Loading...
HomeMy WebLinkAboutPackets - Council Packets (868) AGENDA ORO VALLEY TOWN COUNCIL STUDY SESSION NOVEMBER 14, 2007 ORO VALLEY TOWN COUNCIL CHAMBERS 11000 N. LA CANADA DRIVE STUDY SESSION - AT OR AFTER 5:30 p.m. CALL TO ORDER ROLL CALL 1. NORTHERN PIMA COUNTY CHAMBER OF COMMERCE PRESENTATION AND DISCUSSION 2. REVIEW OF PROPOSED REVISIONS TO ARTICLE 3-4 PROCUREMENT OF THE ORO VALLEY TOWN CODE ADJOURNMENT POSTED: 11 07 07 3:30 p.m. cp The Town of Oro Valley complies with the Americans with Disabilities Act(ADA). If any person with a disability needs any type of accommodation, please notify the Town Clerk's Office at (520)229-4700. 1 TOWN OF ORO VALLEY Page 1 of 1 COUNCIL COMMUNICATION MEETING DATE: November 14,2007 TO: HONORABLE MAYOR & COUNCIL FROM: Amanda Jacobs, Economic Development Specialist SUBJECT: Northern Pima County Chamber of Commerce Presentation and Discussion SUMMARY: The Northern Pima County Chamber of Commerce (NPCCC) is one of Oro Valley's economic development partners. The NPCCC was organized in 1992 to support the growth and the business interests of the community. The Chamber has over 500 members and represents neighborhood businesses that support the community. The purpose of the November 14, 2007 Study Session is to present and discuss NPCCC's current activities. The presentation will be given by NPCCC's President, Jerry Bustamante. (2rni 1/1(/ , dedA-D Amanda Jacobs, Ecins is Development Specialist aziat;t David Andrews, Town Manager 0 ,, , mil ., ,,,. , , ,,,,,„ ,. ,, 0 =10 „,,, ,,_„-.., ., ,„ ..,,,: . ,,, , .. fa , ,,,,\,,,, .,. .„,, < 3 „. fu ...... zz-_,_„..„,,,_,,,„,....„...,. .'\:11:ii.,,,.: , Cr a NMI $ ' "IC , //1/ '-'„., Mil C 73 r p,,i;:tigMi/x1MNlFSN4x�.n.»f- IliiIlIIPi:It ,,,.: ,,,,,,. 0 CIIII * 1311Ini I w rkt = eim 4=11 '''''''''''''''''''''''''' ' ' - ,,,,,,„,, - ,,.. ,, ,, ...... --- - , ,., irD „„ . . , . . ..., rio, . :,„. . . .,..,,, .: ,iii,:. o '1 o , .., , ,,...:. ,,, „ .„... . . ,„ ,,, ti ,,, ig. ,. ,. . .. , ....., , ,,,, ,,,,,„ , . , rim„ , = zin ,,,,,,, _., i: ,„ , , , , „ , ., a. „: ,..„,Iiiiiii. .„ ?pi ' x. r n 4. I\. L/J [ ) Villa_i., * : '1..1 .... " . P c ,,. , . r-r O r\1 � Vin' ,, ,. 3 3 ....... 0-. si{ , . , ("D CT rt) = o 3 (i) , , ,, (f) o (t) -.1.,. , , ,,,,,,,.,...!;..,...-,,,, S (I) pcr) , r-1- 0 r- Dm. mi- � z o cii. � (.1) H 3 Z CT (I) al (1) 0 r" I- -I (11 ...I (I) 1-117" < m rip. - • ‘,0 , al 0 =.. = IIM (1) mo 3 , v) re, -0 (I) = (I) 3 a rip T. 8 0- 3 cal 3 (ID 0 3 i 17 r-I- riPli al 0) 3 w , a, 3 rie) c. (1) 0) 0 = ‘,....,= = m c _ • , ca. = = %< r-t- rim r-t- Dim 1:3 1% 0 (to ;,-,I-1,/ 1/4../r-1CD n 3 E.." U7 N) F" M (A) I .` � I-L I I I i-k. (71 IV 3 CD i--A. U'I O+ CJ7 O ©NI o -0 O .< 3 (D al v) cr m -I 1.•." N) LA)41' CO Ui W O (JJ �F." (A) 1:t0 Yl CO I"L -f.13 Ii:rCD111a- m ...I can 311111 11:1 N) --Ph Ui V l0 N) Ui a131 1--Ai 0 0 0 0 0 0 0 0 3 IZI 3 r- cu 1 al m al --% z 3 N) (11:11 -70 p 8...%.° 3 �' vi) n ....... t Li, e-t., � o Crl .....t, i_l rD M v) rn ..._• rD Z. -91 3 ul vi) al u'll 01 l) I ll -13 3 =I o (f) cy. _. ..„.< 3 al Mil too, ci.) ..., v) 3:01 • , , , . ....z W m- , = u) MI ..._• 0alUT) u o VI < n "Iiii. —• D- al Vil , . ,, (.. ._1 .i *a eft% r-t. %< CT Dim ril w _.,1 = o .1 CD 1_1. rr co . . .. , . , ,*, U i 1\. ,- U,), N..), 1 XI , , , - 0 4 Mt 41.117* al X I1Z3 al (D (f) 0 W rD 43) C = D Ci) U1 B . ,...., ....., ri_ --, ...., cu (to m 0 90 riti ri. n n .........h CU mitQ) (1) .• n rit. (C)(D > OW (Dr- fl (Q =II LO ...1 0-. 93 --1 MI I (D co _• ....... 13 n w_• rim'C O LD � )%111 (DN �• LC = r- X F--L F-L NJU1 0 oF—L N)cp ,c) ,c) OO c:) oc) r1-. 3 0 0 = 5 5 = 0" c M a E 0 c 0 ..., E. 0) a =. -11 (A --1 5 (D c)) = < n ='' 0 n I— CD 0 (D NMI 0 —h a-a• .. IV 2 FIT � 3 0 ,‹ cr. IP -1 El Q) (D = ri- (-I- --s pi- n) (f) ni cp cL =-. ..... --I _. = 73. -10 Ul 17 3 .. 3 sa) IA Q) eiN n n n 0 � 0 (-I- = r-t- rit m � I— LjLj CD (D 17'hh (7) � O � (1) < (ID L..... .- o -.J LO CI < = (1) = -n > '..„4„) (D t-t- al 0 = %.d CD aut V) < --1 (I) -0 t ) CD in ,—. (f) = rD 0 F...-4 eiNw N -,. --. 3 71 , %., r-i- 1-Z N = rimmti n = = H =- 0) --) (1) -0 3 (f) ej f=1: 3 (D rD (7) • C. 0 C 0 —' — r 1': CL �p o- 0 o 65: � (a) �n (1) CD � mill FE, rt r-i- r-i- C CD Ca) (cf cl, —1 = —• CO (D I -11 0 =rn 17) .C-1 ---1 rn 3 ED CD sa) (174 a) a (1) r-1. n = 4 n=-- � ei) 0 til 3 nIt =IRR. (D in et) o till 1115 > F.--4 -0 z al = = --1 < o (D 0 = o in c < o o 'e — (Do ri: --I ni v) 3 0 E. w-o (D = = 3 (D = t...% LO r) ir-t, ‘...., 0 a,' 5• z 0 -h mG) (D cQ i' ..,.< o 3 Dcto 0 = < CT 3 ri-t- (D (D "I (i) -11 -, IX. = (i) 3(D IM r-r D ...t, CL)-111 =S' 2 11) 'E Z Z (D -01 o 0 0 g. 0 = = = w.-•r-t- r—te rat' 0 to-Z-i =-1 D-1 —I Am 1 I' m-- I'Z 1 IR--1 I X.. 2: z z z = = m rD m co rig ril ga mv 0 0 0 0 0 ~'....;..... ..- L: Lo �n , ...., cn7.A..., . �n E, O ri- = '-p -0 n co > n n , -I m..- . = m-- -z- 0 cu > = cu cu 3 to 3 = c 3 3 o -it 0- cu 0- 0- r-t. Ogi al c al (D ID , cu , , 3 _ <n' CD O r3 � = CT -h O (f) E N c �G_. CSD 3 alll . , r (i) .....-1-al � CD CD (gyp O ....1 Kill...1 (1) (f) '0 . . ell%_...... el) al r-t- � O o _.1 = .....I rim r--- LI II -I 9 > O � 0 O al al ...., 0 c 0 = 0 ni 0- 3 3 c (1) 3 _... 3 (..-) _. n 3 C D (ID ...,t (/) al 3 0 ,D _.....• , I= rig II*. 0 IIIIIIMMI NMI 0 (-1 0 (-11 %< 6.4) D (i) (1) ..1.1 (1) ,.....1h cu3 < ..,1, , -0 ri) 3 <• v110 -• No%(i) X' D ="10 (1) 1404%0 1.17111n (in -10_...1rc, _ ,G GII) 0 3 0 0 3 ,....• al co ci,) _.,„„h NI 3 n • D Q. ....11 CI) al Xm u, 0 .,. ..,, ....z rrol ..1 _• cr) ems .< o x r) n 3 rill D D''' . . Q.) 0 , ink 0 (1) D . _.. 3 = I=1 Lo r-t Li) al 3:,_, rim •. .__ %,,„„„.... rn (...(-,' . . , . ,, , , . ., . _, , ,, , ,,„.. _ „. ' ' - , s II = I; I I I < in n o 0 D- (D 3 D H > ■ H O --i O DJ < 10 -, _■ O O cD o N D („ 3 3 cup 7.5 iiii 3 cc) D O a) g3 _' D %,,,..3 0- CY" rt' 3 co (D cn(1). 0 0." (,) 3 <. cn <. (to (1) --t D- (D —1 al ri- O � � � O3 , G) Q) , n O al _...h r- CrOr1 O p (D O _hi rfi H : rat- CL n p-- _,• 1.' D 0- vii) _• ID— O (D> 3 cDvill n _• cu (f) -11 r—i- 3 2vG' 1 AaT (t. D> ,(I) fa. vi) D _ c — O3 3 o0 „,... ,,.: ,, , r-rc ,..,,, cn O n �. �) �- `C (D r-f- � CD D ,f -, (D O =" r -' n 0 ci -1 r-r. n (D —1 -- o- (-* D < D 0 (ID „,„,,,,,„,-.,,.., CO 0 d off , ,•S D 713 > cu D .„,„.. (i) 3 an _t _......• , --el n n < - rt 3 O O Q., ell D r-t --, n D D (1) ell% (D- n n al ...7 _....• D-- o O (i)O rt f1 p rt. %< D... (.1 mo m (1) M 0 O O n ,,,,.Th pi ›,-! CD r--r- --n _• O C (1) (f) .. .,..,.: . ...., r—fi Cn 3 0 c ...sib ..... .,-- . 1 J ---::' rifill CD Cr-t (D3 D .,...