[Amended 8-13-1985 by Ord.
No. 85-14B; 12-8-1987 by Ord.
No. 87-38]
A.
All public contracts with nongovernmental contractors
for the purchase or lease of goods or for the purchase of services, insurance
or construction shall be awarded after competitive sealed bidding or competitive
negotiation as provided in this section, unless otherwise authorized by law.
B.
Where the cost of the professional service is expected
to exceed $20,000, such service shall be procured by competitive negotiation.
In all other cases, professional services may be procured on the basis of
three or more competitive proposals, which may be informal but of which there
shall be a written record. Such proposals may be evaluated on the basis of
professional competence, price or other criteria reasonably deemed relevant
by the public body.
C.
Services for which the rate or price is fixed by a public
authority authorized by law to fix rates or prices may be procured without
recourse to competitive bidding or competitive negotiation.
No contract for the construction of any building or for an addition
to or improvement of an existing building for which state funds of $100,000
or more, either by appropriation, grant-in-aid or loan, are used or are to
be used for all or part of the cost of construction shall be let, except after
competitive bidding. The procedure for the advertising for bids and letting
of the contract shall conform, mutatis mutandis, to this chapter. No person
or firm shall be eligible to bid on any such contract or to have the same
awarded to him or it who or which has been engaged as architect or engineer
for the same project.
A.
Notice inviting bids shall be published once in at least
one newspaper of general circulation in the city, or the agent shall advertise
all pending purchases or sales by notice posted on the bulletin board in the
municipal building, or both, at least 10 days prior to the last day set for
the receipt of proposals.
B.
The newspaper notice provided for herein shall include
a general description of the articles to be purchased or sold and shall state
where bid blanks and specifications may be secured and the time and place
for opening bids.
C.
The Purchasing Agent shall also solicit sealed bids from
all responsible prospective suppliers who have requested their names to be
added to a bidders' list, which the agent shall maintain, by sending such
other notice as will acquaint them with the proposed purchase or sale. In
any case, invitations sent to the vendors on the bidders' list shall be limited
to commodities that are similar in character and ordinarily handled by the
trade group to which the invitations are sent.
[Amended 8-13-1985 by Ord.
No. 85-14B]
A.
Except as otherwise specifically provided in this chapter,
all contracts shall be awarded by the City Purchasing Agent.
B.
Notwithstanding the provisions of Subsection A hereof to the contrary, the sole authority to authorize the Purchasing Agent to reject any or all bids or direct readvertisement or award to other than the low bidder shall rest with City Council for any contract for an amount in excess of $10,000, as shall the sole authority to procure professional services when the cost is expected to exceed $10,000.
C.
Notwithstanding the provisions of Subsection A hereof to the contrary, the sole authority to authorize the Purchasing Agent to reject any or all bids or direct readvertisement or award to other than the low bidder shall rest with the City Manager for any contract for an amount of $10,000 or less, as shall the sole authority to procure professional services when the cost is expected to be less than $10,000.
A.
In the case of a tie bid, preference shall be given to
goods, services and construction produced in Virginia or provided by Virginia
persons, firms or corporations, if such a choice is available; otherwise,
the tie shall be decided by lot.
B.
Whenever any bidder is a resident of any other state
and such state under its laws allows a resident contractor of that state a
preference, a like preference may be allowed to the lowest responsible bidder
who is a resident of Virginia.
C.
If all bids received are for the same total amount or
unit price, quality and service being equal, the contract shall be awarded
to a local bidder.
Unless otherwise provided in the invitation to bid, the name of a certain
brand, make or manufacturer does not restrict bidders to the specific brand,
make or manufacturer named; it conveys the general style, type, character
and quality of the article desired, and any article which the City Council,
in its sole discretion, determines to be the equal of that specified, considering
quality, workmanship, economy of operation and suitability for the purpose
intended, shall be accepted.
Every contract of over $10,000 shall include the following provisions:
A.
During the performance of this contract, the contractor
agrees that:
(1)
He will not discriminate against any employee or applicant
for employment because of race, religion, color, sex or national origin, except
where religion, sex or national origin is a bona fide occupational qualification
reasonably necessary to the normal operation of the contractor. The contractor
agrees to post in conspicuous places, available to employees and applicants
for employment, notices setting forth the provisions of this nondiscrimination
clause.
(2)
He will state, in all solicitations or advertisements
for employees placed by or on behalf of the contractor, that such contractor
is an equal opportunity employer.
(3)
Notices, advertisements and solicitations placed in accordance
with federal law, rule or regulation shall be deemed sufficient for the purpose
of meeting the requirements of this section.
