Chapter 3.08
BIDDING, CONTRACTING AND PURCHASES OF SUPPLIES, SERVICES AND EQUIPMENT
Sections:
3.08.030 Administration of purchasing system.
3.08.040 Public projects (public works and construction).
3.08.050 Professional services.
3.08.060 General purchases (goods and services).
3.08.070 Exceptions/alternatives.
3.08.080 Standard protest procedures.
3.08.090 Surplus supplies and equipment.
3.08.100 City manager authorization to execute contracts.
3.08.010 Purpose.
This purchasing ordinance is hereby adopted in order to establish efficient policies and procedures for the procurement of goods and services at the lowest possible cost commensurate with quality needed, to exercise prudent and effective financial control over purchases and procurements, to clearly define authority for the purchasing function, and to comply with all applicable laws in a professional and ethical manner.
This chapter establishes procedures for three different categories of purchases: (A) public projects, as set forth in Section 3.08.040, (B) professional services, as set forth in Section 3.08.050, and (C) all other purchases of goods and services, as set forth in Section 3.08.060. (Ord. 22-01 § 1 (Exh. A))
3.08.020 Definitions.
A. “Act” means the Uniform Public Construction Cost Accounting Act, codified at Public Contract Code Section 22000 et seq., as it may be amended from time to time.
B. “Approval authority” means the city official with the authority to approve contracts or purchases based on the type of contract and applicable financial thresholds. The approval authority shall be either the city council, the city manager, or a city official designated by the city manager. A contract or purchase may be approved by a higher approval authority.
C. “Competitive solicitation process” is any procedure where the city releases a formal solicitation for goods or services, either to select vendors or the public at large, and interested vendors submit a formal response to the solicitation with an offer to provide the goods and services on certain terms or following negotiations, and the approval authority selects a vendor based on the offers presented. The award does not have to be to the lowest bidder except where otherwise required. A competitive solicitation may either be publicly advertised or released directly to vendors who are known to provide the goods or services. Where not publicly advertised, the approval authority shall attempt to receive at least three offers, unless receiving three offers is not practical or possible under the circumstances.
D. “Cumulative,” when used in relation to authority to approve a contract, means that the threshold is based on the total value of all contracts with the same vendor within a single fiscal year. Approval authority that is not described as cumulative means that the amount applies per contract even if the city has multiple contracts with the same vendor.
E. “Department head” refers to any executive- or director-level position within the city whose duties include making purchasing or contracting decisions on behalf of the city. Management- and supervisory-level positions are not department heads for purposes of this chapter.
F. “Informal solicitation process” is any process that obtains price quotes and other relevant terms from potential vendors but does not necessarily require the city to prepare a formal solicitation or to receive formal offers from vendors. An informal process does not have to be publicly advertised and the award does not have to be to the lowest bidder, except where otherwise required. Where not publicly advertised, the approval authority shall attempt to receive at least three offers, unless receiving three offers is not practical or possible under the circumstances. (Ord. 22-01 § 1 (Exh. A))
3.08.030 Administration of purchasing system.
A. Administrative Policies. The city manager shall implement policies and procedures governing the procurement of public works projects, services and materials, supplies, and equipment for the city consistent with this chapter. The city manager may amend such procedures and policies as needed to address operational issues as they arise.
B. Vendor Lists. The city may utilize any process in this chapter to procure vendors who will be eligible or preferred to provide goods or services to the city on an as-needed basis.
C. Appropriations. No contract or purchase shall be made unless the finance director shall have first confirmed that there is an unencumbered appropriation in the fund against which such expenditure is to be charged sufficient to cover the amount of purchase or contract, unless in cases of emergency.
D. Design Review. The city engineer shall review and is authorized to approve the working details, drawings, plans and specifications prepared for every project which may affect the design or operation of public improvements.
