Chapter 3.70
PROCUREMENT – FEDERAL GRANTS/FUNDS OF THE TOWN OF HIGHLAND Revised 12/24
Sections:
3.70.010 Title. Revised 12/24
3.70.020 Definitions. Revised 12/24
3.70.050 Rules regarding purchasing of materials and supplies. Revised 12/24
3.70.060 Rules regarding competition. Revised 12/24
3.70.070 Rules regarding solution. Revised 12/24
3.70.080 Rules regarding procurement methods. Revised 12/24
3.70.085 Rules regarding offers – Status of documents as public records. Revised 12/24
3.70.090 Rules regarding domestic preference for procurement. Revised 12/24
3.70.095 Rules regarding procurement of nondomestic materials and supplies. Revised 12/24
3.70.100 Rules regarding contract/price analysis. Revised 12/24
3.70.110 Rules regarding time and materials contracts. Revised 12/24
3.70.120 Rules regarding suspension and debarment. Revised 12/24
3.70.130 Rules regarding bid protest. Revised 12/24
3.70.140 Rules regarding maintenance of procurement records. Revised 12/24
3.70.010 Title. Revised 12/24
This chapter shall be known as the “Procurement – Federal Grants/Funds of the Town of Highland” and shall be carried out supplementary to and consistent with the provisions of the Indiana Public Purchase Law, codified as IC 5-22 et seq. [Ord. 1803 § 1, 2024].
3.70.020 Definitions. Revised 12/24
For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning:
“Policy” refers to a governmental body’s or purchasing agency’s written statement of:
(1) Purchasing procedure; or
(2) Substantive purchasing purposes;
that does not have the force and effect of law.
Procedures. The purchasing agency of a governmental body may purchase services using any procedure the governmental body or the purchasing agency of the governmental body considers appropriate.
“Rules; written policies” means:
(1) A governmental body may adopt rules to regulate purchases of the governmental body. A rule adopted under this subsection may:
(a) Supplement this chapter; and
(b) Not be inconsistent with this chapter.
(2) The purchasing agency of a governmental body may establish written policies for purchases made by the purchasing agency. The written policies established under this subsection may apply to all purchases generally or to a specific purchase stated in the solicitation for the purchase. A written policy established under this subsection may:
(a) Supplement this chapter or a rule adopted by the purchasing agency’s governmental body; and
(b) Not be inconsistent with this chapter or a rule adopted by the purchasing agency’s governmental body.
“Services” means the furnishing of labor, time, or effort by a person, not involving the delivery of specific supplies other than printed documents or other items that are merely incidental to the required performance.
“Supplies” means:
(1) Any property.
(2) The term includes equipment, goods, and materials. The term does not include an interest in real property. [Ord. 1803 § 1, 2024].
3.70.050 Rules regarding purchasing of materials and supplies. Revised 12/24
(A) Procurement.
(1) Procurement of all supplies, materials, equipment, and services paid from federal funds shall be made in accordance with all applicable federal, state and local statutes and/or regulations, the terms and conditions of the federal grant.
(2) The town shall have and use a procurement and contract administration system in accordance with the USDOE requirements (2 CFR 200.317 through 200.326), including affirmative steps for small and minority businesses and women’s business enterprises, for the administration and management of federal grants and federally funded programs. The town shall maintain oversight that requires contractors to perform in accordance with the terms, conditions and specifications of their contract or purchase orders. Except as otherwise noted, procurement transactions shall conform to the provisions of the town’s documented general purchasing policy, Chapter 3.05 HMC.
(3) All federally funded contracts in excess of $2,000 related to construction, alteration, repairs, painting, etc., of public buildings or public works must comply with the Davis-Bacon Act and related acts prevailing wage requirements.
(4) All town employees, officers (that is, council members), and agents who have purchasing authority shall abide by the standards of conduct covering conflicts of interest and governing the actions of employees, officers, and agents engaged in the selection, award, and administration of contracts as established under Special Regulations, Chapter VI, Investment Policy of the Town of Highland, Rule 6.0.
