Shenandoah County, VA Methods of Source Selection

Contract file. The first step of CSB is the opening of a contract file that will include all documents pertaining to the procurement. The file is open for public inspection and should be retained for at least five years. (Note that bidders can designate portions of their bids as proprietary under the Code of Virginia, § 2.2-4342, to shield those portions from public disclosure. If questions arise as to whether the public should be allowed access to a particular bid, consult the County Attorney.)

Invitation to bid. The invitation to bid ("ITB") is the most critical part of the competitive sealed bidding process. The ITB should be a specific and complete expression of the County's needs with respect to a certain contract. Unless bidders are being prequalified, the ITB should include a statement of any required qualifications of potential contractors. The ITB should also specify a date and time for the opening of bids and a later date and time for the awarding of the contract. The ITB should contain the appropriate disclaimers and legal provisions. Form 1.1[1] covers some of the basic issues but can be tailored to a particular situation.

Prequalification and debarment.

Some potential bidders may not be allowed to bid. Any process utilized by the County to prequalify potential bidders must conform to the provisions of the Code of Virginia, § 2.2-4317.

Debarment is a little different. If prequalification is a method used to put good apples in a barrel, debarment is a method used to take rotten apples out of the barrel. If, for example, the County learns that one of the construction firms on its construction source list has been involved in the commission of fraud in the performance of a public contract, debarment should be initiated.

Prequalification and debarment are legally significant actions. The County Attorney should be consulted before undertaking either one.

Editor's Note: Said Form is on file in the County offices.

Advertisement and posting. Notice of the ITB should be advertised and posted at least 10 days before the date set for opening bids. Form 1.2[2] may be used for this purpose. The notice shall be posted either on the Department of General Services' central electronic procurement website or the County website. In addition, the notice may also be published in any newspaper of general circulation, and may be posted in the County office. Bids may also be solicited directly from potential contractors.

Editor's Note: Said Form is on file in the County offices.

(4)

Clarifications and revisions. Potential bidders may submit questions or comments concerning the job specifications in writing. It is not per se improper to receive such comments or questions verbally. However, any response should be in the form of an addendum issued to all known potential bidders.

(5)

Bid opening. Bids are opened and announced publicly at the time and place stated in the ITB. The contract file remains open and available for public inspection (except with respect to proprietary information, as described above). Generally speaking, the contract should not be awarded at the bid opening.

(6)

Evaluation of the bids. Bids need not be evaluated on cost alone. In determining the lowest responsible bidder, in addition to price, the Purchasing Agent shall consider:

The ability, capacity and skill of the bidder to perform the contract or provide the service required.

Whether the bidder can perform the contract or provide the service promptly, or within the time specified, without delay or interference.

The character, integrity, reputation, judgment, experience and efficiency of the bidder.

The quality of the bidder's performance of previous contracts.

(e)

The previous and existing compliance by the bidder with laws and ordinances relating to the contract or service.

(f)

The quality, availability and adaptability of the goods or services to the particular use required.

(g)

The ability of the bidder to provide future maintenance and service for the use of the subject of the contract.

(h)

The number and scope of conditions attached to the bid.

(i)

Any additional criteria set forth in the ITB.

(7)

Negotiation with lowest bidder. Negotiations with the lowest responsible bidder are allowed when the low bid exceeds available funds for the procurement. The amount of funds available for any given procurement should be established conservatively in advance. The negotiations should be conducted in accordance with the following procedures:

The Purchasing Agent shall advise the lowest responsible bidder, in writing, that the low bid exceeds available funds for the procurement. He or she may suggest a reduction in scope for the proposed purchase and invite the lowest responsible bidder to amend its bid proposal.

Repetitive informal discussions may be conducted with the lowest responsible bidder for purposes of obtaining a contract within available funds.

The lowest responsible bidder may submit an addendum to its bid that includes the change in scope for the proposed purchase, the reduction in price, and the new contract value.

