Chapter 15.30
CONTRACTORS AND BIDDERS
Sections:
15.30.010 Prequalification.
A. The Contract Administrator, with the approval of the Director of Development Services, may establish in the contracting procedure for a contract or contracts requiring competitive bidding a process for prequalification of potential bidders or subcontractors, or both bidders and subcontractors. The prequalification process may be established for a single project or for multiple projects, which are to be subject to bid within a one year period after prequalification. The prequalification process may be established and implemented as part of the process of another city or other public agency; provided, that notice is given in connection therewith that the process will also establish the prequalification rating for the City of Poway and for the Poway Redevelopment Agency. The prequalification process established shall comply with the requirements of Public Contract Code Section 20101 as implemented by the requirements of this section. To the extent that the Department of Industrial Relations has developed model guidelines for rating bidders, standardized questionnaires, financial statements, and other prequalification documents, such model documents, as modified to apply to the contract or contracts, may be used by the Contract Administrator. As used in this section, the terms “applicant” and “applicants” include prospective bidders and subcontractors for contracts to be performed for the City or Redevelopment Agency. For the purposes of this section, the term “Contract Administrator” means the director of the department with primary responsibility for the project, or a contract implementing the project, and the Contract Administrator of the other city or public agency responsible for the prequalification process.
B. The prequalification process shall include a notice inviting the submission of prequalification information, or a notice inviting technical proposals, or both.
C. The notice inviting prequalification information shall invite each applicant to submit information, financial statements, and responses to a standardized questionnaire under oath that will permit the Contract Administrator to determine pursuant to the established guidelines for rating bidders, that a prospective bidder is responsible to perform a proposed contract or that a prospective subcontractor is responsible to perform specified kinds of work. Bidding shall be restricted to bidders determined by the Contract Administrator’s application of the rating guidelines to be responsible.
D. If the prequalification process includes a technical proposal, the notice inviting technical proposals shall invite each applicant to submit a technical proposal, the responsiveness of which to the specifications shall be determined by the Contract Administrator in advance of receipt of bids. Bidding shall be restricted to bidders determined by the Contract Administrator to have furnished a technical proposal that is responsive to the specifications. A notice inviting technical proposals shall not be included in the contract documents unless the Contract Administrator determines all of the following:
1. There are not sufficiently definite or complete specifications or purchase descriptions available to permit free competition without engineering evaluation and discussion of the technical aspects of the procurement;
2. Criteria does exist for evaluating technical proposals, such as design, manufacturing, testing, and performance requirements, and special requirements for operational suitability and ease of maintenance; and
3. It is expected that more than one technically qualified source will be available, both initially and after technical evaluation.
E. Based upon the notice inviting prequalification information or notice inviting technical proposals, the Contract Administrator shall determine the responsibility of applicants in advance of receipt of bids, and that bidding shall be restricted to bidders determined by the Contract Administrator to be responsible, or that the performance of subcontracts shall be restricted to subcontractors determined by the Contract Administrator to be responsible. In determining responsibility, the Contract Administrator may consider those factors set forth in the prequalification documents developed by the Department of Industrial Relations and, to the extent permitted by law, the following:
1. An applicant’s experience in the design, construction, fabrication, assembly, or manufacture of works or materials similar to what will be called for under the contract documents;
2. The experience of others with the applicant in the construction, fabrication, assembly, or operation of similar works or materials designed, constructed, fabricated, or assembled by the applicant;
3. The physical plant, facilities, and equipment the applicant proposes to employ in the performance of a proposed contract or subcontract;
4. The experience and expertise of an applicant’s responsibility in managing personnel, key staff members, and other employees who would be assigned to the work if the applicant were awarded the contract or subcontract;
5. As to prospective bidders, the extent to which any part of the contract is to be performed by subcontractors or suppliers;
6. The financial capability, to procure appropriate insurance and bonding, and resources of the applicant to perform the proposed contract or subcontract;
7. Any other factor bearing on the responsibility of an applicant that is specified in the notice inviting prequalification information.
