Town of Westerly, RI
Washington County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Council of the Town of Westerly as indicated in article histories. Amendments noted where applicable.]
GENERAL REFERENCES
Competitive bidding — See Sec. 15-1-8 of the Charter.
[Adopted 8-13-1991 by Ch. No. 983 as §§ 2-161 through 2-181 of the 1991 Code]

§ 49-1 Purposes and policies; word usage; applicability.

A. 
Purposes and policies. The regulations of this article shall be known as the “Town of Westerly Procurement Code.” This article shall be liberally construed and applied to promote its underlying purposes and policies, which are:
(1) 
To simplify; clarify and modernize the regulations governing purchasing by the Town;
(2) 
To permit the continued expansion of purchasing policies and practices;
(3) 
To make as uniform as possible the regulations governing purchasing among the various departments, agencies and offices of the Town; and
(4) 
To develop increased public confidence in the procedures followed in public purchasing.
B. 
Supplementary general principles of law applicable. Unless displaced by the particular provisions of this article, the principles of law and equity, including the Uniform Commercial Code and the law merchant and the law relative to capacity to contract, principal and agent, fraud, misrepresentation, duress, coercion, mistake, or bankruptcy, shall supplement its provisions.
C. 
Application of chapter. This article shall apply to every expenditure of public monies of the Town under any contract, grant, or like business agreement by any department, commission, council, board, bureau, agency, authority, government corporation, or other establishment of the Town government created by the Charter, the Town of Westerly Code, or any state or national law or regulation requiring the establishment of such Town activity. This chapter shall also apply to the disposal of any Town-owned property.

§ 49-2 Definitions and word usage.

