City of Seward, NE Chapter 100 Purchasing and Contracts

[HISTORY: Adopted by the City Council of the City of Seward as indicated in article histories. Amendments noted where applicable.]

GENERAL REFERENCES

Officers and employees — See Ch. 85.

Personnel — See Ch. 95.

Salaries and compensation — See Ch. 113.

Article I Conflicts of Interest

[Adopted as Ch. 1, Art. 10, § 1004, of the 1976 Code; amended 10-5-1982 by Ord. No. 29-82; 9-20-1983 by Ord. No. 23-83; 9-18-1984 by Ord. No. 34-84; 9-16-1986 by Ord. No. 13-86; 11-2-1993 by Ord. No. 44-93]

(Neb. RS 18-305 through 18-312, 49-14, 103.01 through 49-14, 103.03, 70-624.04)

§ 100-1.1 Definitions.

As used in this article, the following terms shall have the meanings indicated:

OFFICER

A. Means:

(1) Any member of any board or commission of the municipality;

(2) Any appointed official if such municipal official:

(a) Serves on a board or commission which spends and administers its own funds; and

(b) Is dealing with a contract made by such board or commission; or

(3) Any elected municipal official.

B. Unless specified otherwise, volunteer firefighters and ambulance drivers shall not be considered officers for purposes of this article, with respect to their duties as firefighters and ambulance drivers.

§ 100-1.2 Interests in contracts prohibited. [1]

No officer of the municipality shall be permitted to have an interest in any contract to which the municipality is a party. The existence of such an interest in any contract renders the contract voidable by decree of a court of competent jurisdiction as to any person who entered into the contract or took assignment thereof with actual knowledge of the prohibited conflict.

A. An action to have a contract declared void under this section may be brought by the municipality or by any resident thereof and must be brought within one year after the contract is signed or assigned. Any such decree may provide for the reimbursement of any person for the reasonable value of all money, goods, material, labor, or services furnished under the contract, to the extent that the municipality has benefitted thereby.

B. The prohibition in this section shall apply only when the officer or his or her parent, spouse, or child 1) has a business with which the individual is associated or business association, which shall mean a business: a) in which the individual is a partner, director, or officer or b) in which the individual or a member of the individual's immediate family is a stockholder of a closed corporation stock worth $1,000 or more at fair market value or which represents more than five-percent equity interest, or is a stockholder of publicly traded stock worth $10,000 or more at fair market value or which represents more than ten-percent equity interest or 2) will receive a direct pecuniary fee or commission as a result of the contract; provided, however, if such officer is an employee of the business involved in the contract and has no ownership interest or shall not receive a pecuniary fee, such officer shall not be deemed to have an interest within the meaning of this section.

[1] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

§ 100-1.3 Exceptions. [1]

The provisions of this article shall not apply if the contract is an agenda item approved at a board meeting and the interested officer:

A. Makes a declaration on the record to the governmental body responsible for approving the contract regarding the nature and extent of his or her interest, prior to official consideration of the contract;

B. Does not vote on the matters of granting the contract, making payments pursuant to the contract, or accepting performance of work under the contract, or similar matters relating to the contract, except that if the number of members of the board declaring an interest in the contract would prevent the board, with all members present, from securing a quorum on the issue, then all members may vote on the matter; and

C. Does not act for the municipality as to inspection or performance under the contract in which he or she has an interest.

[1] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

§ 100-1.4 Scope.

The receiving of deposits, cashing of checks, and buying and selling of warrants and bonds of indebtedness of any municipality by a financial institution shall not be considered a contract under the provisions of this article. The ownership of less than 5% of the outstanding shares of a corporation shall not constitute an interest within the meaning of this article.

§ 100-1.5 Family members as City employees.

Notwithstanding the provisions of § 100-1.2 above, if an officer's parent, spouse or child is an employee of the municipality, the officer may vote on all issues of the contract which are generally applicable to all employees or all employees within a classification and do not single out his or her parent, spouse, or child for special action. If an officer has the power to employ personnel and he or she hires his or her parent, spouse, or child, such officer shall disclose the hiring pursuant to § 100-1.6 below, except that if the parent, spouse, or child is already employed in the position at the time the officer takes office and such position does not change, no disclosure need be made.[1]

[1] Editor's Note: The provisions of former § 1004 of the 1976 Code regarding competitive bidding, which immediately followed this section, were repealed at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

§ 100-1.6 Records.

