[Amended 12-7-2010]
[1]
Editor's Note: Included as an attachment to this chapter are documents required for procurements, such as Notice to Bidders, General Specifications for Supplies and Services, Detailed Specifications for (Supply/Service Item), Bid Sheet, Certificate of Noncollusion, State Taxes Certification Clause, and Agreement Between Contractor and Owner.
It is the policy of the Town of Barnstable to procure goods
and services that help the organization deliver quality, competitively
priced services to the citizens and visitors of Barnstable. This set
of procurement policies and procedures is intended to minimize risks
and realize efficiencies by way of superior management consistent
with the Commonwealth of Massachusetts Chapter 30B of the General
Laws: Uniform Procurement Act; Chapter 30, § 39M; and Chapter
149, §§ 44A through 44M. The Town of Barnstable's management
of procurement will be conducted with the primary objectives of purchasing
competitively priced, quality goods and/or services in quantities
necessary to accomplish service delivery objectives. The Town of Barnstable
recognizes that the use of taxpayer funds deserves the greatest care
in procuring goods and services which enable the Town to attain its
objectives in a cost-effective manner.
A.
Purpose. The underlying purposes of this policy are:
(1)
To foster effective broad-based competition within the marketplace;
(2)
To simplify, clarify, and modernize the law governing procurement
by the Town of Barnstable;
(3)
To permit the continued development of procurement policies and practices;
(4)
To make the procurement policies consistent with Chapter 30B of Massachusetts
General Laws, Uniform Procurement Act; Chapter 30, § 39M;
Chapter 149, §§ 44A through 44M; Chapter 7, § 8,
State Designer Selection Board Law, and other applicable laws;
(5)
To provide for increased public confidence in the procedures followed
in public procurement;
(6)
To ensure the fair and equitable treatment of all persons who interact
with the procurement system of the Town of Barnstable;
(7)
To ensure compliance with Minority Business Enterprise/Women Business
Enterprise purchasing goals, as well as compliance with the Town's
Contract Compliance/MBE Work Plan;
(8)
To provide increased economy in procurement activities and to maximize
to the fullest extent practicable the purchasing value of public funds
of the Town of Barnstable; and
(9)
To provide safeguards for the maintenance of a procurement system
of quality and integrity.
B.
Supplementary general principles of law applicable. Unless displaced
by the particular provision of the Town Charter, ordinances, and Administrative
Code, the principles of law and equity, and law relative to capacity
to contract, agency, fraud, misinterpretation, duress, coercion, mistake,
or bankruptcy shall supplement the provision of this policy.
This policy requires all parties involved in the negotiation,
performance, or administration of Barnstable contracts to act in good
faith.
A.
General application. This policy applies only to contracts solicited
or entered into after the effective date of this policy unless the
parties agree to its application to a contract solicited or entered
into prior to the effective date.
B.
Application of this policy to expenditures. This policy applies to expenditures of all public funds, including federal and state assistance monies, except acting through a governmental body as defined in this policy, under any contract, except that this policy applies to either grants or contracts with other governments, except as provided in § 401-143, Intergovernmental relations. This policy does not prevent the Town from complying with the terms and conditions of any grant, gift, bequest, or cooperative agreement.
This policy becomes effective on June 30, 1993.
Written determination required by this policy shall be retained
in the appropriate official contract file of the Chief Procurement
Officer.
A.
ASSISTANT PROCUREMENT OFFICER
AWARDING AUTHORITY
CHANGE ORDER
CHIEF PROCUREMENT OFFICER
CONSTRUCTION
CONTRACT
CONTRACT MODIFICATIONS
CONTRACTOR
GRANT
IFB
LPA
PURCHASE ORDER
PURCHASING AGENCY
PURCHASING AGENT
SUPPLIES
TOWN
USING AGENCY
VENDOR
The words defined in this section have the meanings set forth below
whenever they appear in this policy:
Any person duly authorized by the Chief Procurement Officer
to exercise certain procurement responsibilities and make written
determinations with respect thereto pursuant to this policy and further
pursuant to and in accordance with Massachusetts General Laws, Chapter
30B, Chapter 30, Section 39M, and Chapter 149. The term also includes
an authorized representative acting within the limits of authority.
The Town Manager, Airport Commission and/or School Committee
of the Town of Barnstable, or their duly authorized procurement officers.
A written order approved and signed by the awarding authority,
directing the contractor to make changes which the changes clause
of the contract authorizes the awarding authority to order without
the consent of the contractor.
The person holding the position created in § 401-110, Appointment, tenure, and removal of Chief Procurement Officer, as manager of the central procurement function of the Town, and possessing all the authorities vested in chief procurement officers generally and specifically under MGL c. 30B, § 39M, or Chapter 149.
The process of building, altering, repairing, improving,
or demolishing any public structure or building, or other public improvements
of any kind to any public real property. It does not include the routine
operation, routine repair, or routine maintenance of existing structures,
buildings, or real property.
All types of Town agreements, regardless of what they may
be called, for the procurement or disposal of supplies, services,
or construction.
Any written alteration in specifications, delivery point,
rate of delivery, period of performance, price, quantity, or other
provisions of any contract accomplished by mutual action of the parties
to the contract.
Any person having a contract with the Town of Barnstable.
The furnishing by the Town of Barnstable, whether financial
or otherwise, to any person to support a program authorized by law
of money or anything of value. It does not include an award whose
primary purpose is to procure an end product, whether in the form
of supplies, services, or construction; a contract resulting from
such an award is not a grant but a procurement contract.