A. 
As used throughout this article, the words and terms defined in this section shall have the meanings set forth below, unless the context in which they are used clearly requires a different meaning, or unless a different definition is prescribed for a particular section or portion thereof:
ARCHITECT-ENGINEER SERVICES
Those professional services associated with research, development, design and construction, alteration or repair of real property, as well as incidental services that members of these professions and those in their employ may logically or justifiably perform, including studies, investigations, surveys, evaluations, consultations, planning, programming, conceptual designs, plans and specifications, cost estimates, inspections, shop drawing reviews, sample recommendations, preparation of operation and maintenance manuals, and other related services.
BUSINESS
Any corporation, partnership, individual, sole proprietorship, joint-stock company, joint venture, or any legal entity through which business is conducted.[1]
COMMERCIAL ITEM
Any item, including both supplies and services, of a class or kind which is regularly used for other than Town or other governmental purposes, and is sold or traded in the course of conducting normal business operations.
CONSTRUCTION
The erection, alteration, or repair (including, but not limited to, dredging, excavating and painting) of public buildings, structures or other improvements to real property.
CONSULTANT SERVICES
Those professional services other than architect engineer services which provide research, development, financial or legal advice to governmental bodies in the form of studies, investigations, evaluations, audits, consultations, plans, programs, and recommendations which generally pertain to other than the design, construction or alteration of real property.
CONTRACT
All types of agreements and orders for the procurement or disposal of supplies, services, construction, or any other item. It includes awards and notices of award; contracts of a fixed-price, cost, cost-plus-a-fixed-fee, or incentive types; contracts providing for the issuance of job orders, task orders or task letters thereunder; letter contracts; and purchase orders. It also includes supplemental agreements with respect to any of the foregoing.
CONTRACT MODIFICATION
Any written alteration in the specification, delivery point, rate of delivery, contract period, price, quantity, or other contract provisions of any existing contract, whether accomplished by unilateral action in accordance with a contract provision or by mutual action of the parties to the contract. It includes bilateral actions such as supplemental agreements, and unilateral actions such as change orders, orders for provisional items, administrative changes, notices of termination, and notices of the exercise of a contract option.
CONTRACTOR
Any person having a contract with the Town.
DATA
Recorded information, regardless of form or characteristic.
DESIGNEE
As used for example in the phrase “the Town Council or its designee” may include one or more officials.
EMPLOYEE
Includes any individual drawing a salary from any governmental body of the Town, whether elected or not and any nonsalaried person performing services for any governmental body of the Town.
ESTABLISHED CATALOGUE PRICE
A price included in a catalogue, price list, schedule, or other form that is regularly maintained by the manufacturer or vendor of an item and is either published or otherwise available for inspection by customers, stating prices at which sales are currently, or were last, made to a significant number of buyers constituting the general public.
EXHIBIT
A document attached to a procurement instrument, referenced by its capital letter identifier in a line or subline item in the procurement instrument schedule, which establishes deliverable requirements in the attached document as an alternative to establishing an extensive list of line or subline items in the procurement instrument schedule.
GOVERNMENTAL BODY
Any department, commission, council, board, bureau, committee, institution, legislative body, agency, government corporation, authority, activity, or other establishment of the Town government.
INCLUDES
Includes but is not limited to.
INVITATION FOR BIDS
A document to be furnished to prospective bidders for the purpose of bidding, and all documents related thereto describing the requirements of the governmental body.
NEGOTIATE and NEGOTIATION
When applied to the making of purchases and contracts, refers to making purchases and contracts without competitive sealed bidding, and may refer to both competitive and noncompetitive negotiation.
OPERATIONS OFFICER
Any person who, either by virtue of his/her position or by appointment in accordance with this article, is currently an Operations Officer with the authority to enter into and administer contracts and make determinations and findings with respect thereto, or with any part of such authority. The term also includes the authorized representative of the Operations Officer acting within the limits of this authority.
[Amended 2-13-2006 by Ord. No. 1563]
PROCUREMENT
Includes purchasing, renting, leasing, or otherwise obtaining supplies or services, construction, or any other item. It also includes all functions that pertain to the obtaining of such supplies, services, construction and items, including description (but not determination) of requirements, selection and solicitation of sources, preparation and award of contract, and all phases of contract administration.
PURCHASE REQUEST
That document whereby a requiring activity (governmental body) requests that a contract be obtained for a described item, and may include, but is not limited to, the technical description of the requested item, delivery schedule, transportation, criteria for evaluation of solicitations, suggested sources of supply, and inputs to any required determination and finding made pursuant to any section of this article.
[Amended 9-21-2015 by Ch. No. 1845]
PURCHASING AGENT
Any person who, either by virtue of his/her position or by appointment in accordance with this article, is currently a Purchasing Agent with the authority to enter into and administer contracts approved by the Town Manager or designee and make determinations and findings with respect thereto, or with any part of such authority. The term also includes the authorized representative of the Purchasing Agent acting within the limits of this authority.
[Added 9-21-2015 by Ch. No. 1845]
SUPPLEMENTAL AGREEMENT
Any contract modification which is accomplished by mutual action of the parties.
SUPPLIES
All property, except land or interest in land.
[1]
Editor's Note: The former definition of "change order," as amended, which immediately followed, was repealed 9-21-2015 by Ch. No. 1845.
B. 
Word usage.
(1) 
May is permissive; however, the words “no person may” mean that no person is required, authorized or permitted to do the act proscribed.
(2) 
Shall is imperative.
(3) 
In this article, unless the context otherwise requires:
(a) 
Words in the singular number include the plural and the plural include the singular; and
(b) 
Words of the masculine gender include the feminine and the neuter, and when the sense so indicates, words of the neuter gender may refer to any gender.

§ 49-3 Purchasing Agent.

