[HISTORY: Adopted by the Board of Selectmen of the Town of
Winchester 1-20-1987; amended 1-5-2009; 1-3-2017 (§ 147 of the prior compilation). Subsequent
amendments noted where applicable.]
A.
Interpretation. This chapter shall be construed and applied to promote
its underlying purposes and policies.
B.
Purposes. The underlying purposes and policies of this chapter are:
(1)
To simplify, clarify and modernize the law governing procurement
by this Town;
(2)
To permit the continued development of procurement policies and practices;
(3)
To make as consistent as possible the procurement laws among the
various governmental bodies;
(4)
To provide for increased public confidence in the procedures used
in public procurement;
(5)
To ensure the fair and equitable treatment of all persons who deal
with the procurement system of this Town;
(6)
To provide increased economy in Town procurement activities and to
maximize to the fullest extent practicable the purchasing value of
public funds of the Town;
(7)
To foster effective broad-based competition within the free enterprise
system; and
(8)
To provide safeguards for the maintenance of a procurement system
of quality and integrity.
This chapter requires all parties involved in the negotiation,
performance or administration of Town contracts to act in good faith.
A.
General application. This chapter applies only to contracts solicited
or entered into after the effective date of this chapter (11-1-1986)
unless the parties agree to its application to a contract entered
into prior to the effective date. This chapter shall apply to any
modifications, extensions or alterations to existing contracts which
occur after the effective dates of this chapter.
B.
Application to Town procurement. This chapter shall apply to all
expenditures of public funds regardless of source, including state
and federal assistance monies, by this Town, under any contract, except
that nothing in this chapter shall prevent the Town from complying
with the terms and conditions of any grant, gift or bequest or cooperative
agreement. This chapter shall apply to the disposal of Town supplies.
C.
Effect of state or federal assistance requirements. In the event
state or federal assistance requirements conflict with the provisions
of this chapter, nothing in this chapter shall prevent the Town from
complying with the terms and conditions of the state/federal assistance
requirements.
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:
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.
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.
Any corporation, partnership, individual, sole proprietorship,
joint-stock company, joint venture or any other legal entity.
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.
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.
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.
Any person or business having a contract with the governmental
body and its subunits and utilities.
Procurement conducted by, or on behalf of, more than one
public procurement unit.
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.
A duly authorized representative of a person holding a superior
position.
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.
Supplies having a remaining useful life but which are no
longer required by the using agency in possession of the supplies.
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;
Ownership of any interest in any business; or
Holding a position in a business such as an officer, director,
trustee, partner, employee, or similar position, or holding any position
of management.
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.
A spouse, children, parent, brother, sister, grandparent,
stepchildren, mother- or father-in-law.
All documents, including those attached or incorporated by
reference, utilized for soliciting bids.
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.
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.
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.
All documents, including those attached or incorporated by
reference, utilized for soliciting proposals.
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.
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.
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.
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.
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.
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.
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.
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.
A.
Principal contracting officer. The Purchasing Agent shall serve as
the principal contracting officer and central procurement officer
of the Town. He shall have the power to enter into and sign contracts
on behalf of the Town unless other officials are expressly designated
by resolution or referendum.
B.
Power to adopt internal operational procedures. Consistent with the
provisions of this chapter, the Purchasing Agent may adopt internal
operational procedures governing the Town Purchasing Division.
C.
Duties. Except as otherwise specifically provided in this chapter,
the Purchasing Agent shall have the powers and duties set forth in
the Town Charter.
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.
A.
Invitation for bids.
(1)
Where competitive sealed bidding is utilized, an invitation for bids
shall be issued which shall include a purchase description of all
contractual terms and conditions applicable to procurement.
(2)
If any purchase or contract for purchasing, including a continuing
order or contract for the purchase of the same commodity over a period
of time, involves the expenditure of the minimum monetary threshold
for competitive bidding as set forth in the Town's Charter, the Purchasing
Agent shall invite sealed bids or proposals, unless it shall be determined
by the Board of Selectmen to be against the best interest of the Town
by a vote to grant a bid waiver.
B.
Public notice. Adequate public notice of the invitation for bids
shall be given prior to the date set forth therein for the opening
of bids, as required by law, or in accordance with policy dictated
by state and/or federal agencies. Such notice shall include publication
at least 10 days prior to the bid being opened in a newspaper having
a general circulation in the Town.
C.
Bid opening. Bids shall be opened publicly in the presence of one
or more witnesses at the time and place designated in the invitation
for bids. The amount of each bid, and such other relevant information
as may be specified in the invitation for bids, together with the
name of each bidder, shall be recorded. The record and each bid shall
be open to public inspection.