F. As a condition to submitting a bid or performing a specified portion of the proposed contract, an applicant shall comply with any and all conditions precedent determined by the Contract Administrator to be necessary to enable the applicant to submit a bid.
G. The Contract Administrator may determine that an applicant is responsible to perform more than one contract for which notices inviting bids are to be posted and advertised after the date of the Contract Administrator’s determination. In the event of such prior determination, the Contract Administrator may, at any time thereafter, determine that an applicant is no longer responsible, or advertise and post additional notices inviting prequalification information, and determine that additional applicants are responsible to perform contracts subsequent to the contract for which prequalification information is initially requested.
H. In the event any applicant is determined by the Contract Administrator not to be responsible, or no longer responsible after previously having been determined to be responsible, or a prospective bidder’s proposal is determined by the Contract Administrator not to be technically responsive to the contract documents, or the Contract Administrator determines that a bidder or an applicant has failed to comply with a condition precedent, the Contract Administrator shall state the determination and the basis thereof in writing. Upon request of the prospective bidder, the Contract Administrator shall deliver a copy of such determination, the basis thereof, and any supporting evidence to the prospective bidder. The bidder or applicant may request review of the Contract Administrator’s decision, by filing with the City Manager a written request for review not later than 5:00 p.m. of the fifth business day following delivery of the decision. At a minimum the review shall comply with the requirements of Public Contract Code Section 20101(d). A Hearing Committee shall conduct a hearing and shall make a decision whether to approve or reverse the determination of the Contract Administrator. The review procedure shall provide the bidder or applicant not less than five business days’ notice of the time and date of the hearing; provide the bidder or applicant the opportunity to present oral and/or documentary evidence rebutting the determination and reasons of the Contract Administrator; and permit the bidder or applicant to be represented by an attorney or other designated representative. The hearing shall not be conducted according to the technical rules relating to evidence and witnesses applicable to judicial proceedings. Any relevant evidence, including hearsay, may be received if it is the sort of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs. The submission of documentary evidence shall be encouraged. The Hearing Committee shall have the power to limit oral testimony. The determination of the Hearing Committee shall be made in writing, shall include findings of fact which support the determination, and shall be served personally upon the bidder or applicant, or by registered or certified mail. The Hearing Committee’s determination shall be final.
In the alternative to the above, if the Contract Administrator is administering the prequalification process on behalf of another city or public agency who is the principal or lead agency for the process, the Contract Administrator shall comply with the requirements of that agency and the bidder’s or applicant’s remedies shall be those made available by that agency.
I. Records of the names of prequalification applicants are public records subject to disclosure under the Public Records Act. All other prequalification records submitted by an applicant shall not be open to public inspection in accordance with Public Contract Code Section 20101(a). (Ord. 589 § 1, 2003)
15.30.020 Debarment.
A. Debarment is an administrative sanction to be imposed only in the public interest or for the City’s or Redevelopment Agency’s protection, and not for purposes of punishment. Debarment is designed to protect the agency by ensuring full and open competition by granting awards only to responsible contractors. This section establishes debarment and the procedure for imposition of debarment.
B. Unless from the context a different interpretation is plainly indicated, the definitions contained in this subsection govern the interpretation of this section. The definitions shall apply regardless of whether the term is capitalized.
1. “Affiliate” means business entities, organizations, or individuals that either directly or indirectly, control one another or have the power to control one another, or are controlled by a third party, or are subject to control by a third party.
2. “Affiliates” include chief executive officers and members of boards of directors or their equivalents.
3. “Bidder” means any individual, organization, legal entity, company or affiliate submitting a bid or proposal in response to a solicitation or other request by the agency for bids or proposals.
4. “Claim” includes any request or demand for money or damages submitted or made, pursuant to a contract, statute, or law, to the agency, or an officer, employee or agent of the agency.
5. “Contractor” means any individual or other legal entity that either (i) directly or indirectly, for example, through an affiliate, submits offers for, or is awarded, or reasonably may be expected to submit offers for, or be awarded, an agency contract for works, supplies or services; or (ii) conducts business or reasonably may be expected to conduct business with the authority as an agent or representative of another contractor. Contractor includes bidder.