[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
A. 
Office established, consolidated position. There is established a joint position effective 2011, the office of Purchasing Agent, who shall be appointed by the Town Manager and School Superintendent and who shall have the authority to enter into and administer contracts, approved by the Town Manager or designee, for the Town subject to restrictions imposed by this article. He/She shall purchase any and all supplies, services, construction, vehicles, equipment, insurance, and other items required by all departments of the Town within the appropriation restrictions imposed by the annual operating budget and capital improvement budget.
B. 
Specific duties of the Purchasing Agent. In addition to all other powers and duties set forth in this article, the Purchasing Agent shall have the power, and his/her duties shall be:
(1) 
(Reserved)
(2) 
(Reserved)
(3) 
To enter into contracts of all kinds and to execute all instruments necessary or convenient to the carrying out of their operations.
(4) 
To determine and promulgate, with the approval of the Town Manager and within the restrictions imposed by this article, the methods and procedures to be used for purchasing supplies, materials, equipment, vehicles, construction, insurance, and other items for the Town including, but not limited to, requisition, delivery, acceptance or rejection, and storage.
(5) 
To transfer to or between governmental bodies of the Town or to sell, trade or otherwise dispose of supplies, material and equipment of those bodies which are surplus, obsolete or unused, and to make proper adjustments to the accounts of the governmental bodies concerned in accordance with the Town of Westerly purchasing manual.
(6) 
To recommend criteria and procedures to obtain more economical operation of all procurement functions of the Town.
(7) 
With the approval of the Town Manager, to publish rules and regulations pursuant to this article governing the procurement of common items used by more than one activity of the Town, including the time, manner and form of making such procurement.
(8) 
Establish, consistent with this article, the form, time and manner of submission of bids and proposals for contracts, and the terms and conditions which shall be included in such contracts.
(9) 
Establish and maintain a program of testing and inspecting to ensure that material, supplies, services, equipment, construction, insurance and other items contracted for meet specifications; employ inspectors and make contracts for testing within the restrictions imposed by operating or capital budgets. If any using activity determines that any supplies, materials, equipment, construction or insurance received did not meet specifications, it shall promptly notify the Purchasing Agent, in writing, detailing the reasons why it believes the specifications were not met. The Purchasing Agent shall immediately determine whether or not the reported items, material or services meet the specifications, and his/her decision shall be final to the using activity. When he/she finds that the contract specifications or conditions have not been complied with, he/she shall take such action, with the advice and assistance of the Town Solicitor, against the defaulting contractor as may be deemed just and appropriate.
(10) 
To have access to department maintained usage figures on the consumption and use of supplies, material, services and equipment purchased for all Town governmental bodies and furnish all such bodies, upon request, the relevant usage and consumption figures maintained for that activity. The Purchasing Agent is directed to cooperate with the Town Board of Finance, the office of the Town Manager, and the office of the Superintendent of Schools in the preparation of usage and consumption data for supplies, material, services and equipment for purposes of budget preparation and control. He/she may require additional data and reports from governmental bodies as necessary, and may contract for statistical processing necessary for the maintenance and compilation of the statistics required by his/her office.
(11) 
To file contract documents and reports required by this article with the Town Clerk upon execution of the contracts or at the times specified for reports.

§ 49-4 Source selection and contract formation.

A. 
Ways of making contracts. Except as otherwise authorized, procurement and construction contracts shall be made by:
(1) 
Competitive sealed bid;
(2) 
Competitive negotiation;
(3) 
Noncompetitive negotiation; and
(4) 
Small purchase procedures.
B. 
Competitive bidding. Contracts exceeding the amount provided in § 49-8 shall be made by competitive sealed bidding when the configuration or performance specifications, or both, may be sufficiently defined to permit award on the basis of the lowest evaluated price, as determined in accordance with objective, measurable criteria set forth in the invitation for bids, and when available sources, the time and place of performance, and other conditions are appropriate for the use of competitive sealed bidding.
C. 
Adequate public notice of invitation for bids. The invitation for bids shall be given adequate public notice, in a newspaper of general circulation, and/or electronically on the Town's website of not less than seven days and not more than 21 days. The Purchasing Agent shall determine if publication in a newspaper of state-wide circulation is warranted. The Purchasing Agent may waive the twenty-one-day maximum limit for adequate public notice, in writing, but, in accordance with current state law, the seven-day minimum notice may not be waived. The invitation for bids, including specifications and attachments, shall permit such full and free competition as is consistent with acceptable procurement practices as required by applicable state law and municipal ordinance for the procurement of the supplies and services required.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
D. 
Opening and award. All bids shall be filed, in writing, with the Purchasing Agent at the time and place stated in the invitation for bids, and shall be opened publicly at the time and place stated therefor in the invitation for bids. Awards shall be made with reasonable promptness by written notice to the responsible, conforming low bidder.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
E. 
Responsible bidder.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
(1) 
For the purpose of this section, a "responsible" bidder or offerer shall mean a bidder or offerer determined by the Purchasing Agent:
(a) 
To possess, or be able to acquire prior to performance, sufficient financial ability to adequately perform the contract;
(b) 
To have under its employ, or to be able to secure prior to performance, the services of sufficient personnel with the experience necessary to adequately perform the contract;
(c) 
To have, or to be able to acquire prior to performance, the equipment, facilities and capacity necessary to adequately perform the contract; and
(d) 
To have had an overall satisfactory record in the performance of such prior public contracts as the bidder or offerer may have had.
(2) 
The requirements of this section may be waived by the Purchasing Agent when he/she shall determine in writing prior to award that the supplies and services to be procured are available from only one source.
F. 
Determination of responsibility. The Purchasing Agent may make such investigations as may be reasonably necessary to determine the responsibility of a prospective contractor in accordance with Subsection E. The failure of any bidder or offerer promptly to supply information requested by the Purchasing Agent in the course of such an investigation shall constitute grounds for a determination of nonresponsibility with respect to that bidder or offerer. Information disclosed by a bidder or offerer pursuant to this section may not be disclosed outside of the office of the Director of Finance without the prior written consent of the disclosing bidder or offerer.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
G. 
Prequalification of bidders. The Purchasing Agent is authorized to employ a method whereby suppliers wishing to prequalify to do business with the Town and to receive invitations for bids and requests for proposals are assured the opportunity to do so, provided that prequalification of a supplier will not foreclose the Town from determining between the time of the bid opening or receipt of offers and the making of an award, that a prequalified supplier is not responsible or that suppliers who are not prequalified as of the time of bid opening or receipt of offers are responsible. Suppliers seeking to prequalify in order to receive invitations for bids or requests for proposals may present evidence that they have the financial and technical ability, resources and facilities to act as suppliers to the Town. The Town may consider the following additional criteria in determining qualifications:
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
(1) 
The requirements of the Town for the products or services of the supplier;
(2) 
The geographic limitations of the supplier;
(3) 
Compliance by the supplier with any relevant Town, state or federal standards; and
(4) 
The performance record of the supplier.