A. The Municipal Clerk shall maintain, separately from other records, a ledger containing the information listed in Subsections A(1) through (5) of this section about every contract entered into by the municipality in which disclosure is made as provided in § 100-1.2 above. Such information shall be kept in the ledger for five years from the date of the officer's last day in office and shall include the:

(1) Names of the contracting parties;

(2) Nature of the interest of the officer in question;

(3) Date that the contract was approved by the municipality involved;

(4) Amount of the contract; and

(5) Basic terms of the contract.

B. The information supplied relative to the contract shall be provided to the Clerk not later than 10 days after the contract has been signed by both parties. The ledger kept by the Clerk shall be available for public inspection during the normal working hours of the office in which it is kept.

§ 100-1.7 Open accounts.

An open account established for the benefit of any municipality or entity thereof, with a business in which an officer has an interest, shall be deemed a contract subject to the provisions of this article. The statement required to be filed pursuant to this article shall be filed within 10 days after such account is opened. Thereafter, the Clerk shall maintain a running account of all amounts purchased on the open account. Purchases made from petty cash or a petty cash fund shall not be subject to the provisions of this article.

§ 100-1.8 Violations and penalties. [1]

Any officer who knowingly violates this article shall be guilty of a Class III misdemeanor. Any officer who negligently violates this article shall be guilty of a Class V misdemeanor.

[1] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

§ 100-1.9 Small contract exemption.

Contracts involving $100 or less in which an officer of the municipality may have an interest are hereby exempted from the provisions of this article.

§ 100-1.10 Additional pay prohibited.

No officer, including volunteer firefighters and ambulance drivers, shall receive any pay or perquisites from the municipality other than his or her salary. The governing body shall not pay or appropriate any money or other valuable thing to pay a person who is not an officer for the performance of any act, service, or duty which shall come within the proper scope of the duties of any officer of the municipality. (Neb. RS 17-611)

Article II Political Subdivisions Construction Alternatives Act

[Adopted 1-3-2023 by Ord. No. 2023-1]

§ 100-2.1 Purpose.

The purpose of the below recommended guidelines and procedures is to authorize the City, through the Political Subdivisions Construction Alternatives Act (Sections 13-2901 through 13-2914 of the Nebraska Revised Statutes), to enter into a design-build contract which is subject to qualification-based selection or a construction management at risk contract for public contracts.

§ 100-2.2 Definitions.

For purposes of this article, the following are the definitions outlined in the Political Subdivisions Construction Alternatives Act.

CONSTRUCTION MANAGEMENT AT RISK CONTRACT

A contract by which a construction manager:

A. Assumes the legal responsibility to deliver a construction project within a contracted price;

B. Acts as a construction consultant during the design development phase of the project; and

C. Is the builder during the construction phase of the project.

CONSTRUCTION MANAGER

The legal entity which proposes to enter into a construction management at risk contract.

DESIGN-BUILD CONTRACT

A contract subject to qualification-based selection of the design-builder to furnish:

A. Architectural, engineering, and related design services for a project; and

B. Labor, materials, supplies, equipment and construction services.

DESIGN-BUILDER

The legal entity which proposes to enter into a design-build contract by qualification-based selection.

LETTER OF INTEREST

A statement indicating interest to enter into a design-build or construction management at risk contract for a project.

PERFORMANCE-CRITERIA DEVELOPER

Any person licensed or any organization issued a certificate of authorization to practice architecture or engineering who is selected to assist in the development of project performance criteria, requests for proposals, evaluations of proposals, evaluation of construction under a design-build contract to determine adherence to performance criteria, and any additional requested services to represent the City's interest in relation to a project. The performance-criteria developer is ineligible to be included as a provider of any services in a proposal for any project on which he/she/it has acted as performance-criteria developer and is not employed by or does not have a financial or other interest in a design-builder or construction manager who will submit a proposal.

