These procedures are intended to serve as guidelines for the
procurement of supplies, equipment, construction services and professional
services for the federal program. These guidelines meet the standards
established in 2 C.F.R. 200.317-200.326 and state requirements.
(Resolution 2018-7R, 12/14/17)
(A) No employee,
officer, or agent of the city shall participate in the selection or
in the award or administration of a contract supported by federal
funds, if a conflict of interest, real or apparent, would be involved.
Such a conflict could arise if the employee, officer or agent; any
member of his or her immediate family; his or her partner; or an organization
that employs or is about to employ any of the above, has a financial
or other interest in the firm selected for award.
(B) No officer,
employee or agent of the city shall solicit or accept gratuities,
favors or anything of monetary value from contractors or firms, potential
contractors or firms, or parties to sub-agreements, except where the
financial interest is not substantial or the gift is an unsolicited
item of nominal intrinsic value.
(C) Any
alleged violations of these standards of conduct shall be referred
to the City Attorney. Where violations appear to have occurred, the
offending employee, officer or agent shall be subject to disciplinary
action, including, but not limited to, dismissal or transfer. Where
violations or infractions appear to be substantial in nature, the
matter may be referred to the appropriate officials for criminal investigation
and possible prosecution.
(Resolution 2018-7R adopted 12/14/17)
(A) The
director or supervisor of each city department or agency responsible
for procurement of services, supplies, equipment, or construction
obtained with federal funds shall review all proposed procurement
actions to avoid the purchase of unnecessary or duplicate items. Such
reviews shall consider consolidation or breaking out to obtain a more
economical purchase. When determined appropriate by the director or
supervisor, an analysis to determine which approach would be the most
economical shall be undertaken.
(B) The
city shall take affirmative steps to assure that small and minority
firms, women’s business enterprises, and labor surplus firms
are solicited whenever they are potential qualified sources. The city
shall also consider the feasibility of dividing total requirements
into smaller tasks or quantities so as to permit maximum participation
by small and minority firms, women’s business enterprises, and
labor surplus firms. Where permitted by regulations, delivery schedules
will be developed that will include participation by such businesses.
(C) Whenever
possible, the city shall assist the prime contractor by providing
copies of lists that identify qualified small and minority firms,
women’s business enterprises, and labor surplus area firms.
(Resolution 2018-7R adopted 12/14/17)
(A) All
procurement carried out with federal funds, where the city is a direct
party, shall be carried out in a manner that provides maximum free
and open competition. Procurement procedures will not restrict or
eliminate competition. The city shall not place unreasonable requirements
on firms in order for them to qualify to do business. Nor will the
city encourage or participate in noncompetitive practices among firms.
The city is alert to organizational conflicts that would jeopardize
the negotiation process and limit competition. The city will not require
unnecessary experience or bonding requirements.
(B) Pursuant
to state law, all solicitations of offers shall incorporate a clear,
accurate description of the technical requirements for the material,
service, or product to be procured. In competitive procurements, these
descriptions shall not contain features that unduly limit competition.
The description may include a statement of the qualitative nature
of the material, product, or service, and the minimum essential characteristics
and standards to which it must conform if it is to satisfy its intended
use. Detailed product specifications shall be avoided whenever possible.
A “brand name or equal” description may be used to define
the performance or other salient requirements of procurement. The
specific features of the named brand that must be met by offerers
shall be clearly stated.
(C) All
solicitations of offers shall clearly set forth all requirements that
offerers must fulfill and all other factors to be used in evaluating
bids, proposals, or statements of qualifications.
(D) Contracts
shall be awarded only to responsible contractors or firms that possess
the potential ability to perform successfully under the terms and
conditions of the proposed procurement.
(E) Consideration
shall be given to such factors as the contractor’s or the firm’s
capacity, integrity, compliance with public policy, record of past
performance, and financial and technical resources.
(Resolution 2018-7R adopted 12/14/17)
Direct procurement by the city shall be made by using one of
the following methods, depending on the type of service to be procured.
(A) Procurement
by micro-purchases.
PROCUREMENT BY MICRO-PURCHASE is
the acquisition of supplies or services, the aggregate dollar amount
of which does not exceed the micro-purchase threshold. To the extent
practicable, the non-federal entity must distribute micro-purchases
equitably among qualified suppliers. Micro-purchases may be awarded
without soliciting competitive quotations if the non-federal entity
considers the price to be reasonable.
(B) Small
purchase procedures.
