake and how the mistake occurred. (Ord. 2494 § 1, 12-3-02. 1990 Code § 2-9403.)

3.20.210 City’s review of bids.

(a) If no bids are received by the city, the city may negotiate terms and enter into a contract without further complying with this chapter; provided, that the contract meets the purpose and goals set forth in Section 3.20.030.

(b) Bids which are received by the city in accordance with the invitation for bids on or before the bid deadline will be opened publicly, and the dollar amounts of each bid shall be read aloud.

(c) The city shall have the right to reject all bids, and either abandon the project or issue a new notice inviting bids and invitation for bids.

(d) Unless the city rejects all bids, the city shall review all bids in accordance with this section, and award the contract to the lowest responsible bidder.

(e) The term “lowest responsible bidder” shall mean the bidder who submits the “lowest monetary bid” which is also “responsive” to the requirements of the invitation for bids, and who is a “responsible” bidder.

(f) The “lowest monetary bid” shall be calculated by the city based on objective criteria for calculating the bid amount identified in the invitation for bids. For the purpose of comparing bid amounts:

(1) From May 7, 2009, until December 31, 2010, the city shall deduct five percent from the total bid amount of any local-owned business (as defined in Section 3.20.020), except that the amount of the local preference shall not exceed $10,000 for any single purchase order or contract.

(2) Beginning January 1, 2011, the city shall deduct two and one-half percent from the total bid amount of any local-owned business (as defined in Section 3.20.020), except that the amount of the local preference shall not exceed $5,000 for any single purchase order or contract.

The local preference shall not apply to bids that are intended to be in cooperation with other jurisdictions or when prohibited by the conditions of any federal, state, local agency or private grant. If two or more bids have the same bid amount, and are the lowest bid amount, the city shall have discretion to select any one of the lowest bids as the “lowest monetary bid.”

(g) A bid is “responsive” if the city finds that the bid is prepared and submitted by the bidder in accordance with the requirements of the invitation for bids and this chapter, such that the city’s acceptance of the bid legally binds the bidder to perform. The city shall have the right to waive minor irregularities in a bid, and find it to be responsive, only if the irregularities are nonmaterial and inconsequential. Irregularities which specifically may not be waived by the city, and which shall result in a determination of nonresponsiveness, include:

(1) A bid received by the city after the bid deadline.

(2) A bid which does not include bid security (if required by the invitation for bids).

(h) A bidder is “responsible” if the city finds that the bidder has demonstrated it is qualified to perform in accordance with the requirements identified in the invitation for bids, based on the bidder’s experience, capacity, and integrity. In determining a bidder’s responsibility, the city may consider information in the bid, and information received from references or other relevant sources, including the following types of information:

(1) Successful and timely completion of projects of similar scope, size, and quality.

(2) Any relevant licenses or certifications.

(3) Available resources to perform the project, including qualified personnel, property (such as buildings, plants, equipment, and materials), and finances.

(4) History of relevant claims or legal actions.

(i) If the city finds that the lowest monetary bidder submitted a responsive bid, and that the bidder is responsible, then that bidder shall be the “lowest responsible bidder.”

(j) If the city finds that the lowest monetary bidder’s bid is not responsive, or that the lowest monetary bidder is not responsible, then the city may review the responsiveness and responsibility of the next low monetary bidder. If the city finds that the next low monetary bidder is responsive and responsible, then that next low monetary bidder shall be the “lowest responsible bidder.” This process may continue until the city finds the lowest monetary bidder which is also responsive and responsible. In the event that one or more low monetary bidders are considered by the city to be potentially nonresponsive or nonresponsible, those bidders will be given notice and a reasonable opportunity to present additional relevant evidence to the city prior to the city’s determination to award the contract pursuant to Section 3.20.220. (Ord. 2494 § 1, 12-3-02; Ord. 30-2007 § 2, 11-27-07; Ord. 9-2009 § 2, 4-7-09. 1990 Code § 2-9404.)

3.20.220 Award of contract.

(a) After the city makes a determination to award a contract to the lowest responsible bidder, the city shall issue a written notice of award of contract to the lowest responsible bidder. Within the time specified in the notice of award, the bidder shall submit to the city all of the documents required by the invitation for bids (if any are identified, such as signed contract documents, or performance security, or insurance). If no time is specified in the notice of award, the bidder shall submit all required documents within 10 calendar days after receipt of the notice of award.