PROJECT PERFORMANCE CRITERIA

The performance requirements of the project suitable to allow the design-builder to make a proposal. Performance requirements include the following:

A. Capacity;

B. Durability;

C. Standards;

D. Ingress and egress requirements;

E. Description of the site;

F. Surveys;

G. Soil and environmental information concerning the site;

H. Interior space requirements;

I. Material quality standards;

J. Design and construction schedules;

K. Site development requirements;

L. Provisions for utilities and stormwater retention and disposal;

M. Parking requirements;

N. Applicable governmental code requirements; and

O. Other criteria for the intended use of the project.

PROPOSAL

An offer in response to a request for proposals a) by a design-builder to enter into a design-build contract or b) by a construction manager to enter into a construction management at risk contract.

QUALIFICATION-BASED SELECTION PROCESS

The process of selecting a design-builder based first on qualifications of the design-builder and then on the design-builder's proposed approach to the design and construction of the project.

REQUEST FOR PROPOSALS

The documentation by which the City solicits proposals.

REQUEST OF LETTERS OF INTEREST

The documentation or publication by which the City solicits letters of interest.

§ 100-2.3 Policies.

The City Council shall adopt a resolution selecting the design-build contract or construction management at risk contract delivery system prior to proceeding with any of the steps involved with solicitation or execution of any construction contract by the City. The resolution requires the affirmative vote of at least 2/3 of the City Council. For a project authorized under Subsection (3) of Section 13-2914 of the Nebraska Revised Statutes, the resolution shall include a statement that the political subdivision has made a determination that the design-build contract or construction management at risk contract delivery system is in the public interest based, at a minimum, on one of the following criteria: a) savings in cost or time or b) requirement of specialized or complex construction methods suitable for the design-build contract or construction management at risk contract delivery system.

§ 100-2.4 Procedures.

A. Design-build contract.

(1) Letters of interest.

(a) The City shall prepare a request for letters of interest for design-build proposals. Requests shall describe the project in sufficient detail to permit the design-builder to submit a letter of interest. The details should include the items listed under the project performance criteria under the Definitions section of this article.

(b) Requests for letters of interest shall be published in a newspaper of general circulation within the City's area at least 30 days' prior to the receipt of letters of interest deadline. Requests for letters of interest should also be sent via first-class mail to any design-builder upon request.

(c) Letters of interest shall be reviewed by the City in consultation with the performance-criteria developer. The City shall select prospective design-builders in accordance with the procedures and standards adopted by the City pursuant to Section 13-2905 of the Nebraska Revised Statutes.

(d) At least three prospective design-builders shall be selected, except that if only two design-builders have submitted letters of interest, the City shall select at least two. Selected design-builders shall then be considered prequalified and eligible to receive a request for proposals.

(2) Request for proposals.

(a) The City shall prepare a request for proposals for each design-build contract. Notice of the request for proposals shall be published in a newspaper of general circulation within the City's service area at least 30 days' prior to the deadline for receipt and opening of proposals.

(b) The request for proposals shall contain, at a minimum, the following elements:

[1] That the City Council will execute the design-build contract.

[2] The policies adopted by the City Council to be used when executing a design-build contract.

[3] The proposed terms and conditions of the design-build contract, including any terms and conditions which are subject to further negotiation. The general terms and conditions shall be consistent with nationally recognized model general terms and conditions which are standard in the design and construction industry in Nebraska. The terms and conditions may set forth an initial determination of the manner by which the design-builder selects any subcontractor and may require that any work subcontracted be awarded by competitive bidding.

[4] A project statement which contains information about the scope and nature of the project.

[5] The project performance criteria.

[6] The budget parameters for the project.

[7] Any bonds and insurance required by law or as may be additionally required by the City.

[8] The criteria for evaluation of proposals and the relative weight of each criterion.

[9] A requirement that the design-builder provide a written statement of the design-builder's proposed approach to the design and construction of the project, which may include graphic materials illustrating the proposed approach to design and construction but shall not include price proposals.

[10] A requirement that the design-builder agree to the following conditions:

[a] An architect or engineer licensed to practice in Nebraska will participate substantially in those aspects of the offering which involve architectural or engineering services;

[b] At the time of the design-build offering, the design builder will furnish to the City Council a written statement identifying the architect or engineer who will perform the architectural or engineering work for the design-build project;

[c] The architect or engineer engaged by the design-builder to perform the architectural or engineering work with respect to the design-build project will have direct supervision of such work and may not be removed by the design-builder prior to the completion of the project without the written consent of the City Council;

[d] A design-builder offering design-build services with its own employees who are design professionals licensed to practice in Nebraska will comply with the Engineers and Architects Regulation Act[1] by procuring a certificate of authorization to practice architecture or engineering and will submit proof of sufficient professional liability insurance; and

[1] Editor's Note: See Neb. RS 81-3401 et seq.