„„,,:, ... .. �' � O _,„,- --„. ....iti,..:... .., , ,, ( ., D ,' n n „,_.. ..„. ..„ ,.: .,,,,,....„.„.„..:;,..,.... -.- ..„ 3 Q) > ',. MI '111 .. N j = C. 0 = . c CI w ICI . . . (f). ...... r.t. ri) En i ...--11 m ro c ,'i- o n 3> = a) 10 = m r-h tp ip3 m o cr _• . cp_ (i) rn m , = = = oj D.,. ><11, .. < (0 0 cl) CD n 3 = n 0.-: lip Ci) 0 CD ...0 0 CD -1-1 = ....1 ..._,,._. _.,. . 0 en-1- rD- 73 0 ow. < ....7 • .111% ,..... ......_ 0 CD CD., - ---- ----- ----------- ,‹ < ...._. = ,, _.... 0) MI' (1) kiimmo0 fc ,. ,,, ,„ z cy- � n = (D (I'D 0 NI" 11 ,.., ir--t- r-t- CID < (1) (i) ID • C 111191 Il= C (11) 3 ci. M . MN%,.....",„ (1) (1) (1) 0 5 gii. r-i- G) _• tr,1,.,,,,,„,,. ,,.:...,.,...,.. ,, ,.., co in .,, "EP =1" iirno la) Cl. (1) T3 * "Z- e-mt- (1) 111:1 Q n, ., ..,„ rigki- - . lign In ..,... ,... .... ... o....., in . _.., _..., ....„.... ., . . ., . .,....., .. . ..._._ ... • . . .. . .. ,,iii,:„ (c)„ , .......,. . ,, , . ... . . .... . . ,.. .,.... ... ........... , .. ..., ., ... ,.. . ..........,....... . .. . . .,....,.... ,..„. � o..„.._.,,,,... .,,,,,,,....,.....„.. ...... ... ....., _ ..,.,., cp , i w 4:11:1 (1111) VI W. MI r Ill 4 0 iii. C .,, lc ... U.+ rv'M1 umMF r lw"krwN/s NO, „ ' Pr.”'. , MVP SJ a. niJ aNB..: iliZO '..,a k n 4111111 e M1 y o- Y <Aa e = . ale .;;* , „&x dpH3va/e e, WI ''' '. ' '' ..'' '.' , , r ,uA 2 TOWN OF ORO VALLEY STUDY SESSION COUNCIL COMMUNICATION MEETING DATE: November 14, 2007 TO: HONORABLE MAYOR & COUNCIL FROM: Brian P. Garrity, Procurement Administrator SUBJECT: Review of proposed revisions to Article 3-4 Procurement of the Town Code. p p BACKGROUND: y The Town of Oro Valley's Procurement Code was originally adopted in 1989 and last updated in 2000. Since that update, changes in business practices and the economic climate as well as p modifications to Arizona Revised Statutes relating to procurement by political subdivisions, make revising the Code necessary. The new code will provide a framework by which we can more effectivelyserve Town Departments and the local business community by enhancing the efficiency p and effectiveness of the Town's procurement function. SUMMARY: In accordance with a recommendation made in the Procurement Analysis done by the National Institute of Governmental Purchasing, approved by Mayor and Council October 18, 2006, the Procurement Administrator has written a new code modeled after the American Bar Association's Model Procurement Code for State and Local Governments. The intent of the code is to: • simplify, clarify, and modernize the law governing procurement by the Town; • provide for increased public confidence; • ensure the fair and equitable treatment of all persons; • maximize to the fullest extent practicable the purchasing value of public funds. The recommended Procurement Code was written to address the specific and varying needs of the Oro Valleycommunity. It provides a framework in which to create a transparent, competitive and Y reliablep rocurement function in an expanding, modern society. The proposed code addresses the following sections: • Broadpolicies that outline the general rationale and applicability General Provisions: to the Code. • Procurement Organization: Designates the Procurement Administrator as the Procurement Agent for the Town and defines duties. • Source Selection and Contract Formation: Defines the methods and procedures for source selection available for Town use. TOWN OF ORO VALLEY COUNCIL COMMUNICATION PAGE 2 OF 2 • Specifications: Promotes maximum competition in solicitations and limits use of specifications that restrict competition. • Procurement of Professional Design Services, Construction and Construction Services: Defines and allows for use of Alternative Project Delivery Methods. • Contract Terms and Conditions: States that the Town shall incorporate terms and conditions in each contract that define the rights and responsibilities of each party. • Cost Principles: States that The Procurement Agent shall establish cost principles which shall be used to determine the allowability of incurred costs reimbursed under contract. • Materials Management: Provides Procurement Agent authority to establish guidelines for the sale or disposal of surplus property. • Legal and Contractual Remedies: Defines procedures for solicitation protests, award protests and contract claims. • Cooperative Procurement: Authorizes the Town to participate in, sponsor or administer a cooperative agreement with any public procurement unit or not-for-profit entity. The intent of today's presentation is to familiarize Mayor and Council with the provisions of the recommended code and address any questions or concerns. Final input from Mayor and Council, the Departments and targeted local organizations will be requested over the next 45 days with a target date for formal adoption in January, 2008 ATTACHMENTS: 1. Draft Procurement Code Summary 2. Draft Procurement Code 3. PowerPoint Presentation Brian P. Garrity, .P. ., CP Procurement Ad "I's ,.tor S aLxeS an cey Le os, CPA Finance ector David Andrews Town Manager Town of Oro Valley Procurement Code Draft Summary The Town of Oro Valley Procurement Code is drafted based on the American Bar Association's 2000 Model Procurement Code. The 2000 American Bar Association Model Procurement Code for State and Local Governments provides: (1) the statutory principles and policy guidance for managing and controlling the procurement of supplies, services, and construction for public purposes; (2) administrative and judicial remedies for the resolution of controversies relating to public contracts; and (3) ethical standards governing public and private participants in the procurement process. The Code was approved by the policymaking body of the American Bar Association, its House of Delegates, on July 11, 2000, and represents official ABA policy in this area of the law. It represents a three-year effort to update the text of the 1979 Code to fit the circumstances of state and local procurement at the beginning of the new century. The 1979 edition of the ABA Model Procurement Code was drafted to help create transparent, competitive, and reliable processes by which billions of dollars in public funds are expended through contracts with private sector businesses. Since 1979, the Code has been adopted in full by sixteen (16) states; in part, by several more; and by thousands of local jurisdictions across the United States. Sections: 3-4-1 General Provisions: Broad policies that outline the general rationale and applicability to the Code. The Code is intended to clarify and modernize Town Procurement functions as well as provide confidence to the general public in the procurement activities of the Town. This section also contains definitions for terms used through the Code. 3-4-2 Procurement Organization: Designates the Procurement Administrator as the Procurement Agent for the Town. Defines the duties for the Procurement Agent as procurement, materials management, surplus management and disposal and specifications development. 