[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:
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.
COOPERATIVE PURCHASING
Procurement conducted by, or on behalf of, more than one public procurement unit.
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.
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.
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.
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 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.
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.
B. 
Sale, acquisition or use of supplies. The Town of Winchester may sell to, acquire from or use any supplies belonging to another public procurement unit independent of the requirements of §§ 111-11 and 111-23.
C. 
Cooperative use of supplies and services. The Town of Winchester may enter into an agreement, independent of the requirements of §§ 111-11 and 111-23, with any other public procurement unit for the cooperative use of supplies or services, under the terms agreed upon between the parties.
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:
(1) 
Oral or written warnings or reprimands;
(2) 
Suspension with or without pay for specified periods of time; and
(3) 
Termination of employment.
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.
B. 
Supplemental remedies. In addition to existing remedies for breach of the ethical standards of this section, the Town Manager may impose one or more of the following:
(1) 
Oral or written warnings or reprimands;
(2) 
Termination of a transaction; and
(3) 
Suspension or debarment.
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.