(b) In the event that the lowest responsible bidder does not properly and timely execute and submit all of the documents required by the invitation for bids, the city may void the previous award of contract, and award the contract to the next lowest responsible bidder. This process may continue until the city awards the contract to the lowest responsible bidder who complies with this section. If the city exercises its rights under this subsection, the bid security shall be forfeited to the city to cover the city’s damages. (Ord. 2494 § 1, 12-3-02. 1990 Code § 2-9405.)

Article V. Prequalification of Bidders

3.20.230 Prequalification of bidders.

(a) The city hereby establishes a system for prequalifying prospective bidders for public project construction, in accordance with Cal. Pub. Cont. Code § 20101.

(b) The city manager is authorized to determine whether or not the needs of any particular project (including any public project or any acquisition of property) warrant prequalification of prospective bidders.

(c) The city manager is authorized to adopt and apply a uniform system of rating bidders for each project based upon: (1) the requirements of Cal. Pub. Cont. Code § 20101, and (2) the model guidelines and standardized questionnaire created by the Department of Industrial Relations, as modified in the city manager’s discretion to address the needs of the particular project, or projects, to which they are to be applied.

(d) If the city manager determines that prequalification of prospective bidders is required for a particular project, the city manager shall determine which bidders are qualified to bid that project based upon the uniform system of rating bidders. If the city manager determines any bidder is not qualified to bid a project, the city manager shall provide written notice to the bidder which includes the bases for the determination and an identification of any supporting evidence therefor, and an opportunity for the bidder to appeal the determination pursuant to Article VIII of this chapter. (1990 Code § 2-9500.)

Article VI. Informal Contract Procurement

3.20.240 Informal bidding requirements.

(a) Each contract subject to informal bidding requirements shall comply with this section.

(b) The city shall request informal bids from a reasonable number of qualified potential contractors, as determined in accordance with the purchasing regulations, at least 24 hours before the bid deadline or such shorter period of time as may be approved by the purchasing manager.

(c) The request for informal bids may be oral or in writing (including via telephone or Internet), and shall describe the general requirements of the project (including deliverables, quantities, schedule, and a method for comparing and evaluating bids).

(d) Informal bids shall be submitted in writing in accordance with the requirements of the request for informal bids and the purchasing regulations, which may provide for the negotiation of the terms of the final contract. The award of contract shall be made to the contractor who, as determined by the city manager, provides the best value to the city. Best value may be determined on factors other than price, including, but not limited to: (1) contractor reliability, expertise, availability, timeliness of delivery and ability to provide future maintenance; and (2) product features, functions, life cycle costs, maintenance costs and operating efficiency. (Ord. 2494 § 1, 12-3-02; Ord. 16-2004 § 3, 12-7-04/eff. 1-5-05; Ord. 8-2011 § 13, 7-12-11. 1990 Code § 2-9600.)

3.20.250 Competitive negotiation requirements.

(a) Each contract subject to competitive negotiation requirements shall comply with this section.

(b) The city shall request either written qualifications or written proposals from qualified potential contractors on the bidders list, or by such other means which, in the discretion of the city manager, provide notice of the potential project to a reasonable number of potential contractors.

(c) If, in the discretion of the city manager, it is determined that a request for proposals will best meet the purpose and goals of this chapter in light of the particular needs of the project, the city shall include in the request for proposals, at a minimum, the following information:

(1) The deadline for submitting proposals, including the date, time, and address for submittal.

(2) A general description of the requirements of the project for which the city requests proposals.

(3) A description of the format requirements for the proposals.

(4) A copy of the city’s proposed contract terms.

(5) How to obtain more detailed information about the project.

(6) A request for the potential contractor to submit a description of relevant qualifications, a proposed plan to meet the city’s project requirements, any proposed changes to the city’s terms of agreement, and proposed pricing for the project (billing rates and/or estimated budget).

(7) A description of the criteria which the city will use to evaluate proposals and select the potential contractor whose qualifications and proposal best meet the city’s project needs.

(d) If, in the discretion of the city manager, it is determined that a request for qualifications will best meet the purpose and goals of this chapter in light of the particular needs of the project, the city shall include in the request for qualifications, at a minimum, the following information:

(1) The deadline for submitting qualifications, including the date, time, and address for submittal.

(2) A general description of the requirements of the project for which the city requests qualifications.

(3) How to obtain more detailed information about the project.

(4) A request for the potential contractor to submit a description of relevant qualifications.

(5) A description of the criteria which the city will use to evaluate proposals and select the potential contractor whose qualifications best meet the city’s project needs.