D.
Bid acceptance and bid evaluation. Bids shall be unconditionally
accepted without alteration or modification, except as authorized
in this chapter. Bids shall be evaluated based on the requirements
set forth in the invitation for bids, which may include criteria to
determine acceptability such as inspection, testing, quality, workmanship,
delivery and suitability for a particular purpose. Those criteria
that will affect the bid price and which will be considered in evaluation
for award shall be objectively measurable, such as discounts, transportation
costs, and total or life cycle costs. The invitation for bids shall
set forth the evaluation criteria to be used. No criteria may be used
in bid evaluation that are not set forth in the invitation for bids.
E.
Award. The contract shall be awarded with reasonable promptness by
written notice to the lowest responsible and responsive bidder whose
bid meets the requirements and criteria set forth in the invitation
for bids. The Town, by action of the Purchasing Agent in consultation
with the using department (requester) and Finance Director, may accept
or reject any bids, in whole or in part, divide awards, or waive any
informalities or technicalities in making an award, if to do so is
in the best interest of the Town, regardless of cost. The Town Finance
Department reserves the right to audit said bids/proposals upon delivery/completion
of goods, services, materials, etc. and prior to final acceptance
by the Town.
F.
Multi-step sealed bidding (prequalified bids/proposals). When it
is considered impractical to initially prepare a purchase description
to support an award based on price, an invitation for bids may be
issued requesting the submission of unpriced offers to be followed
by an invitation for bids limited to those bidders whose offers have
been qualified under the criteria set forth in the first solicitation.
A.
Conditions for use. When the Purchasing Agent, in accordance with policy approved by the Town Manager and Finance Director, determines in writing that the use of competitive sealed bidding is not required by law and is either not practicable or not advantageous to the Town, a contract may be entered into through receipt of competitive sealed proposals. Competitive sealed proposals may also be used for the procurement of professional services, whether or not the written determination described herein has been made. Further, if it is the written determination of a majority of a group consisting of the Finance Director, Purchasing Agent, Town Manager and representative of the department expecting to utilize such professional services that the competitive sealed proposal procedure is impractical or otherwise unsuitable, the procurement of the necessary professional service may be made on the basis of noncompetitive negotiations without regard to §§ 111-13 and 111-14.
B.
Request for proposals. Competitive sealed proposals shall be solicited
through a request for proposals.
C.
Public notice. Adequate public notice of the request for proposals shall be given in the same manner provided for competitive sealed bidding in § 111-12.
D.
Receipt of proposals. Sealed proposals shall be opened so as to avoid
disclosure of contents to competing offerors during the process of
negotiation. A register of proposals shall be prepared and open for
public inspection as with public bid documents.
E.
Evaluation factors. The request for proposals shall state the relative
importance of the evaluation factors and price.
F.
Discussion with responsible offerors and revisions of proposals.
As provided in the request for proposals, discussions may be conducted
with responsible offerors who submit proposals determined to be reasonably
susceptible of being selected for award for the purpose of clarification
to assure full understanding of, and responsiveness to, the solicitation
requirements. Offerors shall be accorded fair and equal treatment
with respect to any opportunity for discussion and revision of proposals,
and such revisions may be permitted after submission and prior to
award for the purpose of obtaining best and final offers. In conducting
discussions, there shall be no disclosure of any information derived
from proposals submitted by competing offerors.
G.
Award. Award shall be made to the responsible offeror whose proposal
is determined in writing to be the most advantageous to the Town,
taking into consideration the evaluation factors set forth in the
request for proposals, and price. Other factors or criteria to be
used in the evaluation must be stated in writing prior to the award
and be communicated to each proposer as part of the solicitation process.
The contract file shall contain the basis on which the award is made.
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.
A.
For all bids and quotes submitted for purchases exceeding the minimum
monetary threshold for competitive bidding as set forth in the Town's
Charter but less than $1,000,000, any qualified and registered local
vendor who has submitted a bid or quote not more than 5% higher than
the lowest qualified bid or quote will be awarded the contract or
purchase order, subject to any limiting provision of this chapter,
so long as such local vendor agrees to provide the supplies, materials,
equipment, commodities and/or services which are the subject of such
contract or purchase order at the same price as the lowest qualified
bid or quote received. In the event that more than one local vendor
submits a bid or quote not more than 5% higher than the lowest qualified
bid or quote, the award shall be to that local vendor submitting the
lowest qualified bid or quote.
B.