Relatively simple, informal procurement
procedures will be used where the purchase of materials, supplies,
equipment, and/or other property will not cost in the aggregate more
than $30,000, and for construction with a cost of less than $150,000,
except where further limited by state law or federal policy. The small
purchase procedure can also be utilized to procure administrative
consulting and other professional services costing less than $150,000.
The only exception to professional services is for architectural or
engineering services that must be procured through competitive negotiation.
The procurement officer must obtain a minimum of three oral or written
price or rate quotations from qualified sources. Documentation on
all quotations received (whether oral or written) shall be made a
part of the file.
(C) Competitive
sealed bids; formal advertising.
(1) Under
this procedure, bids are publicly advertised in accordance with the
state’s Public Bid Law, Tex. Local Government Code, Ch. 252.
A firm, fixed-price contract (either lump sum or unit price) shall
be awarded to the responsible bidder whose bid is lowest in price
and conforms to all the material terms and conditions of the advertisement
for bids.
(2) Competitive
sealed bids can be used only when the following criteria are met:
(a) There are complete, adequate, and realistic specifications or purchase
descriptions;
(b) There are two or more responsible bidders who are willing and able
to compete effectively; and
(c) The procurement can be made on a firm, fixed-price contract, and
selection of the successful bidder can appropriately be made principally
on the basis of price.
(3) When
formal advertising is used, the following conditions shall be met:
(a) The advertisement for bids shall be publicly advertised in accordance
with state law;
(b) The advertisement for bids, including the specifications and pertinent
attachments, shall clearly define the items or services needed in
order for the bidders to properly respond to the advertisement;
(c) All bids shall be opened publicly at the time and place specified
in the advertisement for bids;
(d) A firm, fixed-price contract award shall be made by written notice
to the lowest responsible bidder whose bid conforms to the advertisement
for bids. Where specified in the bid documents, factors, such as discounts,
transportation costs, and life cycle costs, shall be considered in
determining which bid is lowest. Payment discounts shall only be used
to determine low bid when prior experience indicates that such discounts
are generally taken; and
(e) Notwithstanding the above, any or all bids may be rejected when there
are sound, documented business reasons in the best interest of the
federal program.
(D) Competitive
negotiation; requests for proposals or qualification statements.
(1) This
method may be used when formal advertising is not appropriate. Architectural
and engineering services must be procured via requests for qualification
statements; administrative consulting services must be procured via
requests for proposals. Other professional services may also be procured
by requests for proposals.
(2) The
following procedures will be used for competitive negotiation.
(a) Requests for proposals or qualification statements must be advertised
in a newspaper in the nearest metropolitan area, in accordance with
the rules of the state’s federal program. All submittals will
be honored and entered into the competition.
(b) The package for proposals or qualification statements shall identify
all significant evaluation factors or selection criteria, including
the corresponding point system that will be used to rate the proposals
or qualification statements.
(c) The selecting official (or committee, if one is designated) shall
review all proposals and statements received and make a technical
evaluation of each. This shall also include a written statement that
identifies the basis upon which the selection was made.
(d) Contract award will be made to the responsible offerer whose submission
is deemed most appropriate to the city with consideration for price,
qualifications, and other factors set by the local government. Unsuccessful
offerers shall be notified, in writing, within ten working days of
contract award. Documentation of notification shall be maintained
in the contract selection file for the individual project.
(e) Following the review of the qualification statements received, the
most qualified competitor will be selected to enter into contract
negotiation. This shall always include negotiation of price to insure
cost reasonableness. At the conclusion of successful negotiation,
the competitor shall be invited to enter into a contract.
(E) Noncompetitive
negotiation; sole source.
(1) Noncompetitive
negotiation shall be used when small purchase, formal advertising,
or competitive negotiation procedures are not feasible. Noncompetitive
negotiation will involve solicitations of a proposal from only one
source. This can also occur if solicitations under the competitive
negotiation procedures result in only one proposal or qualification
statement. Noncompetitive negotiation shall only be used when written
authorization has been obtained from the state’s Office of Community
Development, with the one exception noted.
(2) In
order to qualify for this type of procurement, one of the following
circumstances must apply:
(a) The item or service is available only from a single source;
(b) It is determined that a public urgency or emergency exists and the
urgency will not permit the delay beyond the time needed to employ
one of the other methods of procurement;
(c) The state expressly authorizes noncompetitive proposes in response
to a written request from the city; and
(d) After solicitation of a number of sources, competition is determined
to be inadequate.