§ 49-5 Competitive negotiation.

A. 
How used. Whenever the Purchasing Agent shall determine in writing that the use of competitive sealed bidding as prescribed in § 49-4 is not feasible or practicable, and except as provided in §§ 49-6 and 49-8, contracts may be made by competitive negotiations in accordance with the provisions of this section.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
B. 
Use after competitive sealed bidding. Notwithstanding § 49-4, contracts may be competitively negotiated for supplies or services for which it is determined:
(1) 
That the bid prices received after competitive sealed bidding either are unreasonable as to all or part of the requirements, or were not independently reached in open competition and for which each responsible bidder has been notified of the intention to negotiate and is given reasonable opportunity to negotiate;
(2) 
The negotiated price is lower than the last rejected bid of any responsible bidder; and
(3) 
The negotiated price is the lowest negotiated price offered by any responsible supplier.
C. 
Requests for proposals; public notice. The request for proposals shall be given adequate public notice in the same manner as that specified for invitations for bids. The requests for proposals, including specifications and attachments, shall permit such full and free competition as is consistent with the procurement of the supplies and services required.
D. 
Evaluation factors. When the award is not to be made primarily on the basis of price, the solicitation shall indicate the relative importance of the significant evaluation factors expected to be considered for award.
E. 
Discussion with all responsible offerers. Written or oral discussions shall be conducted with all responsible offerers who submit offers determined by the Purchasing Agent to be reasonably susceptible of being selected for award. Such discussions shall be conducted so as to afford each such offerer an equal opportunity to compete for the contemplated award. Discussions shall not disclose any information from a competitor’s proposal that would enable another offerer to improve his/her proposal as a result thereof. Discussions need not be conducted:
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
(1) 
With respect to prices, where such prices are fixed by law or regulation, except that consideration shall be given to competitive terms and conditions;
(2) 
Where time of delivery or performance will not permit; or
(3) 
Where it can be clearly demonstrated and documented from the existence of adequate competition or accurate prior cost experience with the supply or service that acceptance of an initial offer without discussion would result in fair and reasonable prices, and the solicitation notifies all offerers of the possibility that awards may be made on the basis of the initial offers.

§ 49-6 Noncompetitive negotiation.

[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
Contracts may be made by noncompetitive negotiation only when competition is not feasible, as determined in writing prior to award by the Purchasing Agent.

§ 49-7 (Reserved) [1]

[1]
Editor's Note: Former § 49-7, Report of procurement actions taken under noncompetitive negotiations, was repealed 2-13-2006 by Ch. No. 1563.

§ 49-8 Small purchases.

[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
Contracts not expected by the Purchasing Agent at the time proposals are solicited to exceed the Boston Regional Consumer Price Index adjusted amount per RIGL 45-55-9 for construction and all other purchases may be negotiated by simplified small purchase procedures under such regulations as the Purchasing Agent may promulgate. Such regulations shall include such requirements for obtaining competition as set forth in the Town of Westerly Purchasing Manual.