For purposes of this section, a qualified and registered local vendor
is defined as one who maintains a principal place of business located
within the Town limits of Winchester by occupying real property in
which to conduct such business or by paying personal property taxes
on business property to the Town of Winchester. Evidence of the maintenance
of such principal place of business may include the ownership or long-term
lease of real estate from which the principal place of business is
operated or the payment of property taxes on the personal property
of the business to be used in the performance of the bid.
C.
The Town Manager shall prepare a local vendor registration form and
shall have it made available to all local businesses. When such form
has been properly completed and filed by a local vendor with and approved
by the Town Purchasing Agent, such local vendor shall be a qualified
and registered local vendor in the Town for the purposes of this section.
D.
This section shall not apply in any situation where the preference
created by this section would violate federal and state law or any
existing contracts.
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 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.
A.
Authority to resolve protested solicitations and awards:
(1)
Right to protest. Any actual or prospective bidder, offeror or contractor
who is aggrieved in connection with the solicitation or award of a
contract may protest to the Purchasing Agent. The protest shall be
submitted in writing within 14 calendar days after such aggrieved
person knows via notice of award to all bidders from the Purchasing
Agent or his designee or should have known of the facts giving rise
thereto.
(2)
Authority to resolve protests. The Purchasing Agent shall have the
authority, prior to the commencement of an action in court concerning
the controversy, to settle and resolve a protest of an aggrieved bidder,
offeror or contractor, actual or prospective, concerning the solicitation
or award of a contract.
(3)
Decision. If the protest is not resolved by mutual agreement, the
Purchasing Agent shall promptly issue a decision in writing. The decision
shall state the reasons for the action taken.
(4)
Notice of decision. A copy of the decision under this section shall
be mailed or otherwise furnished immediately to the protestant and
Town Attorney and any other party intervening.
(5)
Finality of decision. A decision under this section shall be final
and conclusive unless fraudulent, or unless any person adversely affected
by the decision commences an action in court.
(6)
Stay of procurements during protests. In the event of a timely protest
under this section, the Town shall not proceed further with the solicitation
or with the award of the contract until the Purchasing Agent has issued
his decision in writing or makes a written, pre-decision determination
that the award of the contract without delay is necessary to protect
substantial interests of the Town.
B.
Authority to debar or suspend.
(1)
Authority. After reasonable notice to the person involved and reasonable
opportunity for that person to be heard, the Purchasing Agent, after
consultation with the using agency and the Town Attorney, shall have
authority to debar a person for cause from consideration for award
of contracts. The debarment shall not be for a period of more than
three years. The same officer, after consultation with the using agency
and the Town Attorney, shall have authority to suspend a person from
consideration for award of contracts if there is reasonable belief
for debarment. The suspension shall not be for a period exceeding
three months.
(2)
Causes for debarment or suspension. The causes for debarment or suspension
include the following:
(a)
Conviction for commission of a criminal offense as an incident
to obtaining or attempting to obtain a public or private contract
or subcontract, or in the performance of such contract or subcontract;
(b)
Conviction under state or federal statutes of embezzlement,
theft, forgery, bribery, falsification or destruction of records,
receiving stolen property or any other offense indicating a lack of
business integrity or business honesty which currently, seriously
and directly affects responsibility as a Town contractor;
(c)
Conviction under state or federal anti-trust statutes arising
out of the submission of bids or proposals;
(d)
Violation of contract provisions, as set forth below, of a character
which is regarded by the Purchasing Agent to be so serious as to justify
debarment action:
[1]
Deliberate failure without good cause to perform in accordance
with the specifications or within the time limit provided in a contract;
or
[2]
A recent record of failure to perform or of unsatisfactory performance
in accordance with the terms of one or more contracts; provided that
failure to perform or unsatisfactory performance caused by acts beyond
the control of the contractor shall not be considered to be a basis
for debarment;
(e)
Any other cause the Purchasing Agent determines to be so serious
and compelling as to affect responsibility as a Town contractor, including
debarment by another governmental entity for any of the causes listed
in this chapter; and
(f)
Violation of the ethical standards set forth in this chapter.
(3)
Decision. The Purchasing Agent shall issue a written decision to
debar or suspend. The decision shall state the reasons for the action
taken.
(4)
Notice of decision. A copy of the decision under this section shall
be mailed or otherwise furnished immediately to the debarred or suspended
person, the Town Attorney and any other party intervening.
(5)
Finality of decision. A decision under this section shall be final
and conclusive, unless fraudulent, or unless the debarred or suspended
person commences an action in court.
C.
Authority to resolve contract and breach of contract controversies.
(1)
Applicability. This section applies to controversies between the
Town and a contractor and which arise under, or by virtue of, a contract
between them. This includes without limitation controversies based
upon breach of contract, mistake, misrepresentation or other cause
for contract modification or rescission.