Except as provided herein, all proceedings, records, contracts and other
public records relating to procurement and transactions shall be open to the
inspection of any citizen or any interested person, firm or corporation, in
accordance with the Virginia Freedom of Information Act. Cost estimates relating
to a proposed transaction prepared by or for the City shall not be open to
public inspection. Any bidder or offeror, upon request, shall be afforded
the opportunity to inspect bid and proposal records within a reasonable time
after the opening of all bids but prior to award, except in the event that
the City decides not to accept any of the bids and to reopen the contract.
Otherwise, bid and proposal records shall be open to public inspection only
after award of the contract. Any inspection of procurement transaction records
under this section shall be subject to reasonable restrictions to ensure the
security and integrity of the records. Trade secrets or proprietary information
submitted by a bidder, offeror or contractor in connection with a procurement
transaction shall not be subject to public disclosure; however, the bidder,
offeror or contractor must invoke said protection prior to or upon submission
of the data or other materials and must identify the data or other materials
to be protected and state the reasons why protection is necessary.
Unless canceled or rejected, a responsive bid from the lowest responsible
bidder shall be accepted as submitted, except that if the bid from the lowest
responsible bidder exceeds available funds, the City Council may negotiate
with the apparent low bidder to obtain a contract price within available funds;
however, such negotiation may be undertaken only under conditions and procedures
described in writing and approved by the Council prior to issuance of the
invitation to bid and summarized therein.
A.
In any contract for construction which provides for progress
payments in installments based upon an estimated percentage of completion,
the contractor shall be paid at least 95% of the earned sum when payment is
due, with not more than 5% being retained to assure faithful performance of
the contract. All amounts withheld may be included in the final payment.
B.
Any subcontract for a public project which provides for
similar progress payments shall be subject to the same limitations.
[Amended 9-12-2006 by Ord. No. 06-24]
A.
Except in cases of emergency, all bids or proposals for
construction contracts in excess of $50,000 shall be accompanied by a bid
bond from a surety company selected by the bidder which is legally authorized
to do business in Virginia, as a guaranty that if the contract is awarded
to such bidder, that bidder will enter into the contract for the work mentioned
in the bid. The amount of the bid bond shall not exceed 5% of the amount bid.
B.
No forfeiture under a bid bond shall exceed the lesser
of the difference between the bid for which the bond was written and the next
low bid or the face amount of the bid bond.
[Amended 8-13-1985 by Ord.
No. 85-14B; 9-12-2006 by Ord. No. 06-24]
A.
Upon the award of any construction contract exceeding $50,000
awarded to any prime contractor, such contractor shall furnish to the City
the following bonds:
(1)
A performance bond in the sum of the contract amount conditioned
upon the faithful performance of the contract in strict conformity with the
plans, specifications and conditions of the contract.
(2)
A payment bond in the sum of the contract amount. Such bond shall
be for the protection of claimants who have and fulfill contracts to supply
labor or materials to the prime contractor to whom the contract was awarded
or to any subcontractors in the prosecution of the work provided for in such
contract and shall be conditioned upon the prompt payment for all such material
furnished or labor supplied or performed in the prosecution of such work.
"Labor or materials" shall include public utility services and reasonable
rentals of equipment, but only for periods when the equipment rented is actually
used at the site.
B.
Each of such bonds shall be executed by one or more surety companies
which are legally authorized to do business in Virginia, selected by the contractor.
C.
Bonds shall be made payable to the City.
D.
Each of the bonds shall be filed with the Purchasing Agent or
such other City office or official as the City Manager shall designate.
E.
The City Manager may, upon specific written finding of reasonable
cause, require payment or performance bonds of the same terms for construction
contracts below $50,000.
F.
Nothing in this section shall preclude such contractor from requiring
each subcontractor to furnish a payment bond with surety thereon in the sum
of the full amount of the contract with such subcontractor, conditioned upon
payment to all persons who have and fulfill contracts which are directly with
the subcontractor for performing labor and furnishing materials in the prosecution
of the work provided for in the subcontract.
No action against the surety on a performance bond shall be brought
unless within one year after completion of the contract, including the expiration
of all warranties and guarantees, or discovery of the defect or breach of
warranty, if the action be for such.
A.
Subject to the provisions of Subsection B hereof, any claimant who has performed labor or furnished materials in accordance with the contract for which a payment bond has been given, and who has not been paid in full therefor before the expiration of 90 days after the day on which such claimant performed the last of such labor or furnished the last of such materials for which he claims payment, may bring an action on such payment bond to recover any amount due him for such labor or material and may prosecute such action to final judgment and have execution on the judgment. The obligee named in the bond need not be named a party to such action.