(Resolution 2018-7R adopted 12/14/17)
(A) Cost
plus percentage of cost and percentage of construction cost methods
of contracting must not be used. The city shall perform cost or pricing
analysis in connection with every procurement action, including contract
modifications. Costs or prices based on estimated costs for federal
projects shall be allowed only to the extent that the costs incurred
or the cost estimates included in negotiated prices are consistent
with federal cost principles. Cost reimbursement, fixed price, per
diem contracts, or a combination thereof may be utilized as appropriate.
(B) A cost
reimbursement type contract is most appropriate when the scope and
extent of the work to be performed are not clearly defined. A cost
reimbursement contract must clearly establish a cost ceiling that
may not be exceeded without formally amending the contract, and must
identify a fixed dollar profit that may not be increased unless there
is a contract amendment that increases the scope of the work.
(C) A fixed-price
contract is appropriate when the scope of work is very well defined
and product-oriented. A fixed-price contract must establish a guaranteed
price that may not increase unless there is a contract amendment that
increases the scope of the work.
(D) A per
diem contract expected to exceed $10,000 will not be considered unless
the city has determined that a cost reimbursable or fixed-price contract
is not appropriate. Cost and profit included in the per diem rate
must be specifically negotiated and shown separately in the proposal.
The contract must clearly establish a ceiling price that may not be
exceeded without formally amending the contract.
(E) The
city may use a multiplier-type of compensation under either the cost
reimbursement or fixed-price contract. The multiplier and the portions
of the multiplier applicable to overhead and profit must be specifically
negotiated and separately identified in the contract.
(Resolution 2018-7R adopted 12/14/17)
The city shall maintain records sufficient to detail the history
of the procurement. The records shall include the following contract
provisions and conditions, as applicable for construction contracts.
(A) Contracts
for more than the simplified acquisition threshold currently set at
$150,000, which is the inflation-adjusted amount determined by the
Civilian Agency Acquisition Council and the Defense Acquisition Regulations
Council (“Councils”) as authorized by 41 U.S.C. 1908,
must address administrative, contractual, or legal remedies in instances
where contractors violate or breach contract terms, and provide for
such sanctions and penalties as appropriate.
(B) All
contracts in excess of $10,000 must address termination for cause
and for convenience by the non-federal entity, including the manner
by which it will be effected and the basis for settlement.
(C) Equal
employment opportunity. Except as otherwise provided under 41 C.F.R.
pt. 60, all contracts that meet the definition of “federally
assisted construction contract” in 41 C.F.R. pt. 60-1.3 must
include the equal opportunity clause provided under 41 C.F.R. 60-1.4(b),
in accordance with Executive Order 11246, “Equal Employment
Opportunity” (30 F.R. 12319, 12935, 3 C.F.R. pt., 19641965 Comp.,
p. 339), as amended by Executive Order 11375, “Amending Executive
Order 11246 Relating to Equal Employment Opportunity,” and implementing
regulations at 41 C.F.R. pt. 60, “Office of Federal Contract
Compliance Programs, Equal Employment Opportunity, Department of Labor.”
(D) The
Davis-Bacon Act, as amended (40 U.S.C. 3141-3148). When required by
federal program legislation, all prime construction contracts in excess
of $2,000 awarded by non-federal entities must include a provision
for compliance with the Davis-Bacon Act (40 U.S.C. 3141-3144, and
3146-3148), as supplemented by Department of Labor regulations (29
C.F.R. pt. 5, “Labor Standards Provisions Applicable to Contracts
Covering Federally Financed and Assisted Construction”). In
accordance with the statute, contractors must be required to pay wages
to laborers and mechanics at a rate not less than the prevailing wages
specified in a wage determination made by the Secretary of Labor.
In addition, contractors must be required to pay wages not less than
once a week. The non-federal entity must place a copy of the current
prevailing wage determination issued by the Department of Labor in
each solicitation. The decision to award a contract or subcontract
must be conditioned upon the acceptance of the wage determination.
The non-federal entity must report all suspected or reported violations
to the federal awarding agency. The contracts must also include a
provision for compliance with the Copeland “Anti-Kickback”
Act (40 U.S.C. 3145), as supplemented by Department of Labor regulations
(29 C.F.R. pt. 3, “Contractors and Subcontractors on Public
Building or Public Work Financed in Whole or in Part by Loans or Grants
from the United States”). The Act provides that each contractor
or subrecipient must be prohibited from inducing, by any means, any
person employed in the construction, completion, or repair of public
work, to give up any part of the compensation to which he or she is
otherwise entitled. The non-federal entity must report all suspected
or reported violations to the federal awarding agency.