(5) The town shall avoid acquisition of unnecessary or duplication items. Additionally, consideration shall be given to consolidating or breaking out procurements to obtain a more economical purchase. And, where appropriate, an analysis shall be made of lease versus purchase alternatives and any other appropriate analysis to determine the most economical approach. These considerations are given as part of the process to determine the allowability of each purchase made with federal funds.
(6) To foster greater economy and efficiency, the town may enter into state and local intergovernmental agreements, where appropriate, for procurement or use of common or shared goods and services. [Ord. 1803 § 1, 2024].
3.70.060 Rules regarding competition. Revised 12/24
(A) Competition.
(1) All procurement transactions for the acquisition of property, materials or services required under a federal award paid for from federal funds or town matching funds shall be conducted in a manner that encourages full and open competition and is in accordance with good administrative practice and sound business judgment. In order to promote objective contractor performance and eliminate unfair competitive advantage, the town shall exclude any contractor that has developed or drafted specifications, requirements, statements of work, or invitations for bids or requests for proposals from competition for such procurements.
Some of the situations considered to be restrictive of competition include, but are not limited to, the following:
(a) Unreasonable requirements on firms in order for them to qualify to do business;
(b) Unnecessary experience and excessive bonding requirements;
(c) Noncompetitive pricing practices between firms or between affiliated companies;
(d) Noncompetitive contracts to consultants that are on retainer contracts;
(e) Organizational conflicts of interest;
(f) Specification of only a “brand name” product instead of allowing for an “or equal” product to be offered and describing the performance or other relevant requirements of the procurement; and
(g) Any arbitrary action in the procurement process.
(2) Further, the town shall not use statutorily or administratively imposed state, local, or tribal geographical preferences in the evaluation of bids or proposals unless (a) an applicable federal statute expressly mandates or encourages a geographic preference; or (b) the town is contracting for architectural and engineering services, in which case geographic location may be a selection criterion provided its application leaves an appropriate number of qualified firms, given the nature and size of the project, to compete for the contract.
(3) To the extent that the town uses a pre-qualified list of persons, firms or products to acquire goods and services that are subject to policy, the pre-qualified list includes enough qualified sources as to ensure maximum open and free competition. The town allows vendors to apply for consideration to be placed on the list following a request for proposals (RFPs).
(4) The town shall require that all prequalified lists of persons, firms, or products which are used in acquiring goods and services are current and include enough qualified sources to provide maximum open and free competition. The town shall not preclude potential bidders from qualifying during the solicitation period. [Ord. 1803 § 1, 2024].
3.70.070 Rules regarding solution. Revised 12/24
(A) Solicitation Language (Purchasing Procedures).
(1) The town shall have written procurement procedures that require that all solicitations made pursuant to this policy incorporate a clear and accurate description of the technical requirements for the material, product, or service to be procured. Such description shall not, in competitive procurements, contain features which unduly restrict competition. The description may include a statement of the qualitative nature of the material, product or service to be procured and, when necessary, shall set forth those minimum essential characteristics and standards to which it shall conform if it is to satisfy its intended use. Detailed product specifications should be avoided if at all possible.
(2) When it is impractical or uneconomical to make a clear and accurate description of the technical requirements, a “brand name or equivalent” description may be used as a means to define the performance or other salient requirements of procurement. The specific features of the named brand which shall be met by offers shall be clearly stated; and the solicitation shall identify all requirements which the offerors shall fulfill and all other factors to be used in evaluating bids or proposals.
(3) The board will not approve any expenditure for an unauthorized purchase or contract. [Ord. 1803 § 1, 2024].