The acronym for "invitation for bid" and means all documents,
whether attached or incorporated by reference, utilized for soliciting
bids.
The acronym for "limited purchase allowance."
A contractual commitment by a using agency to encumber funds
for future use with the purpose of procurement of goods or services.
Also referred to as a "PO."
Any department other than the awarding authority which is
authorized by this policy or its implementing regulations, or by way
of delegation from the awarding authority, to enter into contracts.
The Town Manager, or his or her designee, who is authorized
and responsible for the procurement of supplies and services for the
Town.
All property, including but not limited to equipment, materials,
printing, insurance, and leases of real property, excluding land or
a permanent interest in land.
The Town of Barnstable, Massachusetts.
Any governmental body of the Town which utilizes any supplies,
services, or construction procured under this policy.
Any person or company that sells goods or services to the
Town.
B.
Other definitions of terms can be found in the Model Procurement
Code for State and Local Governments (1987) published by the American
Bar Association.
Procurement information is public information except as provided in the Massachusetts General Laws and Section 8-9, Open Meeting of the Voters, of the Town Charter and shall be available to the public as provided in these statutes and ordinances.
The Town Manager shall appoint the chief procurement officer,
pursuant to this policy and consistent with Massachusetts General
Laws, Chapter 30B. The Chief Procurement Officer shall be any person
with demonstrated executive and organizational ability. The Chief
Procurement Officer shall be a full-time employee of the Town and
serve at the pleasure of the Town Manager.
A.
Principal procurement officer of the Town. The Chief Procurement
Officer (CPO) shall serve as the central procurement officer of the
Town of Barnstable, exercising those authorities and responsibilities
vested in chief procurement officers pursuant to Massachusetts General
Laws, Chapter 30B. The CPO shall ensure compliance of all aspects
of Town purchasing, by Assistant Procurement Officers, as well as
compliance with this policy by all departments of the Town.
B.
Promulgation of operational procedures. Consistent with the provisions
of this policy, the Chief Procurement Officer may adopt operational
procedures governing the internal functions of procurement.
C.
Duties. Except as otherwise specifically provided in this policy,
the Chief Procurement Officer shall:
(1)
Supervise the procurement, leasing, renting, and sale of all supplies,
services, and construction needed by the Town;
(2)
Exercise general supervision and control over all inventories of
supplies belonging to the Town;
(3)
Recommend to the awarding agency the sale, trade, or disposition
of surplus supplies belonging to the Town; and
(4)
Establish and maintain programs for the inspection, testing, and
acceptance of supplies, services, and construction.
(5)
Sign all contracts to certify compliance with all Massachusetts General
Laws Chapter 30B requirements.
The Chief Procurement Officer, with the approval of the Town
Manager, may delegate authority to designees or to any department,
agency, or official.
In respect to all departments under the jurisdiction of the
Town Manager, all rights, powers, duties, and authority relating to
the procurement of supplies, services, and construction, and the management,
control, warehousing, sale, and disposal of supplies, services, and
construction now vested in, or exercised by, any Town governmental
body are transferred to the Chief Procurement Officer, as provided
in this policy.
A.
General authority. For the purpose of procuring the services of medical,
legal, and financial services, only the specified departments may
act as purchasing agency and contract on its own behalf for these
services. The purchasing agency should consult with the Chief Procurement
Officer or a designee of such officer when procuring such services.
B.
Approval of contract for legal services. No contract for the services
of legal counsel may be awarded without the approval of the Town Attorney
and the Town Manager.
C.
Approval of contract for financial services. No contract for the
services of financial counsel may be awarded without the approval
of the Director of Finance.
The Town Attorney or his/her designee shall serve as legal counsel
and provide necessary legal services to the Chief Procurement Officer,
including but not limited to approval of contracts for goods and services
as to form and monitoring compliance of contract agreements with relevant
laws.
The four most commonly used references for municipal procurement
are MGL c. 7, § 38; MGL c. 30B; MGL c. § 39M;
and MGL c. 149, §§ 44A through 44M. Procurements of
various types shall be governed by these Massachusetts General Laws.
A.
Methods of source selection. Unless otherwise authorized by law, all Town contracts shall be awarded by competitive sealed bidding, pursuant to § 401-118, Competitive sealed bidding for supplies and services for bid values over $10,000, except as provided in:
B.
These procurement procedures can also be used for the purchase of
construction materials up to $25,000.
A.
Conditions for use. Contracts shall be awarded by competitive bidding except as otherwise provided in § 401-117, Source selection and contract formation.
B.
Invitation for bids. An invitation for bid (IFB) shall be issued
and shall include a purchase description, all contractual terms and
conditions applicable to the procurement, and set minimum requirements
for bidders.
C.
Public notice. Adequate public notice of the IFB shall be given a
reasonable time prior to the date set for the opening of bids. The
minimum amount of time is two weeks before bids are due. Such notice
shall include publication in a newspaper of general circulation a
reasonable time prior to bid opening. If the contract value will be
$100,000 or more, the Town must also publish in the Goods and Services
Bulletin published by the Office of the State Secretary (Regulations
Division, Room 2A, One Ashburton Place, Boston, MA 02108). Consistent
with MGL c. 30, § 39M, the notice for the purchase of construction
materials, public works projects, and building projects with a value
more than $25,000 shall also be published in a newspaper of general
circulation, and the Central Register. The public notice should include:
D.