§ 49-9 Emergency purchases.

[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
Notwithstanding any other provisions herein, in case of actual emergency, any department may purchase directly any supplies, materials or equipment whose immediate procurement is essential to prevent delays in the work of the department which vitally affects the safety, health or convenience of citizens. In any such case, the head of such department shall, within 24 hours, notify the Town Manager and send to the Purchasing Agent a requisition together with full written explanation of the circumstances of the emergency, which shall be filed by the Purchasing Agent as a permanent and public record of the purchase. The Town Manager shall notify the Town Council of the emergency purchase at its next regular meeting. The Purchasing Agent shall prescribe the procedure under which such emergency purchases shall be made in the Town of Westerly Purchasing Manual.

§ 49-10 Cost or pricing data.

A. 
Certification. A prime contractor or any subcontractor thereunder shall be required to submit cost or pricing data under the circumstances listed below and shall be required to certify that, to the best of its knowledge and belief, the cost or pricing data submitted was accurate, complete and current prior to:
(1) 
The award of any negotiated prime contract.
(2) 
The pricing of any change order.
(3) 
The award of subcontract at any tier, where the prime contractor and each higher tier subcontractor have been required to furnish such certificate.
(4) 
The pricing of any change order or modification to a subcontract covered by this section.
B. 
Price adjustment. Any prime contract or change or modification under which such certificate is required shall contain a provision that the price to the Town, including profit or fee, shall be adjusted to exclude any significant sums by which it may be determined by the Town Council or its designee that such price was increased because the contractor or subcontractor who was required to furnish such a certificate furnished cost or pricing data that, as of the date of agreement of the negotiated price, was inaccurate, incomplete, or noncurrent, provided that the requirements of this section need not be applied to contracts or subcontracts where the price negotiated is based on adequate price competition, established catalog or market prices of commercial items sold in substantial quantities to the general public, prices set by law or regulation, or in exceptional cases where the Town Council or its designee determines that the requirements of this section may be waived, and states in writing the reasons for such determination.

§ 49-11 Types of contracts.

A. 
Cost reimbursement. The cost-plus-a-percentage-of-cost system of contracting shall not be used. Subject to this limitation and subject to Subsections B through E, the Purchasing Agent may, in negotiating contracts under §§ 49-5 and 49-6, use any kind of contract, including cost-plus-fixed-fee, as may be required by the facts and circumstances of particular types of procurement and which will promote the best interest of the Town.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
B. 
Use of cost-reimbursement type. No cost-reimbursement contract may be made under §§ 49-5 and 49-6 unless the Purchasing Agent determines that such contract is likely to be less costly to the Town than any other kind of contract, or that it is impracticable to obtain property or services of the kind or quality required except under such a contract.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
C. 
Prior notice regarding use of cost-reimbursement type subcontract. Each cost-reimbursement type contract shall provide for notice to the Purchasing Agent by the contractor before the making under the prime contract of:
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
(1) 
A cost-reimbursement type subcontract, or any variation thereof.
(2) 
A firm-fixed-price type subcontract, or any variation thereof authorized pursuant to Subsection A, involving more than 40% of the estimated cost of the prime contract.
D. 
Determination of accounting system. No contract type authorized for use pursuant to Subsection A, or variations authorized thereunder, except the firm-fixed-price type contract, may be used unless and until the Purchasing Agent has determined that 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 that the contractor's accounting system is adequate to allocate costs in accordance with generally accepted accounting practices.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
E. 
Cost principles. All cost-reimbursement type contracts shall contain a provision that only costs determined to be allowable in accordance with the cost principles set forth in regulations to be adopted will be reimbursable.

§ 49-12 Multiyear contracts.