6. “Debarment” means action taken by the City Council to exclude a contractor from contracting with the agency for a reasonable, specified period.
7. “Person” includes a natural person, corporation, firm, association, organization, partnership, limited liability partnership, limited liability company, business, trust or affiliate.
C. In addition to all other remedies permitted by law, upon a finding of grounds as set forth in this section, the City Council may declare by resolution that a contractor is ineligible to bid on, submit a proposal for, or be awarded a service, procurement, public works, or other contract with the City or Redevelopment Agency for a period not to exceed three years for any of the following reasons:
1. Two or more claims of computational or other error in bid submission within a two-year period;
2. Unjustified failure or refusal to timely provide or properly execute contract documents;
3. Unsatisfactory performance of contract;
4. Two or more occasions within a two-year period of failure to submit bond or insurance documents acceptable to the agency in the time periods required;
5. Unjustified refusal to properly perform or complete contract work or warranty performance;
6. Unjustified failure to honor or observe contractual obligations or legal requirements pertaining to the contract;
7. Conviction under a state or federal statute or municipal ordinance for fraud, bribery, theft, falsification or destruction of records, receiving stolen property, or of any other similar crime;
8. Any offense or action which indicates a lack of business integrity and which could directly affect the reliability and credibility of performance of the contractor on future contracts with the City or Redevelopment Agency;
9. Submission of a false or fraudulent claim;
10. Any debarment of the contractor by another governmental agency on grounds justifying debarment under this section, during the period of such debarment;
D. The City Council may permanently debar any contractor that has been permanently debarred by another governmental agency.
E. The administrative procedure for debarment is as follows:
1. Proceedings may be commenced upon the issuance by the City Manager of a Notice of Intent to Debar stating the grounds and factual basis for proposed debarment.
2. The Notice of Intent to Debar shall be given in the manner specified by State law for the service of process. The contractor shall have 10 days following service of the notice to file with the City Manager a written request for an administrative hearing on the proposed debarment. If no such request is timely filed, the Notice of Intent to Debar shall be deemed a final order for debarment. Such final order shall not be subject to appeal. The final order of debarment shall be submitted by the City Manager to the City Council in the form of a resolution for adoption without a hearing.
3. Upon receipt of a timely request for an administrative hearing, the City Manager shall set the time and date for the administrative hearing by the Hearing Committee. The contractor shall be given not less than 30 days written notice of the time and date set for the hearing. Such notice may be given in the manner specified by State law for the service of process.
4. In proceedings under this section, an individual contractor may appear in person, or be represented by an agent with written authorization; a contractor that is not an individual person may be represented by an authorized officer, employee, member, or agent. The City Manager may also designate a representative. In addition, any party may be represented by a member in good standing with the State Bar of California.
5. No later than 5:00 p.m., six days prior to the date set for hearing, the contractor and the City Manager shall file with the City Clerk a list of all witnesses to be presented by such party and three copies of each written or graphic item such party intends to offer into evidence during the hearing, and shall exchange one copy of such list and written or graphic items. The written recommendation of the City Manager described in subsection (E)(1) of this section shall be admitted into evidence and copies of the recommendation need not be filed or exchanged as provided in this subsection. Any contract, document incorporated by reference into a contract, notice inviting bids, request for proposals, bid, or response to request for proposals referenced in the written recommendation of the City Manager shall be admitted into evidence and copies of such documents need not be filed or exchanged as provided in this subsection. Only the contractor, the City Manager, the designated representative of the contractor or of the City Manager, or a person whose name appears on a witness list filed with the City Clerk shall be permitted to present oral evidence. Only those documents and graphic items filed with the City Clerk, or otherwise required by this subsection to be admitted, shall be considered for admission into evidence.
6. Oral evidence shall be taken only under oath or affirmation. The hearing shall not be conducted according to technical rules relating to evidence and witnesses applicable to judicial proceedings. Subject to the limitation of subsection (E)(5) of this section, any relevant evidence, including hearsay, shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs; provided, however, that a determination of debarment shall not be based solely on hearsay evidence. The presiding Hearing Committee may set reasonable limitations on the time for presentation of evidence.