3-4-3 Source Selection and Contract Formation: Defines the methods of source selection available for Town use (competitive sealed bids, competitive sealed proposals, small purchases, sole source, emergency and special procurement) along with the requirements and solicitations forms for each method. Includes provisions for public notice,cancellation or rejection, and contract award. 1 3-4-4 Specifications: Promotes maximum competition in solicitations and limits use of specifications that restrict competition. 3-4-5 Procurement of Professional Design Services, Construction and Construction Services: Defines and allows for use of Alternative Project Delivery Methods and links solicitation and administration requirements to those defined in Arizona Revised Statutes. 3-4-6 Contract Terms and Conditions: States that the Town shall incorporate terms and conditions in each contract that define the rights and responsibilities of each party. 3-4-7 Cost Principals: States that the Procurement Agent shall establish cost principles which shall be used to determine the allowability of incurred costs reimbursed under contract 3-4-8 Materials Management: Provides Procurement Agent authority to establish guidelines for the sale or disposal of surplus property. 3-4-9 Legal and Contractual Remedies: Defines procedures for solicitation protests, award protests and contract claims. Gives the Procurement Agent and the Town Manager the authority to resolve protests or claims as a prerequisite to litigation. Gives Procurement Agent the authority to debar or suspend a contractor for illegal activities or breach of contract. 3-4-10 Cooperative Procurement: Authorizes the Town to participate in, sponsor or administer a cooperative agreement with any public procurement unit or not-for- profit ot-for-pro It entity. Article 3-4 Procurement Sections: 3-4-1 General Provisions 3-4-2 Procurement Organization 3-4-3 Source Selection and Contract Formation 3-4-4 Specifications 3-4-5 Procurement of Professional Design Services, Construction and Construction Services 3-4-6 Contract Terms and Conditions 3-4-7 Cost Principles 3-4-8 Materials Management 3-4-9 Legal and Contractual Remedies 3-4-10 Cooperative Procurement 3-4-1 General Provisions Purpose The underlying purposes and policies of Town of Oro Valley Procurement Code are: a. to simplify, clarify, and modernize the law governing procurement by the Town; b. to permit the continued development of procurement policies and practices; c. to provide for increased public confidence in the procedures followed in public procurement; d. to ensure the fair and equitable treatment of all persons who deal with the procurement system of the Town; e. to provide increased economy in Town procurement activities and to maximize to the fullest extent practicable the purchasing value of public funds of the Town; f. to foster effective broad-based competition within the free enterprise system; g. to provide safeguards for the maintenance of a procurement system of quality and integrity; and h. to obtain in a cost-effective and responsive manner the materials, services, and construction required by the Town to serve its citizens and businesses Draft Procurement Code 11/14/2007 page 1 of 31 Applicability This Article applies to: a. every expenditure of public monies irrespective of their source, including federal assistance monies except as otherwise provided in this Article, initiated after its effective date; b. the disposal of materials; and c. contracts where there may be no expenditure of public monies but there is an offer of value to the business community. The following are exempt from the provisions of this Article: a. grants or donations awarded by the Mayor and Council; b. if the procurement involves the expenditure of federal assistance or contract monies or is subject to state law, the Town shall comply with federal and state law and authorized regulations which are mandatorily applicable and which may not be reflected in this Article; c. complying with the terms and conditions of any grant, gift, bequest, or cooperative agreement; and d. development agreements, financial participation agreements, or contracts for municipal improvement districts entered into by the Town. Definitions The words defined below shall have the meanings set forth below whenever they appear in this Code, unless the context in which they are used clearly requires a different meaning. Business means any corporation, partnership, individual, sole proprietorship, joint stock company,joint venture, or any other private legal entity. Change order means a written document authorized by the Procurement agent which directs the contractor to make changes with or without the consent of the contractor. Construction means the process of building, altering, repairing, improving, or demolishing any public facility, including any public structure, public building, or other public improvements of any kind to real property. It does not include the routine operation, routine repair, or routine maintenance of any existing public facility, including structures, buildings, or real property. Draft Procurement Code 11/14/2007 page 2 of 31 Contract means all types of agreements, regardless of what they may be called, for the procurement or disposal of supplies, services, or construction. Contract amendment or Contract addendum means any written alteration in the terms and conditions of any contract accomplished by mutual action of the parties of the contract. Contractor means any person who has a contract with the Town. Days, unless otherwise specified, means consecutive calendar days and shall be computed pursuant to A.R.S. 1-243. Designee means a duly authorized representative of a person holding a superior position. Disposal of material means sale of surplus property, Oro Valley Police Department unclaimed or seized property or obsolete property not needed by using agencies by public auction, competitive sealed bidding, small purchase procedures or any other appropriate method designated in