The County is required to comply with federal regulations when a procurement is conducted in whole or in part with federal funds. The United States Office of Management and Budget's Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards apply to all federal grants.
A.
All procurement transactions must be conducted in a manner providing full and open competition. To ensure objective contractor performance and eliminate unfair competitive advantage, contractors that develop or draft specifications, requirements, statements of work or invitations for bids or requests for proposals must be excluded from competing for such procurements.
B.
The following are considered to be restrictions upon full and open competition:
(1)
Imposing unreasonable business requirements for bidders or offerors to qualify to do business.
(2)
Requiring unnecessary experience or bonding.
(3)
Specifying only a brand name product without listing salient characteristics and allowing an equivalent product to be offered. Brand names are among the most restrictive types of specification.
(4)
Noncompetitive practices between firms or affiliated companies.
(5)
Noncompetitive contracts with consultants that are on retainer contracts.
(6)
Organizational conflicts of interest.
(7)
Any arbitrary action in the procurement process.
The County prohibits the use of statutorily or administratively imposed state, local or tribal geographical preferences in the evaluation of bids or proposals, except in those cases where applicable federal statutes expressly mandate or encourage geographic preference. Nothing in this section preempts any Virginia law requiring that a contractor within a particular profession be licensed within the commonwealth. When contracting for architectural and engineering services, geographic location may be a selection criterion, provided its application leaves an appropriate number of qualified firms, given the nature and size of the project, to compete for the contract.
The County is required to take certain steps to ensure that minority businesses, women's business enterprises and labor surplus area firms are used when possible. Affirmative steps must include:
A.
Placing qualified small and minority businesses and women's business enterprises on solicitation lists;
B.
Assuring that small and minority businesses and women's business enterprises are solicited whenever they are potential sources;
C.
Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority businesses and women's business enterprises;
D.
Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority businesses and women's business enterprises;
E.
Using the services and assistance, as appropriate, of such organizations as the Small Business Administration and the Minority Business Development Agency of the Department of Commerce; and
The County must comply with certain laws that require a preference for items that protect the environment, including Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency ("EPA") at 40 CFR Part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.
All contracts greater than $3,500 must contain a clause in which the contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, religion, national origin, sex, disability or age. In addition, the contractor agrees to comply with all applicable federal laws and regulations pertaining to nondiscrimination.
The County must make procurement documents and technical specifications available to the federal awarding agency upon request. The County may affirmatively seek review by the federal awarding agency when the County believes that such review is needed to comply with federal regulations.
A contract award must not be made to parties listed on the government-wide exclusions in the System for Award Management (SAM). The SAM exclusions contain the names of parties debarred, suspended or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority.
All procurements for federally assisted construction contracts in excess of $2,000 must require the contractor to comply with the Davis-Bacon Act, as supplemented by United States Department of Labor regulations, which require that the contractor and its subcontractors pay prevailing wages to certain categories of employees.
All federally funded procurements in excess of $100,000 must require that bidders and offerors provide a certification that the funds will not be used to pay any person or organization to lobby agencies, members of Congress or other federal officials. In addition, any lobbying in connection with obtaining any federally funded project must be disclosed.
Certain contract clauses are required in federally funded contracts, such clauses being dependent on the nature of the goods or services being procured and the dollar amount of the contract. Please consult Appendix 1 for a list of many required state and federal contract clauses.[1] On larger contracts or with atypical funding sources, the County should consult with counsel prior to the issuance of a procurement solicitation.
[1]
Editor's Note: Appendix 1 is on file in the County offices.