A. 
Specified period. Unless otherwise provided in the resolutions making appropriations therefor, the Purchasing Agent may contract to procure all known requirements for particular supplies or services for periods of not more than three years and two successive twelve-month renewal periods if funds for the first fiscal year of the contemplated contract are available at the time of contracting. Payment and performance obligations for succeeding fiscal years shall be made subject to the availability of appropriations therefor.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
B. 
Determination prior to use. Prior to the utilization of a multiyear contract, the purchasing officer shall determine:
(1) 
That the estimated requirements over the period of the contract are reasonably firm and continuing; and
(2) 
That such a contract will serve the best interests of the Town by encouraging effective competition or promoting economies in performance and operation.
C. 
Cancellation. If the Town Council fails to make funds available for continuation of performance of the contract for any fiscal year after the first fiscal year, the contract shall be canceled and the contractor shall be reimbursed for the reasonable value of such nonrecurring costs as have been incurred, but have not been amortized in the price paid for supplies and services delivered prior to the effective date of the cancellation. The costs of cancellation may be paid from:
(1) 
Appropriations currently available for performance of the contract;
(2) 
Appropriations currently available for procurement of similar property or services and not otherwise obligated; or
(3) 
Appropriations made for payment of such cancellation costs.

§ 49-13 Cancellation of invitations for bids or requests for proposals.

[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
When he/she determines that it is in the best interest of the Town, the Purchasing Agent may cancel any invitation for bids or other solicitation, or reject any or all bids or proposals received prior to the award of a contract.

§ 49-14 Access to plant and records.

A. 
Plant inspection. The Town may inspect the plant of a contractor under any contract awarded or to be awarded by the Town, and of any subcontractor thereunder.
B. 
Audit. The Town shall be entitled, through its authorized auditing firm or agency, to audit the books and records of a contractor under all negotiated contracts other than firm-fixed-price contracts awarded by the Town, and of any subcontractor thereunder where the subcontractor and each higher tier subcontractor are under other than firm-fixed-price subcontracts, and such books and records shall be maintained by the contractor for a period of three years from the date of final payment under the contract.
C. 
Extended period of audit. For the purpose of evaluating the accuracy, completeness and currency of cost or pricing data required to be submitted under § 49-10, any authorized representative of the Town, including its authorized auditing firm or agency, shall have the right, until the expiration of three years after final payment under the prime contract, to examine all books, records, documents, and other data of the contractor or subcontractor relating to the negotiation, pricing or performance of the contract or subcontract.

§ 49-15 Determinations.

A. 
Finality. Determinations, findings and decisions required by this section may be made with respect to contracts individually or with respect to classes of related or similar contracts. Such decisions shall be final and conclusive unless they are fraudulent, arbitrary or capricious, so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence.
B. 
In writing. Each determination or decision shall be based upon written findings of the officer making the determination or decision, and shall be retained in the official contract file.
C. 
By the Purchasing Agent. The determinations required by §§ 49-5, 49-6, 49-11 and 49-13 shall be made, in writing, by the Purchasing Agent and approved, in writing, by the Town Manager.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
D. 
By the Town Solicitor. No contract of any type in excess of $10,000 shall be awarded by the Purchasing Agent unless it shall have been submitted through the Town Manager to the Town Solicitor and shall have received the Town Solicitor's written authorization on its form, content and compliance with the provisions of this article.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
E. 
Failure of the Town Solicitor to render an opinion. If, within 10 days of receipt of a proposed contract, the Town Solicitor has not rendered an opinion or has not submitted a written statement of his/her inability to render such an opinion, the Purchasing Agent may proceed to the award of the contract with the written approval of the Town Manager.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]

§ 49-16 Specifications for supplies and services other than construction.

A. 
Specification standardization. The Purchasing Agent shall have responsibility for issuing and maintaining the Town’s contract specifications for supplies and services other than construction. He/She shall:
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
(1) 
Prepare and issue standard specifications for supplies and services commonly required by the Town;
(2) 
Revise all standard specifications to conform to all technical and scientific advances pertaining to the supplies and services described in those specifications;
(3) 
Standardize all specifications to the greatest extent practicable; and
(4) 
Establish and, as necessary, revise guidelines for drafting specifications, standards of measurement and sampling, testing and inspection procedures in order to maximize competition.
B. 
Maximum practicable competition. All specifications shall be drafted so as to assure the maximum practicable competition to fulfill the Town’s requirements.
C. 
Prohibition against restrictive specifications. No specifications shall be drawn which describe in any way a product which is proprietary to one company unless:
(1) 
No other kind of specification is practicable for the Town to describe its requirements;
(2) 
Such a specification includes language which specifically permits an equivalent product to be supplied. Such a specification shall include a description of the essential characteristics of the product; and
(3) 
The Purchasing Agent shall approve, in writing, any and all proprietary purchases prior to award.
[Amended 9-21-2015 by Ch. No. 1845]

§ 49-17 Procurement of construction and architect-engineer services.