this Article. Electronic means electrical, digital,magnetic, optical, electromagnetic, or any other similar technology. Grant means the furnishing by the Town of assistance, whether financial or otherwise, to any person to support a program authorized by law. It does not include an award whose primary purpose is to procure an end product, whether in the form of supplies, services, or construction; a contract resulting from such an award is not a grant but a procurement contract. Manager means the Town Manager of the Town of Oro Valley, or Designee. May denotes the permissive. Materials means all property, including but not limited to, equipment, supplies, printing, insurance and buildings but does not include land, a permanent interest in land or leases of real property. Minor informality means mistakes, or non-judgmental errors, that have negligible effect on price, quantity, quality, delivery, or other contractual terms and the waiver or correction of such mistakes does not prejudice other bidders, offerors or respondents. Person means any corporation, consultant, business, individual, union, committee, club, other organization or group of individuals. Draft Procurement Code 11/14/2007 page 3 of 31 Procurement means buying, purchasing, renting, leasing or otherwise acquiring any materials, services or construction. Procurement also includes all functions that pertain to the acquisition of any material, service or construction, including description of requirements, selection and solicitation of sources, preparation, negotiation and award of contract, and all phases of contract administration. Procurement Agent means the person holding the position of Procurement Administrator who is the chief procurement authority for the Town, or designee. Public Notice means the distribution or dissemination of information to interested parties using methods that are reasonably available. Such methods may include publication in a newspaper of general circulation, electronic mailing lists and a website maintained for that purpose. Services means the furnishing of labor, time or effort by a contractor, consultant, subcontractor or subconsultant which does not involve the delivery of a specific end product other than required design documents or reports and performance. Services do not include employment agreements or collective bargaining agreements. The definition of services includes, but is not limited to, consulting, personal, professional, legal counsel, auditing, technical, professional design and construction services. Specification means any description of the physical or functional characteristics, or of the nature of a supply, service, or construction item. It may include a description of any requirement for inspecting, testing, or preparing a supply, service, or construction item for delivery Subcontractor or subconsultant means a person who contracts to perform work or render service to a contractor or consultant as defined by this section or to another subcontractor or subconsultant as a part of a contract with the Town. Town means the Town of Oro Valley, Arizona a municipal corporation. Using agency means any organizational unit of the Town. Written or In Writing means the product of any method for forming characters on paper, or other materials, or viewable screens, which can be read, retrieved, and reproduced, including information that is electronically transmitted and stored. Public Access to Procurement Information Procurement information shall be a public record to the extent provided in A.R.S. Title 39 and shall be available to the public as provided in such statute. Draft Procurement Code 11/14/2007 page 4 of 31 Confidential Information Confidential information shall be designated as follows: a. If ap erson believes that a bid, proposal, offer or specification contains information that should be withheld from public record, a statement advising the Procurement Agent of this fact should accompany the submission and the information shall be so identified wherever it appears. b. The information identified by the person as confidential may not be disclosed until the Procurement Agent makes a written determination. c. The Procurement Agent shall review the statement and information and may determine in writing that the information shall be withheld or disclosed. d. If the Procurement Agent determines to disclose the information, the Procurement Agent shall inform the person in writing of such determination. 3-4-2 Procurement Organization Authority a. The Procurement Agent shall serve as the central procurement and contracting authority for the Town. b. Consistent with the provisions of this Code, the Procurement Agent may adopt operational procedures governing the procurement of all materials, services and construction procured by the Town and for the disposal of materials. Duties Except as otherwise specifically provided in this Code, the Procurement Agent shall, in accordance with regulations: a. Procure or supervise the procurement of all materials, services and construction needed by the Town. b. Establish guidelines for the management of all inventories of materials belonging to the Town. c. Sell, trade or otherwise dispose of surplus materials belonging to the Town. Draft Procurement Code 11/14/2007 page 5 of 31 d. Prepare, issue, revise, maintain, and monitor the use of specifications for materials, services and construction required by the Town. The Procurement Agent may delegate procurement authority to designees or to any department or official of the Town. The Procurement Agent may determine in writing that noncompliance with any provision of this Article is nonsubstantial and may allow for correction or may waive minor informalities or irregularities. The basis for the decision shall be included in the determination. 