[HISTORY: Adopted by the Village Board of
the Village of West Haverstraw 10-19-2022 by L.L. No. 3-2022.[1] Amendments noted where applicable.]
[1]
Editor's Note: This local law also repealed former Ch. 39,
Purchasing and Procurement Policy, adopted 1-2-2019 by L.L. No. 1-2019.
As required by General Municipal Law § 104-b, this
policy is adopted to ensure that public money is used prudently and
economically, in a manner that serves the best interest of Village
residents and taxpayers. It applies to all goods and services that
are not required by law to be publicly bid. Competition for purchases
and services also drives down expenses for governments, and, in turn,
taxpayers. All departments and employees should continuously make
an extra effort to find new suppliers and contractors to increase
competition and obtain the most competitive price and value.
Principal public purchasing official. Except as otherwise provided
herein, the Village Treasurer, shall serve as the principal public
purchasing official for the Village, and shall be responsible for
the procurement of supplies, services, equipment, and public works
projects in accordance with this policy, as well as the management
and disposal of supplies, services, and equipment.
A.
Employee conflict of interest. It shall be unethical for any Village
of West Haverstraw employee to participate directly or indirectly
in a procurement contract when the Village employee knows that:
(1)
The Village of West Haverstraw employee or any member of the Village
employee's immediate family has a financial interest pertaining
to the procurement contract; or
(2)
Any other person, business, or organization with which the Village
employee or any member of a Village employee's immediate family
is negotiating or has an arrangement concerning prospective employment
is involved in the procurement contract. A Village of West Haverstraw
employee or any member of a Village employee's immediate family
who holds a financial interest in a disclosed blind trust shall not
be deemed to have a conflict of interest with regard to matters pertaining
to that financial interest.
B.
Gratuities and kickbacks.
(1)
Gratuities. It shall be unethical for any person to offer, give,
or agree to give any Village employee or former Village employee,
or for any Village employee or former Village employee to solicit,
demand, accept, or agree to accept from another person, a gratuity
or an offer of employment in connection with any decision, approval,
disapproval, recommendation, or preparation of any part of a program
requirement or a purchase request, influencing the content of any
specification or procurement standard, rendering of advice, investigation,
auditing, or in any other advisory capacity in any proceeding or application,
request for ruling, determination, claim, or controversy, or other
particular matter, pertaining to any program requirement or a contract
or subcontract, or to any solicitation or proposal therefor.
(2)
Kickbacks. It shall be unethical for any payment, gratuity, or offer
of employment to be made by or on behalf of a subcontractor under
a contract to the prime contractor or higher tier subcontractor or
any person associated therewith, as an inducement for the award of
a subcontract or order.
(3)
Contract clause. The prohibition against gratuities and kickbacks
prescribed in this section shall be conspicuously set forth in every
contract and solicitation therefor.
C.
Prohibition against contingent fees. It shall be unethical for a
person to be retained, or to retain a person, to solicit or secure
a Village contract upon an agreement or understanding for a commission,
percentage, brokerage, or contingent fee, except for retention of
bona fide employees or bona fide established commercial selling agencies
for the purpose of securing business.
D.
Contemporaneous employment prohibited. It shall be unethical for
any Village employee who is participating directly or indirectly in
the procurement process to become or to be, while such a Village employee,
the employee of any person contracting with the governmental body
by whom the employee is employed.
E.
Waivers for contemporaneous employment prohibition and other conflicts of interest. The Village Board of Ethics may grant a waiver from the employee conflict of interest provision (Subsection A, Employee conflict of interest) or the contemporaneous employment provision (Subsection D, Contemporaneous employment prohibited) upon making a written determination that:
(1)
The contemporaneous employment or financial interest of the Village
employee has been publicly disclosed;
(2)
The Village employee will be able to perform his/her procurement
functions without actual or apparent bias or favoritism; and
(3)
The award will be in the best interests of the Village of West Haverstraw.
F.
Use of confidential information. It shall be unethical for any Village
employee or former Village employee to knowingly use confidential
information for actual or anticipated personal gain, or for the actual
or personal gain of any other person.
A.
Purpose. In 2 CFR Part 200 (Subparts A through F), Uniform Administrative
Requirements, Cost Principles, and Audit Requirements for Federal
Awards, it requires organizations receiving federal awards to establish
and maintain effective internal controls over federal awards.
