Chapter 2.12
PROCUREMENTS AND PUBLIC BIDDING
Sections:
2.12.020 Purchasing authority.
2.12.040 Purchasing goods and personal services not defined as public works.
2.12.050 Public bidding of public works.
2.12.060 Formal public bidding process.
2.12.070 Intergovernmental purchase contracts.
2.12.080 Public bidding – Award of contract.
2.12.090 Remedies for solicitations or awards in violation of the law.
2.12.100 Alternatives to public bidding.
2.12.110 Emergency procurement.
2.12.120 Contract execution, change orders and contract amendments.
2.12.130 Procurement of architect and engineer services.
2.12.140 Procurements made with federal funds.
2.12.150 Implementation of purchasing and procurement standards.
2.12.160 Conflicts of interest.
2.12.010 Purpose.
The purpose of this chapter is to maximize economy in the procurement activities of the city and to foster effective broad-based competition in the purchase of goods, the acquisition of services, and the performance of public works. The city shall employ accepted procurement principles in regard to the purchase of goods and services and the performance of public works, reserving in all cases the right to reject all bids, proposals or other offers, and shall in all procurements of public works, goods and services promote the public interest as the trustee of public funds. The city shall employ said accepted procurement principles in compliance with all state and federal laws applicable to such procurements. (Ord. 2085 § 2, 2021)
2.12.020 Purchasing authority.
The mayor is authorized to establish procedures to implement this chapter. Staff shall acquire preauthorization for purchases in accordance with the following:
A. Products and services with a cost less than $5,000: department head or designee;
B. Products and services with a cost between $5,000 and $50,000: city administrator;
C. Technical system products and services between $5,000 and $50,000: city administrator;
D. Products and services costing more than $50,000: the city council. (Ord. 2085 § 2, 2021)
2.12.030 Definitions.
As used in this chapter:
A. “Contract” means an agreement creating a legal relationship between the city and another person or entity, or any amendment or renewal thereto.
B. “Minor change” means a change or clarification to a contract that does not affect a material term or condition of the agreement, and also does not exceed 15 percent of the bid total stated in the contract.
C. “Goods” means all things that are moveable at the time of identification to a contract, including for example, products, equipment, materials and supplies.
D. “Ordinary maintenance” means maintenance work performed by the regular employees of the city.
E. “Personal service” means the furnishing of labor, time, or effort by a person as an independent contractor, not involving the delivery of goods or the performance of a specific public works. “Personal service” includes professional or technical services by an architect, engineer, or other consultant to accomplish a specific project task, completion of a specific study, or the performance of similar work.
F. “Public works” means all work, construction, alteration, repair, or improvement, other than ordinary maintenance performed by city employees, executed at the cost of the city and as defined in Chapter 39.04 RCW.
G. “Small works roster” means a roster of licensed and registered public works contractors and/or vendors maintained by the city. See NMC 2.13.020. (Ord. 2085 § 2, 2021)
2.12.040 Purchasing goods and personal services not defined as public works.
The city shall competitively purchase goods and personal services not defined as or connected to public works, in accordance with the following:
A. Small Purchases. For purchases not defined as or connected to public works costing less than $7,500:
1. The city shall utilize the following process to obtain telephone or written quotations from a minimum of three qualified vendors:
a. A written description shall be drafted for the goods and personal services to be purchased, including the number, quantity, quality and type desired, the proposed delivery date, and any other significant terms of purchase, with such description avoiding unreasonable qualifications, specified brand, and/or geographic preference;
b. A city representative shall contact at least three vendors, and, using the written description, obtain telephone or written quotations from the vendors on the required goods and personal services;
c. At the time such telephone or written quotations are solicited, the city representative shall not inform a vendor of any other vendor’s bid;
d. A written record shall be made by the city representative of each vendor’s quotation on the goods and personal services, and of any conditions imposed on the quotation by such vendor; and
e. All of the telephone bids or quotations shall be collected and presented at the same time to the city administrator for consideration, determination of the lowest responsive and responsible bidder as defined in RCW 39.26.160, and award of the contract; provided, however, that the city administrator shall award such contracts only within the limits established by the city council and the city’s annual budget. The city administrator or their designee shall document that the purchase price is fair and reasonable with a description of how this determination was made.