[e] The rendering of architectural or engineering services by a licensed architect or engineer employed by the design-builder will conform to the Engineers and Architects Regulation Act and rules and regulations adopted under the Act; and

[f] Other information which the City chooses to require.

(c) Proposal evaluation.

[1] The request for proposals shall be sent only to the prequalified design-builders selected. Design-builders shall submit proposals as required by the request for proposals.

[2] The City may only proceed to negotiate and enter into a design-build contract if there are at least two proposals from prequalified design-builders.

[3] Proposals shall be sealed and shall not be opened until expiration of the time established for making proposals as set forth in the request for proposals. Proposals may be withdrawn at any time prior to acceptance. The City shall have the right to reject any and all proposals except for the purpose of evading the provisions and policies of the Political Subdivisions Construction Alternatives Act.[2] The City may thereafter solicit new proposals using the same or a different project performance criteria.

[2] Editor's Note: See Neb. RS 13-2901 et seq.

[4] The City shall refer the proposals for recommendation to the selection committee. The selection committee shall be at least five persons designated by the City. Members of the selection committee shall include:

[a] Members of the City Council;

[b] Members of the administration or staff of the City;

[c] The performance-criteria developer;

[d] Any person having special expertise relevant to selection of a design-builder under the Political Subdivisions Construction Alternatives Act; and

[e] A resident of the City's service region other than any individual listed above.

[5] Any selection committee member designated under Subsection A(2)(c)[4][d] or [e] above shall not be employed by or have a financial or other interest in a design-builder who has a proposal being evaluated and shall not be employed by the City or the performance-criteria developer.

[6] The City shall rank in order of preference the design-builders pursuant to the criteria in the request for proposals and taking into considerations the recommendation of the selection committee.

[7] The City and the selection committee shall evaluate proposals taking into consideration the criteria listed below with the maximum percentage of total points for evaluation which may be assigned to each criterion as indicated immediately following the criterion.

[a] The financial resources of the design-builder to complete the project, 10%;

[b] The ability of the proposed personnel of the design-builder to perform, 30%;

[c] The character, integrity, reputation, judgment, experience, and efficiency of the design-builder, 30%;

[d] The quality of performance on previous projects, 30%;

[e] The ability of the design-builder to perform within the time specified, 30%;

[f] The previous and existing compliance of the design-builder with laws relating to the contract, 10%; and

[g] Other information as may be secured having a bearing on the selection, 20%.

[8] The records of the selection committee in evaluating proposals and making recommendations shall be considered public records.

[9] The City may attempt to negotiate a design-build contract with the highest ranked design-builder selected by the City and may enter into a design-build contract after negotiations. The negotiations shall include a final determination of the manner by which the design-builder selects a subcontractor.

[10] If the City is unable to negotiate a satisfactory design-build contract with the highest ranked design-builder, the City may terminate negotiations with that design-builder. The City may then undertake negotiations with the second highest ranked design-builder and may enter into a design-build contract after negotiations. If the City is unable to negotiate a satisfactory contract with the second highest ranked design-builder, the City may undertake negotiations with the third highest ranked design-builder, if any, and may enter into a design-build contract after negotiations.

[11] If the City is unable to negotiate a satisfactory contract with any of the ranked design-builders, the City may either revise the request for proposals and solicit new proposals or cancel the design-build process.

[12] A design-build contract may be conditioned upon later refinements in scope and price and may permit the City in agreement with the design-builder to make changes in the project without invalidating the contract. Later refinements shall not exceed the scope of the project statement contained in the request for proposals.

[13] The City shall not use a design-build contract for a project, in whole or in part, for road, street, or highway construction.

B. Construction management at risk contract.

(1) (Reserved)[3]

[3] Editor's Note: Former Subsection B(1), Letters of interest, was repealed1-17-2023 by Ord. No. 2023-4.

(2) Request for proposals.