B.
Procurement standards and procedures. The requirements for procurements
using federal awards are contained in the Uniform Guidance (2 CFR
Part 200, Subparts A through F), program legislation, federal awarding
agency regulations, and the terms and conditions of the award. To
comply with 2 CFR Part 200 (Subparts A through F), the Village of
West Haverstraw implements policies and procedures, including, but
not limited to:
(1)
The Village will use its own documented procurement procedures which
reflect applicable state, local and tribal laws and regulations; provided
that the procurements conform to applicable federal law and Uniform
Guidance. As such, Village procurements related to federal grants
will be subject to New York State General Municipal Law, Village of
West Haverstraw Procurement Policy and Uniform Guidance requirements.
(2)
Contract files will document the significant history of the procurement,
including the rationale for the method of procurement, selection of
contract type, contractor selection or rejection, and the basis of
contract price.
(4)
Procurements will provide for full and open competition as set forth
in the Uniform Guidance, or state and local procurement thresholds,
whichever is most restrictive.
(5)
No employee, officer or agent may participate in the selection, award
or administration of a contract supported by a federal award if he
or she has a real or apparent conflict of interest. Such a conflict
of interest would arise when the employee, officer, or agent, any
member of his or her immediate family, his or her partner, or an organization
which employs or is about to employ any of the parties indicated herein
has a financial or other interest in or a tangible personal benefit
from a firm considered for a contract. The officers, employees, and
agents can neither solicit nor accept gratuities, favors, or anything
of monetary value from contractors or parties to subcontracts. If
the financial interest is not substantial or the gift is an unsolicited
item of nominal value, no further action will be taken. However, disciplinary
actions will be applied for violations of such standards otherwise.
(6)
The Village will avoid acquisition of unnecessary or duplicative
items. Consideration will be given to consolidating or breaking out
procurements to obtain a more economical purchase. Where appropriate,
an analysis will be made of lease versus purchase alternatives, and
any other appropriate analysis to determine the most economical procurement
approach. The Village will also analyze other means, as described
in 2 CFR 200.318 of the Uniform Guidance, to ensure appropriate and
economical acquisitions.
(7)
The Village will enter into state and local intergovernmental agreements
or inter-entity agreements, where appropriate.
(8)
The Village will only utilize time-and-materials contracts when it
has been determined, in writing, that no other contract type is suitable.
(9)
Vendors/contractors that develop or draft specifications, requirements,
statements of work, or invitation to bids or requests for proposals
must be excluded from competing for such procurements.
(10)
The Village will make available, upon request of the federal awarding
agency or pass-through entity, technical specifications on proposed
procurements where the federal awarding agency or pass-through entity
believes such review is needed.
(11)
Village departments are prohibited from contracting with or making
subawards under covered transactions to parties that are suspended
or debarred or whose principals are suspended or debarred. "Covered
transactions" include those procurement contracts for goods and services
awarded under a nonprocurement transaction (i.e., grant or cooperative
agreement) that are expected to equal or exceed $20,000. All nonprocurement
transactions (i.e., subawards to recipients), irrespective of award
amount, are considered covered transactions.
(12)
The Village of West Haverstraw will include a suspension/debarment
clause in all written contracts in which the vendor/contractor will
certify that it is not suspended or debarred. The contract will also
contain language requiring the vendor/contractor to notify the Village
immediately upon becoming suspended or debarred. This will serve as
adequate documentation as long as the contract remains in effect.
(13)
Village departments will be required to notify the Treasurer and
Village Attorney that federal funding will be used for a certain procurement/contract.
When requesting a written contract, the Village Treasurer will be
responsible for running the vendor/contractor's name through
the System for Award Management (SAM) to determine any exclusions.
A copy of the SAM search will be included with the contract request.
Prior to issuing a purchase order using federal funds, the Village
Treasurer will check the SAM to determine if any exclusions exist
for the vendor/contractor. If a vendor/contractor is found to be suspended
or debarred, the Village will immediately cease to do business with
the vendor.
(14)
The Village will not use statutorily or administratively imposed
state, local or tribal geographical preferences in the evaluation
of bids or proposals; except in those cases where applicable federal
statutes expressly mandate or encourage geographical preference.