3.70.080 Rules regarding procurement methods. Revised 12/24
(A) Procurement Methods. The town shall have and use documented procedures, consistent with the standards described above, for the following methods of procurement:
(1) Formal Procurement Methods. When the value of the procurement for property or services under a federal award exceeds the simplified acquisition threshold, or a lower threshold established by the state, formal procurement methods are required. Formal procurement methods require following documented procedures. Formal procurement methods also require public advertising unless a noncompetitive procurement method can be used in accordance with the standards on competition in 2 CFR 200.319 or noncompetitive procurement. The formal methods of procurement are:
(a) Micro-Purchases. Micro-purchases are defined in 2 CFR 200.1 as a purchase of supplies or services, the aggregate amount of which does not exceed the micro-purchase threshold, currently $10,000 by federal rule. Under this policy and consistent with federal requirements in 2 CFR 200.320, micro-purchases may be awarded without soliciting competitive price or rate quotations if the town considers the price to be reasonable based on research, experience, purchase history or other information and documents it files accordingly. To the maximum extent practicable, the town should distribute micro-purchases equitably among qualified suppliers.
(b) Small Purchases. Small purchases are the acquisition of property or services, the aggregate dollar amount of which is higher than the micro-purchase threshold ($10,000 as described above) but does not exceed the simplified acquisition threshold (SAT – as described below). If small purchase procedures are used, price or rate quotations must be obtained from an adequate number of qualified sources as determined appropriate by the town. The town considers the following procedures appropriate for small purchases:
1. Small purchases of material, supplies or services, where the aggregate dollar amount will be more than the micro-purchase threshold but less than $50,000, the town, in accordance with Indiana statutory provisions:
A. Will invite quotes from at least three qualified persons known to deal in lines or classes to be purchased.
B. Will purchase the materials and supplies in the open market without inviting or receiving quotes.
C. Will not require evidence of financial responsibility when the estimated cost of the material, supplies or services is less than $50,000.
2. Small purchases of material, supplies or services, where the aggregate dollar amount will be at least $50,000 and not more than $150,000, town shall invite quotes from at least three qualified persons known to deal in the lines or classes to be purchased.
A. The town shall mail an invitation to quote at least seven days before the time fixed for receiving quotes;
B. If the town receives a satisfactory quote, the town will award a contract to the lowest responsible and responsive offer or for each line or class of materials, supplies or quotes;
C. The town may reject all quotes;
D. If the town does not receive a quote from a responsible and responsive offer, the town may purchase material and supplies under provisions of IC 5-22-10-10;
E. The solicitation may include a requirement that an offeror provide evidence of financial responsibility. If evidence of financial responsibility is required, the solicitation must indicate the kind of evidence that will be acceptable. If a bond or certified check is required, it may not exceed 10 percent of the estimated cost of the purchase.
(c) Simplified Acquisition Threshold (Large Purchases). The simplified acquisition threshold (SAT) is the dollar amount below which the town may purchase property or services using small purchase methods (as previously discussed). Purchases over the PAT must follow formal procurement methods. The federal SAT is higher than Indiana statutory provisions for public purchases. The town is responsible for determining an appropriate SAT threshold based on internal controls, an evaluation of risk, and its documented procurement procedures which must not exceed the threshold established in the federal acquisition regulation.
Federal requirements permit a lower, or more restrictive, amount and procedures. As such and to comply with Indiana statutory provisions, the town established its SAT at $150,000. For purchases over this amount (referred to as large purchases), the town shall issue an invitation for bids. An invitation for bids must include a purchase description; all contractual terms and conditions that apply to the purchase; and a statement of the evaluation criteria that will be used, including any of the following:
1. Inspection.
2. Testing.
3. Quality.
4. Workmanship.
5. Delivery.
6. Suitability for a particular purpose.
7. The requirement imposed under IC 5-22-3-5.
8. The time and place for opening the bids.
9. A statement concerning whether the bid must be accompanied by a certified check or other evidence of financial responsibility that may be imposed in accordance with rules or policies of the governmental body.
10. A statement concerning the conditions under which a bid may be canceled or rejected in whole or in part as specified under IC 5-22-18-2.
