This policy may be cited as the "Buchanan County Procurement Act of 2002," effective July 9, 2002, herein sometimes referred to as "policy."
The purpose of this policy is to provide for the fair and equitable treatment of all persons involved in public purchasing by the Board of Supervisors (hereinafter "County"), to maximize the purchasing value of public funds in procurement and to provide safeguards for maintaining a procurement policy of quality and integrity.
This policy applies to contracts for the procurement of goods, services, insurance and construction entered into by the County involving every expenditure for public purchasing irrespective of its source except those procurement contracts entered into with other political subdivisions of the United States of America, the Commonwealth of Virginia or Buchanan County.
The provisions herein shall not apply to those contracts entered into prior to the adoption of this policy, which shall continue to be governed by the laws in effect at the time such contracts were executed.
To the extent that amendments to the Virginia Public Procurement Act ("Act") render any of the provisions of this policy unlawful, this policy shall be considered to be automatically amended, without action by the County, to bring the offending sections into compliance with the Act.
The following words, terms and phrases, when used in this policy, shall have the meaning ascribed to them in this section, except where the contract clearly indicates a different meaning:
- Any corporation, limited-liability company, general or limited partnership, individual, sole proprietorship, joint stock company, joint venture or any other nongovernmental legal entity.
- CHANGE ORDER
- A written order signed and unilaterally issued on behalf of the County directing the contractor to make changes which the contract authorizes the purchasing agent to order without the consent of the contractor.
- The Commonwealth of Virginia.
- COMPETITIVE NEGOTIATION
- A method of contractor selection which involves individual discussions between the County's designated agent and the offeror in response to the County's request for proposals.
- A. A method of contractor selection which includes the following elements:
- (1) Issuance of a written invitation to bid containing or incorporating by reference the specifications and contractual terms and conditions applicable to the procurement; unless the County has provided for prequalification of bidders, the invitation to bid shall include a statement of any requisite qualifications of potential contractors. When it is impractical to prepare initially a purchase description to support an award based on prices, an invitation to bid may be issued requesting the submission of unpriced offers to be followed by an invitation to bid limited to those bidders whose offers have been qualified under the criteria set forth in the first solicitation.
- (2) Public notice of the invitation to bid at least 10 days prior to the date set for receipt of bids by posting in a designated public area, or publication in a newspaper of general circulation, or both. Public notice may also be published on the Department of General Services' central electronic procurement web site and other appropriate web sites. Effective July 1, 2002, posting by state agencies, departments and institutions on the public Internet procurement web site designated by the Department of General Services shall be required.
- (3) Public opening and announcement of all bids received.
- (4) Evaluation of bids based upon the requirements set forth in the invitation.
- (5) Award to the lowest responsive and responsible bidder.
- B. Competitive sealed bidding shall not be required for procurement of professional services.
- CONFIDENTIAL INFORMATION
- Any information which is available to a County employee only because of his/her status as an employee and is not a matter of public knowledge or available to the public upon request.
- Building, altering, repairing, improving or demolishing any structure, building or highway, and any draining, dredging, excavation, grading or similar work on real property.
- CONSTRUCTION MANAGEMENT CONTRACT
- A contract in which a party is retained by the owner to coordinate and administer contracts for construction services for the benefit of the owner, and may also include, if provided in the contract, the furnishing of construction services to the owner.
- The County of Buchanan, Virginia, by its Board of Supervisors and/or any agency, department, board, commission or like entity. Unless otherwise noted herein an act of the County shall mean an act of the Board of Supervisors.
- DIRECT OR INDIRECT PARTICIPATION
- Involvement, through decision, approval, disapproval, recommendation or preparation of any part of a purchase request, influencing the content of any specification or procurement standard, rendering advice, investigation or auditing, or in any other advisory capacity.
- DISADVANTAGED BUSINESS
- A small business which is owned or controlled by a majority of persons, not limited to members of minority groups, who have been deprived of the opportunity to develop and maintain a competitive position in the economy because of social disadvantages.
