Chapter 3.90
PUBLIC PURCHASES
Sections:
Article I. General Provisions
3.90.030 Adoption of rules and regulations.
3.90.060 Purchase of supplies manufactured in the United States.
3.90.070 Extension of bid opening date.
3.90.080 Purchase of services.
Article II. Minority-Owned Business and Women-Owned Business Utilization
3.90.110 Minority-owned business and women-owned business utilization – Policy and purpose.
3.90.130 MBE/WBE Utilization Board.
3.90.140 Purchase of goods, supplies, services and construction contracts.
3.90.150 Certification of MBEs and WBEs.
3.90.160 Maintenance of records and reporting procedures.
3.90.170 Utilization of MBEs and WBEs.
Article I. General Provisions
3.90.010 Applicability.
Pursuant to IC 5-22-1-2, this article shall not apply to the Water and Sewer Utility or their various departments. Said sections shall apply to every other department of the City and every joint agency established by inter-local agreement with another governmental entity. [Ord. G-98-21, passed 7-6-98. 1983 Code § 3.30.860.]
3.90.020 Definitions.
The City Council hereby adopts the definitions found in IC 5-22 (Public Purchasing) and as those sections may hereafter be amended by the State Legislature except that in this chapter the following words shall have the following meanings unless the context clearly indicates otherwise:
“Board” shall mean any board, commission or council regardless of designation, which has the authority to approve claims of the various departments under its jurisdiction.
“Emergency” shall mean a situation which threatens injury or death to any person, damage to property or disruption of governmental services.
“Purchasing agency” shall mean the various boards, commissions and councils of the City with the power to award contracts. It shall also mean department heads acting in times of emergency when the board is unable to meet.
“Purchasing agent” shall mean the Supervisor of Purchasing, the department heads of the various departments of the City, the Mayor, and any official or employee of the City designated by the Mayor as a purchasing agent.
“Small purchases” shall mean purchases as defined by IC 5-22-8-2, as amended. [Ord. G-2007-10, passed 9-25-07; Ord. G-98-21, passed 7-6-98. 1983 Code § 3.30.861.]
3.90.030 Adoption of rules and regulations.
Pursuant to IC 5-22-3-3, the purchasing agencies of the City may issue rules and policies that are not inconsistent with this chapter or State law. The various boards of the City shall act as the purchasing agency for the departments under their control. Additionally, any department may utilize the Board of Public Works as its purchasing agency if there is insufficient time to schedule a meeting of the board to which it usually reports. [Ord. G-98-21, passed 7-6-98. 1983 Code § 3.30.862.]
3.90.040 Purchasing agents.
The purchasing agents for the purchasing agencies shall be:
(A) The Supervisor of Purchasing.
(B) The department heads of the various departments under the control of the purchasing agency.
(C) The Mayor.
(D) Any official or employee of the City designated by the Mayor as a purchasing agent. [Ord. G-98-21, passed 7-6-98. 1983 Code § 3.30.863.]
3.90.050 Opening of bids.
A quorum of a board is not required for the opening of bids so long as the bid opening is done in public at the date, time and place designated in the notice to bidders. [Ord. G-98-21, passed 7-6-98. 1983 Code § 3.30.864.]
3.90.060 Purchase of supplies manufactured in the United States.
Pursuant to the mandated requirements of IC 5-22-15-21, supplies manufactured in the United States shall be specified for all purchases under this chapter and shall be purchased unless the City determines that any of the following apply:
(A) The supplies are not manufactured in reasonably available quantities.
(B) The price of the supplies manufactured in the United States exceeds by an unreasonable amount the price of available and comparable supplies manufactured outside the United States.
(C) The quality of the supplies is substantially less than the quality of comparably priced available supplies manufactured outside the United States.
(D) The purchase of supplies manufactured in the United States is not in the public interest.
(E) The purchasing agency decides not to award the contract. [Ord. G-98-21, passed 7-6-98. 1983 Code § 3.30.865.]
3.90.070 Extension of bid opening date.
The purchasing agency may extend a bid opening date. Notice of the date, time and place of the rescheduled bid opening shall be given at the time, place and date of the original bid opening. [Ord. G-98-21, passed 7-6-98. 1983 Code § 3.30.866.]