B.
Any claimant who has a direct contractual relationship with any subcontractor from whom the contractor has not required a subcontractor payment bond under § 63-18 but who has no contractual relationship, express or implied, with such contractor may bring an action on the contractor's payment bond only if he has given written notice to such contractor within 180 days from the day on which the claimant performed the last of the labor or furnished the last of the materials for which he claims payment, stating with substantial accuracy the amount claimed and the name of the person for whom the work was performed or to whom the material was furnished. Any claimant who has a direct contractual relationship with a subcontractor from whom the contractor has required a subcontractor payment bond under § 63-18 but who has no contractual relationship, express or implied, with such contractor may bring an action on the subcontractor's payment bond. Notice to the contractor shall be served by registered or certified mail, postage prepaid, in an envelope addressed to such contractor at any place where his office is regularly maintained for the transaction of business. Claims for sums withheld as retainages with respect to labor performance or materials furnished shall not be subject to the time limitations stated in this subsection.
C.
Any action on a payment bond must be brought within one
year after the day on which the person bringing such action last performed
labor or last furnished or supplied materials.
A.
In lieu of a bid, payment or performance bond, a bidder
may furnish a certified check or cash escrow in the face amount required for
the bond.
B.
If approved by the City Attorney, a bidder may furnish
a personal bond, property bond or bank or savings and loan association's letter
of credit on certain designated funds in the face amount required for the
bid bond. Approval shall be granted only upon a determination that the alternative
form of security proffered affords protection to the City equivalent to the
corporate surety's bond.
[Amended 9-12-2006 by Ord. No. 06-24]
A.
Contracts for goods and services, except for professional
services, involving an expenditure in excess of $50,000 shall require bid,
payment and performance bonds.
B.
Except upon specific written requirement of the City
Manager for reasonable cause, no bid payment or performance bonds shall be
required for other contracts for goods or services.
C.
In the case of any bond required pursuant to this section,
the terms of such bond shall be the same as those required above for construction
contracts. All such requirements shall be provided for in the invitation to
bid or the request for proposal.
A.
An invitation for bids, a request for proposals or other
solicitation may be canceled or any or all bids or proposals may be rejected
in whole or in part when the City Manager, in respect of all purchases or
contracts involving an expenditure of $10,000 or less, or the City Council,
in all other cases, determines that it is in the best interest of the City
to do so. The Purchasing Agent may be in like manner authorized to readvertise
for bids or to make the purchase or contract in the open market after the
rejection of all bids. The reasons therefor shall be made a part of the record
in the matter.
B.
The City Manager may waive informalities in bids.
A.
A bidder for a public construction contract, other than
a contract for construction or maintenance of public highways, may withdraw
his bid from consideration if the price bid was substantially lower than the
other bids due solely to a mistake therein, provided that the bid was submitted
in good faith and that the mistake was a clerical mistake as opposed to a
judgment mistake and was actually due to an unintentional arithmetic error
or unintentional omission of a quantity of work, labor or material made directly
in the compilation of a bid, which unintentional arithmetic error or unintentional
omission can be clearly shown by objective evidence drawn from inspection
of original work papers, documents and materials used in the preparation of
the bid sought to be withdrawn. The procedure for bid withdrawal shall be
stated in the advertisement for bids. The bidder shall give notice in writing
of his claim of right to withdraw his bid within two business days after the
conclusion of the bid opening procedure.
B.
Procedures for the withdrawal of bids for other than
construction contracts may be established by the Purchasing Agent.
C.
No bid may be withdrawn under this section when the result
would be the awarding of the contract or another bid of the same bidder or
of another bidder in which the ownership of the withdrawing bidder is more
than 5%.
D.
If a bid is withdrawn under the authority of this section,
the lowest remaining bid shall be deemed to be the low bid.
E.
No bidder who is permitted to withdraw a bid shall, for
compensation, supply any material or labor to or perform any subcontract or
other work agreement for the person or firm to whom the contract is awarded
or otherwise benefit, directly or indirectly, from the performance of the
project for which the withdrawn bid was submitted.
F.
If the City Council denies the withdrawal of a bid under
the provisions of this section, it shall notify the bidder in writing stating
the reasons for its decision.
In determining the lowest responsible bidder, in addition to price and
other considerations permitted by law, the agent shall consider such other
reasonably related requirements as have been set forth in the invitation,
which may include but shall not be limited to:
A.