Bid opening. Bids shall be opened publicly in the presence of one
or more witnesses at the time and place designated in the IFB. The
amount of each bid, and such other relevant information as may be
specified by regulation, together with the name of each bidder, shall
be recorded; the record and each bid shall be open to public inspection.
E.
Bid acceptance and bid evaluation. Bids shall be unconditionally
accepted without alteration or correction, except as allowed in this
policy. Bids shall be evaluated based on the requirement set forth
in the IFB, which may include criteria to determine acceptability,
such as inspection, testing, quality, workmanship, delivery, and suitability
for a particular purpose. Those criteria that will affect the bid
price and be considered in evaluation for award shall be objectively
measurable, such as discounts, transportation costs, and total or
life cycle costs. The IFB shall set forth the evaluation criteria
to be used. No criteria may be used in bid evaluation that are not
set forth in the IFB.
F.
Correction or withdrawal of bids. Correction or withdrawal of inadvertently
erroneous bids before bid opening, or cancellation of awards or contracts
based on such bid mistakes, shall be permitted in accordance with
regulation promulgated by the Chief Procurement Officer. Correction
or modifications must also be sealed when submitted. A bidder who
wishes to withdraw his/her bid must do so in writing before the bid
opening. After bid opening no changes in bid prices or other provision
of bids shall be permitted.
G.
Award. The contract shall be awarded with reasonable promptness by
written notice to the lowest responsible and responsive bidder whose
bid meets the requirements and criteria set forth in the IFB. The
following approval procedures must be followed for award:
(1)
Procurements under $10,000. The purchase order, made out to the desired
vendor, shall be forwarded to the manager of the purchasing agency
for acceptance of the quote and signing of the purchase order. The
signed forms must be returned to and kept on file in the purchasing
agency.
(2)
Procurements of $10,000 or more. Prior to issuance of the IFB or
RFP, all associated documentation, including the public notice, shall
be forwarded to the department purchasing officer for review and forwarding
to the CPO for approval prior to release. The bids received in response
to an IFB shall be opened in the presence of at least an Assistant
(or department) Procurement Officer. The head of the purchasing agency
shall then evaluate the bids and provide the Assistant Procurement
Officer with a recommendation for award. The Assistant Procurement
Officer shall then forward it to the Chief Procurement Officer for
his/her review and approval of the notice of award. All contracts
shall be signed by the Chief Procurement Officer.
H.
Contract execution. Following notification of the award to the successful
bidder, the Town must execute a written contract containing all the
terms and conditions stated in the bid proposal.
I.
Recordkeeping. A file of written documents required by Massachusetts
General Laws Chapter 30B must be maintained for a period of six years
from the date of final payment of the contract. These documents should
include:
(1)
Invitation for bids, including any amendments;
(2)
Justification, if any, for use of proprietary specification;
(3)
Public notice and advertisement;
(4)
Goods and Services Bulletin notice, if different from the advertisement;
(5)
Record of the bid opening;
(6)
All bids received, including the certified statement of each bidder
that the bid was made in good faith;
(7)
Any bid corrections, modifications, withdrawals, and notices of bid
corrections, etc.;
(8)
Any notice of bid rejections or cancellation;
(9)
Notice of award; and
(10)
The executed contract.
A.
Conditions for use. If the Chief Procurement Officer, the head of
a purchasing agency, or a designee of either officer above the level
of Assistant Procurement Officer determines in writing that the use
of competitive sealed bidding is either not practicable or not advantageous
to the Town, a contract may be entered into by sealed proposals. The
Chief Procurement Officer may decide that it is either not practical
nor advantageous to the Town to procure specified types of supplies,
services, or construction by competitive sealed bidding.
B.
Request for proposals. Proposals shall be solicited through a request
for proposals (RFP).
C.
Proposal requirements. The RFP should state the requirement for bid
bonds, certifications, transmittal letters, warranty information,
insurance information, references, etc. The proposer must submit separate
price and nonprice (or technical) proposals. A proposal which fails
to meet the submission requirements should be considered nonresponsive.
D.
Public notice. Adequate public notice of the RFP shall be given in the same manner as provided in § 401-118C, Public notice.
E.
Receipt of proposals. Proposals shall be opened so as to avoid disclosure
of contents to competing offerers during the process of negotiations.
A register of proposals shall be prepared, in accordance with regulations
promulgated by the Chief Procurement Officer, and shall be open for
public inspection after contract award.
F.
Evaluation factors. The RFP shall state the relative importance of
the evaluation factors.
G.
RFP distribution. The RFP must be made available on an equal basis
to all who request a copy. A record should be kept of who received
the documents.
H.
Designation of individuals responsible for evaluation. The Chief
Procurement Officer shall select one or more individuals responsible
for evaluating the nonprice, or technical, proposals.
I.
Discussion with responsible offerers and revisions to proposals.
As provided in the RFP, and under regulation promulgated by the Chief
Procurement Officer, discussions may be conducted with responsible
bidders who submit proposals determined to be reasonably susceptible
of being selected for award for the purpose of clarification to assure
full understanding of, and responsiveness to, the solicitation requirements.
Offerers shall be accorded fair and equal treatment with respect to
any opportunity for discussion and revision of proposals, and such
revision may be permitted after submissions and prior to award for
the purpose of obtaining best and final offers. In conducting discussions,
there shall be no discussion of price nor disclosure of any information
derived from proposals submitted by competing bidders.
J.