B. Large Purchases. For purchases costing $7,500 or more, except architectural and engineering services (see NMC 2.12.130), the city shall either:
1. Conduct a formal bid process consisting of publication of a formal invitation to bid, a request for qualifications or a request for proposals as set forth in NMC 2.12.060; or
2. Procure through an approved cooperative or interlocal purchasing agreement as authorized by Chapter 39.34 RCW and set forth in NMC 2.12.070.
C. For purchases made with federal funds that exceed $250,000, including contract modifications, a cost or price analysis must be performed. To perform such analysis the city shall:
1. Make an independent estimate before receiving bids or proposals;
2. Negotiate profit as a separate element of the price for each contract in which there is no competition and in all cases where cost analysis is performed;
3. Consider 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.
D. The following personal services shall be exempt from the requirements of this section: attorney services, insurance agent services, and planning consultant services.
E. For ease of use, the following chart is provided to aid in the city’s administration of the directives set forth in subsections A and B of this section:
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Purchases Not Defined as Public Works – Both Nonfederally Funded and Federally Funded |
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|---|---|
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Purchases of $7,500 or less: |
Purchases over $7,500: |
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• Obtain minimum of three quotes (subsection (A)(1) of this section) |
• Formal public bidding process (NMC 2.12.060) OR • Intergovernmental purchase contracts (NMC 2.12.070) |
(Ord. 2091 § 1, 2021; Ord. 2085 § 2, 2021)
2.12.050 Public bidding of public works.
The procurement of public works shall be by public bidding as follows:
A. In lieu of using the city’s small works roster as set forth in subsection B of this section, the city’s limited small works roster as set forth in NMC 2.13.030 may be utilized for awarding contracts for public works when the estimated cost does not exceed $50,000.
B. The city’s small works roster as set forth in NMC 2.13.020 shall be utilized by the city for awarding contracts for public works when the estimated cost of the project will not exceed $350,000 including the costs of materials, supplies, equipment, labor, and sales and/or use taxes as applicable. For procurements made with federal funds, the small works roster may be used only when the estimated cost of the project will not exceed the federal simplified acquisition threshold of $250,000.
C. For nonfederally funded procurements that exceed $350,000, and for federally funded procurements that exceed the federal simplified acquisition threshold of $250,000, the formal bid process as set forth in NMC 2.12.060 shall be followed.
D. For procurements made with federal funds that exceed $250,000, including contract modifications, a cost or price analysis must be performed. To perform such analysis the city shall:
1. Make an independent estimate before receiving bids or proposals;
2. Negotiate profit as a separate element of the price for each contract in which there is no competition and in all cases where cost analysis is performed;
3. Consider 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.
E. For ease of use, the following charts are provided to aid in the city’s administration of the directives set forth in subsections A through C of this section:
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Public Works Procurements – Nonfederally Funded |
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Procurements less than $50,000: |
Procurements less than $350,000: |
Procurements over $350,000: |
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May use limited small works roster (NMC 2.13.030) |
Small works roster (NMC 2.13.020) |
Formal public bidding process (NMC 2.12.060) |
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Public Works Procurements – Federally Funded |
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|---|---|---|
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Procurements less than $50,000: |
Procurements less than $250,000: |
Procurements over $250,000: |
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May use limited small works roster (NMC 2.13.030) |
Small works roster (NMC 2.13.020) |
Formal public bidding process (NMC 2.12.060) |
(Ord. 2085 § 2, 2021)
2.12.060 Formal public bidding process.
A. Invitation to Bid. An invitation to bid includes the specifications, terms, and conditions applicable to the procurement. Notice of the invitation to bid is published in the official newspaper of the city and the notice shall state the place, time and date of bid opening, and the location for obtaining a copy of the invitation to bid. Such notice shall be published at least 13 days prior to the last date upon which bids will be received.
B. Bid Security. Bid proposal deposits are required for all public bids submitted in response to an invitation to bid for a public works contract when the estimated cost of the project, including the costs of materials, supplies, equipment, labor, and sales and/or use taxes as applicable, will exceed $75,500 for public works projects involving one craft or trade, or $116,155 for public works projects involving more than one craft or trade. Such bid proposal deposits shall accompany each bid and may be in the form of a cashier’s check, postal money order, or surety bond. The amount of bid security for all applicable public works contracts under this section shall be not less than five percent of the amount of the bid.