3-4-3 Source Selection and Contract Formation Definitions In this Chapter unless the context requires otherwise: Best Value means a technique in the competitive sealed bid process which permits the evaluation of objective criteria to determine the best overall value to the Town. Discussions means communication with an offeror, bidder or respondent for the purpose of: a. eliminating minor irregularities, informalities, or apparent clerical mistakes in the offer or response; b. clarifying any offer or response to assure full understanding of, and responsiveness to, solicitation requirements; c. resolving minor variations in contract terms and conditions; or d. establishing the competency or financial stability of any offeror, bidder or respondent. Invitation for bid means all documents, written or electronic, whether attached or incorporated by reference, which are used for soliciting bids in accordance with the procedures prescribed in this Article. Negotiations means an exchange of information or any form of cooperation during which the offeror or respondent and the Town may alter or otherwise change the conditions,terms, and price,unless prohibited, of the proposed contract. Request for proposals means all documents, written or electronic, whether attached or incorporated by reference, which are used for soliciting proposals in accordance with procedures prescribed in this Article. Draft Procurement Code 11/14/2007 page 6 of 31 Request for qualifications means all documents, written or electronic, whether attached or incorporated by reference, which are used for soliciting responses from qualified respondents in accordance with this Article. Responsible bidder, offeror, or respondent means a person who has the capability top erform the contract requirements and the integrity and reliability which will assure good faith performance. Responsive bidder means a person who submits a bid which conforms in all material respects to the invitation for bids. Solicitation means an invitation for bids, a request for technical proposals, a request for proposals, a request for qualifications, a request for quotations, or any other invitation or request by which the Town invites a person to participate in a procurement. Methods of Source Selection All Town Procurements shall be made in accordance with one of the source selection methods identified in this Article. Competitive Sealed Bidding. Invitation for Bids a. Competitive sealed bids shall be solicited through an invitation for bids. The invitation for bids shall include specifications and any applicable evaluation criteria. Contractual terms and conditions may be included within the solicitation document or incorporated by reference. b. A prequalification process may be conducted prior to the issuance of an invitation for bids in order to establish a list of qualified bidders. In the event a prequalification process is used, the Procurement Agent shall only consider bids that are submitted from prequalified bidders. Public Notice Notice of the invitation for bids shall be published in a newspaper of general circulation or electronically posted and the invitation for bids shall be available for public inspection not less than fourteen days prior to the date set forth therein for the opening of bids. A shorter time may be deemed necessary for a particular procurement as determined by the Procurement Agent. The public notice shall state the place, date, and time of bid opening. Draft Procurement Code 11/14/2007 page 7 of 31 Late Bids A bid is late if it is received at the location designated in the invitation for bids after the time and date set for bid opening. The Town's clock is the governing clock. A late bid shall be rejected. A late bid shall not be opened except for, if necessary, identification purposes. Such bids may be returned to the bidder. Bidders submitting bids that are rejected as late shall be so notified. Bid Opening Bids shall be opened publicly in the presence of one or more witnesses at the time and place designated in the invitation for bids. The name of each bidder and the amount of each bid, as well as other relevant information as the Procurement Agent deems appropriate shall be recorded. Unless otherwise determined by the Procurement Agent, this record shall be open to public inspection. Unless otherwise determined by the Procurement Agent, the bids shall not be opened for public inspection until after a contract is awarded. After a notice of intent to award is issued, or in the absence of a notice of intent to award, after final execution of the contract, the bids shall be available for public inspection, except to the extent that the withholding of information is permitted or required by law. If the bidder designates a portion of its bid as confidential, it shall isolate and identify in writing the confidential portions in accordance with this Article. Bid Acceptance and Bid Evaluation Bids shall be unconditionally accepted without alteration or correction, except as authorized in this Article. Bids shall be evaluated based on the requirements set forth in the invitations for bids, which may include criteria to determine acceptability such as inspection, testing, quality, workmanship, delivery, and suitability for a particular purpose. The invitation for bids shall set forth the evaluation criteria to be used. No criteria may be used in bid evaluation that is not set forth in the invitation for bids. Correction or Withdrawal of Bids; Cancellation of Awards a. Correction or withdrawal of inadvertently erroneous bids before or after bid opening, or cancellation of awards or contracts based on such bid mistakes, may be permitted where appropriate. Mistakes discovered before bid opening may be modified or withdrawn by written notice received by the Town prior to the time set for bid opening. b. Mistakes discovered after bid opening may be modified or withdrawn only to the extent that the bidder can show by clear and convincing evidence that a mistake of a nonjudgmental character was made, the nature of the mistake, and the bid price actually intended. After bid opening, no changes in bid prices or other bid provisions prejudicial to the interest of Draft Procurement Code 11/14/2007 page 8 of 31 the Town or fair competition shall be permitted. In lieu of bid correction, a bidder alleging a mistake may be permitted to withdraw its bid if: i.) the mistake is clearly evident on the face of the bid document but the intended correct bid is not similarly evident; or ii.) the bidder submits evidence that clearly and convincingly demonstrates that a mistake was made. All decisions to permit the correction or withdrawal of bids, or to cancel awards based on bid mistakes, shall be supported by a written determination made by the Procurement Agent. Contract Award General The contract shall be awarded by appropriate notice to the lowest responsible and responsive bidder whose bid conforms in all material respects to requirements and criteria set forth in the invitation for bids. Contract Award Based on Best Value Contracts may be awarded on best value analysis provided that the criteria for analysis was included in the invitation for bids in accordance with this Article. The contract shall be