The purpose of this article is to provide for the fair and equitable
treatment of all persons involved in public purchasing by the city,
to maximize the purchasing value of public funds in procurement and
to provide safeguards for maintaining a procurement system of quality
and integrity.
This article applies to contracts for the procurement of supplies,
services and construction, entered into by the City after the effective
date of this article. It shall apply to every expenditure of public
funds of the City for public purchasing irrespective of the source
of the funds. When the procurement involves the expenditure of federal
assistance or contract funds, the procurement shall be conducted in
accordance with any mandatory applicable federal law and regulations.
Nothing in this article shall prevent the City from complying with
the terms and conditions of any grant, gift or bequest that is otherwise
consistent with law.
As used in this article, the following terms shall have the
meanings indicated:
BLIND TRUST
An independently managed trust in which the employee-beneficiary
has no management rights and in which the employee-beneficiary is
not given notice of alterations in or other dispositions of the property
subject to the trust.
BRAND NAME OR EQUAL SPECIFICATION
A specification limited to one or more items by manufacturers'
names or catalog numbers to describe the standard of quality, performance
and other salient characteristics needed to meet the city's requirements
and which provides for the submission of equivalent products.
BUSINESS
Any corporation, partnership, individual, sole proprietorship,
joint-stock company, joint venture or any other private legal entity.
CHANGE ORDER
A written order signed by both the Purchasing Agent and the
department manager and issued by the Purchasing Agent, directing the
contractor to make changes which the changes clause of the contract
authorizes the Purchasing Agent to order without the consent of the
contractor.
CONTRACT MODIFICATION (BILATERAL CHANGE)
Any written alteration in specifications, delivery point,
rate of delivery, period of performance, price, quantity or other
provisions of any contract accomplished by mutual action of the parties
to the contract.
CONFIDENTIAL INFORMATION
Any information which is available to an employee only because
of the employee's status as an employee of the City and is not a matter
of public knowledge or available to the public on request.
CONSTRUCTION
The process of building, altering, repairing, improving or
demolishing any public structure or building or other public improvements
of any kind to any public real property. It does not include the routine
operation, routine repair or routine maintenance of existing structures,
buildings or real property.
CONTRACT
All types of City agreements, regardless of what they may
be called, for the procurement of supplies, services or construction.
CONTRACTOR
Any person having a contract with the city.
COST ANALYSIS
The evaluation of cost data for the purpose of arriving at
costs actually incurred or estimates of costs to be incurred, prices
to be paid and costs to be reimbursed.
COST DATA
Factual information concerning the cost of labor, material,
overhead and other cost elements which are expected to be incurred
or which have been actually incurred by the contractor in performing
the contract.
COST-REIMBURSEMENT CONTRACT
A contract under which a contractor is reimbursed for costs
which are allowable and allocable in accordance with the contract
terms and the provisions of this article and a fee or profit, if any.
DIRECT OR INDIRECT PARTICIPATION
Involvement through decision, approval, disapproval, recommendation,
preparation of any part of a purchase request, influencing the content
of any specification or procurement standard, rendering of advice,
investigation, auditing or in any other advisory capacity.
EMPLOYEE/OFFICIAL
An individual drawing a salary or wages from the city, whether
elected or not; any noncompensated individual performing personal
services for the City or any department, agency, commission, council,
board or any other entity established by the executive or legislative
branch of the city; and any noncompensated individual serving as an
elected or appointed official of the city.
FINANCIAL INTEREST
A.
Any financial, monetary, economic, commercial or property privilege,
profit, gain or advantage retained or to be received by any employee
or official or any member of the employee's or official's immediate
family if certain actions or events occur. The interest that all City
taxpayers share in the honest and prudent conduct of City business
shall not, by itself, be considered a "financial interest" for the
purposes of this article.
B.
Ownership of 100% of any property or business.
C.
Holding a position in business, such as officer, director, trustee,
partner, employee or the like, or holding any position of management.
GRATUITY
A payment, loan, subscription, advance, deposit of money,
service, or anything of more than nominal value, present or promised,
unless consideration of substantially equal or greater value is received.
IMMEDIATE FAMILY
All persons residing in the same household with an official
or employee and spouses or dependents of the official or employee,
whether or not they reside in the same household with the official
or employee.
INVITATION FOR BIDS
All documents, whether attached or incorporated by reference,
utilized for soliciting sealed bids.
PERSON
Any business individual, union, committee, other organization
or group of individuals.