(15)
The Village will take all necessary affirmative steps to assure that
minority businesses, women's business enterprises, and labor
area surplus area firms are used when possible.
(16)
The Village will procure recovered materials in compliance with 2
CFR 200.323.
(17)
The Village will perform a cost or price analysis relating to every
procurement more than the simplified acquisition thresholds.
(18)
The Village will require appropriate bonding requirements as per
2 CFR 200.325.
(19)
The Village will only award contracts to responsible vendors and
will document, in writing, such determination.
(20)
Village contracts will contain the applicable provisions described
in Appendix II to Part 200, Contract Provisions for Non-Federal Entity
Contracts Under Federal Awards.
(21)
The Village will maintain oversight to ensure that contractors perform
in accordance with the contract's terms, conditions, and specifications.
A.
Every purchase to be made must be initially reviewed to determine
whether it is a purchase contract or a public works or service contract.
Once that determination is made, a good faith effort will be made
to determine whether it is known or can reasonably be expected that
the total aggregate amount to be spent on the item of supply or service
is subject to competitive bidding, taking into account past purchases
and the aggregate amount to be spent in a fiscal year.
B.
The following items are not subject to competitive bidding pursuant
to § 103 of the New York State General Municipal Law:
(1)
Purchase contracts under $20,000;
(2)
Public works contracts under $35,000;
(3)
Emergency purchases;
(4)
Certain municipal hospital purchases;
(5)
Goods purchased from agencies for the blind or severely handicapped;
(6)
Goods purchased from correctional institutions;
(7)
Purchases under state and county contracts;
(8)
Purchases made under contracts from other political subdivisions
within the United States pursuant to § 103, Subdivision
16, of the General Municipal Law, made under contract for the lowest
responsible bidder;
(9)
Surplus and secondhand purchases from another governmental entity;
(10)
Leased equipment; and
(11)
Professional services contracts.
All goods and services will be secured by use of written requests
or proposals, written quotations, verbal quotations, or any other
method that assures that goods will be purchased at the lowest price
except in the following circumstances:
A.
Purchase contracts $20,000 and over;
B.
Public works contracts $35,000 and over;
C.
Goods purchased from agencies for the blind or severely handicapped
pursuant to § 175-b of the State Finance Law;
D.
Goods purchased from correctional institutions pursuant to § 186
of the Correction Law;
E.
Purchases under state contracts pursuant to § 104 of the
General Municipal Law;
F.
Purchases under county contracts pursuant to § 103, Subdivision
(3), of the General Municipal Law; or
The following methods of purchase will be used when required
by this policy in order to achieve the highest savings:
|
Estimated Amount of Purchase Contract
|
Method of Solicitation
|
|---|---|
|
$0 to $499.99
|
Department Head approval; no purchase order required
|
|
$499.99 to $1,499.99
|
Minimum of two verbal quotes
|
|
$1,500 to $19,999.99
|
Minimum of three written quotes
|
|
$20,000 and above
|
Sealed bids in accordance with General Municipal Law § 103
|
|
Estimated Amount of Public Works Contract
|
Method of Solicitation
|
|---|---|
|
$0 to $499.99
|
Department Head approval; no purchase order required
|
|
$499.99 to $1,499.99
|
Minimum of two verbal quotes
|
|
$1,500 to $34,999.99
|
Minimum of three written quotes
|
|
$35,000 and above
|
Sealed bids in accordance with General Municipal Law § 103
|
Documentation is required of every action taken in connection
with each procurement. This includes the preparation of purchase orders.
Purchase orders between $500 and $4,999.99 require Village Treasurer
approval; for amounts over $5,000, Village Board approval is required.
Where a good faith effort has been made, failure to obtain the
requisite number of proposals will not bar procurement. Any such purchase
must be approved by the Village Treasurer, and, where required, the
Board of Trustees.
Where a contract is not awarded to the lowest responsible vendor, the basis for rejecting the offer must be documented, except where such documentation is excused under § 39-11 below or pursuant to § 104-b(2)(f), General Municipal Law. A determination that the lowest vendor is not "responsible" is final and may not be challenged by the vendor.