awarded by appropriate written notice to the responsive, responsible bidder whose bid is determined to be the best value to the Town and that conforms in all material respects to requirements and criteria set forth in the invitation for bids. Consideration of Taxes in Competitive Sealed Bidding In evaluating the bids, except for procurement of construction, and for purposes of determining the low bidder, the Procurement Agent shall not include the amount of applicable business privilege tax. The amount of a city's business privilege tax shall not be included in the evaluation except in those instances in which the award is between a Town of Oro Valley bidder and an Arizona-based, non-Oro Valley bidder. In this event, the applicable city business privilege tax shall be included in the non-Oro Valley bidder's price for evaluation purposes only to determine the lowest bidder. Exceeding Available Funds In the event the low responsive and responsible bid for a construction project exceeds available funds and such bid does not exceed such funds by more than five percent, the Procurement agent is authorized, when time or economic considerations preclude resolicitation of work of a reduced scope, to negotiate an Draft Procurement Code 11/14/2007 page 9 of 31 adjustment of the bid price with the low responsive and responsible bidder, in order to bring the bid within the amount of available funds. Low Tie Bids If there are two or more low responsive bids from responsible bidders that are identical in price and other evaluation criteria and that meet all the requirements and criteria set forth in the invitation for bids, award may be made by random selection in a manner prescribed by the Procurement Agent. Public Record After the Town issues a notice of intent to award, or in the absence of a notice of intent to award upon final contract execution, the bids shall be available for public inspection, except to the extent that the withholding of information is permitted or required by law. If the bidder designates a portion of its bid as confidential, it shall isolate and identify in writing the confidential portions in accordance with this Article. Competitive Sealed Proposals Request for Proposals a. Competitive sealed proposals shall be solicited through a request for proposals. The request for proposals shall include a scope of work and any applicable evaluation criteria. Contractual terms and conditions may be included within the solicitation document or incorporated by reference. b. A prequalification process may be conducted prior to the issuance of a request for proposals in order to establish a list of qualified offerors. In the event a prequalification process is used,the Procurement Agent shall only consider proposals that are submitted from prequalified offerors. Public Notice Notice of the request for proposals for bids shall be published in a newspaper of general circulation or electronically posted and the request for proposals shall be available for public inspection not less than fourteen days prior to the date set forth therein for the opening of bids. A shorter time may be deemed necessary for a particular procurement as determined by the Procurement Agent. The public notice shall state the place, date, and time of proposal opening. Late Proposals A proposal is late if it is received at the location designated in the request for proposals after the time and date set for proposal opening. The Town's clock is Draft Procurement Code 11/14/2007 page 10 of 31 theg overning clock. A late proposal shall be rejected. A late proposal shall not be opened except for, if necessary, identification purposes. Such proposals may be p returned to the bidder. Offerors submitting proposals that are rejected as late shall be so notified. Receipt of Proposals Proposals shall not be opened publicly. No proposals shall be handled as to permit disclosure of the contents of any proposal to competing offerors. Proposals shall be open for public inspection after a notice of intent to award is issued, or in the absence of a notice of intent to award, after final execution of the contract, except to the extent that the withholding of information is permitted or required by law. If the offeror designates a portion of its proposal as confidential, it shall isolate and identify in writing the confidential portions in accordance with this Article. Evaluation of Proposals The request for proposals shall state the criteria to be used in the evaluation of the proposals and shall include their relative importance. Specific numerical weighting is not required. Discussion with Offerors Discussions may be conducted with offerors. Negotiations with Offerors and Revisions to Proposals Negotiations may be conducted with offerors. Offerors shall be accorded fair and equal treatment in conducting negotiations and there shall be no disclosure of any information derived from proposals submitted by competing offerors. a. Concurrent Negotiations. Negotiations may be conducted concurrently with offerors for the purpose of determining source selection and/or contract award. b. Exclusive Negotiations. Exclusive negotiations may be conducted with the offeror whose proposal is determined in the source selection process to be most advantageous to the Town. Exclusive negotiations may be conducted subsequent to concurrent negotiations or may be conducted without requiring previous concurrent negotiations. If exclusive negotiations are conducted and an agreement is not reached, the Town may enter into exclusive negotiations with the next highest ranked offeror without the need to repeat the formal solicitation process. Draft Procurement Code 11/14/2007 page 11 of 31 Contract Award Contract award shall be made by the Procurement agent to the responsible offeror whose proposal is determined in writing to be the most advantageous to the Town taking into consideration the evaluation criteria set forth in the request for proposals. The contract file shall contain the basis on which the award is made. Contracting for Legal Counsel Authority For the purpose of procuring the services of legal counsel, as defined by the laws of the state, contracts for the services of legal counsel shall be awarded with the authorization of the Town Attorney and the Town Manager except as otherwise provided by law. Conditions for Use Unless determined by the Town Attorney and Town Manager that direct selection is in the best interest of the Town, the services of legal counsel shall be procured in accordance with this