(a) The City shall prepare a request for proposals for each construction management at risk contract. Notice of the request for proposals shall be published in a newspaper of general circulation within the City's service area at least 30 days' prior to the deadline for receipt and opening of proposals.

(b) The request for proposals shall contain, at a minimum, the following elements.

[1] That the City Council will execute the contract.

[2] The policies adopted by the City Council to be used when executing a construction management at risk contract.

[3] The proposed terms and conditions of the contract, including any terms and conditions which are subject to further negotiation. The general terms and conditions shall be consistent with nationally recognized model general terms and conditions which are standard in the design and construction industry in Nebraska. The terms and conditions may set forth an initial determination of the manner by which the construction manager selects any subcontractor and may require that any work subcontracted be awarded by competitive bidding.

[4] Any bonds and insurance required by law or as may be additionally required by the City.

[5] General information about the project which will assist the City in its selection of the construction manager, including a project statement which contains information about the scope and nature of the project, the project site, the schedule and the estimated budget.

[6] The criteria for evaluation of proposals and the relative weight of each criterion.

[7] A description of any other information which the City chooses to require.

(3) Proposal evaluation.

(a) Proposals shall be sealed and shall not be opened until expiration of the time established for making proposals as set forth in the request for proposals.

(b) The City shall refer the proposals for recommendation to the selection committee. The selection committee shall be at least five persons designated by the City. Members of the selection committee shall include:

[1] Members of the City Council;

[2] Members of the administration or staff of the City;

[3] The City's Architect or Engineer;

[4] Any person having special expertise relevant to selection of a construction manager under the Political Subdivisions Construction Alternatives Act; and

[5] A resident of the City's service region other than any individual listed above.

(c) Any selection committee member designated under Subsection B(3)(b)[4] or [5] above shall not be employed by or have a financial or other interest in a construction manager who has a proposal being evaluated and shall not be employed by the City or the performance-criteria developer.

(d) The City shall evaluate and rank each proposal on the basis of best meeting the criteria in the request for proposals and taking into consideration the recommendation of the selection committee.

(e) The City and the selection committee shall evaluate proposals taking into consideration the criteria listed below with the maximum percentage of total points for evaluation which may be assigned to each criterion as indicated immediately following the criterion.

[1] The financial resources of the construction manager to complete the project, 10%;

[2] The ability of the proposed personnel of the construction manager to perform, 30%;

[3] The character, integrity, reputation, judgment, experience, and efficiency of the construction manager, 30%;

[4] The quality of performance on previous projects, 30%;

[5] The ability of the construction manager to perform within the time specified, 30%;

[6] The previous and existing compliance of the construction manager with laws relating to the contract, 10%; and

[7] Other information as may be secured having a bearing on the selection, 20%.

(f) The records of the selection committee in evaluating proposals and making recommendations shall be considered public records.

(g) The City may attempt to negotiate a construction management at risk contract with the highest ranked construction manager and may enter into a construction management at risk contract after negotiations. The negotiations shall include a final determination of the manner by which the construction manager selects a subcontractor.

(h) If the City is unable to negotiate a satisfactory contract with the highest ranked construction manager, the City may terminate negotiations with that construction manager. The City may then undertake negotiations with the second highest ranked construction manager and may enter into a construction management at risk contract after negotiations. If the City is unable to negotiate a satisfactory contract with the second highest ranked construction manager, the City may undertake negotiations with the third highest ranked construction manager, if any, and may enter into a construction management at risk contract after negotiations.

(i) If the City is unable to negotiate a satisfactory contract with any of the ranked construction managers, the City may either revise the request for proposals and solicit new proposals or cancel the construction management at risk process.

(j) A construction management at risk contract may be conditioned upon later refinements in scope and price and may permit the City in agreement with the construction manager to make changes in the project without invalidating the contract. Later refinements shall not exceed the scope of the project statement contained in the request for proposals.

(k) The City shall not use a construction management at risk contract for a project, in whole or in part, for road, street, or highway construction.

§ 100-2.5 Bonding and insurance requirements.

Nothing in the Political Subdivisions Construction Alternatives Act[1] shall limit or reduce statutory or regulatory requirements regarding bonding or insurance.

[1] Editor's Note: See Neb. RS 13-2901 et seq.