A. 
Selection of methods of construction contracting. The Town Council shall provide for the consideration of as many alternative methods of procurement of construction contracting as are feasible, acting upon the recommendation of the Town Manager, to select the most efficient method of construction contracting for a particular project; provided, however, that those officials shall execute and include in the contract file a written statement setting forth the facts which led to the selection of a particular method of construction contracting in each instance. The methods of construction procurement referred to herein include, but are not restricted to:
(1) 
Management by one contractor, including turnkey;
(2) 
The use of multiple prime contractors under the supervision of a construction manager; and
(3) 
The coordination and supervision of construction operations by the department, agency or activity of the Town responsible for the performance of the work.
B. 
Requirement for bid security. In the procurement of construction, bidders shall provide a bond or other form of bid guarantee satisfactory to the Purchasing Agent. Bid security shall be required for all contracts expected to exceed $50,000 and for all other contracts at the determination of the Purchasing Agent.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
C. 
Amount of bid security. The Purchasing Agent shall determine the percentage or amount which in his/her best judgment, when applied to the bid price, will produce a guaranteed amount adequate to protect the Town from loss should the successful bidder fail to execute such further contract documents and bonds as may be required. In no case shall the required bid security be less than 5% of the amount bid.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
D. 
(Reserved)[1]
[1]
Editor's Note: Former Subsection D, When required, was repealed 2-13-2006 by Ch. No. 1563.
E. 
Rejection of bids for noncompliance with bid guarantee requirements. When the solicitation requires that bids be supported by a bid security, noncompliance requires rejection of the bid.
[Amended 2-13-2006 by Ord. No. 1563]
F. 
Contract performance and payment bonds. Before any contract exceeding $50,000 in amount for the construction, alteration or repair of any public building or public work or improvement of this Town is awarded to any person, he/she shall furnish to the Town the following bonds which shall become binding upon the parties upon the award of the contract to such person, who is hereinafter designated as "contractor," provided the Purchasing Agent may require a performance and payment bond for contracts of lesser value.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
(1) 
A performance bond executed by a surety company authorized to do business in this state, or by other form of surety, either of which is satisfactory to the Town, in the amount equal to 100% of the contract price as it may be increased from time to time.
(2) 
A payment bond executed by a surety company authorized to do business in this state, or otherwise supplied, satisfactory to the Town for the protection of all persons supplying labor and material for the performance of the work provided for in the contract. The bond shall be in the amount of 100% of the total of the contract price as it may be increased from time to time.
G. 
Authority to require additional bonds. Nothing in this section shall be construed to limit the authority of the Town to require a performance bond or other security in addition to those bonds, or in circumstances other than those circumstances, specified in Subsection F.
H. 
Where bonds filed. Bonds payable to the Town shall be filed in the Finance Office.
[Amended 9-21-2015 by Ch. No. 1845]
I. 
Certified copies of bonds. The Finance Director is authorized and directed to furnish, to any person making application therefor, a certified copy of the bond, which copy shall be prima facie evidence of the contents, execution and delivery of the original. Applicants shall pay for such certified copies such reasonable fees as the Finance Director shall set.
[Amended 9-21-2015 by Ch. No. 1845]

§ 49-18 Architectural, engineering and consultant services.

