In order to establish efficient procedures for the purchase of supplies, equipment and services; secure supplies, equipment and services at competitive cost commensurate with quality and quantity needed; exercise positive financial control over purchases; clearly define accountability and authority for the purchasing functions; and ensure against favoritism in awarding purchasing contracts; the purchasing system set forth in this chapter shall govern the procedure for all purchases except as otherwise required by law.
For the purpose of this chapter, the definition of "purchasing authority" means the person(s) responsible for the procurement of supplies, equipment and services, in accordance with the provisions of this chapter.
As defined in Section 2.24.070 of this Code, authority and responsibility for the purchase of supplies, equipment, and services is vested in the City Manager. The City Manager may designate a person or persons in writing to serve as purchasing authority and delegate to such person(s) the duties and responsibilities imposed by this chapter. Purchasing authorization thresholds shall be established by Council resolution.
The City Manager shall approve policies and procedures that are appropriate and necessary to implement the provisions of this chapter. The policies and procedures shall be written in such a way to: (1) encourage open and competitive bidding; (2) provide equal opportunity based on merit; (3) ensure against favoritism in awarding purchasing contracts; (4) provide for efficient and timely acquisition of supplies, equipment, and services; and (5) provide effective fiscal controls.
Except where expressly exempted, all purchases and contracts governed by this chapter shall be by competitive bid. Purchases exempted from competitive bidding requirements set forth in this chapter include:
A.
Professional and consultant services.
B.
Information technology purchases and contracts.
C.
Emergency purchases and contracts.
D.
Cooperative purchases and contracts.
E.
Sole source purchases and contracts.
F.
Over-the-counter purchases and contracts.
G.
Certain purchases and contracts as determined by the City Manager where the competitive bid process is impracticable.
A. "Best value" "Competitive negotiation" "Design-build" "Design-build contract" "Design-build entity" "Design-build entity member" "Director" "Major contract" "Performance criteria" "Proposal" "Public work" "Purchasing Authority" "Request for proposals"
Definitions.
means a value determined by stated criteria that may include, but is not limited to, price, features, functions, life-cycle costs, experience and other criteria deemed appropriate by the purchasing authority.
means a competitive sealed proposal procurement method which includes, but is not limited to, all of the following requirements: (1) generally describes the services sought to be procured by the City; (2) sets forth minimum criteria for evaluating proposals submitted in response to a request for proposals; (3) generally describes the format and content of proposals to be submitted; (4) provides for negotiation of scope and price; and (5) may place emphasis on described factors other than price to be used in evaluating proposals.
means a process authorized by California Public Contracts Code Sections 22160 et seq. and 22170 et seq. involving contracting with a single entity for both the design and construction of a public works project pursuant to a competitive negotiation process. Design- build also includes projects where in addition to design and construction, other services may be furnished by the design-build entity including, but not limited to, financing, soil/materials testing and soil remediation, or the provision of products, such as solar energy devices or playground equipment.
means a contract between the City and a design-build entity to furnish the architecture, engineering, and related services as required for a given public works project, and to furnish the labor, materials and other construction services for the same project. A design-build contract may be awarded conditioned upon subsequent refinements in scope and price during the development of the design, approval by the City of a guaranteed maximum price for project construction and may permit the City to make changes in the scope of the public works project without invalidating the design-build contract.
means the entity (whether natural person, partnership, joint venture, corporation, business association, or other legal entity) that proposes to enter into a contract with the City to design and construct any public works project under the procedures of this chapter.
means any person who provides licensed contracting, architectural or engineering services.
means and includes the Director of Public Works, the Director of Utilities, the General Manager of the San Dieguito Water District, and/or the Director of Engineering, including their designees.
means any contract let by the City for the performance of a public works project in an amount exceeding the cost limit established by Section 22162 of the Public Contract Code.