PRICE ANALYSIS
The evaluation of price data, without analysis of the separate
cost components and profit as in cost analysis, which may assist in
arriving at prices to be paid and costs to be reimbursed.
PRICING DATA
Factual information concerning prices for items substantially
similar to those being procured. "Prices," in this definition, refer
to offered or proposed selling prices, historical selling prices and
current selling prices. The definition refers to data relevant to
both prime and subcontract prices.
PROCUREMENT
The buying, purchasing, renting, leasing, negotiating or
otherwise the acquiring of any supplies, services or construction.
It also includes all functions that pertain to the obtaining of any
supply, service or construction, including description requirements,
selection and solicitation of sources, preparation and award of contract
and all phases of contract administration.
PUBLIC AGENCY
A department, agency, board, commission or committee subject
to or created by the city.
QUALIFIED PRODUCTS LIST
An approved list of supplies, services or construction times
described by model or catalog numbers, which, prior to competitive
solicitation, the City has determined will meet the applicable specification
requirements.
REQUEST FOR PROPOSAL
All documents, whether attached or incorporated by reference,
utilized for soliciting proposals.
RESPONSIBLE BIDDER OR OFFERER
A person who has the capability in all respects to perform
fully the contract requirements, and the tenacity, perseverance, experience,
integrity, reliability, capacity, facilities, equipment and credit
which will assure good faith performance.
RESPONSIBLE BIDDER
A person who has submitted a bid which conforms in all material
respects to the requirements set forth in the invitation for bids.
SERVICES
The furnishing of labor, time or effort by a contractor,
not involving the delivery of a specific end product other than reports
which are merely incidental to the required performance. This term
shall not include employment agreements or collective bargaining agreements.
SMALL BUSINESS
A United States business which is independently owned and
which is not dominant in its field of operation or affiliate or subsidiary
of a business dominant in its field of operation.
SPECIFICATION
Any description of the physical or functional characteristics
or of the nature of a supply, service or construction item. It may
include a description of any requirement for inspecting, testing or
preparing a supply, service, or construction item for delivery.
SUPPLIES
All property, including but not limited to equipment, materials,
printing, insurance and leases of real property, excluding land or
a permanent interest in land.
USING AGENCY
Any department, commission, board or public agency requiring
supplies, services or construction procured pursuant to this article.
Procurement information shall be a public record to the extent
provided in New Hampshire RSA 91-A:4 and 91-A:5 and shall be available
to the public as provided in such statute, with the exception that
private proprietary information shall not be considered a public record.
[Amended 7-22-1996 by Ord. No. 07.96.7]
As authorized in Section 4:09 of the Laconia City Charter, the
Purchasing Specialist shall act as purchasing agent for all departments
and employees of the city.
Consistent with this article, and with the approval of the City
Manager, the Purchasing Agent may adopt operational procedures relating
to the execution of his\her duties.
Should the Purchasing Agent deem it necessary, a cost analysis or price analysis may be conducted prior to award of the contract other than one awarded under §
5-40, Competitive sealed bidding. Should one be so ordered, a written record of such cost analysis or price analysis shall be made a part of the contract file.
Bid and performance bonds or other security may be requested
for supply contracts or service contracts as the purchasing agent
or department head deems advisable to protect the city's interests.
Any such bonding requirements shall be set forth in the solicitation.
Bid or performance bonds shall not be used as a substitute for a determination
of a bidder or offeror's responsibility.
A contract administration system designed to ensure that a contractor
is performing in accordance with the solicitation under which the
contract was awarded and the terms and conditions of the contract
shall be maintained by each department managing a contract.
The City may, at reasonable times, inspect the part of the plant
of business or worksite of a contractor or subcontractor at any tier
which is pertinent to the performance of any contract awarded or to
be awarded by the city.
When, for any reason, collusion or other anticompetitive practices
are suspected among any bidders or offerors, a notice of the relevant
facts shall be transmitted to the County Attorney for investigation
and/or prosecution.
All specifications shall be drafted so as to promote overall
economy for the purposes intended and encourage competition in satisfying
the city's needs and shall not be unduly restrictive. The policy enunciated
in this section applies to all specifications, including but not limited
to those prepared for the City by architects, engineers, designers
and draftsmen.
Any person may request and obtain from the City a certified
copy of a bond upon payment of the cost of reproduction of the bond
and postage, if any. A certified copy of a bond shall be prima facie
evidence of the content, execution and delivery of the original.