Negotiation. The contract may be conditioned on successful negotiation
of revisions to the plan of service identified by the evaluators during
the proposal evaluation phase of the process. Only the plan of services
is subject to negotiation.
K.
Award. Award shall be made to the responsible offerer whose proposal
is determined in writing to be the most advantageous to the Town,
taking into consideration price and the evaluation factors set forth
in the RFP. No other factors or criteria shall be used in the evaluation.
The contract file shall contain the basis on which the award is made.
A written explanation must be prepared if the proposal with the lowest
price is not selected.
L.
Multistep sealed bids. When it is deemed impractical to initially
prepare a purchase description to support an award based on price,
an invitation for bids may be issued requesting the submission of
unpriced offers to be followed by an IFB limited to those bidders
whose offers have been qualified under the criteria set forth in the
first solicitation.
Any procurement not exceeding the amount established by regulation
may be made in accordance with small purchase procedures promulgated
by the Chief Procurement Officer; provided, however, that procurement
requirements shall not be artificially divided so as to constitute
a small purchase under this section.
A.
Procurements of $1,000 to $10,000. Procurements between $1,000 and
$10,000 in value must be made by seeking telephone or written quotes
from at least three prospective suppliers. The contract must be awarded
to the lowest responsible and responsive bidder/offerer.
B.
Procurements of less than $1,000. Procurements of less than $1,000
should be based on sound business practice. The law does not require
competition for these small purchases, but it is encouraged. In addition,
some basis for determining that supplies and services are being purchased
at reasonable prices should exist.
A contract with a value under $10,000 may be awarded for a supply,
service, or construction item without competition when, under regulations
promulgated by the Chief Procurement Officer, the manager of a purchasing
agency, or a designee of either officer above the level of the Procurement
Officer, determines in writing that there is only one source for the
required supply, service, or construction item.
Notwithstanding any other provision of this policy, the Chief
Procurement Officer, the manager of a purchasing agency, or a designee
of either officer, may make or authorize others to make emergency
procurements when there exists a threat to public health, welfare,
or safety under emergency conditions as defined in regulations promulgated
by the Chief Procurement Officer, provided that such emergency procurements
shall be made with such competition as is practicable under the circumstances.
A written determination of the basis for the emergency and for the
selection of the particular contractor shall be included in the contract
file. The record of an emergency procurement must be submitted as
soon as possible to the Goods and Services Bulletin for publication.
An invitation for bid, a request for proposal, or other solicitation
may be canceled, or any or all bids or proposals may be rejected in
whole or in part as may be specified in the solicitation, when it
is in the best interests of the Town in accordance with regulations
promulgated by the Chief Purchasing Officer. The reasons therefor
shall be made part of the contract file.
A.
Determination of nonresponsibility. A written determination of nonresponsibility
of a bidder or offerer shall be made in accordance with regulations
promulgated by the Chief Procurement Officer. The unreasonable failure
of a bidder or offerer to promptly supply information in connection
with an inquiry with respect to responsibility may be grounds for
a determination of nonresponsibility with respect to such bidder or
offerer.
B.
Right of nondisclosure. Information furnished by a bidder or offerer
pursuant to this section shall not be disclosed outside of the office
of the Chief Procurement Officer or the purchasing agency without
prior written consent by the bidder or offerer.
Prospective suppliers may be prequalified for particular types
of supplies, services, and construction based on historical performance
and financial standing. Solicitation mailing lists of potential contractors
shall include but shall not be limited to such prequalified suppliers.
More specific requirements can be found in MGL c. 30, § 39M,
and MGL c. 149, §§ 44A through 44H.
A.
Requirement for security.
(1)
Bid security may be required for competitive sealed bidding, and
is required for construction/building contracts. Bid security shall
be a bond provided by a surety company authorized to do business in
Massachusetts, or the equivalent in cash, or otherwise supplied in
a form satisfactory to the Town.
(2)
Performance security is required on building projects.
(3)
Payment security is required on all public works and building projects.
B.
Amount of bid security.
(1)
Bid security shall be in an amount equal to at least 5% of the bid
price for construction contracts as required by MGL c. 30, § 39M,
and MGL c. 149, §§ 44A through 44H. Requirements for
other types of contracts should be similar.
(2)
Performance security shall be equal to 100% of the contract price
for building projects.
(3)
Payment security shall be equal to 50% of the contract price for
public works projects, and equal to 100% of the contract price on
all building projects.
C.
Rejection of bids for noncompliance with bid security requirements.
When the invitation for bids requires security, noncompliance requires
that the bid be rejected unless it is determined that the bid fails
to comply in a nonsubstantial manner with the security requirements.
After the bids are opened, they shall be irrevocable for the period specified in the invitation for bids, except as provided in § 401-118F, Correction or withdrawal of bids. If a bidder is permitted to withdraw its bid before award, no action shall be had against the bidder or the bid security.
Subject to the limitations of this section, any type of contract
which will promote the best interests of the Town may be used, provided
that the use of a cost-plus-a-percentage-of-cost contract is prohibited.
A cost-reimbursement contract may be used only when a determination
is made in writing that such contract is likely to be less costly
to the Town than any other type or that it is impractical to obtain
the supplies, services, or construction required except under such
a contract.
Except with respect to firm fixed-price contracts, no contract
type shall be used unless it has been determined in writing by the
Chief Procurement Officer, the manager of a purchasing agency, or
a designee of either officer, that:
A.
The proposed contractor's accounting system will permit timely development
of all necessary cost data in the form required by the specific contract
type contemplated; and
B.