(2)
Authority. The Purchasing Agent is authorized, prior to commencement
of an action in a court concerning the controversy, to settle and
resolve a controversy described in this section.
(3)
Decision. If such a controversy is not resolved by mutual agreement,
the Purchasing Agent shall promptly issue a decision in writing. The
decision shall state the reasons for the action taken.
(4)
Notice of decision. A copy of the decision under this section shall
be mailed or otherwise furnished immediately to the contractor.
(5)
Finality of decision. The decision under this section shall be final
and conclusive, unless fraudulent, or unless the contractor commences
an action in court.
(6)
Failure to render timely decision. If the Purchasing Agent does not
issue the written decision required under this section within 120
days after written request for a final decision, or within such longer
period as may be agreed upon by the parties, then the contractor may
proceed as if an adverse decision had been received.
D.
Time limitations on actions.
(1)
Protested solicitations and awards. Any legal action under this chapter
shall be initiated within 90 days after the aggrieved person knows
or should have known of the facts giving rise to the action.
(2)
Debarments and suspension for cause. Any action challenging a suspension
or debarment shall be commenced within six months after receipt of
the decision of the Purchasing Agent under this chapter.
(3)
Actions under contracts or for breach of contract. The statutory
limitations on an action between private persons on a contract or
for breach of contract shall apply to any action commenced pursuant
to this chapter.
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.
A.
Purchasing agreements. The Town of Winchester may either participate
in, sponsor, conduct or administer a cooperative purchasing agreement
for the procurement of any supplies, services or construction with
one or more public procurement units in accordance with an agreement
entered into between the participants. Such cooperative purchasing
may include, but is not limited to, joint or multiparty contracts
between public procurement units, and open-ended state public procurement
unit contracts which are made available to other public procurement
units.
D.
Joint use of facilities. The Town of Winchester may enter into agreements
for the common use or lease of warehousing facilities, capital equipment
and other facilities with another public procurement unit under the
terms agreed upon between the parties.
A.
Standards of conduct.
(1)
Statement of policy. Public employment is a public trust. It is the
policy of the Town to promote and balance the objective of protecting
government integrity and the objective of facilitating the recruitment
and retention of personnel needed by the Town. Such policy is implemented
by prescribing essential restrictions against conflicts of interest
without creating unnecessary obstacles to entering public service.
(2)
Public employees must discharge their duties impartially so as to
assure fair competitive access to governmental procurement by responsible
contractors. Moreover, they should conduct themselves in such a manner
as to foster public confidence in the integrity of the Town procurement
organization.
(3)
To achieve the purpose of this section, it is essential that those
doing business with the Town also observe the ethical standards prescribed
herein.
B.
General standards of ethical conduct for employees. Any attempt to realize personal gain through public employment by conduct inconsistent with the proper discharge of the employee's duties is a breach of a public trust. In order to fulfill this general prescribed standard, employees shall meet the specific standards set forth in this section and §§ 111-26, 111-27, 111-29 and 111-30.
C.
General standards of ethical conduct for nonemployees. Any effort
to influence any public employee to breach the standards of ethical
conduct set forth in this chapter is also a breach of ethical standards.
D.
Conflict of interest. It shall be a breach of ethical standards,
and a conflict of interest, for any employee to participate directly
or indirectly in a procurement when the employee knows that:
(1)
The employee or any member of the employee's immediate family has
a financial interest pertaining to the procurement; or
(2)
A business or organization in which the employee or any member of
the employee's immediate family has a financial interest pertaining
to the procurement; or
(3)
Any other person, business or organization with whom the employee
or any member of the employee's immediate family is negotiating or
has an arrangement concerning prospective employment is involved in
the procurement.
E.
Financial interest in a blind trust. Where an employee or any member
of the employee's immediate family holds a financial interest in a
blind trust, the employee shall not be deemed to have a conflict of
interest with regard to matters pertaining to that financial interest,
provided that disclosure of the existence of the blind trust has been
made to the Purchasing Agent and Town Attorney.
F.
Discovery of conflict of interest, disqualification and waiver. Upon
discovery of a potential or actual conflict of interest, an employee
shall promptly file a written statement of disqualification with the
Purchasing Agent and shall withdraw from further participation in
the transaction involved.
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.
A.
Gratuities. It is a breach of ethical standards for any person to offer, give or agree to give any employee or former employee or to solicit, demand, accept or agree to accept from another person a gratuity or an offer of employment in connection with any decision, approval, disapproval, recommendation, preparation or any part of a purchase request, influencing the content of any specification of procurement standard, rendering of advice, investigation, auditing or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to any contract or subcontract and any solicitation or proposal therefor. This section is intended to supplement, and not limit, the provisions of § 111-14.