If the proposed addendum is acceptable to the County, the Purchasing Agent should award a contract within available funds to the lowest responsible bidder based upon the amended bid.

(e)

If the Purchasing Agent and the lowest responsible bidder cannot negotiate a contract within available funds, all bids should be rejected.

(8)

Awarding the contract.

The Purchasing Agent awards the contract. The contract should ordinarily be awarded to the lowest responsive and responsible bidder. Contracts may be awarded to more than one bidder if the ITB so provides. When an award is not given to the lowest responsive and responsible bidder, the Purchasing Agent shall prepare written explanation for the award and place it in the contract file.

The contract may be awarded with a simple letter informing the successful bidder that its bid has been accepted. Any details left open in the bid documents — for instance a start date — should be addressed in the letter. At times, it might be appropriate to draft and sign a more formal contract document. Please contact the County Attorney if you believe such a document is warranted.

§ 43-30 Competitive negotiation.

When used. Competitive negotiation ("CN") must be used to procure professional services. CN may be used for almost any type of other contract, except for construction. CN can be used to procure construction only for 1) a design-build or construction management project; or 2) construction of highways or any drainage, dredging, excavation, grading, or similar work upon real property upon an advance written determination by the County that CSB is not practicable or fiscally advantageous. When CSB and CN are both permissible, the nature of the items being procured should be examined for characteristics that are better suited to a particular procurement process.

Process. CN generally consists of the following:

Contract file. The contract file includes all documents pertaining to the procurement. The file is open for public inspection and should be retained for at least five years. (Note that offerors can designate portions of their proposals as proprietary under the Code of Virginia, § 2.2-4342, to shield those portions from public disclosure.) Please consult the County Attorney with any questions whether the public should be allowed access to a particular proposal.

Request for proposal ("RFP").

The RFP should establish the County's contractual expectations and indicate whether a numerical scoring system will be used to evaluate proposals. Forms 2.0 and 2.1[1] may be used for this purpose.

Editor's Note: Said Forms are on file in the County offices.

Where the RFP relates to professional services, it shall not request cost estimates for the services to be rendered. Other RFPs should request a price, and they should state that price will be a factor in considering the RFP.

Advertisement and posting. Notice of the RFP should be advertised and posted at least 10 days before the deadline for receiving proposals. Form 2.2[2] may be used for this purpose. The notice must be published either a) on the Department of General Services' central electronic procurement website; or b) in a newspaper of general circulation. The notice may also be posted in the County office and on the County website. Proposals may also be solicited directly from potential contractors.

Editor's Note: Said Form is on file in the County offices.

(4)

Evaluation of offers. At this stage of CN, the law distinguishes between professional services and everything else.

Professional services.

With respect to professional services, the Purchasing Agent should evaluate the proposals based solely on professional competence. Next, interviews are scheduled with at least the two offerors ranked highest. In these interviews, the parties can discuss professional qualifications, the project under consideration, the project cost, and the offerors can be asked to provide a nonbinding estimate of the cost of their services. (Note: If one offeror is clearly superior to all others, the Purchasing Agent may elect, in writing, to bypass the interviews and start contract negotiations with that one.)

After the discussions, the Purchasing Agent again ranks the offerors, and enters into contract negotiations with the highest-ranking offeror. If a contract can be negotiated with that offeror at a fair and reasonable price, then the contract is awarded. Otherwise, negotiations are terminated with the first offeror, and the Purchasing Agent moves on to the next ranked offeror until a contract can be awarded.

Goods, nonprofessional services, and construction.

For goods, construction, and nonprofessional services, the proposals are ranked by price and any other specifications set forth in the RFP. Interviews are conducted with at least the two offerors ranked highest. In these interviews, the Purchasing Agent should obtain binding prices.

Again, if one offeror is clearly more qualified than the others — and the Purchasing Agent so finds, in writing — the Purchasing Agent can simply interview that single offeror.

After the interviews are complete, the Purchasing Agent should award the contract to offeror with the best proposal.