A. 
General policy. It is the policy of this Town to publicly announce all requirements for architectural and engineering services and to negotiate contracts for architectural and engineering services on the basis of demonstrated competence and qualification for the type of professional services required, and at fair and reasonable prices. The same policies pertain to nonarchitectural-engineering consultant services where fee schedules are involved or such professions will not submit competitive proposals (bids).
B. 
Selection. In the procurement of architectural and engineering or other consultant services, the Purchasing Agent shall encourage firms engaged in the lawful practice of their professions to submit annually a statement of qualifications and performance data. The Town Manager or the Superintendent of Schools, for each proposed project, shall evaluate current statements of qualifications and performance data on file within the Town, together with those that may be submitted by other firms regarding the proposed project, and shall conduct discussions with no less than three firms regarding anticipated concepts and the relative utility of alternative methods of approach for furnishing the required services and then shall select therefrom, in order of preference, no less than three of the firms deemed to be most highly qualified to provide the services required and shall submit, together with a written statement describing the criteria used to select them, the three firms for approval by the Town Council.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
C. 
Negotiation. The Purchasing Agent shall negotiate a contract with the highest qualified firm for architectural, engineering, or consultant services at compensation which the Town Council determines to be fair and reasonable to the Town. In making this determination, the Town Council shall take into account the estimated value of the services to be rendered, the scope, complexity, and professional nature thereof. Should the Purchasing Agent be unable to negotiate a satisfactory contract with the firm considered to be the most qualified at a price the Town Council determines to be fair and reasonable to the Town, negotiations with that firm shall be formally terminated. The Purchasing Agent shall then undertake negotiations with the second-most qualified firm. Failing accord with the second-most qualified firm, the Purchasing Agent shall formally terminate negotiations. The Purchasing Agent shall then undertake negotiations with the third-most qualified firm. Should the Purchasing Agent be unable to negotiate a satisfactory contract with any of the selected firms, the Town Council, upon the recommendation of the Town Manager or the Superintendent of Schools, shall select additional firms in order of their competence and qualification and the Purchasing Agent shall continue negotiations in accordance with this section until an agreement is reached.
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
D. 
Other sections not applicable. Sections 49-4 through 49-8 of this article do not apply to architect-engineer or other consultant services.

§ 49-19 Cost principles.

A. 
Applicability. The Purchasing Agent shall propose for inclusion in this article cost principles and procedures based upon generally accepted accounting principles which will provide for adequate cost and price analysis in any one of the following situations and such others as may foster the best interest of the Town:
[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
(1) 
Whenever a contract is negotiated in accordance with § 49-5 or 49-6;
(2) 
Whenever a change to an existing contract requires an equitable adjustment to contract price of estimated costs, as provided by § 49-18 and such regulations as may be promulgated under it;
(3) 
Whenever a contract is terminated for either default of the contractor or the convenience of the Town as provided by § 49-18 and such regulations as may be promulgated under it;
(4) 
Whenever costs are reimbursed to a contractor under a cost-reimbursement type contract; and
(5) 
Which will provide for the determination and allowance of cost incurred in the performance of a contract when such action is required by a contract clause.
B. 
General rule. The Town shall pay fair and reasonable prices for those supplies and services (including construction) it procures. Prices shall be established generally on the basis of free and open market price competition. Where prices are not established on such basis, the determination, negotiation or allowance of costs is required and cost analysis must be performed. Such cost analysis shall be made in conformance with generally accepted accounting principles, and the cost principles adopted pursuant to Subsection A and the results of such analysis shall be documented in writing prior to the award of the contract.

§ 49-20 Intergovernmental relations.

[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
A. 
Cooperative purchasing agreements. Nothing in this article shall prevent the Purchasing Agent from entering into and participating in cooperative purchasing agreements with the state government or with other local governments. He/She may participate in or sponsor, conduct and/or administer a cooperative purchasing agreement for the acquisition of supplies, services, including architectural and engineering, construction or any manner of item with any other public purchasing activity in the state, provided that the essential requirements of this article are thereby met and the interest of the Town best served.
B. 
Effect of federal grants upon procurement policies. If federal grant requirements differ from the provisions of this article, nothing in this article shall absolve the Purchasing Agent or any other official from the obligation to fully comply with the terms and conditions of the federal grant requirements.

§ 49-21 Existing contract rights unaffected.

No portion of this article, nor any regulation made pursuant to its provisions, shall change in any way any contract commitment by the Town, nor of a contractor to the Town, which was in existence on the effective date of this article.

§ 49-22 Incorporation of regulations into contracts with consent of both parties.

[Amended 2-13-2006 by Ord. No. 1563; 9-21-2015 by Ch. No. 1845]
No provision of a regulation promulgated by the Purchasing Agent as authorized herein shall be considered to be incorporated by operation of law in any Town contract without the consent of both parties to the contract to such incorporation; provided, however, that the parties to the contract may give such consent to incorporation by reference at any time after the contract has been entered upon and without the necessity of consideration passing to either party.
[Adopted 8-20-2012 by Ch. No. 1776]

§ 49-23 Ineligibility when past-due amounts owed Town.

No contract for services or products may be issued to a vendor if they have amounts due the Town that are more than 30 days past due.

§ 49-24 Exception for payment agreement.

An exception to this § 49-23 will be made if the vendor has a valid payment agreement with the Town and is current on the terms of the agreement.