means the requirements for the public works project, including as appropriate, capacity, durability, production standards, ingress and egress requirements, or other criteria for the intended use of the public works project, expressed in conceptual documents, performance-oriented preliminary drawings, outline specifications and other documents provided to the design-build entity by the Director or the Purchasing Authority, establishing the project's basic elements and scale, and their relationship to the work site suitable to allow the design-build entity to make a proposal.
means an offer to enter into a design-build contract, as further defined in this chapter.
shall have the same meaning as defined in California Public Contracts Code 1101, as amended from time to time.
means the City's Purchasing Authority referred to in Section 7.18.020 of the Encinitas City Code.
means the document or publication whereby the City solicits proposals for a design-build contract.
B.
Authorization For Use of Design-Build Contracts. Prior to issuing a design-build request for qualifications for a major contract the Purchasing Authority shall obtain approval of the City Manager to determine that the use of a design-build procurement is in the best interest of the City. All design-build contracts shall be approved as to form by the City Attorney.
C.
Prequalification. The Director or the Purchasing Authority shall issue a Request for Qualifications (RFQ) for design-build entities on a project-by-project basis that specifies the prequalification criteria or minimum qualifications, that uses a standardized questionnaire, and that includes the manner in which the design-build entities will be selected to proceed to the request for proposals (RFP) selection phase.
Notice of an RFQ shall be advertised in the same manner in which formal bids generally are solicited for public works projects for the City.
1.
Prequalification Criteria. Prequalification may be limited to consideration of all or any of the following criteria supplied by a design-build entity and specified in the RFQ:
a.
Submission of documentation establishing that the design-build entity entering into the design-build contract is a licensed contractor (Class A, B, C, or other as specified in the RFP) and holds an architect or engineering license or subcontracts with a licensed architect or engineer, as specified in the RFP.
b.
Submission of documentation establishing that the design-build entity or its members have completed projects of similar size, scope, structure or building type, or complexity, and that proposed key personnel have sufficient experience and training to competently manage and complete the design and construction of the design-build public works project.
c.
Submission of a proposed project management plan establishing that the design-build entity has the experience, competence, and capacity needed to effectively complete the design-build public works project on schedule.
d.
Submission of documentation establishing that the design-build entity has the capacity to obtain all required funding, payment and performance bonding, liability insurance, and errors and omissions insurance, as well as a financial statement assuring the City that the design-build entity has the capacity to complete the design-build public works project.
e.
Provision of a declaration that neither the design-build entity, nor any design-build entity member, under its current or former name, has had a surety company complete any project within the past five years.
f.
Provision of a declaration providing detail for the past five years concerning all of the following:
• | Civil or criminal violations of the Occupational Safety and Health Act against any design-build entity member. |
• | Civil or criminal violations of the Contractors' State License Law against any design-build entity member. |
• | Conviction of any design-build entity member for submitting a false or fraudulent claim to a public agency. |
• | Civil or criminal violations of Federal or State law governing the payment of wages, benefits, or personal income tax withholding, or of Federal Insurance Contribution Act (FICA) withholding requirements, State Disability Insurance withholding requirements, or unemployment insurance payment requirements against any design-build entity member. For purposes of this subsection, only violations by any design-build entity member, as an employer, shall be deemed applicable, unless it is shown that the design-build entity member in his or her capacity as an employer had knowledge of a subcontractor's violation or failed to comply with the conditions set forth in Section 1775(b) of the State Labor Code. |
• | Civil or criminal violations of Federal or State law against any design-build entity member governing equal opportunity employment, contracting or subcontracting. |
g.
Provision of a declaration that the design-build entity will comply with all other provisions of law applicable to the design-build public works project. The declaration shall state that reasonable diligence has been used in its preparation and that it is true and complete to the best of the signer's knowledge.
2.