(5)

Awarding the contract. The Purchasing Agent awards the contract at the conclusion of the evaluation process set forth in Subsection B(4)(a) or B(4)(b), whichever is applicable. The County Attorney can draft a simple agreement or review any contract submitted by the offeror.

§ 43-31 Job order and term contracting.

Job order contracting — construction. The County may purchase certain types of construction by establishing a book of unit prices and then selecting a contractor to perform work as needed using the prices, quantities, and specifications in the book. A job order contract may include multiple jobs if the jobs require similar experience and expertise and are clearly identified in the solicitation.

Restrictions. Job order contracting for construction is subject to the following restrictions:

Contract term. A job order contract must be limited to a term of one year or when the sum of all jobs performed in a single one-year term reaches $6,000,000, whichever occurs first. The County may renew a job order contract for up to two additional one-year terms. Any unused space in the $6,000,000 cap cannot be carried forward to any subsequent term.

Fee limits. Individual job orders shall not exceed $500,000. An order may not be split with the intent of keeping a job order under the maximum dollar amount.

Process. A job order contract may be awarded through either CSB or CN.

Further limitations.

A job order may not be used solely for the purpose of receiving architectural or engineering services. However, those services may be included on a job order where they are incidentally and directly related to the job, and do not exceed $25,000 per job order or $75,000 per contract term.

Job order contracting may not be used for construction, maintenance, or asset management services for a highway, bridge, tunnel, or overpass. However, job order contracting may be used for safety improvements or traffic calming measures for individual job orders up to $250,000, subject to the annual threshold limitation established above.

Term contracting — architectural and engineering services. Architectural or engineering services relating to multiple projects may be awarded provided that the projects require similar experience and expertise, and the nature of the projects is clearly identified in the RFP.

Restrictions. Term contracts for architectural or engineering services are subject to the following restrictions:

Contract term. The contract term is limited to one year or when the sum of all jobs performed in a single one-year term reaches $10,000,000, whichever occurs first. The County may renew for up to three additional one-year terms. Any unused space in the $10,000,000 cap cannot be carried forward to any subsequent term.

Fee limits. Individual project fees shall not exceed $2,500,000.

Process. A term contract for architectural or engineering services may be awarded using CN. Contracts may be awarded to more than one offeror if provided in the RFP.

Procedures for distributing projects. If more than one term contract is awarded, the following procedures shall be used to distribute projects among selected contractors:

The Purchasing Agent shall create and maintain a list of contractors with term contracts for architectural and/or engineering services.

When the need for a project arises, the Purchasing Agent shall make an initial determination whether:

The nature of the project requires a particular qualification, expertise, or experience that is not shared by all contractors; and

The project is of a time-sensitive nature.

If neither Subsection B(2)(b)[1] or (b)[2] apply, the Purchasing Agent should award the project to the contractor appearing on the list described in Subsection B(2)(a) that was least-recently awarded a project.

If only Subsection B(2)(b)[1] applies, the Purchasing Agent should identify contractors on the list that possess the particular qualification, expertise, or experience needed for the project. Unless one contractor is significantly more qualified than the others, the project should be awarded to the contractor that was least-recently awarded a project.

(e)

If only Subsection B(2)(b)[2] applies, the Purchasing Agent should award the project to the contractor with the availability and capacity to complete the project soonest.

(f)

If both Subsection B(2)(b)[1] and (b)[2] apply, the Purchasing Agent should identify contractors on the list that possess the particular qualification, expertise, or experience needed for the project. The project should be awarded to the contractor with the availability and capacity to complete the project soonest.

(g)

Contractors shall not be required to compete for individual projects based upon price.

§ 43-32 Design build and construction management contracts.

Approval of use. The Purchasing Agent may procure contracts for construction on a fixed price or not-to-exceed price design build or construction management basis in accordance with the provisions of this section.

General requirements.