7. Continuances or extensions of time may be granted by the Hearing Committee for good cause or upon agreement of the contractor and the City Manager.
8. The order of the hearing shall be as set forth in this subsection unless the contractor and City Manager agree to some other order, with the consent of the Hearing Committee. First, the City Manager and contractor shall each have an opportunity to make a brief opening statement. Second, the City Manager shall present the grounds and evidence for debarment. Third, the contractor may present evidence in explanation or rebuttal. Fourth, the City Manager may present evidence in rebuttal. Fifth, the contractor may present evidence in rebuttal. Sixth, the contractor may make a closing argument. Seventh, the City Manager may make a closing argument. During the presentation of evidence each party may cross-examine the witnesses for the other party, subject to reasonable limitation imposed by the presiding Hearing Committee, including a limitation to cross-examination conducted through the presiding Hearing Committee. The Hearing Committee may also ask questions of any witness during the presentation of evidence. Arguments of representatives of the contractor or the City Manager shall not be considered.
9. The Hearing Committee shall announce its final decision in writing, and shall direct the City Manager to prepare a resolution containing the decision and findings of the Hearing Committee for the City Council to adopt as its decision. The Hearing Committee shall approve the proposed resolution prior to its submittal to the City Council. The Hearing Committee may direct the preparation of a proposed decision and proposed findings prior to announcing its final decision. The City Council shall adopt the resolution without a hearing if there is no appeal of the decision.
10. The contractor or the City Manager may appeal an adverse decision to the City Council by filing a written appeal stating with particularity the exceptions to the decision, or the findings of the Hearing Committee. The written appeal shall be filed with the City Clerk within 10 days following the final decision of the Hearing Committee. Within 10 days following the submission of the written appeal, the City Manager may file a response with the City Clerk. The City Council shall consider the appeal based upon the written appeal and any written statement of the contractor in support thereof, the written response of the City Manager, and the record of the proceedings before the Hearing Committee. The City Council, by resolution, may affirm, modify, or reverse the decision of the Hearing Committee.
F. Effect of Debarment. Debarment prohibits the awarding of contracts to, and the execution of contracts with a debarred contractor. Debarment constitutes debarment of all divisions or other organizational elements of the contractor, unless the debarment decision is limited by its terms to specific divisions, organizational elements, or commodities. City officers, employees and agents shall not solicit offers from, or award contracts to, debarred contractors. Debarred contractors are also excluded from conducting business with the City or Agency as agents or representatives of other contractors. The City may extend the debarment decision to include any affiliate of the contractor if the affiliate is both specifically named and given written notice of the proposed debarment and an opportunity to respond.
G. List of Debarred Contractors. The City Manager shall compile and maintain a current, consolidated list of all debarred contractors. The list shall indicate the names and addresses of all debarred contractors, the ground(s) for debarment, and the termination date for each listing. After the opening of bids or receipt of proposals, the contracting officer shall review the list of debarred contractors. Bids received from any listed contractor in response to an invitation for bids shall be recorded as received, and then rejected by reason of debarment. Proposals, quotations, or offers received from any listed contractor shall not be evaluated for award or included in the competitive process during the period the contractor is on the list. Immediately prior to award of a contract, the City Manager shall again review the debarred contractors list to ensure that no award is made to a listed contractor.
H. Continuation of Existing Contracts. Debarment shall be deemed a material breach of any other contract between the City or Agency and the contractor, and any existing contracts between the City or Agency and the contractor shall be terminated immediately upon debarment. Notwithstanding the foregoing, however, the City may continue contracts in existence at the time the contractor is debarred, upon a determination by the City Council, after receiving advice from the City Manager and City Attorney as to the effects of termination of an existing agreement.
I. Effect of Debarment by Another Governmental Agency. A contractor lawfully debarred by another governmental agency shall be deemed automatically debarred by the City and Redevelopment Agency, and shall be added to the list of debarred contractors for the balance of the term of its debarment by such other agency. (Ord. 589 § 1, 2003)