City of Ivanhoe, TX PROCUREMENT POLICY

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.

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.

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)

§ 30.22 PROCUREMENT PROCEDURES.

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.

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.

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)

§ 30.23 SELECTION PROCEDURES.

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.

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.

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.

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.

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)

§ 30.24 METHODS OF PROCUREMENT.

Direct procurement by the city shall be made by using one of the following methods, depending on the type of service to be procured.

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.

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.

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:

There are complete, adequate, and realistic specifications or purchase descriptions;

There are two or more responsible bidders who are willing and able to compete effectively; and

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:

The advertisement for bids shall be publicly advertised in accordance with state law;

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;

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.

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.

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.

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.

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.

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:

The item or service is available only from a single source;

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;

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)

§ 30.25 CONTRACT PRICING.

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.

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.

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.

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.

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)

§ 30.26 PROCUREMENT RECORDS.

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.

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.

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.

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.”

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.