The ability, capacity and skill of the bidder to perform
the contract or provide the service required.
B.
Whether the bidder can perform the contract or provide
the service promptly, or within the time specified, without delay or interference.
C.
The character, integrity, reputation, judgment, experience
and efficiency of the bidder.
D.
The quality of performance of previous contracts of services.
E.
The previous and existing compliance by the bidder with
laws and ordinances relating to the contract or service.
F.
The sufficiency of the financial resources and ability
of the bidder to perform the contract or provide the service.
G.
The quality, availability and adaptability of the goods
or services to the particular use required.
H.
The ability of the bidder to provide future maintenance
and service for the use of the subject of the contract.
I.
The number and scope of conditions attached to the bid.
A.
Unless otherwise provided by law, a contract for goods,
services or insurance may be entered into for any period of time deemed to
be in the best interests of the city, 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.
B.
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.
A public contract may include provisions for modification of the contract
during performance, but no fixed-price contract may be increased by more than
25% of the amount of the contract or $10,000, whichever is greater, without
the advance written approval of the governing body.[1]
[1]
Editor's Note: Original § 16.1-29, entitled "Contracting
for professional services by competitive negotiation," which immediately followed
this section, was deleted 8-13-1985 by Ord. No. 85-14B.
[Amended 8-13-1985 by Ord.
No. 85-14B; 12-8-1987 by Ord.
No. 87-38]
A.
Notwithstanding any other provision of this chapter to
the contrary, in case of emergency, a contract may be awarded without competitive
sealed bidding or competitive negotiation; however, such procurement 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. A notice
stating that the contract is being awarded on an emergency basis and identifying
that which is being procured, the contractor selected and the date the contract
was or will be awarded shall be posted on a public bulletin board in the Municipal
Building on the day of the award or of the announcement of the decision to
award, whichever occurs first, or as soon as thereafter as is practicable.
B.
An emergency shall be deemed to exist when a breakdown
in machinery or equipment or a threatened termination of essential services
or a dangerous condition develops, or when any unforeseen circumstances arise
causing curtailment or diminution of an essential service or where materials
or services are needed to prevent loss of life or property.
[Amended 12-8-1987 by Ord.
No. 87-38; 10-10-1991 by Ord.
No. 91-23; 9-9-1997 by Ord.
No. 97-23; 9-12-2006 by Ord. No. 06-24]
A.
Single or term contracts not expected to exceed $50,000 may be
awarded without competitive sealed bids or competitive negotiation but shall
be awarded on the basis of such competition as the Purchasing Agent, in his
discretion, finds practicable. Such awards shall be based, except when the
Purchasing Agent shall determine in writing that it is impracticable to do
so, on three or more competitive bids, which may be informal but of which
there shall be a written record.
B.
In making determinations as to practicability, the Purchasing
Agent shall consider whether or not:
(1)
The cost of the items purchased is the lowest from the supplier
current price lists in the Purchasing Office.
(2)
All competitors have the same price for the items to be purchased.
(3)
The purchase is a reorder of commodities purchased on a previous
bid or part thereof obtained within six months prior to the proposed purchase.
(4)
Only two competitive bids are reasonably available. In making
said determinations, the Purchasing Agent shall also consider the cost of
the purchasing process relative to the cost of items being purchased and shall
not be limited necessarily to consideration of factors specifically stated
herein.
C.
No contract amount shall be artificially divided so as to constitute
a small purchase under this section.
[Amended 8-13-1985 by Ord.
No. 85-14B]
The following transactions are hereby exempt from the provisions of
this chapter as to competitive bidding or negotiation:
A.
Purchases from the state penitentiary or state contracts
from the state purchasing department warehouse.
B.
Contracts for legal services, expert witnesses or services
associated with actual or potential litigation or regulatory proceedings,
which may be entered into by the City Attorney without resort to competitive
bidding or negotiation.[1]
C.
Purchases for special police work when the Chief of Police
certifies to the Purchasing Agent that items are needed for undercover police
operations.
[Added 12-8-1987 by Ord.
No. 87-38]
Upon a determination by the Purchasing Agent, in writing, that there
is only one source practicably available for that which is to be procured,
a contract may be negotiated and awarded to that source without competitive
sealed bidding or competitive negotiation. The writing shall document the
basis of this determination. A notice shall be issued stating that only one
source was determined to be practicably available and identifying that which
is to be procured, the contractors selected and the date on which the contract
was or will be awarded. This notice shall be posted on a public bulletin board
in the Municipal Building on the day of the award or the day of the announcement
of the intention to award, whichever occurs first.
