Chapter 3.95
PUBLIC CONSTRUCTION PROJECTS
Sections:
3.95.020 Random drug testing program required.
3.95.030 License required at time of submission of bid.
3.95.040 Responsible bidding practices and submission requirements.
3.95.010 Definitions.
For the purposes of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning:
“Contractor” shall mean the person, company or firm submitting a price, quote or bid for the award of a public works project.
“Public works project” shall mean the construction, reconstruction, alteration, or renovation of a public building or other structure that is paid for out of an appropriation of the City Council, and includes the construction, alteration, or repair of a highway, street, alley, bridge, sewer, drain or other improvement.
“Quoter” shall mean a person, firm or company that is responding to a request for quotes for a public construction project under the public construction bidding laws. [Ord. G-2004-16, passed 10-20-04. 1983 Code § 5.60.01.]
3.95.020 Random drug testing program required.
(A) No board, commission or other agency of the City shall award a contract for a public works project to a contractor unless the contractor and every subcontractor doing construction work on the project has in place at the time of submission of his quote or bid a random drug testing program which shall at a minimum meet the following qualifications and criteria:
(1) The contractor shall maintain a random drug testing program, and the program shall be reduced to writing;
(2) The drug testing program shall contain at least a five-drug panel that tests for the following drugs: amphetamines, cocaine, opiates (92,000 ng/mL), PCP and THC;
(3) All the employees of the contractor are subject to at least annual testing, and at least one-twelfth of 25 percent of the employer’s total workforce shall be selected randomly each month for testing; and
(4) The random drug testing program operated by the contractor shall contain a progressive discipline component for employees who fail the drug test that meets at least the following minimum steps:
(a) The first positive test shall result in a 30-day period of ineligibility for work, and upon returning to work, one year of unannounced follow-up testing;
(b) A second positive test shall result in a 90-day period of ineligibility for work, and upon returning to work, one year of unannounced follow-up testing;
(c) A third positive test shall result in a one-year period of ineligibility for work, and upon returning to work, one year of unannounced follow-up testing; and
(d) Any subsequent positive test shall be treated the same as a third positive test.
At the discretion of the employer, the discipline issued above may include more severe discipline, including, but not limited to, dismissal of the employee.
(B) Failure to provide evidence of the contractor’s random drug testing policy or program shall result in a rejection of the bid. Submitting false information concerning compliance with the requirements of this chapter shall result in the rejection of the bid or cancellation of the contract if an award has been made prior to determining the information is false by the board, commission or agency. In such event, the contractor shall be paid only for the work done prior to cancellation of the contract.
(C) This section shall be applicable only to construction contracts where the cost of the contract is more than $10,000. [Ord. G-2004-16, passed 10-20-04. 1983 Code § 5.60.02.]
3.95.030 License required at time of submission of bid.
Each contractor submitting a bid or quote on a public work project to be awarded by a board, commission or agency of the City of Evansville, and every subcontractor to be used on the project, shall be properly licensed to do the work by the Evansville-Vanderburgh County Building Commission office at the time the bid or quote is opened. Any bid or quote by a contractor not so licensed, or indicating the use of a subcontractor not so licensed, shall be rejected as nonresponsive to the bid or quote request, or the bidder or quoter shall be determined to be a nonresponsible bidder or quoter. It shall be the bidder’s or quoter’s responsibility to check with the office of the Building Commissioner to make sure it has all necessary licenses to undertake the work called for in the bid or quote. [Ord. G-2004-16, passed 10-20-04. 1983 Code § 5.60.03.]
3.95.040 Responsible bidding practices and submission requirements.
(A) Bid Submission Requirements. Contractors proposing to submit bids on any City public works project estimated to be at least $150,000 or more must, prior to the bid submission deadline, submit a statement made under oath and subject to perjury laws, on a form designated by the City, and must include:
(1) A copy of a print-out of the Indiana Secretary of State’s online records for the bidder dated within 60 days of the submission of said document showing that the bidder is in existence, current with the Indiana Secretary of State’s Business Entity Reports, and eligible for a certificate of good standing. If the bidder is an individual, sole proprietor, or partnership, this subsection (A) shall not apply;
(2) A list identifying all former business names;
(3) Any determinations by a court or governmental agency for violations of Federal, State, or local laws including, but not limited to, violations of contracting or antitrust laws, tax or licensing laws, environmental laws, the Occupational Safety and Health Act (“OSHA”), or Federal Davis-Bacon and related Acts;
(4) A statement on staffing capabilities, including labor sources from which labor will be derived on the public works project;
(5) Evidence that the contractor is in compliance with IC 5-16-13-12 and its requirements pertaining to participation in apprenticeship and training programs applicable to the work to be performed on the public work project;
(6) A copy of a written plan for employee drug testing that: (a) covers all employees of the bidder who will perform work on the public work project; and (b) meets, or exceeds, the requirements set forth in EMC 3.95.020 and IC 36-1-12-24;
(7) The name and description of the management experience of each of the bidder’s project managers and superintendents that bidder intends to assign to work on the project;
(8) Proof of any professional or trade license required by law and EMC 3.95.030 for any trade or specialty area in which bidder is seeking a contract award, disclosure of any suspension or revocation within the previous five years of any professional or trade license held by the company, or of any director, office or manager employed by the bidder;
(9) Evidence that the contractor is utilizing a surety company which is on the United States Department of Treasury’s listing of approved sureties; and
(10) The contractor shall provide a written statement of any Federal, State, or local tax liens or tax delinquencies owed to any Federal, State, or local taxing body in the last five years.