1. Rejection of Bids for Noncompliance. When the invitation to bid requires a bid proposal deposit in accordance with this section, noncompliance with this requirement will result in the bid being rejected by the city unless it is determined that the bid fails to comply in any nonsubstantial manner with the bid security requirements.
2. Withdrawal of Bids. After the bids are opened by the city, the bids are irrevocable for the period specified in the invitation to bid.
3. When the contract is let then all bid proposal deposits shall be returned to the bidders except that of the successful bidder which shall be retained until a contract is entered into and a bond to perform the work furnished, with surety satisfactory to the city council. If the bidder fails to enter into the contract in accordance with their bid and furnish a bond within 10 days from the date at which they are notified they are the successful bidder, the check or postal money order and the amount thereof shall be forfeited to the city council or the city council shall recover the amount of the surety bond.
C. Bid Opening. At the time and place set forth in the invitation to bid, all bids shall be opened publicly by the person designated by the city administrator to receive and evaluate bids.
D. Evaluation of Bids. Bids shall be evaluated by the person designated by the city administrator to receive bids, based upon the requirements set forth in the invitation to bid and RCW 39.26.160. Public works procurements shall also be evaluated in accordance with the requirements set forth in RCW 39.04.350. No criteria may be used that are not set forth in the invitation to bid or applicable state law. Bid evaluation shall be based on, but not limited to, the following criteria where applicable:
1. The price submitted by the bidder for the performance of the contract work. Price may be determined by the life cycle costing method if so indicated in the invitation to bid;
2. The ability, capacity, and skill of the bidder to perform the contract or provide the services required;
3. The character, integrity, reputation, judgment, experience, and efficiency of the bidder;
4. Whether the bidder can perform the contract within the time specified in the invitation to bid;
5. The quality of performance by the bidder of previous public contracts;
6. The previous and existing compliance by the bidder with laws relating to the contract or services; and
7. Such other information as may be secured by the city having a bearing on the decision to award the contract.
E. An invitation to bid may be cancelled, or any and all bids may be rejected in whole or in part when the city administrator, acting on the recommendation of the bid evaluation person or team, determines that it is in the best interests of the city. The city council may also reject any or all bids prior to formal award of the contract. (Ord. 2085 § 2, 2021)
2.12.070 Intergovernmental purchase contracts.
The city council hereby authorizes the purchase of goods and services from a purchasing contract available through:
A. The state of Washington;
B. Any other state or local governmental unit in accordance with Chapter 39.34 RCW; or
C. The federal General Services Administration.
D. All purchases made under a purchasing contract shall, at a minimum, comply with the standards and limits set forth in the Newport Municipal Code. (Ord. 2085 § 2, 2021)
2.12.080 Public bidding – Award of contract.
A. Following the evaluation of the bids submitted, the city administrator or designee shall submit a recommendation to the city council for the award of the contract.
B. Notice of the award hearing shall be published in the agenda of the city council. The name and bid amount of the successful bidder shall be available at least 48 hours prior to the city council meeting in which the award of the contract shall be heard.
C. Bidders wishing to formally protest the award of a bid must make their protests to the city council before or during the city council meeting at which the award of the contract shall be heard.
D. After hearing all protests, the city council shall make its decision. Award of the contract shall be to the bidder whose bid is most favorable to the city with price and the other factors identified in the invitation to bid being considered.
E. The council shall have the right in all cases to reject all bids and nothing herein is to be considered to compel the city council to make an award of a contract.
F. The decision of the city council on the award of a contract is final and not subject to appeal, provided, in the case of federally funded or Washington State Department of Transportation (WSDOT) grant funded procurements, the vendor may further file a protest of the decision that resulted in the appeal process to the federal funding agency or WSDOT, as applicable. The protest shall include a detailed description of the facts and disagreement that form the basis of the bidder’s or contractor’s protest and supporting documentation and the specific decision requested. (Ord. 2085 § 2, 2021)
2.12.090 Remedies for solicitations or awards in violation of the law.
A. Prior to Bid Opening. If, prior to bid opening, it is determined by the city administrator or designee, or upon judicial review, that a bid solicitation is in violation of applicable law, the invitation to bid shall be cancelled or revised to comply with such law.