(B) Evaluation criteria that will affect the bid price and be considered in the evaluation for an award must be objectively measurable.
(C) Only criteria specified in the invitation for bids may be used in bid evaluation.
(D) The purchasing agency shall give notice of the invitation for bids in the manner required by IC 5-3-1.
(E) The purchasing agency shall open bids publicly in the presence of one or more witnesses at the time and place designated in the invitation for bids.
(F) Bids must be:
(1) Unconditionally accepted without alteration or correction, except as provided in IC 5-22-7-11 through 5-22-7-13; and
(2) Evaluated based on the requirements provided in the invitation for bids.
(G) A contract must be awarded with reasonable promptness by written notice to the lowest responsible and responsive bidder.
(H) The purchasing agency shall maintain the following information which is subject to public inspection after each contract award:
(1) The name of each bidder;
(2) The amount of each bid;
(3) Other information required by IC 5-22, and ordinances and rules adopted pursuant to IC 5-22.
(I) The governmental body may adopt rules or establish policies to allow any of the following:
(1) Correction or withdrawal of inadvertently erroneous bids before or after award.
(2) Cancellation of awards or contracts based on a mistake described in subsection (I)(1) of this section.
(J) Except as provided in a rule or policy, a purchasing agency must make a written decision to permit the correction or withdrawal of a bid, or cancel awards or contracts based on bid mistakes.
(K) After bid opening, a purchasing agency may not permit changes in bid prices; or other provisions of bids prejudicial to the interest of the governmental body or fair competition.
(L) If a bidder inserts contract terms or bids on items not specified in the invitation for bids, the purchasing agent shall treat the additional material as a proposal for addition to the contract and may do any of the following:
(1) Declare the bidder nonresponsive;
(2) Permit the bidder to withdraw the proposed additions to the contract in order to meet the requirements and criteria provided in the invitation for bids;
(3) Accept any of the proposed additions to the contract, subject to this subsection.
(M) The purchasing agent may not accept proposed additions to the contract that are prejudicial to the interest of the governmental body or fair competition. Further, a decision of the purchasing agent to permit a change to the requirements of the invitation for bids must be supported by a written determination by the purchasing agency.
(N) The solicitation may include a requirement that an offeror provide evidence of financial responsibility. If evidence of financial responsibility is required, the solicitation must indicate the kind of evidence that will be acceptable. If a bond or certified check is required, it may not exceed 10 percent of the estimated cost of the purchase. [Ord. 1803 § 1, 2024].
3.70.085 Rules regarding offers – Status of documents as public records. Revised 12/24
(A) Offers – Status of Public Records.
(1) Protection of Offers Prior to Opening. The town shall retain all offers received in a secure location prior to the date and time at which offers will be opened in order to prevent disclosure of the contents prior to the opening of the offers.
(2) Unobstructed Evaluation of Offers. After offers have been opened, the town shall be responsible for maintaining the offers in such a manner as to permit evaluation of the offers by the persons responsible for evaluating the offers.
(3) Public Records Status of Bids. Bids submitted in response to an invitation for bids must be available for public inspection and copying after the time of the bid opening.
(4) Register of Proposals. The town shall prepare a register of proposals for each request for proposals issued which shall contain information concerning the proposals available for public inspection and copying. Proposals may not be disclosed.
(B) Rules Regarding Offers – Discussions with Offerors Responding to a Request for Proposals. The town may conduct discussions with, and best and final offers may be obtained from, responsible offerors who submit proposals determined to be reasonably susceptible of being selected for a contract award.
(C) Rules Regarding Offers – Delay of Opening of Offers. When the town makes a written determination that it is in the municipality’s best interest, offers may be opened after the time stated in the solicitation. The date, time and place of the rescheduled opening must be announced at the time and place of the originally scheduled opening.
(D) Rules Regarding Evidences of Financial Responsibility.
(1) Purchases Less Than $50,000. The town may not require evidence of financial responsibility when the estimated cost of a purchase is less than $50,000.