- An individual drawing a salary or wages from the County, whether elected or not; any noncompensated individual performing personal services for the County; and any noncompensated individual serving as an elected official of the County.
- A minor defect or variation of a bid proposal from the exact requirements of the invitation to bid, or the request for proposal, which. does not affect the price, quality, quantity or delivery schedule for the goods, services or construction being procured.
- A contract whereby, for a stipulated consideration, one person undertakes to compensate the other for loss on a specified subject for specified perils.
- INVITATION FOR BIDS
- All documents, whether attached or incorporated by reference, utilized for soliciting sealed bids.
- NONPROFESSIONAL SERVICES
- Any service not specifically identified as professional services in the definition of professional services.
- Any business, individual, union, committee, club, other organization or group of individuals.
- PROCUREMENT COMMITTEE
- A committee appointed by the County and comprised of one member of the Board of Supervisors, the County Administrator and an individual possessing skill and/or experience in the proposed procurement.
- PROFESSIONAL SERVICES
- Any work performed by an independent contractor within the scope of the practice of accounting, actuarial services, architecture, land surveying, landscape architecture, law, dentistry, medicine, optometry, pharmacy or professional engineering.
- PUBLIC BODY
- Any legislative, executive or judicial body, agency, office, department, authority, post, commission, committee, institution, board or political subdivision created by law to exercise some sovereign power or to perform some governmental duty, and empowered by law to undertake the activities described in this policy.
- PURCHASING AGENT
- The purchasing official for the County or Ms/her lawfully appointed designee. The County Administrator shall act as the purchasing agent unless otherwise directed by the County.
- RESPONSIBLE BIDDER OR OFFEROR
- A person who has the capability in all respects, to perform fully the contract requirements and the moral and business integrity and reliability which will assure good faith performance, and who has been prequalified, if required.
- RESPONSIVE BIDDER
- A person who has submitted a bid which conforms in all substantive respects to the invitation to bid.
- Any work performed by an independent contractor wherein the service provided does not consist primarily of acquisition of equipment or materials or the rental of equipment, materials and supplies.
- SHELTERED WORKSHOP
- A work-oriented rehabilitative facility with a controlled working environment and individual goals which utilizes work experience and related services for assisting the handicapped to progress toward mainstream employment.
Editor's Note: See Virginia Code § 2.2-4301.
The County may participate in, sponsor, conduct or administer a cooperative procurement agreement with one or more public bodies or agencies of the United States or the commonwealth for the purpose of combining requirements to increase efficiency or reduce administrative expense. Any public body which enters into a cooperative procurement agreement with the County that has adopted alternative policies and procedures pursuant to the Virginia Procurement Act shall comply with this policy except as otherwise noted herein.
Editor's Note: See Virginia Code § 2.2-4304.
There is hereby created a purchasing system for the County to operate under the direction and supervision of the County Administrator, who shall be the purchasing agent for the County. The purchasing agent may delegate the administrative purchasing responsibility to a responsible subordinate, upon written approval of the County.
The purchasing agent shall serve as the principle public purchasing official for the County and shall be responsible for the procurement of goods, services, insurance and construction in accordance with this policy, as well as the management and disposal of supplies.
In accordance with this policy, the purchasing agent shall:
Purchase or supervise the purchasing of all goods, services, insurance and construction needed by the County.
Exercise direct supervision over the County's central stores and general supervision over all inventories of goods belonging to the County.
Sell, trade or otherwise dispose of surplus goods belonging to the County.
Establish and maintain programs for specifications, development, contract administration and inspection and acceptance, in cooperation with the public agencies using the goods, services and construction.
The purchasing agent shall have the power to:
Purchase or contract for all goods, services, insurance and construction required by a using department, except as otherwise noted in this policy.
Ensure the inspection of all deliveries of goods, services or construction purchased through him to determine conformance with the order or contract.