B.
Kickbacks. It is a breach of ethical standards for any payment, gratuity
or offer of employment to be made by or on behalf of a subcontractor
under a contract to the prime contractor or higher tier subcontractor
or any person associated therewith, as an inducement for the award
of a subcontract or order as may be prohibited by state and federal
regulations imposed by the Town's acceptance of state and/or federal
grant funds.
A.
Contemporaneous employment prohibited. It shall be a breach of ethical
standards for any employee who is participating directly or indirectly
in the procurement process to be or become, while such an employee,
employed by any person contracting with the governmental body.
B.
One year restriction. It shall be a breach of ethical standards for
any former employee, within one year after cessation of the former
employee's official responsibility, knowingly to act as a principal,
or as an agent for anyone other than the Town, in connection with
any: judicial or other proceeding, application, request for ruling
or other determination unless said employee is served with a court
subpoena in a Town-related proceeding; contract; claim; or charge
or controversy in matters which were within the former employee's
official responsibility, where the Town is a party or has a direct
or substantial interest.
C.
Disqualification of business. It shall be a breach of ethical standards
for a business in which an employee has a financial interest knowingly
to act as a principal, or as an agent for anyone other than the Town,
in connection with any: judicial or other proceeding, application,
request for ruling or other determination; contract; claim; or charge
or controversy in which the employee either participates personally
and substantially through decision, approval, disapproval, recommendation,
the rendering of advice, investigation, or otherwise, or which is
the subject of the employee's official responsibility, where the Town
is a party or has a direct and substantial interest.
D.
Selling to the Town.
(1)
The term "sell" as used in this subsection means signing a bid, proposal
or contract; negotiating a contract; contacting any employee for the
purpose of obtaining, negotiating or discussing changes in specifications,
price, cost allowance or other terms of a contract; settling disputes
concerning performance of a contract; or any other liaison activity
with a view toward the ultimate consummation of a sale, including
those cases where the actual contract therefor is subsequently negotiated
by another person; provided, however, that this subsection is not
intended to preclude a former employee from accepting employment with
a private business solely because the former employee's employer is
a contractor with this Town, nor shall a former employee be precluded
from serving as a consultant to the Town.
(2)
It shall be a breach of ethical standards for any former employee
to sell or attempt to sell supplies, services or construction to the
Town for one year following the date employment ceased.
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.
A.
Existing remedies not impaired. Civil and administrative remedies
against employees which are in existence on the effective date of
this chapter shall not be impaired.
B.
Supplemental remedies. In addition to existing remedies for breach
of ethical standards of this chapter, the Town Manager may impose
any one or more of the following, not necessarily in the order listed:
C.
Recovery from employee. The value of anything received by an employee in breach of the ethical standards of this ordinance or regulations promulgated thereunder shall be recoverable by the Town as provided in § 111-34.
D.
Due process. All procedures under this section shall be in accordance
with due process requirements and existing state/federal law.
A.
Existing remedies not impaired. Civil administrative remedies against
nonemployees which are in existence on the effective date of this
chapter shall not be impaired.
C.
Recovery from nonemployee. The value of anything transferred in breach of the ethical standards of this ordinance or regulations promulgated thereunder by a nonemployee shall be recoverable by the Town from such person as provided in § 111-34.
D.
Right of Town to suspend or debar.
(1)
Suspension of a contractor may be imposed during an investigation
of charges of a serious and compelling nature based on probable cause
indicating the existence of a breach of ethical standards under this
ordinance or other irregularities of a serious and compelling nature
which would affect the integrity of the contractor.
(2)
Debarment of a contractor may be imposed by reason of a finding of
any breach of ethical standards under this chapter or for a finding
of other irregularities of a serious nature affecting the integrity
of the contractor.
E.
Due process. All procedures under this section shall be in accordance
with due process requirements.
A.
General provisions. The value of anything transferred or received
in breach of the ethical standards of this section by an employee
or a nonemployee may be recovered from both the employee and the nonemployee.
B.
Recovery of kickbacks by the Town. Upon a showing that a subcontractor
made a kickback to a prime contractor or a higher tier subcontractor
in connection with the award of a subcontract or order thereunder,
it shall be conclusively presumed that the amount thereof was included
in the price of the subcontract or order and ultimately borne by the
Town and will be recoverable hereunder from the recipient. In addition,
said value may also be recovered from the subcontractor making such
kickbacks. Recovery from one offending party shall not preclude recovery
from other offending parties.
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.