The proposed contract's accounting system is adequate to allocate
costs in accordance with generally accepted accounting principles.
A.
Specified period. Unless otherwise provided by law, a contract for
supplies or services may be entered into for any period of time deemed
to be in the best interest of the Town, provided that 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 therefor. Any contract in excess of three years
including any renewal, extension, or option provision must be authorized
by the Town Council prior to the solicitation for bids or proposals.
B.
Determination prior to use. Prior to the utilization of a multi-term
contract, it shall be determined in writing:
C.
Cancellation due to unavailability of funds in succeeding fiscal
periods. When funds are not appropriated or otherwise made available
to support continuation of performance in a subsequent fiscal period,
the contract shall be canceled and the contractor shall be reimbursed
for the reasonable value of any nonrecurring costs incurred but not
amortized in the price of the supplies or services delivered under
the contract. The cost of cancellation may be paid from any appropriations
available for such purposes.
The Town may, at reasonable times, inspect the part of the plant
or place of business of a contractor or any subcontractor which is
related to the performance of any contract awarded or to be awarded
by the Town.
A.
Audit of cost or pricing data. The Town may, at reasonable times
and places, audit the books and records of any person who has submitted
cost or pricing data, to the extent that such books and records relate
to such cost or pricing data. Any person who receives a contract,
change order, or contract modification for which cost or pricing data
is required shall maintain such books and records that relate to such
cost or pricing data for three years from the date of final payment
under the contract, unless a shorter period is otherwise authorized
in writing.
B.
Contract audit. The Town shall be entitled to audit the books and
records of a contractor or any subcontractor under any negotiated
contract or subcontract other than a fixed-price contract to the extent
that such books and records relate to the performance of such contract
or subcontract. Such books and records shall be maintained by the
contractor for a period of three years from the date of final payment
under the prime contract and by the subcontractor for a period of
three years from the date of final payment under the subcontract,
unless a shorter period is otherwise authorized in writing.
The determinations required by § 401-132 are final and conclusive unless they are clearly erroneous, arbitrary, capricious, or contrary to law.
When for any reason collusion or other anticompetitive practices
are suspected among any bidders or offerers, a notice of the relevant
facts shall be transmitted to the Attorney General.
All procurement records shall be retained and disposed of in
accordance with records retention guidelines and schedules approved
the Town Attorney. All retained documents shall be made available
to the Town Attorney or a designee upon request and proper receipt
therefor.
Guidelines set by Massachusetts General Laws, Chapter 30B. Real
property includes land and buildings, and fixtures attached to land
and buildings. Chapter 30B does not apply to eminent domain and tax
title takings, nor to a redemption or auction of tax title property
authorized under the provisions of Chapter 60 of the General Laws.
The Town, authorized by Charter, may acquire or dispose of real property;
Chapter 30B has no effect on who may undertake or approve a real property
transaction. Under Chapter 30B, the Town must acquire and dispose
of real property by soliciting proposals. The Town of Barnstable's
Procurement Policy should be consulted for particular procedures.
The following procedures apply to the acquisition of real property
or an interest in real property by rental or purchase when the cost
of the acquisition exceeds $500:
A.
Determine the Town's needs.
B.
Develop the request for proposal (RFP). An RFP must include what
is desired (the specifications), evaluation criteria, submission requirements
and contract terms and conditions.
C.
Advertise for proposals.
(1)
The advertisement must be placed in a newspaper with a circulation
sufficient to inform the residents of Barnstable. It must be published
at least once a week for two consecutive weeks preceding the day established
for the opening of proposals. The advertisement must:
(2)
In acquisitions involving more than 2,500 square feet, an advertisement
must also be published, at least 30 days before the opening of proposals,
in the Central Register published by the Secretary of State.
D.
Exceptions to advertising requirements. The advertising period can
be shortened, or waived, under the following conditions:
E.
Distribute the RFP. Guidance for distributing the RFP can be found
in the Town of Barnstable's Procurement Policy.
These procedures apply to disposition of real property with
a value greater than $500. Subsections A through C, as well as publishing
disclosure in the Central Register, apply to any such disposition,
regardless of its value.
A.
Determine whether the property is surplus. A written assessment should
be conducted consisting of identification of the property, a description
of its current use, efforts to identify current or future needs, current
needs you identified, alternatives considered, and the recommendation.
B.
Declare surplus property available for disposition and identify reuse
restrictions. This declaration should be in writing, and restrictions
on the property must be specified as part of the declaration.
C.
Determine the value of the property. The value of the property must
be accepted by the appraising profession as valid.
D.
Develop the RFP. The RFP must include: a description of the property,
the evaluation criteria, submission requirements, and contract terms
and conditions. The Town of Barnstable's Procurement Policy should
be consulted for specific guidance.
E.
Distribute the RFP. See the same section above for acquiring property.
A.
"Specifications" means any description of the physical or functional
characteristics, or of the nature of a supply, service, or construction
item. It may include a description of any requirement for inspecting,
testing, or preparing a supply, service, or construction item for
delivery.
B.
Duties of the policy. The CPO shall promulgate regulations governing
the preparation, maintenance, and content of specifications for supplies,
services, and construction required by the Town.
C.
Relationship with using agencies. The Chief Procurement Officer shall
obtain expert advice and assistance from personnel of using agencies
in the development of specifications and may delegate in writing to
a using agency the authority to prepare and utilize its own specifications.
D.