Article. Small Purchases Any contract not exceeding the formal solicitation threshold as established under the Arizona Procurement Code may be made by the Procurement Agent in accordance with the small purchase procedures authorized in this Article. Contract requirements shall not be artificially divided so as to constitute a small purchase under this Article. Small Purchases Greater than $2,500 Insofar as it is practical for small purchases in excess of$2,500 but less than the formal solicitation threshold as established under the Arizona Procurement Code, no less than three businesses shall be solicited to submit quotations. Award shall be made to the responsible bidder submitting the quotation, which is most advantageous to the Town and conforms in all material respects to the solicitation. The names of the businesses submitting quotations, and the date and amount of each quotation, shall be maintained as a public record. Small Purchases $2,500 or less The Procurement Agent shall adopt operational procedures for making small purchases of$2,500 or less. Draft Procurement Code 11/14/2007 page 12 of 31 Sole Source Procurement Notwithstandinganyother provisions of this Article, a contract may be awarded without competition when the Procurement Agent determines in writing, after p conducting a good faith review of available sources, that there is only one source for the required material, service, or construction item. The using agency requesting a sole source procurement shall provide written evidence to support a sole source determination. The Procurement Agent may require that negotiations are conducted as to price, delivery, and terms. The Procurement agent may require the submission of cost or pricing data in connection with an award under this section. Sole source procurement shall be avoided, except when no reasonable alternative sources exist. Emergency Procurements Notwithstanding any other provisions of this Article, the Procurement Agent may make or authorize others to make emergency procurements when there exists a threat to public health, welfare, or safety; provided that such emergency procurements shall be made with such competition as is practicable under the circumstances. An emergency procurement shall be limited to those materials, services,or construction necessary to satisfy the emergency need. A written determination of the basis for the emergency and for the selection of the particular contractor shall be included in the contract file. Special Procurements Notwithstanding any other provisions of this Article, the Procurement Agent may make or authorize others to make procurements above the small purchase amount specified in this Article when, due to unusual or special circumstances, it would be in the best interest of the Town to accomplish the procurement without compliance with other methods of source selection contained in this Article. The using agency requesting a special procurement shall provide written evidence to support a special procurement determination. Any special procurement under this Section shall be limited to those materials, services, or construction necessary to satisfy the Town's need and shall be made with sound fiscal discretion. A written determination of the basis for the special procurement and for the selection of the particular contractor shall be maintained as public record. Cancellation or Rejection of Solicitations An invitation for bids, a request for proposals, a request for qualifications or other solicitation may be cancelled, or any or all bids, proposals or statements of qualifications may be rejected in whole or in part as may be specified in the Draft Procurement Code 11/14/2007 page 13 of 31 solicitation, when it is for good cause and in the best interest of the Town. The reason for cancellation or rejection shall be made part of the contract file. Notice of cancellation shall be publicly posted. The notice shall identify the solicitation, explain the reason for cancellation, and where appropriate, explain that an opportunity will be given to compete on any re-solicitation or any future procurements of similar items. Reason for rejection shall be provided upon request to the unsuccessful bidder offeror or respondent. Responsibility of Bidders, Offerors and Respondents. Findings of Nonresponsibility If a bidder, offeror or respondent who otherwise would have been awarded a contract is found nonresponsible, a written finding of nonresponsibility, setting forth the basis of the fmding, shall be prepared by the Procurement Agent or designee. The unreasonable failure of a bidder, offeror or respondent to promptly supply information in connection with an inquiry with respect to responsibility may be grounds for a fmding of nonresponsibility with respect to such bidder or offeror. The written fmding shall be made part of the contract file and be made a public record. Factors to be considered in determining if a prospective contractor is responsible include but are not limited to: a. The proposed bidder's, offeror's or respondent's financial, physical, personnel or other resources, including subcontracts; b. The proposed bidder's, offeror's or respondent's record of performance and integrity; and c. Whether the proposed bidder, offeror or respondent is qualified legally to contract with the Town. Right of Nondisclosure Confidential information furnished by a bidder, offeror or respondent pursuant to this Section shall not be disclosed by the Town or using agency, without prior written consent by the bidder, offeror or respondent. Bid and Contract Security,Material or Service Contracts The Procurement Agent may require the submission of security to guarantee faithful bid and contract performance. In determining the amount and type of security required for each contract, the Procurement Agent shall consider the nature of the performance and the need for future protection to the Town. The Draft Procurement Code 11/14/2007 page 14 of 31 ..................... requirement for security must be included in the solicitation. Failure to submit security in the amount and type of security required may result in the rejection of the bid or proposal. Types of Contracts Subject to the limitations of this Article, any type of contract which will promote the best interests of this Town may be used. Approval of Accounting System The Procurement Agent may require that the proposed contractor's accounting system is adequate to allocate costs in accordance with generally accepted cost accounting principles