This chapter requires all parties involved in the negotiation,
performance or administration of Town contracts to act in good faith.
Written determinations and findings required by this chapter
shall be retained in an appropriate official contract file in the
office of the Purchasing Agent.
Unless the context clearly required otherwise, the words defined
in this section shall have the meanings set forth below whenever they
appear in this chapter:
BID
Either a single lump sum or line item price(s) offered by
a vendor/firm to perform previously determined work in accord with
detailed specifications. Sole determination of award = lowest responsible
price.
BLIND TRUST
An independently managed trust in which the employee-beneficiary
or any member of that employee's immediate family has no management
rights and in which the employee-beneficiary is not given notice of
alternatives in or other dispositions of the property subject to the
trust.
BUSINESS
Any corporation, partnership, individual, sole proprietorship,
joint-stock company, joint venture or any other legal entity.
CONFIDENTIAL INFORMATION
Any information which is available to an employee only because
of the employee's status as an employee of this Town 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
Any type of Town agreement, regardless of what it may be
called, for the purchase or disposal of supplies, services or construction.
It includes, but is not limited to, contracts of a fixed-price, cost,
cost-plus-a-fixed fee or incentive type; contracts providing for the
issuance of job or task orders; leases; letter contracts; and purchase
orders. It also includes supplemental agreements with respect to any
of the foregoing.
CONTRACTOR
Any person or business having a contract with the governmental
body and its subunits and utilities.
DEBARMENT
The disqualification of a person or business to receive invitations
for bids or requests for proposals, or the award of a contract by
the Town for a specified period of time commensurate with the seriousness
of the offense or the failure or the inadequacy of performance.
DESIGNEE
A duly authorized representative of a person holding a superior
position.
EMPLOYEE
An individual drawing a salary or wages from the Town, whether
elected or not, and any noncompensated individual performing personal
services for the Town; i.e., member of Town board, commission, agency
or volunteer fire department.
EXCESS SUPPLIES
Supplies having a remaining useful life but which are no
longer required by the using agency in possession of the supplies.
FINANCIAL INTEREST
A.
Ownership of any interest or involvement in any relationship
from which, or as a result of which, a person within the past year
has received, or is presently or has a reasonable expectation of receiving,
any financial benefit;
B.
Ownership of any interest in any business; or
C.
Holding a position in a business such as an officer, director,
trustee, partner, employee, or similar position, or holding any position
of management.
GRATUITY
A payment, loan, subscription, advance, deposit of money,
service or anything of any monetary value, present or promised, unless
consideration of substantially equal or greater value is received.
IMMEDIATE FAMILY
A spouse, children, parent, brother, sister, grandparent,
stepchildren, mother- or father-in-law.
INVITATION FOR BIDS
All documents, including those attached or incorporated by
reference, utilized for soliciting bids.
PROCUREMENT
The buying, purchasing, renting, leasing or otherwise obtaining
of any supplies, services or construction. It also includes all functions
that pertain to the obtaining of any supply, service or construction,
including description of requirements, selection and solicitation
of sources, preparation and award of contract, and all phases of contract
administration.
PROPOSAL
Detailed listing of credentials, related experience and general
qualifications of firm/vendor proposing to engage in work/service
on behalf of the Town and specific scope of services to be provided
with/without an estimated fee (usually "not to exceed" a certain amount).
The Town establishes criteria for selection of various factors, not
necessarily price alone.
PURCHASING AGENT
The person holding the position created by Section 908 of
the Town Charter as the head of the central purchasing office within
the Finance Department of the Town of Winchester.
REQUEST FOR PROPOSALS
All documents, including those attached or incorporated by
reference, utilized for soliciting proposals.
RESPONSIBLE BIDDER
A person who has submitted a bid which conforms in all material
respects to the invitation for bids; a person who has the capability
in all respects to perform fully the contract requirements, and the
professional reputation for reliability which will ensure good faith
performance.
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
includes "professional services" but does not include employment agreements
or collective bargaining agreements.
SPECIFICATIONS
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, parts,
materials, printing, insurance and leases on real and personal property
which may only be disposed of or acquired by the Board of Selectmen
or Town legislative body/Town Meeting.
SURPLUS SUPPLIES
Any supplies no longer having any use to the Town. This includes
obsolete supplies, scrap materials and nonexpendable supplies that
have completed their useful life cycle.