3.90.080 Purchase of services.
In recognition that lowest price does not necessarily mean a person is qualified to do the task assigned, and services usually require certain experience and expertise which is difficult to quantify in a bid situation, the purchasing agency or purchasing agent may procure the purchase of a service without bidding, unless bidding is specifically required by State law. If the purchasing agency or purchasing agent desires to solicit bids or requests for proposals, such bids or requests for proposals may be conducted under such terms, conditions and procedures as the purchasing agency deems appropriate. [Ord. G-98-21, passed 7-6-98. 1983 Code § 3.30.867.]
3.90.090 Withdrawal of bid.
A bidder may withdraw a bid at any time prior to actual bid opening. A bid may be withdrawn after bid opening only at the discretion of the purchasing agency under conditions which the purchasing agency deems to be in the best interests of the City. [Ord. G-98-21, passed 7-6-98. 1983 Code § 3.30.868.]
3.90.100 Small purchases.
Small purchases may be made by the purchasing agent without bidding or receiving quotes under IC 5-22-8-2 subject to the rules and policies of the purchasing agency. [Ord. G-98-21, passed 7-6-98. 1983 Code § 3.30.869.]
Article II. Minority-Owned Business and Women-Owned Business Utilization
3.90.110 Minority-owned business and women-owned business utilization – Policy and purpose.
It is the policy of the City of Evansville that minority-owned business enterprises (“MBE”) and women-owned business enterprises (“WBE”) shall have the maximum feasible opportunity to participate in public contracts and to do business with the City of Evansville (the “City”).
The purpose of this subchapter is to lawfully promote economic development by the utilization of MBEs and WBEs by City departments and boards as prime contractors and subcontractors in contracts for purchases and construction projects by the City. [Ord. G-2009-9 § 2, passed 8-24-09. 1983 Code § 3.30.870.]
3.90.120 Definitions.
The following definitions shall apply throughout this subchapter:
“Business day” shall mean any day except weekends and holidays observed by the City.
“Contractor” means any business entity with which the City enters into a contract to provide goods, supplies, services or construction work for the City.
“Emergency contract” shall mean a contract that is awarded on an emergency basis due to a threat of harm to person or property or threat of disruption of governmental services.
“Local MBE” or “local WBE” means an MBE or WBE certified in the State of Indiana which has an owner who has resided in Vanderburgh County or has had a business office in Vanderburgh County for three years.
“MBE” means a minority business enterprise.
“Minority” means a person who is a citizen of the United States and who is a member of any of the following racial groups:
(1) African American (a person with origins in any of the black racial groups of Africa).
(2) Hispanic American (a person with origins in Mexico, Central America, South America, Cuba, or Puerto Rico).
(3) Asian American (a person with origins in the Far East, Southeast Asia, the Indian subcontinent, or the Pacific Islands).
(4) American Indian (a person with origins in any of the original peoples of North America, including, but not limited to, natives of Alaska).
(5) Other similar racial minority groups.
“Minority and women’s business utilization plan” shall mean a plan developed by the MBE/WBE Utilization Board in consultation with the Purchasing Department and approved by the City Council. The plan shall provide for utilization of local MBEs and WBEs and provide rules and regulations to implement this chapter.
“Regional MBE” or “regional WBE” shall mean an MBE or WBE certified in the State of Indiana who has a joint venture with a “local MBE” or “local WBE” to obtain a bid/contract with the County, City or EVSC.
“This subchapter” means this article.
“WBE” means a women-owned business enterprise. [Ord. G-2009-9 § 2, passed 8-24-09. 1983 Code § 3.30.871.]
3.90.130 MBE/WBE Utilization Board.
(A) There is hereby created the MBE/WBE Utilization Board (the “Board”). The Board shall consist of nine members. Two members shall be appointed by the Mayor, one member shall be appointed by the City Council, two members shall be appointed by County Commissioners, one member shall be appointed by the County Council, and three members shall be appointed by the Evansville-Vanderburgh School Corporation (“EVSC”). All appointments expire on December 31st of the second year for which they are made. Board members may be removed at the pleasure of the appointing authority prior to the expiration of their terms. The Board shall elect from its membership a President and a Vice-President, who shall act as the presiding officer in the absence of the President. The Board shall also elect from its membership a Secretary, who shall perform such duties as prescribed by the President.