E. Federal/Grant-Funded Procurement. The city council or city manager shall adopt policies or procedures consistent with federal procurement requirements applicable to projects funded by, or eligible for funding from, federal agencies or grant programs. To the extent this chapter is inconsistent with any federal, grant or other funding source requirement for a particular purchase, the federal, grant or other funding source requirement shall control. (Ord. 22-01 § 1 (Exh. A))
3.08.040 Public projects (public works and construction).
A. Adoption of Act. The city council has elected to be subject to the Act for purposes of procuring work on public projects. This chapter shall be construed to be consistent with the Act, as it may be amended from time to time. In the event that the city council elects to no longer be subject to the Act, this section shall continue to apply, except to the extent that it is inconsistent with the general laws of the state.
B. Application. This section applies to the contracts for work on a public project. “Public project” means any of the following:
1. Construction, reconstruction, erection, alteration, renovation, improvement, demolition, or repair work involving any city owned, leased, or operated facility.
2. Painting or repainting of any city owned, leased, or operated facility.
3. In the case of a city owned utility system, “public project” shall include only the construction, erection, improvement, or repair of dams, reservoirs, power plants, and electrical transmission lines of two hundred thirty thousand (230,000) volts and higher.
“Public project” does not include maintenance work, which shall be considered a general service. The term “maintenance work” shall have the same meaning as provided in the Act.
C. Approval Authority. Contracts for public projects that are in the amount of more than two hundred thousand dollars ($200,000.00) shall be awarded by the city council. Contracts for less than this amount may be awarded by the city manager. The city manager’s approval authority under this section is not cumulative.
D. Procedure. The procedure for contracting for public projects shall be as follows:
1. Sixty Thousand Dollars ($60,000.00) or Less. Public projects of sixty thousand dollars ($60,000.00) or less may be performed by force account or by negotiated contract or purchase order, without the need for formal or informal procedures.
2. Sixty Thousand Dollars and One Cent ($60,000.01) to Two Hundred Thousand Dollars ($200,000.00). Public projects of two hundred thousand dollars ($200,000.00) and less but more than sixty thousand dollars ($60,000.00) may be let by informal bidding procedures established by the city council or city manager, provided such procedures are consistent with the Act.
3. More Than Two Hundred Thousand Dollars ($200,000.00). Public projects of more than two hundred thousand dollars ($200,000.00) shall be awarded to the lowest responsible bidder pursuant to formal bidding procedures consistent with the Act.
E. Automatic Adjustments. In the event of an amendment to the Act, the approval authority stated in this section shall adjust automatically to conform to the Act. The city manager’s approval authority shall remain consistent with thresholds for informal bidding. (Ord. 22-01 § 1 (Exh. A))
3.08.050 Professional services.
A. Application. This section shall apply to the hiring of services provided by a person, company, corporation, or firm engaged in a profession based on a generally recognized special knowledge, skill, license, and/or certification to perform the work including, but not limited to, the professions of accountant, attorney, artist, architect, landscape architect, construction manager, engineer, environmental consultant, dentist, physician, training or educational consultant, or land surveyor, and whose services are considered distinct and unique.
B. Approval Authority. The city council shall approve contracts for professional services that are in the amount of one hundred thousand dollars ($100,000.00) or more. The city manager may approve contracts that are less than this one hundred thousand dollars ($100,000.00). The approval authority limits in this section are cumulative.
C. Procedure. Professional services contracts shall be negotiated on the basis of demonstrated competence and qualifications for the services required and at fair and reasonable fees.
1. Less Than One Hundred Thousand Dollars ($100,000.00). Professional services contracts this amount may be awarded following informal negotiations.
2. One Hundred Thousand Dollars ($100,000.00) or More. Professional services contracts shall be awarded following either an informal solicitation or competitive solicitation process. An informal solicitation or competitive solicitation process is not necessary if the contract involves an extension or expansion of services from a firm presently or previously under contract to the city, the hiring of a firm who previously provided skillful and competent services to the city, the hiring of a firm or professional who demonstrates unique skill or ability related to the services needed, or where expediency in hiring a professional is in the best interest of the city under the circumstances. (Ord. 22-01 § 1 (Exh. A))
3.08.060 General purchases (goods and services).
A. Application. This section shall apply to the purchase of all services or goods that do not qualify as a public project or professional service.