(2) Purchases Between $50,000 and $150,000. The solicitation may include a requirement that an offeror provide evidence of financial responsibility. If evidence of financial responsibility is required, the solicitation must indicate the kind of evidence that will be acceptable. If a bond or certified check is required, it may not exceed 10 percent of the estimated cost of the purchase.
(3) Purchases Over $150,000. The solicitation shall include a requirement that an offeror provide evidence of financial responsibility and must indicate the kind of evidence that will be acceptable. If a bond or certified check is required, it may not exceed 10 percent of the estimated cost of the purchase.
(4) Small Business Set-Asides. The purchasing agent may determine that no evidence of financial responsibility shall be required for a small business set-aside purchase.
(a) Sealed Bids. Sealed, competitive bids shall be obtained when the purchase of, and contract for, single items of supplies, materials, or equipment amounts to more than $250,000 and when the council determines to build, repair, enlarge, improve, or demolish a public building/facility the cost of which will exceed the amount allowed by Indiana statute.
(b) Proposals.
(c) Noncompetitive. [Ord. 1803 § 1, 2024].
3.70.090 Rules regarding domestic preference for procurement. Revised 12/24
(A) Domestic Preference for Procurement.
(1) As appropriate and to the extent consistent with law, the town shall, to the extent practicable under a federal award, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States. Such requirements shall be included in all subawards including all contracts and purchase orders for work or products under the federal award. [Ord. 1803 § 1, 2024].
3.70.095 Rules regarding procurement of nondomestic materials and supplies. Revised 12/24
(A) Procurement of Nondomestic Materials and Supplies.
(1) The materials and supplies are not manufactured in the United States in reasonable available quantities;
(2) The prices of the materials and supplies manufactured in the United States exceed by an unreasonable amount the price of available and comparable materials and supplies manufactured elsewhere;
(3) The quality of the materials and supplies manufactured in the United States is substantially less than the quality of comparably materials and supplies manufactured elsewhere;
(4) The purchase of materials and supplies manufactured in the United States is not in the public interest. [Ord. 1803 § 1, 2024].
3.70.100 Rules regarding contract/price analysis. Revised 12/24
(A) Contract/Price Contract/Price Analysis.
(1) The town or designee shall perform a cost or price analysis in connection with every procurement action in excess of $250,000, including contract modifications. A cost analysis generally means evaluating the separate cost elements that make up the total price, while a price analysis means evaluating the total price without looking at the individual cost elements.
(2) The method and degree of analysis is dependent on the facts surrounding the particular procurement situation; however, the town or designee shall come to an independent estimate prior to receiving bids or proposals.
(3) When performing a cost analysis, the town or designee shall negotiate profit as a separate element of the price. To establish a fair and reasonable profit, consideration is given to the complexity of the work to be performed, the risk borne by the contractor, the contractor’s investment, the amount of subcontracting, the quality of its record of past performance, and industry profit rates in the surrounding geographical area for similar work. [Ord. 1803 § 1, 2024].
3.70.110 Rules regarding time and materials contracts. Revised 12/24
(A) Time and Materials Contracts.
(1) The town uses a time and materials type contract only (a) after a determination that no other contract is suitable, and (b) if the contract includes a ceiling price that the contractor exceeds at its own risk. Time and materials type contract means a contract whose cost to the town is the sum of the actual costs of materials and direct labor hours charged at fixed hourly rates that reflect wages, general and administrative expenses, and profit.
(2) Since this formula generates an open-ended contract price, a time and materials contract provides no positive profit incentive to the contractor for cost control or labor efficiency. Therefore, the town sets a ceiling price for each contract that the contractor exceeds at its own risk. Further, the town shall assert a high degree of oversight in order to obtain reasonable assurance that the contractor is using efficient methods and effective cost controls. [Ord. 1803 § 1, 2024].
3.70.120 Rules regarding suspension and debarment. Revised 12/24
(A) Suspension and Debarment.