Act to procure for the County the highest quality in goods, services, insurance and construction at the least expense to the County.
Endeavor to obtain full and open competition as reasonably possible regarding all purchases and sales.
Keep informed of current developments in the field of purchasing, prices, market conditions and new products.
Secure for the County the benefits of research done in the fields of purchasing by other governmental jurisdictions, national societies, national trade associations and private business and organizations.
Prepare and maintain a vendor's file containing catalogs, descriptions of commodities, prices and discounts.
Declare vendors who default on their quotations as irresponsible bidders and disqualify them from receiving business from the County for a stated period of time, subject to written approval by the County.
Develop and maintain a current file of sources of goods, services, insurance and construction to be known as a "bidders list" to which vendors can request to be added.
Maintain an accurate listing and status of all outstanding contracts, including expiration dates, establish a list of the needs assessment of the several departments, develop a process for renewal of expiring contracts and develop a checklist to evaluate the quality of completion of all contracts.
Perform all other functions and duties, including administrative service to the procurement committee, in keeping with sound purchasing practices and such other duties as may be assigned.
After receiving a request for goods, services or the like, from a using department or agency, the purchasing agent shall promptly proceed to satisfy the requirements in the most efficient manner. Where practical, standardized inventories, standardized specifications, existing contracts and the use of free and open competition should be used to satisfy these needs. This process will require proper planning by the using departments to prevent unreasonable delays or the use of unsound purchasing practices which may not be in the best interest of the County. The purchase requisition shall include specific detail, brand name or adequate specifications to ensure the procurement of the item needed.
The relationship between the County, as purchaser, and the seller is one of mutuality. It is the responsibility of the purchasing agent to establish a relationship of mutual confidence and satisfaction between the County and its suppliers. It is, therefore, necessary that the purchasing agent be aware of all transactions that are conducted between the County and its suppliers. Departments should not be burdened with visits from suppliers. The County's time and that of suppliers will be saved if the following procedures are observed:
All vendors' representatives shall follow procedures established by the purchasing agent when it is necessary to contact other departments.
When necessary for the departments to correspond with vendors on some technical matter, copies of that correspondence should be sent to the purchasing agent.
The purchasing agent shall refuse to issue any purchase order until there has been certification that there is to the credit of the requesting department a sufficient unencumbered appropriated balance, in excess of all unpaid obligations, to defray the amount of such order.
Before any purchase is made, the purchasing agent shall determine the availability of sufficient funds to cover the purchase. If funds are unavailable, the department head shall be responsible for initiating the request for funds.
It shall be the purchasing agent's responsibility to formulate, in conjunction with the user department, nonrestrictive specifications to ensure quality levels equal to the intended use of an item.
Every contract of over $10,000 shall include the following provisions:
During the performance of this contract, the contractor agrees as follows:
The contractor will not discriminate against any employee or applicant for employment because of age, race, religion, color, sex, national origin, disability, or any other basis prohibited by state law relating to discrimination in employment, except where there is a bona fide occupational qualification reasonably necessary to the normal operation of the contractor. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause.
The contractor, in all solicitations or advertisements for employees placed by or on behalf of the contractor, will state that such contractor is an equal opportunity employer.
Notices, advertisements and solicitations placed in accordance with federal law, rule or regulation shall be deemed sufficient for the purpose of meeting the requirements of this section.
Editor's Note: See Virginia Code § 2.2-4311.
Except as prohibited herein, public contracts may be awarded on a fixed price or cost reimbursement basis, or on any other basis that is not prohibited.
Subject to the limitations of this section, any type of contract which is appropriate to the procurement and which will promote the best interests of the County may be used; provided that the use of a cost-plus-a-percentage-of-cost contract or a cost-plus-a-percentage-of-construction-cost contract are prohibited. A cost reimbursement contract may be used only when a determination is made in writing that such is likely to be less costly to the County than any other type or that it is impracticable to obtain the supply, service or construction item required except under such a contract.
Editor's Note: See Virginia Code § 2.2-4331.