Board members shall serve without compensation. Board members may be compensated for expenses incurred if approval of the Mayor is given and money is appropriated to cover the cost.
All meetings of the Board shall be conducted in accordance with the Indiana Open Door Law.
(B) Any member of the Board who seeks a contract involving City and/or County and/or EVSC funds shall file a conflict of interest disclosure form pursuant to State law. Any member of the Board who seeks and/or obtains a contract involving City and/or County and/or EVSC funds whether as a prime contractor or subcontractor shall be disqualified from participating in and voting on any matter or proceeding involving any business entity seeking a contract from the same source of City and/or County and/or EVSC funds.
(C) The Board and the Purchasing Department shall have the following duties and authority:
(1) The Board shall hear and determine requests for waivers from bidders from MBE/WBE requirements.
(2) The Purchasing Department shall maintain lists of certified MBEs and WBEs from which City departments and boards may make purchases or award contracts directly or indirectly as subcontractors of business entities being awarded a contract by the City. Such lists shall delineate the goods, services or construction projects which the MBE or WBE may be interested in performing or providing.
(3) The Board, in consultation with the Purchasing Department, shall develop a plan for the utilization of local MBEs and WBEs and shall establish within the said plan rules and regulations to implement this chapter and the duties of the Board hereunder. This plan shall be titled the “Minority and Women Business Utilization Plan for the City of Evansville and Vanderburgh County (the “utilization plan”).” The utilization plan shall not unlawfully discriminate against any person or business in the award or execution of any contract. The utilization plan shall promote local MBE and WBE business development in the community and shall comply with the requirements of Federal and State public purchasing and construction laws. The utilization plan shall apply to all City departments whose budgets are approved by the City Council.
(4) The Purchasing Department, in consultation with the Board, shall conduct an annual review of effectiveness of the City departments and boards in meeting their annual goals in soliciting prices from local/regional MBEs and WBEs. Such review shall be based on the actual solicitation of a price from local/regional MBEs and WBEs versus the availability of qualified local/regional MBEs and WBEs.
(5) The Purchasing Department, in consultation with the Board, shall provide training to all departments and boards of the City at least annually in how to better utilize MBEs and WBEs.
(6) In construction bids for which formal advertised bidding is required by State law, the Purchasing Department shall review bid specifications submitted by the City departments and promulgate goals for the utilization of MBEs and WBEs. In no event shall a bidder be required to award a subcontract to a MBE/WBE, but it may not unlawfully discriminate against said MBE/WBE. The “good faith” effort of bidders in obtaining MBE and WBE participation shall be considered by the Purchasing Department and the boards and commissions awarding contracts as a factor in determining a “lowest responsive bidder.”
(7) The Purchasing Department, in consultation with the Board, shall report to the City departments and boards concerning contract language and procedures which will enable MBEs and WBEs to more competitively submit bids to the City or to prime contractors, including, but not limited to, prompt payment, bonding requirements, and any other lawful means to better utilize MBEs and WBEs.
(8) The Purchasing Department shall investigate allegations of noncompliance by contractors with goals of the City as to utilization of MBEs and WBEs or practices of the contractors wherein it is alleged that discriminatory practices or procedures of the contractors were used in the solicitation, award or execution of subcontracts, contracts for supplies or contracts for services. The Purchasing Department shall report its findings to the Law Department for a determination and a report and recommendation to the Board. An adverse determination by the Board may be appealed by the contractor to the awarding board within thirty days of notice of such a determination. A determination of such discriminatory practice following notice and hearing before the awarding board shall be referred to the appropriate State and Federal enforcement agencies for appropriate action. A finding of such a discriminatory practice shall prohibit that firm from being awarded a contract or being a subcontractor on a City contract for a period of one year from the date of such determination. Additionally, such a determination may be grounds for terminating the contract to which the discriminatory practice or noncompliance pertains.
(9) The Purchasing Department shall provide assistance to certified MBEs and WBEs through printed materials and individual assistance to firms to eliminate barriers to participation in City contracts, including, but not limited to, the following:
(a) Provide information on the City’s organizational and contractual needs;
(b) Provide instructions to preparers of bid specifications to ensure implementation of this subchapter;
(c) Provide information to WBEs and MBEs on City procedures in awarding contracts; and
(d) Provide an opportunity to review with the bidder why its bid was rejected if it was rejected for a reason other than price.