Maximum practicable competition. All specifications shall seek to
promote overall economy for the purposes intended and encourage competition
in satisfying the Town's needs and shall not be unduly restrictive.
E.
Specifications prepared by architects and engineers. The requirement
of this section shall apply to all specifications, including, but
not limited to, those prepared by architects, engineers, designers,
and draftsmen for public contracts.
A.
Contract clauses. The Chief Procurement Officer may promulgate regulations
permitting or requiring the inclusion of clauses providing for adjustments
in prices, time of performance, or other contract provision as appropriate
covering the following subjects:
B.
Price adjustments. Adjustments in price less than 10% pursuant to clauses promulgated under Subsection A of this section shall be computed by unit prices specified in the contract or unless otherwise agreed.
C.
Additional contract clauses. The Chief Procurement Officer may promulgate
regulations, including, but not limited to, regulations, permitting
or requiring the inclusion in Town contracts of clauses providing
for appropriate remedies and covering the following subjects:
D.
Modification of clauses. The Chief Procurement Officer or the manager of a purchasing agency may vary the clauses promulgated by the Town under Subsections A and C of this section for inclusion in any particular Town contract; provided that any variations are supported by a written determination that states the circumstances justifying such variation, and provided that notice of any such material variation is stated in the invitation for bids or request for proposals.
The Chief Procurement Officer shall promulgate regulations setting
forth cost principles which shall be used to determine the allowability
of incurred costs for the purpose of reimbursing costs under contract
provisions which provide for the reimbursement of costs, provided
that if a written determination is approved at a level above the Procurement
Officer, such cost principles may be modified by contract.
A.
Cooperative purchasing authorized. Any Town department may either
participate in, sponsor, conduct, or administer a cooperative purchasing
agreement for the procurement of any supplies, services, or construction
with one or more public agencies or external procurement activities
in accordance with an agreement entered into between the participants.
Such cooperative purchasing may include, but is not limited to, joint
or multiparty contracts between public agencies and blanket contracts
available to municipalities through the State Purchasing Agent.
B.
Sale, acquisition, or use of supplies by a Town purchasing agency. Any Town purchasing agency may sell to, acquire from, or use supplies belonging to another public agency independent of the requirements of § 401-117, Source selection and contract formation.
C.
Cooperative use of supplies or services. Any Town purchasing unit may enter into an agreement, independent of the requirements of § 401-117, Source selection and contract formation, with any other public agency for the cooperative use of supplies or services under the terms agreed upon between the parties.
D.
Joint-use facilities. Any Town department may enter into agreements
for the common use or lease of warehousing facilities, capital equipment,
and other facilities with another public procurement unit under the
terms agreed upon between the parties.
A.
Supply of personnel. Any Town purchasing agency is authorized, in
its discretion, upon written request from another public agency, to
provide personnel to the requesting public agency. The public agency
making the request shall pay the Town agency providing the personnel
the direct and indirect cost of furnishing the personnel, in accordance
with an agreement between the parties.
B.
Supply of services. The information, technical, and other services
of any Town Department may be made available to any other public agency,
provided that the requirements of the Town of Barnstable shall have
precedence over the requesting public agency. The requesting public
procurement unit shall pay for the expenses of the services so provided,
in accordance with an agreement between the parties.
To the extent possible, the Chief Procurement Officer may collect
information concerning the type, cost, quality, and quantity of commonly
used supplies, services, or construction being procured or used by
state public procurement units. The Chief Procurement Officer may
make available all such information to any Town department upon request.
Under a cooperative purchasing agreement, controversies arising
between an administering Town agency and its bidders, offerers, or
contractors shall be resolved in accordance with Massachusetts General
Laws.
A.
Right to protest. Any actual prospective bidder, offerer, or contractor
who is aggrieved in connection with the solicitation or award of a
contract may protest to the Chief Procurement Officer or the manager
of a purchasing agency. The protest shall be submitted in writing
within 14 days after such aggrieved person knows or should have known
of the facts giving rise thereto.
B.
Authority to resolve protests. The CPO, the manager of a purchasing
agency, or a designee of either officer, shall have the authority
to settle and resolve a protest of an aggrieved bidder concerning
the solicitation or award of a contract.
C.
Decision. If the protest is not resolved by mutual agreement, the
CPO, the manager of a purchasing agency, or a designee of either,
shall promptly issue a decision in writing. The decision shall:
D.
Finality of decision. A decision under Subsection C of this section shall be final and conclusive, unless fraudulent or any person adversely affected by the decision commences an action in court.
E.
Stay of procurements during protests. In the event of a timely protest under Subsection A, the Town shall not proceed further with the solicitation or with the award of the contract until the CPO, after consultation with the manager of the using agency or the manager of a purchasing agency, makes a written determination that the award of the contract without delay is necessary to protect the substantial interests of the Town.
A.
Authority. After reasonable notice to the person involved and reasonable
opportunity for that person to be heard, the CPO or the manager of
a purchasing agency, after consultation with the using agency and
the Town Attorney, shall have authority to debar a person for cause
from consideration for award of contracts. The debarment shall not
be for a period of more than three years or consistent with state
law. The same officer shall also have the authority to suspend from
consideration for award of contracts if there is probable cause for
debarment. The suspension shall not be for a period exceeding three
months.
B.