B. Approval Authority. Department heads may approve purchases of five thousand dollars ($5,000.00) or less. The city manager may approve purchases of twenty-five thousand dollars ($25,000.00) or less. The city council shall approve purchases of more than twenty-five thousand dollars ($25,000.00). The approval authority limits in this section are cumulative.
C. Procedure. General purchases shall be procured as follows:
1. Twenty-Five Thousand Dollars ($25,000.00) or Less. General purchases of twenty-five thousand dollars ($25,000.00) or less may follow any solicitation process, including no bidding.
2. Twenty-Five Thousand One Dollars ($25,001.00) to Ninety-Nine Thousand Nine Hundred Ninety-Nine Dollars and Ninety-Nine Cents ($99,999.99). General purchases over twenty-five thousand dollars ($25,000.00) and less than one hundred thousand dollars ($100,00.00) shall be awarded following an informal solicitation process.
3. One Hundred Thousand Dollars ($100,000.00) or More. General purchases of one hundred thousand dollars ($100,000.00) shall be awarded following a competitive solicitation process. (Ord. 22-01 § 1 (Exh. A))
3.08.070 Exceptions/alternatives.
Unless otherwise prohibited by law, the approval authority may procure work for public projects, services or goods in the following manners without otherwise complying with the procurement procedures in this chapter:
A. Declared Emergencies. In the event of a state of emergency or proclamation of local emergency, this chapter shall not limit the powers of the emergency services director to exercise the authority provided under Chapter 2.36 or the California Emergency Services Act.
B. Emergency Repairs. In the event of any 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, the city council hereby delegates to the city manager the power to repair or replace the public facility, take any directly related and immediate action required by the emergency, and procure the necessary equipment, services, and supplies for those purposes, without giving notice for bids to let contracts.
1. For public projects that are otherwise subject to approval of the city council, the city manager shall provide a report on the emergency and the work performed at the next regular meeting of the city council, and then at every regular meeting thereafter until the emergency action is terminated. At such meetings, the city council shall determine, by a four-fifths (4/5) vote, that there is a need to continue the action. The city council shall terminate the emergency action at the earliest possible date that conditions warrant, so that the remainder of the emergency action may be completed pursuant to the appropriate bidding procedure.
2. For projects that are otherwise within the city manager’s approval authority, the city manager shall determine, on his or her own as the action continues, whether there is a need to continue the action without the benefit of bidding procedures. The city manager shall terminate the emergency action at the earliest possible date that conditions warrant, so that the remainder of the emergency action may be completed pursuant to the appropriate bidding procedure.
3. This subsection is intended to implement and be consistent with Public Contract Code Sections 22035 and 22050.
C. No Competitive Advantage. To the extent allowed by law, the approval authority may dispense with any procedures contained in this chapter if the approval authority finds that such procedures will not provide a competitive advantage to the city. Examples of situations where there is no competitive advantage include but are not limited to:
1. Single Source/Sole Source. The approval authority finds that there is only one source that provides the needed services or goods, or that use of a particular source is necessary to ensure compatibility with other city products or equipment.
2. Bidding Previously Completed. The approval authority finds that either (a) the city already completed a competitive process and rebidding or resoliciting is unlikely to yield better results, or (b) another public agency, including a joint powers agency, already performed a competitive process in accordance with the city’s standards and resoliciting is unlikely to yield better results for the city.
3. Integrated Project. The approval authority finds that the public project or other work is integrated with a private development project and may be more efficiently performed by the private developer as part of a single integrated project.
4. Timing of Purchase. For general purchases, the approval authority finds that there is either an immediate need to procure goods and services that outweighs the benefits to the city of an informal solicitation or competitive solicitation process or that the time needed to perform an informal or competitive solicitation process will result in a competitive disadvantage to the city in price, ability to procure the goods or services, or other critical factors in the purchase.