Professional advisor. Prior to electing to use a design-build or construction management contract for a specific construction project, the Purchasing Agent shall hire a licensed architect or professional engineer (the "professional advisor") with professional competence appropriate to the project who shall advise the purchasing agent regarding the use of design-build or construction management for the project and who shall assist the purchasing agent with the preparation of procurement documents and the evaluation thereof.

Eligibility requirements. Prior to procuring a design-build or construction management contract, the Purchasing Agent shall issue a written determination that CSB is not practical or fiscally advantageous and document the basis for the determination to utilize design-build or construction management. The determination shall be included in the RFP and be maintained in the procurement file.

Evaluation committee. An evaluation committee of not less than three members shall be appointed by the Purchasing Agent to review and evaluate submittals. To the extent possible, the evaluation committee shall include one licensed professional architect or professional engineer. The professional advisor may be a member of the evaluation committee. Members of the evaluation committee may be employees of the County, but may not be officers, directors, owners or employees of or otherwise affiliated with any offeror or potential offeror.

(4)

Reporting requirements. The Purchasing Agent shall report no later than November 1 of each year to the Director of the Department of General Services on all completed design-build and construction management projects in excess of $2,000,000, including the procurement method utilized; the project budget and actual cost; the expected timeline and actual completion time; and any post-project issues.

Design-build procurement procedure. Design-build contracts shall be procured using the following two-step CN:

Selection of qualified offerors.

Request for qualifications.

The RFQ for a construction management contract is subject the same requirements set forth above in Purchasing Agent shall issue a request for qualifications ("RFQ") containing the project requirements, building and site criteria, site and survey data (if available), the criteria to be used to evaluate RFQ responses and other relevant information, including any unique capabilities or qualifications that will be required of the contractor. All offerors shall have a licensed Class A contractor and an architect or engineer licensed in the Commonwealth of Virginia as part of their project team.

Notice of the RFQ shall be posted on the Department of General Services' central electronic procurement website at least 30 days prior to the deadline for qualification submittals.

Review.

The evaluation committee shall evaluate the qualification submittals based on the criteria set forth in the RFQ. The evaluation process shall evaluate an offeror's experience for a period of 10 prior years to determine whether the offeror has constructed, by any method of project delivery, at least three projects similar in program and size. Additional information submitted by potential offerors can be considered by the evaluation committee. The evaluation committee shall prepare a list of three to five offerors to receive the RFP. If available, the list should include a minimum of one DSBSD-Certified Small Business that meets the minimum requirements for prequalification.

At least 30 days prior to the deadline for submission of proposals, all potential offerors shall be notified in writing whether they been prequalified. If an offeror is denied prequalification, the notice shall include the reasons for denial and the factual basis of those reasons. Potential offerors may be denied prequalification only upon those grounds specified in Code of Virginia, § 2.2-4317.

Selection of contractor.

Issuance of RFP.

The Purchasing Agent shall issue a RFP to the offerors prequalified by the evaluation committee. The professional advisor shall assist the purchasing agent in preparing the RFP. The RFP shall request that offerors submit separate sealed technical proposals and cost proposals. Cost proposals shall be secured and kept sealed until evaluation of all technical proposals is completed.

The RFP shall define the criteria to be used by the evaluation committee to evaluate each proposal. In addition, the RFP shall include and define the criteria of the specific construction project in areas such as site plans; floor plans; exterior elevations; basic building envelope materials; fire protection information plans; structural, mechanical (HVAC), and electrical systems; and special telecommunications. The RFP may also define such other requirements as the Purchasing Agent deems appropriate for that particular construction project.

Qualified offerors may comment on the specifications or other provisions of the RFP prior to the deadline for submission. Any comments made prior to the deadline for proposal submission will be considered by the evaluation committee when reviewing the technical proposals.

Review of technical proposals.