SUSPENSION
The disqualification of a person to receive invitations for
bids or requests for proposals or the award of a contract by the Town,
for a temporary period pending the completion of an investigation,
or during any legal proceedings that may ensue because a person is
suspected, upon reasonable belief, of engaging in criminal, fraudulent
or seriously improper conduct or failure or inadequacy of performance
which may lead to debarment.
TOWN
The Town of Winchester, and shall include the Board of Selectmen
and any department, commission, council, board, bureau, committee,
institution, authority, agency, government corporation or other establishment
or official of the government of this Town, but not including the
Winchester Board of Education or Probate Court.
USING DEPARTMENT
Any department, commission, council, board, bureau, committee,
institution, authority, agency, government corporation or other establishment
or official of the government of this Town, but not including the
Winchester Board of Education or Probate Court, which utilizes any
supplies, services or construction purchased under this chapter.
A Division of Purchasing is created within the Department of
Finance, which shall be headed by the Purchasing Agent. The Director
of the Department of Finance, with the approval of the Town Manager,
shall appoint the Purchasing Agent. The Purchasing Agent shall have
a minimum of five years' experience in the purchasing of supplies,
services and construction, within the 12 years preceding the date
of this appointment. Such five-year experience requirement may be
satisfied by any combination of job experience and educational training,
provided that two years of educational training shall be equal to
one year of job experience for the purpose of fulfilling this requirement.
The Purchasing Agent shall also be an individual with demonstrated
executive and organizational ability. The Purchasing Agent shall be
a full-time public official of the Town and may be removed from office
after the probationary period only upon a showing of just cause.
Except as otherwise provided in this chapter, the Board of Selectmen
shall have the authority and responsibility to promulgate and approve
the Procurement Policy of the Town of Winchester as an ordinance,
and the Town Manager shall not exercise authority over the award or
administration of any particular contract or any dispute, claim or
litigation pertaining thereto. Adoption of this ordinance includes
by reference the current Town of Winchester Purchasing Manual.
Subject to policy approved by the Town Manager and Finance Director,
the Purchasing Agent may delegate authority to designees or to any
department.
All rights, powers, duties and authority relating to the procurement
of supplies, services and construction, and the management, control,
warehousing, sale and disposal of supplies, services and construction,
now vested in or exercised by any using department, and regardless
of source of funding, are hereby transferred to the Finance Director
and the Purchasing Agent.
A. Relationship with using departments. The Purchasing Agent shall obtain
advice and assistance from personnel of using departments in the development
of specifications and may delegate in writing to a using department
the approval and authority to prepare and utilize its own specifications.
B. Collection of data concerning procurement. The Purchasing Agent shall
cooperate with the Finance Director in the preparation of statistical
data concerning the procurement, usage and disposal of all supplies,
services and construction. All using departments shall furnish such
reports as the Purchasing Agent may require concerning usage, needs
and stocks on hand, and the Purchasing Agent shall have authority
to prescribe forms to be used by the using departments in requisitioning,
ordering and reporting of supplies, services and construction.
C. Accounting control of all purchases.
(1) All purchases made and contracts executed by the Purchasing Agent
shall be pursuant to the procedures set forth in Charter Section 909.
(2) The purchase order is the instrument used to initiate and control
purchasing. A signed requisition stating goods or services desired
must be submitted to the Purchasing Agent prior to a P.O. being issued
and services or supplies secured by any Town department, division,
agency or employee/volunteer. During normal Town business hours (Monday
through Friday, 8:00 a.m. to 4:00 p.m.), the requisition followed
by a P.O. number must be processed against appropriate accounts prior
to vendor/service provider release of goods/services. Emergency purchases
in a state or local or state-wide emergency or after regular Town
business hours must be followed on the next regular day of Town business
with a requisition and invoice copy to the Purchasing Agent for issuance
of a P.O. number.
(3) Failure to follow the above procedures will be cause for denial of
Town financial responsibility and necessitate the employee/volunteer/Town
representative having to pay the expense out of his/her own pocket.
D. The Director of Finance is empowered in accordance with Section 902C
of the Town Charter to institute interim fiscal year controls and
at least monitor and control normal routine departmental expenses
on a quarterly basis with the advice of the Purchasing Agent and department
head based on budget requests and details submitted during the budget
process leading to the Annual Town Budget Meeting. Said controls shall
be communicated to all departments, divisions, commissions and boards
as well as the Board of Selectmen before implementation.
Unless otherwise authorized by law, all Town contracts shall be awarded by competitive sealed bidding, pursuant to §
111-12, except as provided in §§
111-13 through
111-19.