D. Alternative Project Delivery Methods. The approval authority may procure work for a public project through any legally available alternative project delivery method. (Ord. 22-01 § 1 (Exh. A))
3.08.080 Standard protest procedures.
A. Effect of Failure to Protest. The procedures set forth in this section are mandatory and are the sole and exclusive remedy of a bidder or other vendor to dispute the award of a contract that the city solicits through a competitive process. A protest that does not comply with these procedures may be summarily rejected and the person submitting the protest shall be deemed to have waived all rights to relief.
B. Protests of Solicitation Method. By submitting a bid, proposal or other application for a contract award, the bidder or other vendor shall be deemed to have waived all rights to challenge the city’s method for procuring the contract or any discrepancy in the solicitation process or documents. Bidders or vendors may submit bids, proposals or other applications under protest. Protests under this section shall be submitted in writing to the official designated to receive the bid, proposal or other application and shall contain a full summary of the factual and legal basis for the protest. Protests shall be limited to matters in which the approval authority does not have discretion to act or acts outside of its discretion.
C. Protests of Award. A bidder, proposer or other vendor applying for a city contract through a competitive process may submit a written protest of the award of the contract. Protests shall be limited to matters in which the approval authority does not have discretion to act, or acts outside of its discretion. The protest shall identify and explain the factual and legal grounds for the protest. Any grounds not raised in the written protest are deemed waived by the protesting bidder.
D. Waiver. Any person that: (1) did not directly submit a bid or proposal, including subcontractors and consultants, (2) is not responsible or qualified to receive the contract, (3) failed to submit a responsive bid or proposal, (4) is not in line to receive the contract or is otherwise ineligible to receive the contract, (5) is otherwise not beneficially interested in the award, or (6) fails to submit a timely protest shall be deemed to have waived the right to protest the award of the contract. Any protest deemed waived will be subject to summary rejection without further consideration and the person will have no right to any relief.
E. Timing of Protest of Award. Protests shall be submitted in writing to the official designated to receive the bid, proposal or other application within the following times:
1. If the city issues a notice of intent to award (or reject) a bid, proposal or other application, then within five calendar days following the issuance of the notice of intent and prior to the date of the award.
2. If the city does not issue a notice of intent, then within five calendar days following the award of the contract.
F. City Response. If the protest is in response to a notice of intent, then the protest will be considered concurrently with the award of the contract, and the approval authority’s action is final. If the city does not issue a notice of intent, and the protest is submitted after the award, then the city manager or a designee shall notify the protestor that either the protest is denied or that a hearing on the protest will be scheduled with the approval authority. The hearing shall take place within forty-five (45) days. Whether to deny the protest or set a hearing is within the city manager’s, or designee’s, sole discretion. The determination of denial shall be final.
G. Conflicts. The protest procedures contained in this section shall not apply if a particular solicitation contains a different protest procedure. This section does not limit or eliminate a claimant’s obligations under the Government Claims Act, Government Code Section 900 et seq. (Ord. 22-01 § 1 (Exh. A))
3.08.090 Surplus supplies and equipment.
All using departments shall submit to the purchasing officer at such times and in such form as he/she shall prescribe reports showing all supplies, materials and equipment which are no longer used or which have become obsolete or worn out.
A. The purchasing officer shall have authority to sell as surplus all supplies, materials and equipment which cannot be used by any agency or which have become unsuitable for city use, or to exchange the same for, or trade in the same on, new supplies, materials and equipment. The sale of surplus supplies and equipment shall be made pursuant to rules prescribed by the city manager, and only after authorization from the city council as to any items of an estimated value of ten thousand dollars ($10,000.00) or more.
B. Surplus supplies and equipment may be sold to the public if so prescribed by the city manager and/or the city council. City officials and employees and their immediate families, however, shall not be eligible to purchase such surplus items. (Ord. 22-01 § 1 (Exh. A))
3.08.100 City manager authorization to execute contracts.
Pursuant to the California Government Code, the mayor must execute all contracts on behalf of the city, unless another city officer or employee is authorized to do so. The city manager and his or her designees as explicitly set forth in this chapter and the administrative policies implementing this chapter are hereby authorized to execute contracts on behalf of the city. (Ord. 22-01 § 1 (Exh. A))