The evaluation committee shall evaluate each of the technical proposals based on the criteria set forth in the RFP. As a part of the evaluation process, the evaluation committee shall grant each of the offerors an equal opportunity for direct and private communication with the evaluation committee. Each offeror shall be allotted the same fixed amount of time. The evaluation committee shall exercise care to discuss the same information with all offerors. The evaluation committee shall inform each offeror of any adjustments necessary to make its technical proposal fully comply with the requirements of the RFP. The evaluation committee shall not disclose any trade secret or proprietary information for which the offeror has invoked protection pursuant to Code of Virginia, § 2.2-4342(F).

Based upon its review of the technical proposals, the evaluation committee shall determine whether any changes to the RFP should be made to clarify errors, omissions or ambiguities or to incorporate project improvements or additional details, or both, identified by the evaluation committee during its review. If such changes are required, an addendum shall be provided to each offeror.

Based on any revisions to the technical proposals, the offeror may amend its cost proposal. In addition, an offeror may submit cost modifications to its sealed cost proposal which are not based upon revisions to the technical proposals.

Review of cost proposal. At the conclusion of this process, the evaluation committee shall publicly open, read aloud, and tabulate the cost proposals. The evaluation committee shall add to or deduct from the appropriate cost proposal any cost adjustments contained in amendments submitted by an offeror.

Selection of contractor.

The evaluation committee shall make its recommendation on the selection of the design-builder to the purchasing agent based on its evaluation and negotiations. Unless otherwise specified in the RFP, the design-build contract shall be awarded to the fully qualified offeror who submits an acceptable proposal determined to be the best value in response to the RFP. When the terms and conditions of multiple awards are so provided in the RFP, awards may be made to more than one offeror.

The Purchasing Agent shall notify all offerors who submitted proposals which offeror was selected for the project. Upon request, documentation of the process used for the final selection shall be made available to the unsuccessful offerors.

Construction management procurement.

Prerequisites for use. Construction management contracts may be procured:

For any project whose cost is expected to exceed $26,000,000; and

Any complex project whose cost is less than $26,000,000 and construction management has been approved by the Board of Supervisors. A "complex project" is a construction project that includes difficult site location, unique equipment, specialized building systems, multifaceted program, accelerated schedule, historic designation, or intricate phasing or some other aspect that makes competitive sealed bidding impractical. Written approval from the Board of Supervisors shall be maintained in the procurement file.

Procurement procedure. Construction management contracts shall be procured using the following two-step CN:

Selection of qualified offerors. The prequalification and review process for a construction management contract is the same as what is set forth above in Subsection (C)(1) except that offerors need not have a licensed architect or engineer on their project team.

Selection of contractor.

Issuance of RFP.

[a]

The Purchasing Agent shall issue a RFP to the offerors prequalified by the evaluation committee. The professional advisor shall assist the purchasing agent in preparing the RFP.

[b]

The RFP shall define the criteria to be used by the evaluation committee to evaluate each proposal and award the contract.

[c]

Evaluation of proposals. The evaluation committee shall evaluate and rank each of the proposals based on the criteria set forth in the RFP. After evaluating the proposals, the evaluation committee shall conduct negotiations with two or more offerors submitting the highest ranked proposals, or, if the Purchasing Agent determines, in writing and at his or her sole discretion, that only one offeror is fully qualified or that one offeror is clearly more highly qualified than the others under consideration, a contract may be negotiated and awarded to that offeror.

Award of contract.

[a]

The evaluation committee shall make its recommendation on the selection of the construction manager to the Purchasing Agent based on its evaluation and negotiations. The construction management contract shall be awarded to the fully qualified offeror who submits an acceptable proposal determined to be the best value in response to the RFP. Price shall be a critical basis for awarding the contract. When the terms and conditions of multiple awards are so provided in the RFP, awards may be made to more than one offeror. The contract must be entered into no later than the completion of the schematic phase of design, unless prohibited by authorization of funding restrictions.

[b]

Requirements for construction management contracts. Construction management contracts are required to contain the following provisions:

Not more than 10% of the construction work (measured by cost of the work) will be performed by the construction manager with its own forces; and