(e) The city may, in its discretion, negotiate contract terms with any or all potential contractors whose qualifications meet the city’s project needs. The city may enter into a contract with any or all potential contractors whose demonstrated competence and qualifications meet the city’s project needs, and the terms of the contract meet the purpose and goals of this chapter. (Ord. 2494 § 1, 12-3-02. 1990 Code § 2-9601.)

3.20.260 Minor project requirements.

(a) Each contract subject to minor project requirements shall comply with this section.

(b) The city shall request either formal bids, informal bids, qualifications, or proposals from qualified potential contractors on the bidders list, or by such other means which, in the discretion of the city manager, provide notice of the potential project to a reasonable number of potential contractors.

(c) The bids, qualifications, or proposals shall be submitted to the city in a form appropriate for the level of detail of the project requirements, as identified in the city’s request (which may be based in whole or in part on the requirements set forth in this chapter for informal bidding or competitive negotiations, either in writing or telephonically).

(d) After receiving bids, qualifications, or proposals, the city may, in its discretion, negotiate the contract terms with any or all potential contractors who meet the city’s project needs. The city may enter into a contract with any or all potential contractors who meet the city’s project needs; provided, that the terms of the contract meet the purpose and goals identified in Section 3.20.030. (Ord. 2494 § 1, 12-3-02. 1990 Code § 2-9602.)

Article VII. Exceptions to Contract Procurement Requirements

3.20.270 Exemptions and exceptions to be limited in application.

This article describes categories of contracts that are exempt from the informal and formal competitive procurement requirements of this chapter. This article also describes procedures to authorize exceptions from the informal and formal competitive procurement requirements of this chapter. It is expected that the exemptions and exceptions will be limited in their application. Nothing herein is intended to preclude use of competitive procurement. (Ord. 8-2011 § 14(A), 7-12-11. 1990 Code § 2-9700.)

3.20.280 Exemptions and exceptions for certain contracts.

The following categories of contracts shall be exempt from the competitive procurement requirements of this chapter:

(a) Utility services, where there is a geographic territory for that utility, or where work involves an existing utility system and only that company can work on the system.

(b) Equipment maintenance services provided by the equipment manufacturer or dealer/distributor for equipment purchased by city.

(c) Software upgrades and maintenance, software license renewals, and operating system maintenance services where the city has previously procured software and operating systems.

(d) Contracts for city insurance and bonds.

(e) Legal service contracts, including outside counsel, investigators and experts.

(f) Contracts wholly funded by private parties such as, but not limited to, contracts for private development related studies and services.

(g) Contracts for services where selection is based on a unique personal accomplishment or characteristic such as guest speakers, performers, artists, recreation instructors, trainers, and facilitators.

(h) Purchases under a price contract awarded pursuant to Section 3.20.105.

(i) Contracts for personal property and services, except services for public works and public projects, in an amount of $5,000 or less. (Ord. 8-2011 § 14(B), 7-12-11. 1990 Code § 2-9701.)

3.20.290 Exception for emergencies.

(a) This section shall apply to any action taken by the city to resolve an emergency, as defined by Section 3.20.020; provided, that:

(1) The action would otherwise (absent the emergency) be taken by contract in accordance with this chapter.

(2) The city manager makes a written determination based on substantial evidence that there is an emergency, there is a need to take immediate action to resolve the emergency, and the action proposed to be taken is directly related to resolving the emergency, and the emergency will not permit a delay resulting from compliance with this chapter.

(3) The city complies with all requirements of state and federal law regarding the procurement of the contract, including Cal. Pub. Cont. Code § 22050. The city manager is hereby authorized to order any emergency action on behalf of the city in accordance with the requirements of this article and Cal. Pub. Cont. Code § 22050.

(b) Upon documentation of compliance with subsection (a) of this section, the city manager shall be authorized to direct the action, by oral or written contract, to the extent necessary to resolve the emergency. The city manager shall, to the extent feasible, comply with the requirements of this chapter. The city manager shall comply with the purpose and goals identified in Section 3.20.030.

(c) At the earliest feasible time, the city manager shall make a written documentation of the terms of any oral contract.

(d) At the earliest feasible time, the city manager shall terminate the authorization of action by emergency, and the city shall comply with the requirements of this chapter.

(e) At the earliest feasible time, the city manager shall report to the city council at a regularly scheduled city council meeting, any action taken pursuant to this section, including the written determination pursuant to subsection (a) of this section. The city council shall determine whether there is a need to continue or terminate the emergency action.