Qualifications Selection Committee. The Director or Purchasing Authority shall appoint a selection committee to review and rank the qualifications of the design-build entities. The selection committee shall use the evaluation criteria set forth in this chapter and the applicable request for qualifications in its review. The composition of the committee shall be within the discretion of the Director or Purchasing Authority and may include, but not be limited to: members of department administration or staff, and any person having special expertise relevant to selection of a design-build entity (design or construction experience).
The qualifications submittal should list consulting firm details, names of principals, office locations, personnel by discipline, project experience and examples, current workload, types of service the firms are qualified to perform, and previous performance. Also, resumes of key persons, specialists, and other associates that may be assigned to the project or projects should be included. This information should be the basis for evaluating and placing a consulting firm on a prequalification short list.
Only those design-build entities that were determined by the Qualifications Selection Committee to have met the required qualifications will be short-listed and invited to participate in the request for proposals process.
D.
Proposal Performance Criteria. Performance criteria shall be prepared by the Director, the Purchasing Authority, or a design professional duly licensed by the State of California who shall be referred to as the "performance criteria developer." The performance criteria developer shall be disqualified from submitting a proposal to enter into the design-build contract as a design-build entity or as a subcontractor or team member of a design-build entity. The design-build entity shall not be permitted to delegate services under the design-build contract to the performance criteria developer.
The Director or Purchasing Authority, in consultation with the performance criteria developer, shall determine the scope and level of detail required for the performance criteria. The performance criteria shall be detailed enough to permit qualified design- build entities to submit proposals in accordance with the request for proposals, given the nature of the design-build public works project and the level of design to be provided in the proposal.
E.
Request for Proposals (RFP).
1.
Required RFP Elements. For purposes of this chapter only, prior to procuring a design-build contract, the Director or Purchasing Authority shall prepare a request for proposals (RFP) that will invite only those design-build entities that were short-listed during the Request for Qualifications phase to provide, at a minimum, the following elements:
a.
The procedures to be followed for submitting proposals, the criteria for evaluation of the proposals and their relative weight, the procedure for selection of a design-build entity and the timing for making awards.
b.
The proposed terms and conditions for the design-build contract.
c.
The performance criteria.
d.
A description of the project approach, work plan or other submittals to be submitted with the proposal, with guidance as to the form and level of completeness required.
e.
A schedule for planned commencement and completion of the design- build public works project.
f.
Any requirements of state or federal funding or grants to be used for the project.
g.
The minimum qualifications that the design-build entity will be required to possess to be deemed responsive.
h.
Requirements for performance bonds, payment bonds and insurance (including professional liability insurance) as determined by the Risk Manager and the City Attorney.
i.
The required bidding process for subcontractors not listed at the time of submission of the proposal, in accordance with Section 7.18.035.
j.
Any other information that the Director or Purchasing Authority in his or her discretion chooses to supply, including without limitation, surveys, soils reports, drawings or models of existing structures, environmental studies, photographs, or references to public records.
2.
RFP Advertisement. Notice of request for proposals shall be advertised in the same manner in which formal bids generally are solicited for public works projects for the City. Only those design-build entities that were determined by the Qualifications Selection Committee to have met the required qualifications will be short-listed and invited to submit a proposal.
3.
Withdrawal of Proposals. Proposals may be withdrawn by written notice to the City in accordance with the RFP for any reason at any time prior to the deadline set forth in the RFP and any proposal guarantee for the proposal shall be returned. Timely withdrawal of a proposal shall not prejudice the right of a design-build entity to timely file a new proposal.
4.
Proposal Selection Committee. The Director or Purchasing Authority shall appoint a selection committee to review and rank the proposals of the design-build entities. The selection committee shall use the evaluation criteria set forth in this chapter and the applicable request for proposals in its review of the proposals. The composition of the committee shall be within the discretion of the Director or Purchasing Authority and may include, but not be limited to: members of department administration or staff, the performance criteria developer, and any person having special expertise relevant to selection of a design-build entity (design or construction experience).
5.