Pursuant to General Municipal Law § 104-b, Subdivision
2(f), the procurement policy may contain circumstances when, or types
of procurements for which, in the sole discretion of the governing
body, the solicitation of alternative proposals or quotations will
not be in the best interest of the municipality. In the following
circumstances it may not be in the best interests of the Village of
West Haverstraw to solicit quotations or document the basis for not
accepting the lowest bid:
A.
Professional services or services requiring special or technical
skill, training or expertise. The individual or company must be chosen
based on qualifications showing accountability, reliability, responsibility,
skill, education and training, judgement, integrity, and moral worth.
These qualifications are not necessarily found in the individual or
company that offers the lowest price and the nature of these services
are such that they do not readily lend themselves to competitive procurement
procedures. In determining whether a service fits into this category,
the Board of Trustees shall take into consideration the following
guidelines:
(1)
Whether the services are subject to state licensing or testing requirements;
(2)
Whether substantial formal education or training is a necessary prerequisite
to the performance of the services; and
(3)
Whether the services require a personal relationship between the
individual and municipal officials. Professional or technical services
shall include but not be limited to the following: services of an
attorney; services of a physician; technical services of an engineer
engaged to prepare plans, maps and estimates; securing insurance coverage
and/or services of an insurance broker; services of a certified public
accountant; investment management services; printing services involving
extensive writing, editing or art work; management of municipally
owned property; and computer software or programming services for
customized programs, or services involved in substantial modification
and customizing of prepackaged software.
B.
Emergency purchases pursuant to § 103, Subdivision 4, of
the General Municipal Law. Due to the nature of this exception, these
goods or services must be purchased immediately and a delay in order
to seek alternate proposals may threaten the life, health, safety
or welfare of the residents. This section does not preclude alternate
proposals if time permits.
C.
Purchases of surplus and second-hand goods from any source. If alternate
proposals are required, the Village is precluded from purchasing surplus
and second-hand goods at auctions or through specific advertised sources
where the best prices are usually obtained. It is also difficult to
try to compare prices of used goods and a lower price may indicate
an older product.
D.
Goods or services under $500. The time and documentation required
to purchase through this policy may be more costly than the item itself
and would therefore not be in the best interests of the taxpayer.
In addition, it is not likely that such de minimus contracts would
be awarded based on favoritism.
In accordance with General Municipal Law § 2-4-a,
wherever recycled products meet contract specifications, and the price
of such products are reasonably competitive, such products may be
purchased. A price is "reasonably competitive" if:
A.
The cost of the recycled product does not exceed a cost premium of
10% above the cost of a comparable product that is not a recycled
product; or
B.
At least 50% of the secondary materials used in the manufacture of
that product are generated from the waste stream in New York State,
the cost of the recycled product does not exceed a cost premium of
15% above the cost of a comparable product that is not a recycled
product.
Pursuant to New York State Village Law § 5-524, Subdivision
6, the Board of Trustees authorizes the Village Treasurer to pay the
following categories of invoices in advance of regularly scheduled
Board of Trustees meetings: public utility services (electric, gas,
sewer, and telephone services), postage, freight, express charges,
insurance premiums, provided any such payments are presented to the
Board of Trustees at their next regularly scheduled meeting for review
and approval. The claimant and the officer incurring or approving
the claim are jointly and severally liable for any amount disallowed
by the Board of Trustees.
Purchase order requisitions and purchase orders shall be required
for the purchase of goods and/or services over $499.99. To ensure
that the Village Treasurer knows exactly how much of any given budget
appropriation remains unexpended, the availability of funds shall
be verified prior to the issuance of any such purchase order requisitions
or purchase orders. Purchase orders require prior authorization from
the Village Treasurer.
The Village of West Haverstraw and its employees shall make
every effort to ensure that purchases by the Village are accompanied
by a tax-exempt form.
After the purchase of goods and/or services, a claim for payment
must be prepared by the authorized purchaser to verify services or
materials were rendered or received.
This policy shall go into effect immediately upon adoption by
the Board of Trustees and will be reviewed annually.
The unintentional failure to comply fully with the provisions
of General Municipal Law, § 104-b shall not be grounds to
void action taken or give rise to a cause of action against the Village
of West Haverstraw or any officer or employee thereof.