(f) If the city manager determines, in accordance with subsection (a) of this section, that additional actions (beyond those reported to city council) are necessary to resolve the emergency, the additional actions shall be reported to city council in accordance with subsection (e) of this section. (Ord. 2494 § 1, 12-3-02; Ord. 8-2011 § 14(C), 7-12-11. 1990 Code § 2-9702.)

3.20.300 Exception for sole-source purchases.

The city may enter into a contract for personal property or services without complying with the competitive procurement requirements of this chapter in accordance with the following:

(a) The requesting department shall evaluate available sources to determine whether there is only one source capable of competently and efficiently providing the required personal property or service.

(b) If it is determined that there is only a single source for the purchasing of a particular item or service, the requesting department shall prepare a request for exemption from competitive solicitation and submit it to the purchasing manager.

(c) If it is determined that there is only a single source for the purchasing of a particular item or service, upon review and approval of the request by the purchasing manager and the city manager, the city may award the contract to the sole source vendor or service provider without competitive procurement.

(d) Examples of acceptable sole source purchases are: equipment for which there is no comparable competitive product, proprietary products sold directly from the manufacturer, a component or replacement part for which there is no commercially available substitute and which can be obtained only from the manufacturer, items where there is only one authorized distributor in the area, and items where compatibility with items in use by the city is an overriding consideration. (Ord. 2494 § 1, 12-3-02; Ord. 8-2011 § 14(D), 7-12-11. 1990 Code § 2-9703.)

3.20.310 Exception for contracts involving other public agencies.

(a) Cooperative Purchases. The city may participate with one or more other public agencies, as defined in Section 3.20.020, in a cooperative agreement to purchase personal property or services without complying with the competitive procurement requirements of this chapter provided at least one of the agencies has used solicitation process methods similar to those required by this chapter.

(b) Use of Another Agency’s Contract Terms. The city may enter into a proposed contract for the acquisition of personal property or services based upon terms of an existing contract between the contractor and another public agency, without complying with the competitive procurement requirements of this chapter, where:

(1) The city has an opportunity to enter into a proposed contract for the acquisition of personal property or services under terms materially the same as an existing contract between the contractor and another public agency; and

(2) The contract resulted from procurement methods similar to those required by this chapter.

(c) Public Projects. The city may enter into a contract with another public agency to construct a public project without complying with the competitive procurement requirements of this chapter where the other public agency uses bidding procedures similar to those required by this chapter to contract for the work.

(d) The requesting department shall prepare a request for exemption from competitive procurement and submit it to the purchasing manager. The request shall demonstrate compliance with the requirements of subsection (a), (b) or (c) of this section. Upon review and approval by the purchasing manager and city manager, the city may award the contract without competitive procurement. (Ord. 2494 § 1, 12-3-02; Ord. 8-2011 § 14(E), 7-12-11. 1990 Code § 2-9704.)

3.20.320 Exception for contracts where competitive procurement not useful or advantageous.

(a) The city may enter into a contract for personal property, services or public project construction without complying with the competitive procurement requirements of this chapter where solicitation of bids or proposals would not be useful or produce any advantage for the city and is therefore impractical, unavailing or impossible.

(b) The requesting department shall prepare a request for exemption from competitive procurement and submit it to the purchasing manager. The request shall demonstrate that solicitation of bids or proposals would not be useful or produce an advantage to the city. Upon review and approval by the purchasing manager and the city manager, the city may award the contract without competitive procurement. (Ord. 8-2011 § 14(F), 7-12-11. 1990 Code § 2-9705.)

Article VIII. Protests and Appeals

3.20.330 Protest procedures.

(a) Application. These protest procedures shall apply to the following contract procurements:

(1) Contracts for personal property acquisition in an amount more than $25,000.

(2) Contracts for public project construction in an amount more than $30,000.

(3) Contracts for services, excluding public project construction, in an amount more than $100,000.

(4) Contracts subject to the solicitation requirements set forth in Section 3.20.160 in an amount more than $100,000.

(5) Contracts designated by the city manager.

(b) Eligibility to Protest. Protests may be submitted only by a party that has submitted a bid or proposal in response to the contract solicitation. A subcontractor of a bidder or proposer may not submit a protest. A party may not rely on a protest submitted by another party, but must timely pursue its own protest.

(c) Notice of Decision. After a decision to award a contract subject to these protest provisions has been made, the city shall issue a notice of intent to award by posting the notice on the designated public bulletin boards and on the city’s bid results web page.

(d) Time to Submit Protest. All protests must be submitted in writing to the purchasing division before 5:00 p.m. on the fifth business day after the date of posting of the city’s notice of intent to award. The protester shall bear the risk of nondelivery within the time period specified above regardless of the method of delivery selected (facsimile, electronic mail, delivery service, United States mail service).