Unless otherwise provided by law, a contract for goods, services or insurance may be entered into for any period of time deemed to be in the best interests of the County, provided the term of the contract and conditions of renewal or extension, if any, are included in the solicitation and funds are available for the first fiscal period at the time of contracting. Payment and performance obligations for succeeding fiscal periods shall be subject to the availability and appropriation of funds. When funds are not appropriated or otherwise made available to support continuation of performance in a subsequent fiscal period, the contract shall be canceled without liability to the County.
In any public contract for construction which provides for progress payments in installments based upon an estimated percentage of completion, the contractor shall be paid at least 95% of the earned sum when payment is due, with not more than 5% being retained to ensure faithful performance of the contract. All amounts withheld may be included in the final payment.
Any subcontract for a public project which provides for similar progress payments shall be subject to the same limitations.
Editor's Note: See Virginia Code § 2.2-4333.
A public contract may include provisions for modification of the contract during performance, but no fixed-price contract may be increased by more than 25% of the amount of the contract or $50,000, whichever is greater, without the advance written approval of the County.
The County may extend the term of an existing contract for services to allow completion of any work undertaken but not completed during the original term of the contract.
Editor's Note: See Virginia Code § 2.2.4309.
Road construction contracts are governed by separate terms and administered by the County Engineer's office.
Upon the award of any public construction contract exceeding $100,000 to any prime contractor, such contractor shall furnish to the County the following bonds:
A performance bond in the sum of the contract amount conditioned upon the faithful performance of the contract in strict conformity with the plans, specifications and conditions of the contract.
A payment bond in the sum of the contract amount. Such bond shall be for the protection of claimants who have and fulfill contracts to supply labor or materials to the prime contractor to whom the contract was awarded, or to any subcontractors, in the furtherance of the work provided for in such contract, and shall be conditioned upon the prompt payment for all such material furnished or labor supplied or performed in the prosecution of the work. Labor or materials shall include public utility services and reasonable rentals of equipment, but only for periods when the equipment rented is actually used at the site.
Each bond required by this section shall be executed by one or more surety companies selected by the contractor, which surety or sureties are legally authorized to do business in the commonwealth.
Bonds required by this section shall be made payable to the Board of Supervisors of Buchanan County, Virginia, and shall be filed with the Board or an office or official designated by the Board.
Nothing in this section shall preclude the purchasing agent from requiring payment or performance bonds for contracts other than those specified in Subsection A above, in amounts to be determined by the purchasing agent and specified in the invitation to bid.
Nothing in this section shall preclude such a contractor from requiring each subcontractor to furnish a payment bond with surety thereon in the sum of the full amount of the contract with such subcontractor conditioned upon the payment to all persons who have and fulfill contracts which are directly with the subcontractor for performing labor and furnishing materials in the prosecution of the work provided for in the subcontract.
In lieu of a performance or payment bond required by or under this section, a contractor may furnish a certified check or cash escrow in the face amount required for the bond, or upon approval by the County Attorney, a personal bond, property bond or bank or savings institution's irrevocable letter of credit.
Editor's Note: See Virginia Code §§ 2.2-4337 and 2.2-4338.
No action against the surety on a performance bond given pursuant to § 16-14 shall be brought, unless within one year after:
Completion of the contract, including the expiration of all warranties and guarantees; or
Discovery of the defect or breach of warranty, if the action be for such.
Editor's Note: See Virginia Code § 2.2-4340.
Subject to the provisions of Subsection B hereof, any claimant who has performed labor or furnished materials in accordance with the contract for which a payment bond has been given pursuant to § 16-15 and who has not been paid in full therefor before the expiration of 90 days after the day on which such claimant performed the last of such labor or furnished the last of such materials for which he claims payment may bring an action on such payment bond to recover any amount due him for such labor or material, and may prosecute such action to final judgment and have execution on the judgment.