(10) Whenever possible, the City shall facilitate seminars by representatives of financial institutions, insurance and bonding companies, to familiarize WBEs and MBEs with the requirements of those companies for loans, insurance and bonds.
(D) The Purchasing Department shall act as the staff of the Board to assist the Board in carrying out its purposes and functions. [Ord. G-2009-9 § 2, passed 8-24-09. 1983 Code § 3.30.872.]
3.90.140 Purchase of goods, supplies, services and construction contracts.
(A) All contracts for the purchase of goods, supplies, services and for the construction projects awarded by the City shall contain provisions requiring the contractor and subcontractors not to discriminate against any employee or applicant for employment in the performance of the contract, with respect to hire, tenure, terms, conditions or privileges of employment, or any matter directly or indirectly related to employment because of race, sex, religion, color, national origin, ancestry, age or disability that does not affect that person’s ability to perform the work.
(B) An MBE or WBE may register with the Board at the Purchasing Department on forms established by the Board. The registration shall be for the purpose of submitting State of Indiana certification of the status as a qualified WBE or MBE for local projects and purchases and, if local, to ensure their inclusion on a local MBE/WBE directory made available to City departments for purchases of goods, services and utilization in construction projects. The registrant shall provide a general list of the types of goods or services it is willing to provide or the types of construction projects in which it is willing to participate.
(C) City departments shall be given lists of local WBE and MBE registrants. City departments shall review such lists to see how they may utilize such local registrants in seeking quotes or bids on purchases of goods or services and on construction projects.
(D) On any construction project for which quotes or bids are to be received, attached to the specifications shall be a list of MBEs and WBEs in order to make the prime contractors, i.e., bidders, aware of the availability of such MBEs and WBEs which may be utilized as subcontractors. [Ord. G-2009-9 § 2, passed 8-24-09. 1983 Code § 3.30.873.]
3.90.150 Certification of MBEs and WBEs.
(A) Each business that desires to become certified as an MBE or WBE shall complete a vendor application and attach it to the State of Indiana certification. Certification by the State of Indiana as an MBE or WBE shall constitute certification by the City of Evansville. Those MBEs and WBEs certified by the City of Evansville at the time of adoption of this chapter shall retain their certification until the annual expiration date. Thereafter, each MBE or WBE seeking recertification shall be required to obtain recertification through the State of Indiana.
(B) An applicant who has been approved as an MBE or WBE by the State of Indiana, and registered with the City, shall notify the Purchasing Department of any change in ownership of the business, change of address, or decertification by any other governmental entity within five business days of any such change of status. [Ord. G-2009-9 § 2, passed 8-24-09. 1983 Code § 3.30.874.]
3.90.160 Maintenance of records and reporting procedures.
(A) The Purchasing Department and the contracting departments shall implement a comprehensive record keeping procedure, whereby the City can identify and assess local MBE/WBE contract awards and contractor utilization of MBEs and WBEs.
(B) The Purchasing Department shall, at least annually, report to various departments on the extent to which they are utilizing local MBEs and WBEs and local MBEs and local WBEs. Such report may include suggestions on approved utilization of local MBEs and WBEs that offer goods or services needed by the departments.
(C) Contractors and suppliers of goods and services shall not be penalized for not using local MBEs or WBEs. However, contractors and suppliers of goods and services shall not discriminate against local MBEs and WBEs. [Ord. G-2009-9 § 2, passed 8-24-09. 1983 Code § 3.30.875.]
3.90.170 Utilization of MBEs and WBEs.
City departments shall not discriminate against nonlocal MBEs and WBEs in awarding contracts hereunder. City departments shall not penalize any contractor or supplier of goods and services that chooses to utilize nonlocal MBEs and WBEs.
The purpose of this chapter is to make City departments and contractors aware of local MBEs and WBEs, as well as regional MBEs and WBEs, to give these businesses equal opportunity in the contracting process and to promote economic development. [Ord. G-2009-9 § 2, passed 8-24-09. 1983 Code § 3.30.876.]
3.90.180 Emergency contracts.
The provisions of this subchapter shall not apply to emergency contracts. [Ord. G-2009-9 § 2, passed 8-24-09. 1983 Code § 3.30.877.]