(1) The town shall award contracts only to responsible contractors possessing the ability to perform successfully under the terms and conditions of the proposed procurement. All purchasing decisions shall be made in the best interests of the town and shall seek to obtain the maximum value for each dollar expended. When making a purchasing decision, the town shall consider such factors as (a) contractor integrity; (b) compliance with public policy; (c) record of past performance; and (d) financial and technical resources.
(2) The town shall have the authority to suspend or debar a person/corporation, for cause, from consideration or award of further contracts. The town is subject to and shall abide by the nonprocurement debarment and suspension regulations implementing Executive Orders 12549 and 12689, 2 CFR Part 180.
(3) Suspension is an action taken by the town that immediately prohibits a person from participating in covered transactions and transactions covered under the Federal Acquisition Regulation (48 C.F.R Chapter 1) for a temporary period, pending completion of an agency investigation and any judicial or administrative proceedings that may ensue. A person so excluded is suspended. (2 CFR Part 180 Subpart G)
(4) Debarment is an action taken by the town to exclude a person from participating in covered transactions and transactions covered under the Federal Acquisition Regulation (48 CFR Chapter 1). A person so excluded is debarred. (2 CFR Part 180 Subpart H)
(5) The town shall not subcontract with or award subgrants to any person or company who is debarred or suspended. For contracts over $25,000, the town shall confirm that the vendor is not debarred or suspended by either checking the federal government’s system for award management, which maintains a list of such debarred or suspended vendors at www.sam.gov; collecting a certification from the vendor; or adding a clause or condition to the covered transaction with that vendor. (2 CFR Part 180 Subpart C) [Ord. 1803 § 1, 2024].
3.70.130 Rules regarding bid protest. Revised 12/24
(A) Bid Protest.
(1) The town maintains the following protest procedures to handle and resolve disputes relating to procurements and, in all instances, discloses information regarding the protest to the awarding agency.
(2) A bidder who wishes to file a bid protest shall file such notice and follow procedures prescribed by the request for proposals (RFPs) or the individual bid specifications package for resolution. Bid protests shall be filed in writing with the town within 72 hours of the opening of the bids in protest.
(3) Within five days of receipt of a protest, the council shall review the protest as submitted and render a decision regarding the merits of the protest and any impact on the acceptance and rejection of bids submitted. Notice of the filing of a bid protest shall be communicated to the board and shall be so noted in any subsequent recommendation for the acceptance of bids and awarding of contracts.
(4) Failure to file a notice of intent to protest or failure to file a formal written protest within the time prescribed shall constitute a waiver of proceedings. [Ord. 1803 § 1, 2024].
3.70.140 Rules regarding maintenance of procurement records. Revised 12/24
(A) Maintenance of Procurement Records.
(1) The town shall maintain records sufficient to detail the history of all procurements. These records shall include but are not necessarily limited to the following: rationale for the method of procurement, selection of contract type, contractor selection or rejection, and the basis for the contract price (including a cost or price analysis).
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IC 5-22-2-21 |
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IC 5-22-2-30 |
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IC 5-22-2-38 |
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IC 5-22-3-3 |
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IC 5-22-6-1 |
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IC 5-22-6-2 |
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IC 5-22-7-1 et seq. |
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IC 5-22-8-2 |
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IC 5-22-8-3 |
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IC 5-22-10-1 et seq. |
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IC 5-22-16-1 |
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IC 5-22-16-2 |
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IC 20-26-4-6 |
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IC 20-26-4-8 |
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IC 20-26-5-4 |
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Preamble: That the town acknowledges that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, or national origin, in any program, service or activity that receives federal assistance. It is the policy of the town and all its executive departments that discrimination based upon the foregoing is further proscribed for activities and enterprises of the municipality, its executive departments, special taxing districts and enterprises, according to the provisions of this chapter.
The exhibit attached to the ordinance codified in this chapter is adopted and made of essence of this chapter. [Ord. 1803 § 1, 2024].