The City reserves the right to require supplemental information from the bidder for verification of any of the information provided by the bidder and may also conduct random inquiries of the bidder’s current and prior customers. Notwithstanding the foregoing, this section shall not apply to a public work project performed by the City in accordance with IC 36-1-12-3(b).
(B) Submissions from Subcontractors.
(1) All bidders shall provide a written list that discloses the name, address, and type of work for each first-tier subcontractor from whom the bidder has accepted a bid and/or intends to hire on any part of the public work project, including individuals performing work as independent contractors. In accordance with EMC 3.90.110, all bidders shall adhere to City policy and procedures pertaining to minority-owned business and women-owned business utilization.
(2) In addition, each such first-tier subcontractor shall be required to adhere to the requirements of subsection (A) of this section as though it were bidding directly to the City, except that first-tier subcontractors shall submit the required information (including the name, address, and type of work for each of their first-tier subcontractors) to the bidder and the bidder shall then forward said information to the City. Payment shall be withheld from any first-tier subcontractor who fails to timely submit said information until such information is submitted and approved by the City.
(3) Upon request, the City may require any bidder to provide the required information (including name, address, type of work on the project and the name of the higher-tier subcontractor) about its second and lower-tier subcontractors. Payments shall be withheld from any bidder who fails to timely submit this information until this information is submitted and approved by the City. Additionally, the City may require the successful bidder to remove the relevant subcontractor or second or lower-tier subcontractor from the project and replace it with a responsive and responsible subcontractor.
(4) The City may withhold all payments otherwise due to a bidder for work performed by a subcontractor until such subcontractor submits the information required pursuant to this chapter and the City approves such information. Successful bidders shall only be permitted to use approved subcontractors which have provided required information to the City about the applicable responsive and responsible subcontractor.
(5) The disclosure of a subcontractor (“disclosed subcontractor”) by a bidder or a subcontractor shall not create any rights in the disclosed subcontractor. A bidder and/or subcontractor may not substitute another subcontractor (“substitute subcontractor”) for a disclosed subcontractor without written approval of City. The contractor shall provide written notice of the name, address, and type of work of the substitute subcontractor. The substitute subcontractor shall be subject to all of the obligations of a subcontractor under this chapter.
(C) Validity of Prequalification Classification.
(1) Upon designation by the City that a contractor’s or subcontractor’s submission in anticipation of a bid is complete and timely, and upon any further consideration deemed necessary by the City, the contractor or subcontractor may be prequalified for future City public works projects. A contractor’s classification as “prequalified” shall exempt the contractor or subcontractor from the comprehensive submission requirements contained herein for a period of 12 months. Thereafter, contractors or subcontractors who are prequalified must submit a complete application for continuation of “prequalified” standing on a form provided by the City (also referred to as the “short form”) by December 31st for the upcoming calendar year. Failure by any prequalified contractor or subcontractor to timely submit its complete application for continuation of “prequalified” standing shall result in automatic removal of the designation, effective January 1st of the upcoming year. However, the “removed” contractor or subcontractor shall still be permitted to bid on City public works projects.
(2) Any material changes to the contractor’s status, at any time, must be reported in writing within 10 days of its occurrence to the City. The prequalification designation is solely within the discretion of the City and the City specifically reserves the right to change or revoke the designation for a stated written reason(s).
(3) Denial of prequalification shall be in writing and shall be forwarded to the contractor within seven working days of such decision. Any contractor denied or losing prequalification status may request reconsideration of the decision by submitting such request in writing to the City within five business days of receipt of notice of denial.
(D) Incomplete Submissions by Bidders. It is the sole responsibility of the potential bidder to comply with all submission requirements applicable to the bidder in this section by no later than the public bid opening. Submissions from subcontractors must be in accordance with subsection (B) of this section. Submissions deemed inadequate, incomplete, or untimely by the City may result in the automatic disqualification of the bid.
(E) Responsive and Responsible Bidder Determination. The City, after review of complete and timely submissions, shall, in its sole discretion, after taking into account all information in the submission requirements, determine whether a bidder is responsive and responsible pursuant to IC 36-1-12-4. The City specifically reserves the right to utilize all information provided in the contractor or subcontractor’s submission or any information obtained by the City through its own independent verification of the information provided by the contractor.
(F) Certified Payroll. For public work projects in which the cost is at least $250,000, the successful bidder and all subcontractors working on a public work project shall, upon request by the City, identify the job title, work classification, rate of pay, tax deductions, and craft of each employee on the project, e.g., journeyman electrician or apprentice electrician. The successful bidder and all subcontractors may satisfy the requirements of this section, if requested by the City, by providing the Federal form now known as a WH 347.
(G) Public Records. All information submitted by a bidder or a subcontractor pursuant to this chapter are public records subject to review pursuant to the Indiana Access to Public Records Law (IC 5-14-3).
(H) Penalties for False, Deceptive, or Fraudulent Statements/Information. Any bidder that willfully makes, or willfully causes to be made, a false, deceptive or fraudulent statement or willfully submits false, deceptive or fraudulent information in connection with any submission made to the City shall be disqualified from bidding on all City projects for a period of three years and may be enforced pursuant to EMC 1.05.170 and 1.05.180, or as otherwise provided by statute.
(I) Conflict and Applicable Law. This section shall be interpreted and construed in harmony with IC 36-1-12, 5-16-13 and all applicable provisions of the Indiana Code as they pertain to public work projects, and nothing herein shall be interpreted to be in conflict therewith. Should there be a conflict, the applicable provisions of the Indiana Code shall govern. [Ord. G-2016-14 § 1, passed 3-30-16.]