Causes for debarment or suspension. The causes for debarment or suspension
include the following:
(1)
Conviction for commission of a criminal offense as an incident to
obtaining or attempting to obtain a public or private contract or
subcontract, or in the performance of such contract or subcontract;
(2)
Conviction under state or federal statutes of embezzlement, theft,
forgery, bribery, falsification or destruction of records, receiving
stolen property, or any other offense indicating a lack of business
integrity or business honesty which currently, seriously, and directly
affects responsibility as a Town contractor;
(3)
Conviction under state or federal antitrust statutes arising out
of the submission of bids or proposals;
(4)
Violation of contract provision, as set forth below, of a character
which is regarded by the CPO to be so serious as to justify debarment
action:
(a)
Deliberate failure without good cause to perform in accordance
with the specifications or within the time limit provided in the contract;
or
(b)
A recent record of failure to perform or of unsatisfactory performance
in accordance with the terms of one or more contracts; provided that
failure to perform or unsatisfactory performance caused by acts beyond
the control of the contractor shall not be considered to be a basis
of debarment.
(c)
Any other cause the CPO or the manager of a purchasing agency
determines to be so serious and compelling as to affect responsibility
as a Town contractor, including debarment by another governmental
entity for any cause listed in this section.
C.
Remedies prior to an award. If prior to award it is determined that
a solicitation or proposed award of a contract is in violation of
law, then the solicitation or proposed award shall be canceled or
revised to comply with the law.
D.
Remedies after an award. If after an award it is determined that
a solicitation or award of a contract is in violations of law, then:
(1)
If the person awarded the contract has not acted fraudulently or
in bad faith:
(a)
The contract may be ratified and affirmed, provided that it
is determined that doing so is in the best interests of the Town;
or
(b)
The contract may be terminated and the person awarded the contract
shall be compensated for the actual expenses reasonably incurred under
the contract prior to the termination.
A.
Statement of policy.
(1)
It shall be the policy of the Town of Barnstable to assist minority-
and women-owned enterprises (MBE/WBE) in learning how to do business
with the Town. In addition, it is the Town's policy that:
(a)
No person shall be discriminated against in any manner whatsoever
because of race, color, national origin, sex, age, religion, or handicap;
(b)
No person shall be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any program
or activity funded entirely or in part by the Town, state, or federal
government; and
(c)
The Town of Barnstable comply with all federal and state laws.
B.
Implementation. The Chief Procurement Officer shall implement the policy set forth in Subsection A of this section in accordance with policies promulgated by the Town Council, including the Town of Barnstable's Equal Employment Opportunity Anti-Discrimination and Affirmative Action Program.
C.
Objectives. It is the objective of the Town of Barnstable that 10%
of minority-owned companies and banks and 5% for female-owned companies
and banks be utilized in the purchases and investments of the Town
on all projects $50,000 and over where there is available expertise.
A.
Assistance within Town departments. Where feasible, the Chief Procurement
Officer shall provide appropriate staff who shall be responsible to
the Chief Procurement Officer and who shall serve within designated
Town departments to assist MBEs/WBEs in learning how to do business
with the Town.
B.
Special publications. The Chief Procurement Officer shall give special
publicity to procurement procedures and issue special publications
designed to assist MBEs/WBEs in learning how to do business with the
Town.
C.
Source lists. The Chief Procurement Officer shall compile, maintain,
and make available source lists of MBEs/WBEs for the purpose of encouraging
procurement from MBEs/WBEs.
D.
Solicitation and mailing lists. To the extent deemed by such officer
to be appropriate and as may be required by regulation, the Chief
Procurement Officer shall include MBEs/WBEs on solicitation mailing
lists.
E.
Solicitation of MBEs/WBEs. The Chief Procurement Officer shall assure
that MBEs/WBEs are solicited on each procurement for which such businesses
may be suited.
F.
Prebid and preconstruction conferences. The Chief Procurement Officer
and his/her designees shall conduct prebid and preconstruction conferences
(where applicable) to explain MBE/WBE requirements to prospective
bidders, MBEs/WBEs and other interested organizations.
G.
Monitoring. The Chief Procurement Officer shall monitor contractors
and subcontractors compliance with MBE/WBE commitments through the
life of a contract.
H.
Other. The CPO is also responsible as outlined in the Town of Barnstable's
AA/EEO Program.
A.
Bonding. Notwithstanding other provisions of this chapter, the Chief
Procurement Officer may reduce the level or change the types of bonding
normally required or accept alternative forms of security to the extent
reasonably necessary to encourage procurement from MBEs/WBEs.
B.
Progress payments. The Chief Procurement Officer may make such special
provisions for progress payments as such officer may deem reasonably
necessary to encourage procurement from small businesses and MBEs/WBEs.
Where a procurement involves the expenditure of federal assistance
or contract funds, the Chief Procurement Officer shall comply with
such federal law and authorized regulations which are mandatorily
applicable and which are not presently reflected in this chapter.
The State Office of Minority Business Assistance maintains a
listing of certified MBEs/WBEs. A bidder must include a copy of its
SOMBA certification with its schedule for participation to have its
prospective MBE/WBE considered certified. Unlisted minority- and female-owned
businesses shall be referred to SOMBA for certification.
A bona fide MBE/WBE is a business whose minority group ownership
interests are real and continuing and not created solely to meet the
MBE/WBE requirements. A bona fide MBE/WBE must meet the following
criteria:
A.
Control. Minority participation in a joint venture must be based
on sharing the real economic interest and must include 51% proportionate
control over management, interest in capital, and interest in earnings.
B.