Except as otherwise required by law, any procurement not exceeding the minimum monetary threshold for competitive bidding as set forth in the Town's Charter and Procurement Policy may be made in accordance with small purchase procedures approved by the Finance Director; provided, however, that procurement requirements shall not be artificially divided so as to constitute a small purchase under this section. If the actual price of a procurement obtained through such small purchase procedure exceeds, by 15% or more, the maximum amount established by such policy, the Purchasing Agent may determine that the procurement be made using §
111-12 or §
111-13.
Where permitted by law, a contract may be awarded for a supply,
service or construction without formal public bid competition when
the Purchasing Agent or designee determines in writing that there
is only one source for the required supply, service or construction.
Where permitted by law and notwithstanding any other provision
of this chapter, the Purchasing Agent or a designee may make or authorize
others to make emergency procurements when there exists a threat to
public health, welfare or safety under emergency conditions as defined
in policy approved by the Town Manager, provided that such emergency
procurements shall be made with such competition as is practicable
under the circumstances. A written determination of the basis for
the emergency and for the selection of the particular contractor shall
be included in the contract file.
The Purchasing Agent, after consultation with the Town Attorney
and with the approval of the Town Manager and Finance Director, may
modify or delete existing and add new contractual provisions and clauses
to all forms of supply, service and construction contracts utilized
by the Town, provided that such modification, deletions or additions
are supported by a written determination by the Purchasing Agent.
An invitation for bids, a request for proposals or other solicitation
may be delayed or cancelled, or all bids or proposals may be rejected
in whole or in part as may be specified in the solicitation, if it
is determined in writing by the Purchasing Agent that such action
is taken in the best interests of the Town.
The determinations required by §§
111-4,
111-7,
111-11,
111-12,
111-13 and
111-15 are final and conclusive unless they are clearly erroneous, arbitrary, capricious or contrary to law.
The Purchasing Agent shall prepare, issue, revise, maintain
and monitor the use of specifications for supplies, services and construction
required by the Town, provided that:
A. The Purchasing Agent may delegate to using departments responsibility
for the preparation and maintenance of specifications generally or
for specific supplies, services or construction, subject to approval
of any such specifications by the Purchasing Agent; and
B. If the Purchasing Agent does not approve a specification, the Finance
Director may, at his discretion, upon the request of the using agency,
modify or reverse such decision of the Purchasing Agent. Any determination
modifying or reversing the specifications shall be in writing setting
forth the grounds for such modification or reversal.
(1) Maximum practicable competition. All specifications shall seek to
promote overall economy for the intended purpose and shall be drafted
so as to assure the maximum practicable competition for the Town's
actual requirements.
(2) Specifications prepared by architects and engineers. The requirements
of this section regarding the purposes and nonrestrictiveness of specifications
shall apply to all specifications, including, but not limited to,
those prepared by architects, engineers, designers and draftsmen for
public contracts.
The Purchasing Agent may promulgate operational procedures governing:
A. The management of supplies during their entire life cycle;
B. The sale, lease or disposal of supplies by public auction, competitive
sealed bidding or other appropriate methods, except purchases of an
interest in real property. However, no employee of the Town shall
be entitled to purchase any such supplies, except by public auction
or competitive sealed bidding; and
C. Transfer of excess supplies within the Town. For the purpose of this
action, "surplus supplies" does not include real property.
Any employee who has or obtains any benefit from any Town contract,
in which the employee participates directly or indirectly, with a
business in which the employee has a financial interest shall report
such benefit to the Purchasing Agent. Any employee who knows or should
have known of such benefit, and fails to promptly report such benefit
to the Purchasing Agent, is in breach of the ethical standards of
this chapter.
It shall be a breach of ethical standards to retain a person,
or for a person to be retained, to solicit or secure a Town contract
upon an agreement or understanding for a commission, percentage, brokerage
or contingent fee, except for retention of bona fide employees or
bona fide established commercial selling agencies maintained by the
contractor for the purpose of securing business.
It shall be a breach of ethical standards for any employee or
former employee within one calendar year from the date of termination
of Town employment knowingly to use confidential information for actual
or anticipated personal gain, or for the actual or anticipated personal
gain of any other person.
Procurement information shall be a public record to the extent
provided by state and federal law and shall be available to the public
as provided by such laws.
On written request of an employee, the Town Manager may grant an employee or former employee a written waiver from the application of §
111-25D or §
111-28 and grant permission to proceed with the transaction to such extent and upon such terms and conditions as may be specified. Such waiver and permission may be granted when the interests of the Town so require, or when the ethical conflict is insubstantial or remote.