(e) Form of Protest. All protests shall be in writing and shall contain a complete statement of: the legal grounds for the protest; all the facts relevant to the protest; and the form of relief requested and the legal basis for such relief. All protests shall be accompanied by all documentation supporting the grounds for the protest. The protest shall include the name, address and telephone number of the protesting party and the person representing the protesting party, if any.

(f) Effect of Failure to Comply with Protest Procedures. The procedures set forth in this section (including the time limits for filing a protest and required information) are mandatory and are the sole and exclusive remedy of a bidder or proposer to dispute the award of a contract subject to these procedures. A protest that does not comply with these procedures may be summarily rejected. Failure to comply with these procedures shall constitute a waiver of any right to further pursue the protest including the filing of a Government Code Claim or other legal proceedings.

(g) Investigation of Protest. Upon timely filing of a protest that contains all the required information, the city shall notify the party whose bid or proposal is subject to the protest and may investigate the protest. If additional information is requested by the city, the party from whom it is requested shall deliver the information to the city within the time period specified by the city.

(h) Review and Determination of Protest. The city’s project manager in consultation with the city attorney shall make a recommendation regarding the bid protest to the awarding body. As used in this section, awarding body means the city manager or designee for contracts subject to this section and within the city manager’s award authority as set forth in Section 3.20.070(b), or the city council for all other contracts subject to this section.

(1) The awarding body shall consider and determine the protest based upon the written information provided by the parties, the recommendations of the city staff, and oral presentations at the meeting at which the protest is considered.

(2) Protest determinations made in accordance with this section by the awarding body shall be final and conclusive. Therefore, protest determinations made by the city manager as the awarding body shall not be subject to the appeal hearing process set forth in Section 3.20.340 or the appeal process set forth in Chapter 1.25 and shall be subject only to such judicial review as may be available under state or federal law.

(3) The filing of a protest shall not preclude the awarding body from rejecting all bids or proposals and directing staff to perform a new solicitation for a contract. (Ord. 8-2011 § 15(B), 7-12-11. 1990 Code § 2-9800.)

3.20.340 Appeal hearings.

(a) A determination made by the city council pursuant to this chapter shall only be subject to such judicial review as may be available under state or federal law.

(b) Any person aggrieved by a determination made by the city manager pursuant to this chapter may appeal the determination only by complying with the requirements set forth in this section. Such an aggrieved person shall be referred to in this section as “appellant.”

(c) No later than 10 calendar days after the city provides written notice of the determination made by the city manager, the appellant shall submit a written appeal to the city manager along with a complete written description of all factual and legal bases for the appeal.

(d) The city manager shall appoint a hearing officer and provide the appellant with written notice of the date, time, and place of a hearing on the appeal. The written notice from the city shall be provided no later than 15 calendar days after the city’s receipt of the appellant’s written appeal. The hearing shall be held no later than 30 calendar days after the city’s receipt of the appellant’s written appeal.

(e) At the hearing, the appellant and the city shall each be provided an opportunity to be represented by legal counsel, and to present or rebut any evidence (documents, testimony, or other) on the issues raised in the appeal.

(f) The hearing officer shall consider relevant evidence presented during the hearing, and provide a written decision on the appeal to the city and the appellant, no later than 15 calendar days after the close of the hearing.

(g) The dates identified in this section for providing notices may be continued only by order of the hearing officer, or by consent of the city and the appellant.

(h) The hearing officer’s decision shall be a final and conclusive decision, and shall not be subject to the appeal process set forth in Chapter 1.25. The hearing officer’s decision shall only be subject to such judicial review as may be available under state or federal law. (Ord. 2494 § 1, 12-3-02; Ord. 8-2011 § 15(C), 7-12-11. 1990 Code § 2-9801.)

Article IX. Contract Records, Reports

3.20.350 General procedures.

(a) Records Maintenance. Each department shall maintain records (in hard copy or electronic format) for each contract awarded or entered into by the city that was procured by and is managed by the department, including procurement documents and bids or proposals received, for a period of time in compliance with state law and the city’s records retention schedule.

(b) Report to Finance Director. The director of finance may request that any or all city departments periodically prepare and submit to the finance department informational reports regarding contracts procured and managed by the particular department during a reporting period defined by the director. Upon the request of the director of finance, each department shall prepare and submit a report which shall contain all information requested and be kept on file in the finance department. (Ord. 8-2011 § 16, 7-12-11. 1990 Code § 2-9900.)