Availability. MBEs/WBEs shall be considered if the project is located
in the market area of the MBE/WBE. The market for the Town of Barnstable
is eastern Massachusetts. Efforts to locate MBEs/WBEs, however, shall
not be limited to this area.
C.
Competence. MBEs/WBEs are considered bona fide if they can perform
the services or deliver goods that are necessary. Prime contractors
will be encouraged to use MBEs/WBEs with less experience and provide
technical assistance to them as necessary.
The Chief Procurement Officer or his/her designee shall maintain
records that allow evaluation of progress towards meeting MBE/WBE
goals. These records will show procedures which have been adopted
and implemented to insure compliance with federal, state, and local
requirements and will include, but not be limited to:
A.
Affirmative action techniques.
B.
Technical assistance efforts and referrals.
C.
Communications.
D.
Relevant correspondence; minutes of meetings.
E.
List of prebid, preconstruction attendees.
F.
Awards to MBEs/WBEs, including:
(1)
Names of MBEs/WBEs.
(2)
Nature of work.
(3)
Total value.
(4)
Total value of contract or subcontract.
(5)
Total amount of MBE/WBE awards as a percentage of all contracts and
subcontracts awarded.
(6)
Number of MBE/WBE contracts and those invited to bid by contract.
(7)
Number of MBEs/WBEs responding to each solicitation.
G.
Performance in achieving MBE/WBE goals.
The bidder shall submit a Schedule for Participation by Minority
Business Enterprises with accompanying letter of intent. A separate
letter of intent shall be signed by each MBE/WBE proposes to be used
by the bidder. The letter of intent shall include the contract items
the minority contractor is proposing to perform and the prices that
the MBE/WBE proposed to charge for the work. The schedule for participation
shall list MBEs/WBEs with whom the contractor intends to subcontract
and state the total price to be paid each MBE/WBE as taken from each
letter of intent submitted with the bid, and a copy of SOMBA certification.
Noncompliance with the schedule for participation shall constitute
reason for rejection of the entire bid. Noncompliance exists with
the following:
A.
Incompleteness: if the schedule or any letter of intent is materially
incomplete.
B.
Lack of MBE/WBE participation: if the Town finds that the percentage
of MBE/WBE participation does not meet or exceed the percentage of
MBE participation prescribed by these policies.
C.
Change in subcontractor: The contractor shall not perform with its
own organization, or subcontract to any other contractor, any work
designated for the MBE/WBEs named in the schedule of letter of intent
without the approval of the Town and SOMBA.
D.
Change in the MBE/WBE management: Any change or substitution of the
officer or stockholders in the MBE/WBE that reduces the minority ownership
or control to less than the requisite percentage will result in the
automatic revocation of the MBE's/WBE's certified status.
E.
Notification: The contractor shall notify the Town of any facts which
come to his attention, indicating that he will be unable to comply
with these policies.
F.
Inability to meet MBE/WBE guidelines: If the contractor cannot meet
subcontract work to MBEs/WBEs as required by these policies, he may
submit to the Town and to SOMBA the reasons for his inability to comply
with his schedule, stating how he intends to meet his obligations
consistent with this policy. If approved by the Town and SOMBA, such
revised schedule shall govern the contractor's performance in meeting
his obligations under this special provision.
If the contractor does not comply with the terms of these special
provisions, the Town may:
A.
Recover from the general contractor 1/100 of 1% of the contract award
price or $1,000, whichever is greater, in the nature of a liquidated
damages; or, if a subcontractor is in noncompliance, recover from
the general contractor (which is then backcharged to the subcontractor)
1/10 of 1% of the subcontract price or $400, whichever sum is greater,
in the nature of liquidated damages for each week of noncompliance.
B.
Suspend any payment for that portion of the work that should have
been performed by the MBE/WBE.
C.
Require specific performance of the contractor's obligation under
these policies by requiring the contractor to subcontract with a SOMBA-certified
MBE/WBE for any contract or specialty item at the contact price established
for that item in the bid proposal submitted by the contractor.
E.
Deny the general contractor or any subcontractor the rights to participate
in any future contracts awarded by the Town of Barnstable for up to
three years.
Public employment is a trust. It is the policy of the Town of
Barnstable to promote and balance the objective of protecting government
integrity and the objective of facilitating recruitment and retention
of personnel needed by the Town. Such policy is implemented by prescribing
essential standards of ethical conduct without creating unnecessary
obstacles to entering public service. Public employees must discharge
their duties impartially so as to assure fair competitive access to
governmental procurement by responsible contractors. Moreover, they
should conduct themselves in such a manner as to foster public confidence
in the integrity of the Town procurement function. To achieve the
purpose of this article, it is essential that those doing business
with the Town also observe the ethical standards prescribed herein.
A.
General ethical standards for employees. Any attempt to realize personal
gain through public employment by conduct inconsistent with the proper
discharge of the employee's duties is a breach of public trust. In
order to fulfill this general prescribed standard, employees must
also meet the specific standards set forth in the Town of Barnstable's
Ethics Policy and Guidelines.[1]
B.
General ethical standards for nonemployees. Any effort to influence
any public employee to breach the standards of ethical conduct set
forth in this section and the Town of Barnstable's Ethics Policy and
Guidelines is also a breach of ethical standards.
To the extent that violations of the ethical standards of conduct
set forth in this article constitute violations of the Massachusetts
General Laws, they shall be punishable as provided therein. Such sanctions
shall be in addition to the civil remedies set forth in the Town of
Barnstable's Ethics Policy and Guidelines.[1]