Review and Evaluation of Proposals. Once received, proposals shall be submitted to the Proposal Selection Committee, as defined above. Clarifications may be required to ensure proposals are responsive to the RFP. Clarifications may require revised cost and/or technical proposals. No proposal shall be considered if the performance criteria developer confirms that the proposal is not consistent with the information required by the request for proposals. Proposals will be opened in confidence. Adequate precautions shall be taken to treat each proposer fairly and to ensure that information gleaned from competing proposals is not disclosed to other proposers. Prices and other information concerning the proposals shall not be disclosed until a recommendation for award is made to the Director or Purchasing Authority. All proposals received shall become a matter of public record and shall be regarded as public, with the exception of those elements of each proposal which are identified by a proposer as business trade secrets and plainly marked "Trade Secret," "Confidential" or "Proprietary." If disclosure is required or permitted under the California Public Records Act or otherwise by law, the City and its employees and representatives shall in no way be liable or responsible for the disclosure of any such records or any part thereof.
6.
Selection Method. The following method shall be utilized in evaluating design-build proposals and selecting a design-build entity for award of a design-build contract:
a.
Criteria utilized may include, but are not limited to:
• | An evaluation of overall quality, capability, resource availability and financial stability of the design-build entity. |
• | An evaluation of references provided with respect to responsiveness, quality of work, timeliness and overall performance. |
• | An evaluation of the design-build entity members' experience, training and qualifications. |
• | Consideration of items such as proposed design approach, initial and/or life cycle costs, project features, quality, capacity, schedule, and operational and functional performance of the facility. |
• | The extent to which the design-build entity's proposal meets the performance criteria and other requirements set forth in the request for proposals. |
• | Analysis of the cost relative to the design-build entity's ability to meet the performance criteria and other requirements set forth in the request for proposals. |
• | Whether the cost as provided in the proposal is guaranteed firm, evidenced in writing and signed by an authorized representative of the design-build entity. |
b.
Depending on the number of proposals received, the Director, purchasing authority, or the selection committee may develop a "short list" of top ranked design-build entities based on their proposal.
c.
The Director, purchasing authority, or selection committee may require "short listed" design-build entities to submit to an interview and/or make a presentation to establish a final ranking.
d.
The Director, purchasing authority, or selection committee will then begin negotiations with the top ranked design-build entity. The negotiations may include, but not be limited to, project costs, scope, and schedule. If negotiations are unsuccessful, negotiations will cease with the top ranked design-build entity and may begin with the next highest ranked design-build entity.
e.
Award shall be recommended by the purchasing authority and brought to the City Council for approval of a contract with the design-build entity whose proposal is judged as providing the best value to the City while meeting the objectives of the design-build public works project.
7.
False Declaration Unlawful. The information concerning the design-build entity's qualifications and experience shall be verified under oath by the design-build entity and its members. It is unlawful to submit any declaration under this chapter containing any material matter that is false.
8.
Right to Reject Proposals. Nothing in this chapter shall require the City to accept any proposal and the City hereby reserves the right to reject any and all proposals. City assumes no responsibility for the costs incurred by any design-build entity in preparation of any proposal.
F.
Contract Retention. If the purchasing authority awards a design-build contract, retention of at least five percent of the contract in accordance with the Public Contract Code shall be withheld from progress payments, subject to the City's right, in its sole discretion, to permit progress payments for design services to be made without withholding retention.
G.
Indemnification. The successful design-build contract entity shall be required to defend and indemnify the City and its officers, agents, and employees in accordance with the terms of the design build contract.
(Ord. 2024-03, 8/28/2024)
The competitive bidding provisions of this chapter shall not apply to contracts involving the acquisition of professional or specialized consultant services. Selection for such service shall be on the basis of demonstrated competence, the professional qualifications necessary for the satisfactory performance of the professional services required and a fair and reasonable price proposal.