Each request for a contract modification, change order or contract
price adjustment of in excess of 5% of the original contract price
shall first obtain the prior written approval of the City Manager,
after receiving a written report from the Director of Finance as to
the effect of the contract modification, change order or contract
price adjustment on the total contract budget.
Public announcement and selection process.
A. Public announcement. It is the policy of the City to publicly announce
all requirements for architect, engineer and land surveying services
and to award such contracts on the basis of demonstrated competence
and qualifications at fair and reasonable rates. In the procurement
of architect, engineer and land surveying services, the Purchasing
Agent shall request specific firms to submit a statement of qualifications
and performance data according to the two-step process outlined below.
In addition, a public notice shall be published in a local newspaper
advising of the city's interest in seeking architectural, engineering
and/or land surveying services.
B. Selection process. The selecting of architects, engineers and land
surveyors shall be in two parts and according to the following guidelines:
(1) Statement of qualifications. Each firm responding to the RFP shall first submit a statement of qualifications listing at a minimum, a description of the size, experience, staff of the firm, technical competence of the firm, past record of performance on similar contracts, financial stability, time constraints with respect to meeting the deadline and a statement concerning whether there is a real or perceived conflict of interest. Once submitted, the City shall establish a review committee of no less than three administrative officials to review each submitted statement of qualifications. The committee shall then determine which of the submitted firms are most qualified according to the criteria established by the city. Only those firms deemed most qualified by the evaluation committee shall be permitted to submit a proposal according to Subsection
B(2) below. Those firms who were not deemed most qualified shall be provided written notice of the reasons they were not qualified.
(2) Those firms deemed most qualified by the evaluation committee will be requested to submit a proposal listing, at a minimum, their approach to the project, description of the types of services to be provided, allocation of resources to each aspect of the project, time frames within the firm intends to complete each aspect of the project and an estimate of cost to provide these services. The city's evaluation committee, described in Subsection
B(1), shall then review this submission. The evaluation committee shall then rank the submitting firms from highest score to lowest score according to the evaluation criteria. (Cost shall be considered as an evaluation criteria.) Once the final rankings have been made, the Purchasing Agent shall begin negotiations with the firm ranked first by the evaluation committee. The top ranked firm shall be deemed the lowest responsible proposal. Should the Purchasing Agent be unable to reach agreement on a contract and price with the firmed deemed lowest responsible proposal, the Purchasing Agent is authorized to proceed to negotiate with the next ranked firm. Should the City not be able to negotiate a contract with any of the qualified firms, the Purchasing Agent is authorized to readvertise the project.
C. The City reserves the right to suspend the requirements of this procedure
when, in the opinion of the Purchasing Agent, that it is not in the
city's best interest to follow this procedure. The Purchasing Agent
shall file his reasons, in writing, with the City Manager who shall,
in writing, approve or reject the Purchasing Agent's recommendation.
The Purchasing Agent shall issue a written decision to debar
or suspend. The decision shall state the reasons for the action taken
and inform the debarred or suspended person involved of their rights
concerning an administrative appeal and review of this decision by
the City Manager.
A copy of the decision required by §
5-67, Decision to debar or suspend, shall be mailed or otherwise furnished immediately to the debarred or suspended person. This notice shall include the reasons for the decision and an explanation of their rights to appeal according to §
5-67.
The Purchasing Agent is authorized to settle any protest regarding
the solicitation or award of a City contract or any claim arising
out of the performance of a City contract, prior to an appeal to the
City Manager or the commencement of an action in a court of competent
jurisdiction; provided, however, that any settlement requiring the
expenditure of any City funds shall require the prior written approval
of the City Manager.
Nothing in this article shall prohibit the Purchasing Agent
from purchasing from valid state, municipal or federal purchasing
contracts or participating in cooperative purchasing with any of the
same.
It shall be a violation of this article for a person to be retained
or to retain a person to solicit or secure a City contract upon an
agreement or understanding for a commission, percentage, brokerage
or contingent fee, except for retention of bona fide established commercial
selling agency for the purpose of securing business.
It shall be a violation of this article for any City employee
to become or be, while a City employee, an employee of any person
or firm contracting with the City by whom the employee is employed
or to bid on or receive a contract from the city.
It shall be a violation of this article for any employee or
former employee knowingly to use confidential information for actual
or anticipated personal gains or for the actual or anticipated personal
gain of any other person.