B. Prior to Contract Award. If, after bid opening, it is determined by the city administrator or designee, or upon judicial review, that a solicitation or proposed award of a contract is in violation of applicable law, the solicitation or proposed award shall be cancelled.
C. After a Bid Award. If, after an award of a contract, it is determined by the city administrator or designee, or upon judicial review, that a solicitation or award of a public contract was in violation of applicable law, then:
1. If a person awarded the contract has not acted fraudulently or in bad faith:
a. The contract may be ratified and affirmed by the city council, if it is determined that doing so is in the city’s best interest; or
b. The contract may be terminated on order of the city council.
2. If a person awarded the contract has acted fraudulently or in bad faith, the city council may declare the contract null and void, if such action is in the city’s best interest, without prejudice to the city’s rights to any damages. (Ord. 2085 § 2, 2021)
2.12.100 Alternatives to public bidding.
A. When it is considered impractical to prepare a procurement description to support the award of a contract based solely on price, the city administrator or designee may utilize a request for proposals. The information received in response to the request for proposals may serve as the basis for a future invitation to bid, or as the basis for competitive negotiation.
B. Sole Source Procurements. The city council may, by resolution, waive public bid requirements on the recommendation of the city administrator or designee for the following purchases, public works, and services, with the rationale for such waiver being stated in the resolution:
1. Purchases, public works, and services that are clearly and legitimately limited to a single source of supply;
2. Purchases, public works, and services involving the requirements of special facilities. (Ord. 2085 § 2, 2021)
2.12.110 Emergency procurement.
A. The city council may, by resolution, declare an urgency and emergency and may waive all requirements for public bidding for purchases, public works, and services deemed necessary, in the opinion of the city council, to respond to the emergency. “Emergency” means unforeseen circumstances beyond the control of the city that:
1. Present a real, immediate threat to the proper performance of essential public functions; or
2. Will likely result in material loss or damage to property, bodily injury, or loss of life if immediate action is not taken.
B. If the emergency requires procurements prior to the city council action in an open public meeting, the mayor may declare an emergency situation exists, waive public bidding requirements, and award all necessary contracts on behalf of the city to address the emergency situation. If a contract is awarded without public bidding due to an emergency, a written finding of the existence of an emergency must be made by the city council no later than two weeks following the award of the contract.
C. Emergency procurements shall be made with such competition as is practicable under the circumstances. (Ord. 2085 § 2, 2021)
2.12.120 Contract execution, change orders and contract amendments.
A. All contracts to which the city is a party shall be in writing and executed in the name of the city by the mayor or designee, under the authority or direction of the city council.
1. Authority of Mayor. The city council hereby authorizes and directs the mayor or designee to execute contracts without prior individual approval of each contract by the city council if the amount of the contract is less than $50,000 and within the amount of the funds appropriated for that purpose in the adopted budget. City contracts may not be artificially divided so as to fall under the mayor’s authority under this section.
2. Contracts above $50,000 require city council approval prior to execution.
B. The city council hereby delegates approval authority for change orders to public works contracts to the mayor or designee under the following conditions:
1. If the change order does not substantially change the scope of the project; and
2. If the total increase or decrease in the contract amount, as a result of the change order, does not exceed 15 percent of the bid total stated in the contract; and
3. If the total contract amount as adjusted by the change order is within the funds available in the appropriate budget account.
C. Where the mayor or designee approves and signs the change orders according to the conditions above, they shall request ratification by the city council of the approval and signing of the change order within 30 days of the date of signing the change order or contract amendment.
D. If the change order or contract amendment does not meet the conditions set forth in the above section, the mayor must obtain the approval of the city council in advance of approving and signing the change order or contract amendment. (Ord. 2085 § 2, 2021)
2.12.130 Procurement of architect and engineer services.
A. The city shall publish all requirements for architect and engineer services in advance, either by publishing an announcement on each occasion when professional services provided by a consultant are required, or by announcing generally to the public the city’s projected requirements for any category or type of professional services. Such announcement shall state the general scope and nature of the projects or works for which the services are required, and the address of the city representative who can provide further details on the project work. The city shall utilize the procurement process applicable to the funding sources for such work and shall competitively procure architect and engineer services for any federally funded project or work.
B. Consultant Roster – Nonfederal Funding Only.
1. To provide for the expeditious procurement of architect and engineer services, the city administrator or designee shall encourage firms engaged in the lawful practice of their profession to submit to the city annually a statement of qualifications and performance data and shall annually publish a call for such statements of qualifications and performance data in accordance with Chapters 39.04 and 39.80 RCW.