The competitive bidding provisions of this chapter shall not apply to purchases and contracts involving the acquisition of information technology. Selection shall be on the basis of requirements and specific evaluation criteria which result in the best value to the City.
In the event of an emergency as determined by the City Manager which requires immediate action to ensure public health, safety, welfare and continuity of operations, the City Manager may cause the purchase of necessary supplies, equipment and services without competitive bidding for the purpose of responding to the emergency with unencumbered money, irrespective of whether the money has been appropriated for such purpose.
A full report of the circumstances of any such emergency purchase shall be presented to the City Council at the next available regularly scheduled City Council meeting.
(Ord. 2017-07)
The purchasing authority shall have the ability to join with other public or quasi-public agencies in cooperative purchasing plans or programs for the purchase of goods and/or services by contract, arrangement or agreement pursuant to law and as determined by the purchasing authority to be in the City's best interest. The purchasing authority may buy directly from a vendor at a price established by another public agency when the other agency has made their purchase in a competitive manner.
If the City Manager determines that there is only one reasonably known capable supplier due to the unique nature of the requirements for the desired supplies, equipment or services, the City Manager may waive the competitive bidding requirements.
The price threshold and award authority for over-the-counter purchases and contracts shall be set by Council resolution. Comparative pricing is not required but shall be used whenever practical.
The price threshold and award authority for over-the-counter purchases and contracts shall be set by Council resolution. Open market purchases may be made without observing the formal contract procedures set forth in Section 7.18.110 of this chapter.
The purchasing authority shall solicit at least three written quotes from at least three prospective vendors.
A.
Purchases and contracts of supplies, equipment and services having an estimated value equal to or greater than the price threshold specified by Council resolution for formal bid procedures shall be made by the purchasing authority in accordance with the procedures set forth in this chapter and any policies or procedures approved by the City Manager for the purpose of implementing this chapter.
B.
The purchasing authority shall develop specifications for the desired supplies, equipment or services.
C.
The purchasing authority shall issue a notice inviting bids which shall include, but is not limited to, the following:
1.
The requirement that bids be in writing and sealed.
2.
A general description of the item(s) or service(s) to be purchased.
3.
The location where bid forms and specifications may be obtained.
4.
The deadline and the time and place for opening bids.
5.
The type and character of bidder's security required, if any.
D.
Notice inviting bids shall be published in accordance with all legal and City policy requirements.
E.
Sealed bids shall be opened at the time and place stated in the notice inviting bids.
F.
The purchasing authority shall keep a record of all submitted bids in accordance with the City's retention policy.
For purchases and contracts subject to the competitive bidding requirements, the purchase or contract shall be awarded to the lowest qualified bidder in conformity with the specifications except as described below.
When a bid is recommended to be awarded to other than the lowest qualified bidder, written justification is required. The written statement must be signed by the City Manager and retained with the contract.
If no bids are received, the purchase may be made through negotiated contract or other process approved by the City Manager.
Bidder's security may be required when deemed necessary by the purchasing authority. Bidders shall be entitled to return of bid security. However, a successful bidder shall forfeit his or her security upon refusal or failure to execute a contract within 15 days after notice of award of that contract, unless the City is responsible for the delay. The contract may be awarded to the next lowest qualified bidder upon the refusal or failure of the successful bidder to execute the contract within the time herein prescribed.
The purchasing authority may require as a condition to executing a contract on behalf of the City, a performance bond or a labor and material bond, or both, in such amounts as the purchasing authority shall determine appropriate to protect the best interests of the City. The form and amount of such bond(s) shall be described in the notice inviting bids.
With the exception of emergency procedures, as defined in this chapter, no purchase shall be made without prior budget authority.
No obligation for the payment of supplies, equipment or services shall be incurred by the City except as defined by this chapter. Any agreement for the purchase of equipment, supplies or services made contrary to the provisions of this chapter shall be void and any claim and demand against the City based thereon shall be invalid.