Any claimant who has a direct contractual relationship with any subcontractor from whom the contractor has not required a subcontractor payment bond but has no contractual relationship, express or implied, with such contractor may bring an action on the contractor's payment bond only if he has given written notice to such contractor within 180 days from the day on which the claimant performed the last of the labor or furnished the last of the materials for which he claims payment, stating with substantial accuracy the amount claimed and the name of the person for whom the work was performed or to whom the material was furnished. Any claimant who has a direct contractual relationship with a subcontractor from whom the contractor has required a subcontractor payment bond, but who has no contractual relationship, express or implied, with such contractor may bring an action on the subcontractor's payment bond. Notice to the contractor shall be served by registered or certified mail, postage prepaid, in an envelope addressed to such contractor at any place where his office is regularly maintained for the transaction of business. Claims for sums withheld as retainages with respect to labor performed or materials furnished shall not be subject to the time limitations stated in this subsection.
Any action on a payment bond must be brought within one year after the day on which the person bringing such action last performed labor or last furnished or supplied materials.
Any waiver of the right to sue on the payment bond required by this section shall be void unless it is in writing, signed by the person whose right is waived and executed after such person has performed labor or furnished material in accordance with the contract document.
Editor's Note: See Virginia Code § 2.2-4341.
Except as otherwise provided in this policy, no County official, elected or appointed, or County employee shall purchase or contract for any goods, services, insurance or construction within the purview of this policy, other than by and through the purchasing system, and any purchase order or contract made contrary to the provisions of this section is void and the County shall not be bound thereby.
Except as otherwise provided herein, all proceedings, records, contracts and other public records relating to procurement transactions shall be open to the inspection of any citizen or any interested person, in accordance with the Virginia Freedom of Information Act. Cost estimates relating to a proposed transaction prepared by or for the County shall not be open to public inspection. Any bidder or offeror, upon request, shall be afforded the opportunity to inspect bid and proposal records within a reasonable time after the opening of all bids but prior to award, except in the event that the County decides not to accept any of the bids and to reopen the contract. Otherwise, bid and proposal records shall be open to public inspection only after award of the contract.
Any inspection of procurement transaction records under this section shall be subject to reasonable restrictions to ensure the security and integrity of the records. Trade secrets or proprietary information submitted by a bidder, offeror or contractor in connection with a procurement transaction shall not be subject to public disclosure under the Virginia Freedom of Information Act; however, the bidder, offeror or contractor must invoke the protections of this provision prior to or upon submission of the data or other materials, and must identify the data or other materials to be protected and state the reasons why protection is necessary.
Editor's Note: See Virginia Code §§ 2.2-4342 and 2.2-3700 et seq.
All using departments shall submit to the purchasing agent, at such time and in such form as he shall prescribe, reports showing stocks of all supplies which are no longer used or which have become obsolete, worn out or scrapped.
The purchasing agent shall have the authority to transfer surplus stock to other using agencies, provided the receiving agency is tax exempt within the meaning of Internal Revenue Code Section 501(c)(3) or other relevant sections.
The purchasing agent shall have the authority to sell all supplies which have been unsuitable for public use or to exchange the same for, or trade in the same on, new supplies.
All sales of property pursuant to this section shall be sold on the basis of competitive bids, wherever feasible, to obtain the highest price and to insure the County receives compensation substantially equal to the fair market value of the item sold. The purchasing agent may require sealed bids, in his discretion.
"Recycled paper and paper products" means any paper product meeting the EPA Recommended Content Standards as defined in 40 CFR Part 250.
B In determining the award of any contract for paper or paper products to be purchased for use by any division, department or agency of the County, the purchasing agent for the County shall use competitive sealed bidding and shall award the contract to the lowest responsible bidder offering recycled paper or paper products of a quality suitable for the purpose intended, so long as the bid price is not more than 10% greater than the bid price of the lowest responsive and responsible bidder offering a product that does not qualify as recycled paper and paper products under this section.
Editor's Note: See Virginia Code § 2.2-4326.