2. The city administrator or designee shall evaluate current statements of qualifications and performance data for professional architect and engineering firms on file with the city, together with any specific qualifications and data that may be submitted by other professional firms regarding the proposed project, and determine the firms best qualified to perform the professional services for the city.
3. The city shall afford minority-owned and women-owned firms the maximum practicable opportunity to compete for and obtain such contracts with the city. Furthermore, when considering the selection of minority-owned or women-owned firms, the city administrator or designee shall strive wherever possible to ensure that the level of participation by minority-owned and women-owned firms in consultation projects for the city is consistent with the general availability of such firms within the professional consultant community involved.
4. The city administrator or designee shall conduct discussions with one or more firms regarding anticipated concepts and the relative utility of alternative methods of approach for furnishing the required professional services for the project. The selection of the firm deemed most qualified to provide the necessary professional services shall be made by the mayor or designee based upon the recommendation of the city administrator or designee and the criteria established by the city for the proposed project.
5. The consultant roster developed under this section shall only be utilized for nonfederally funded projects or works.
C. Requests for Qualifications – Negotiations for Architect and Engineer Services.
1. For federally funded projects or works, or at the city’s prerogative, architect and engineer services shall be competitively procured using a request for qualifications (RFQ) process. The RFQ shall be advertised as set forth in subsection A of this section and selection shall be based on the most qualified firm for the project or works.
2. A contract shall be negotiated with the most qualified firm at a fair and reasonable price for the city. In making this determination, the mayor or designee shall consider the estimated value of the services to be rendered, as well as the scope, complexity and professional nature thereof.
3. If the city is unable to negotiate a satisfactory contract with the selected firm at a fair and reasonable price to the city, negotiations with that firm shall be formally terminated and the mayor shall select other firms in accordance with the previous evaluation by the city administrator or designee. (Ord. 2085 § 2, 2021)
2.12.140 Procurements made with federal funds.
For any procurement made with federal funds, the city will follow the procedures and requirements set forth in 2 CFR Part 200 (Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards), including the procurement standards set forth in 2 CFR 200.318 through 200.326; provided, where city or state law requires more restrictive standards than 2 CFR Part 200, the city shall apply the more restrictive standards to the procurement. (Ord. 2085 § 2, 2021)
2.12.150 Implementation of purchasing and procurement standards.
The city administrator is hereby authorized to adopt and implement administrative procedures to implement the purchasing and procurement standards established in this chapter, including such procedures necessary to identify applicable sources of funding and standards prior to the procurement of goods, personal services and/or public works by the city. (Ord. 2085 § 2, 2021)
2.12.160 Conflicts of interest.
No employee, elected officer, or appointed officer of the city shall be beneficially interested, directly or indirectly, in any contract which may be made by, through, or under the supervision of such employee or officer, in whole or in part, or which may be made for the benefit of their office, or accept, directly or indirectly, any compensation, gratuity or reward in connection with such contract from any other person beneficially interested therein. (Ord. 2085 § 2, 2021)
2.12.170 Preference for products and packaging material that do not contain polychlorinated biphenyls.
A. The city shall provide a preference for products and packaging material that do not contain polychlorinated biphenyls (PCBs) except when it is not cost-effective or technically feasible to do so. If all readily available sources of a product or packaging material contain PCBs, preference will be given to the product or packaging material containing the lowest level of PCBs except when it is not cost-effective to do so. “Not cost-effective” means compliance with this requirement would increase the purchase price of the product by at least 25 percent. “Technically feasible” means all available testing data for sources of a product or packaging material indicate the product or packaging material contains PCBs.
B. This subsection does not require a department to test products procured. However, the department may accept from businesses, manufacturers, organizations, and individuals results obtained from an accredited laboratory or testing facility in accordance with a state or EPA approved Quality Assurance Project Plan (QAPP), documenting product or packaging material PCB levels. The department may request suppliers of products to provide testing data from an accredited laboratory or testing facility documenting the testing method and product or packaging material PCB levels.
C. The city may develop procedures to implement the preference set forth above, which are consistent with and do not conflict with the provisions of this subsection. (Ord. 2085 § 2, 2021)