(E) Contract
Work Hours and Safety Standards Act (40 U.S.C. 3701-3708). Where applicable,
all contracts awarded by the non-federal entity in excess of $100,000
that involve the employment of mechanics or laborers must include
a provision for compliance with 40 U.S.C. 3702 and 3704, as supplemented
by Department of Labor regulations (29 C.F.R. pt. 5). Under 40 U.S.C.
3702 of the Act, each contractor must be required to compute the wages
of every mechanic and laborer on the basis of a standard work week
of 40 hours. Work in excess of the standard work week is permissible,
provided that the worker is compensated at a rate of not less than
one and a half times the basic rate of pay for all hours worked in
excess of 40 hours in the work week. The requirements of 40 U.S.C.
3704 are applicable to construction work and provide that no laborer
or mechanic must be required to work in surroundings or under working
conditions that are unsanitary, hazardous or dangerous. These requirements
do not apply to the purchases of supplies or materials or articles
ordinarily available on the open market, or contracts for transportation
or transmission of intelligence.
(F) Rights
to inventions made under a contract or agreement. If the federal award
meets the definition of “funding agreement” under 37 C.F.R.
sec. 401.2 (a), and the recipient or subrecipient wishes to enter
into a contract with a small business firm or nonprofit organization
regarding the substitution of parties, assignment or performance of
experimental, developmental, or research work under that “funding
agreement,” the recipient or subrecipient must comply with the
requirements of 37 C.F.R. pt. 401, “Rights to Inventions Made
by Nonprofit Organizations and Small Business Firms Under Government
Grants, Contracts and Cooperative Agreements,” and any implementing
regulations issued by the awarding agency.
(G) The
Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution
Control Act (33 U.S.C. 1251-1387), as amended. Contracts and subgrants
of amounts in excess of $150,000 must contain a provision that requires
the non-federal award to agree to comply with all applicable standards,
orders or regulations issued pursuant to the Clean Air Act and the
Federal Water Pollution Control Act. Violations must be reported to
the federal awarding agency and the regional office of the Environmental
Protection Agency (EPA).
(H) Debarment
and suspension (Executive Orders 12549 and 12689). A contract award
(see 2 C.F.R. 180.220) must not be made to parties listed on the government-wide
exclusions in the System for Award Management (SAM), in accordance
with the OMB guidelines at 2 C.F.R. 180 that implement Executive Orders
12549 (3 C.F.R. pt. 1986 Comp., p. 189) and 12689 (3 C.F.R. pt. 1989
Comp., p. 235), “Debarment and Suspension.” 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 other than Executive Order 12549.
(I) The
Byrd Anti-Lobbying Amendment (31 U.S.C. 1352). Contractors that apply
or bid for an award exceeding $100,000 must file the required certification.
Each tier certifies to the tier above that it will not and has not
used federally appropriated funds to pay any person or organization
for influencing or attempting to influence an officer or employee
of any agency, a member of Congress, an officer or employee of Congress,
or an employee of a member of Congress, in connection with obtaining
any federal contract, grant or any other award covered by 31 U.S.C.
1352. Each tier must also disclose any lobbying with non-federal funds
that takes place in connection with obtaining any federal award. Such
disclosures are forwarded from tier to tier up to the non-federal
award.
(J) See
2 C.F.R. sec. 200.322, Procurement of recovered materials.
(K) Pursuant
to LRS 38:2227, public entities are required to obtain an attestation
regarding past criminal convictions, if any, from the lowest bidder
responding to advertisements and letting for bids for public works
contracts. The Past Criminal Convictions of Bidders form must be included
in all contracts for public works.
(L) Pursuant
to LRS 38:2212.10, all bidders and contractors performing physical
services with public entities must be registered and participate in
a status verification system to verify that all employees in the state
are legal citizens of the United States, or are legal aliens. The
bidder or contractor must sign an attestation that they are complying
with this law, and that all subcontractors will comply with this law.
(M) Pursuant
to LRS 23:1726, bidders and contractors must certify that they are
not being assessed penalties regarding unpaid worker’s compensation
insurance.
(Resolution 2018-7R adopted 12/14/17)
The city shall maintain contract administration systems that
insure contractors and firms perform in accordance with the terms,
conditions, and specifications of their contracts or purchase orders.
The accepted performance of contractors and firms will be a factor
in subsequent contract negotiations and awards. Remedial action by
the city through legal processes shall be considered in instances
of identified, significant nonperformance.
(Resolution 2018-7R adopted 12/14/17)