prior to award of a contract. Multi-year Contracts Unless otherwise provided by law, a contract for materials, services or construction may be entered into for any period of time deemed to be in the best interest of the Town, if 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 are subject to the availability and appropriation of funds. Right to Inspect The Town may, at reasonable times, inspect the part of the plant or place of business of a contractor, consultant or any subcontractor or subconsultant that is related to the performance of any contract awarded or to be awarded by the Town. Right to Audit Records The Town may, at reasonable times and places, audit the books and records of any person who submits cost or pricing data as provided in this Article to the extent that the books and records relate to the cost or pricing data. Any person who is awarded a contract, change order or contract modification for which cost or pricing data is required shall maintain the books and records that relate to the cost or pricing data for three years from the date of final payment under the contract, unless otherwise specified in the contract. The Town is entitled to audit the books and records of a contractor, consultant or any subcontractor or subconsultant under any contract or subcontract to the extent that the books and records relate to the performance of the contract or subcontract. The books and records shall be maintained by the contractor for a period of three years from the date of final payment under the prime contractor or consultant, and Draft Procurement Code 11/14/2007 page 15 of 31 by the subcontractor or subconsultant for a period of three years from the date of final payment under the subcontract, unless otherwise specified in the contract. Reporting of Anticompetitive Practices When for any reason collusion or other anticompetitive practices are suspected among any bidders or offerors, a notice of the relevant facts shall be transmitted to the Procurement Agent and the Town Attorney. Retention of Procurement Records All procurement records shall be retained and disposed of in accordance with records retention guidelines and schedules approved by the Town Clerk. 3-4-4 Specifications Maximum Practicable Competition All specifications shall seek to promote overall economy for the purposes intended and encourage competition in satisfying the Town's needs and shall not be unduly restrictive. To the extent practicable and unless otherwise permitted by this chapter, all specifications shall describe the Town's requirements in a manner that does not unnecessarily exclude a material, service, or construction item. Restrictive specifications shall not be used unless such specifications are required and it is not practicable or advantageous to use a less restrictive specification. To the extent practicable, the Town shall use accepted commercial specifications and shall procure standard commercial materials. Specifications Specifications Prepared by Other Than Town Personnel The requirements of this Article regarding the purposes and nonrestrictiveness of specifications shall apply to all specifications prepared other than by Town personnel, including, but not limited to, those prepared by architects, engineers, designers, and consultants for public contracts, or subcontractors. No person preparing specifications shall receive any direct or indirect benefit from the utilization of such specifications. Draft Procurement Code 11/14/2007 page 16 of 31 Brand Name or Equal Specification A brand name or p equal specification may be used to describe the standards of q quality, performance,erformance, and other characteristics needed to meet the requirements of a solicitation, and which invites offers for equivalent products from a manufacturer. Use of a brand name or equal is not intended to limit or restrict competition. Brand Name Specification A brand name specification may be used to identify the sole acceptable item that meets the Town's needs. The using agency requesting a brand name specification shall provide written evidence to support a brand name determination. A written determination by the Procurement Agent of the basis for the brand name shall be maintained as public record. Past success in the material'sp erformance, traditional purchasing practices, or inconvenience of drawing specifications do not justify the use of a brand name specification. 3-4-5 Procurement of Professional Design Services, Construction and Construction Services Definitions In this article, unless the context otherwise requires: Construction means the process of building, altering, repairing, improving or demolishing any public structure or building or other public improvements of any kind to any public real property. Does not include the routine operation, routine repair or routine maintenance of existing facilities, structures, buildings or real property. Construction-manager-at-risk means a project delivery method in which: a. There is a separate contract for design services and a separate contract for construction services. b. The contract for construction services may be entered into at the same time as the contract for design services or at a later time. c. Design and construction of the project may be in sequential phases or concurrent phases. d. Finance services, maintenance services, operations services, preconstruction services and other related services may be included. Draft Procurement Code 11/14/2007 page 17 of 31 Construction services means either of the following for construction-manager- at-risk, design-build and job-order-contracting project delivery methods: a. Construction, excluding services, through the construction-manager-at- risk or job-order-contracting project delivery methods. b. A combination of construction and, as elected by the Town, one or more related services, such as finance services, maintenance services, operations services, design services and preconstruction services, as those services are authorized in the definitions of construction-manager-at-risk, design- build or job-order-contracting in this section. Design-bid-build means a project delivery method in which: a. There is a sequential award of two separate contracts. b. The first contract is for design services. c. The second contract is for construction. d. Design and construction of the project are in sequential phases. e. Finance services, maintenance services and operations services are not included. Design-build means a project delivery method in which: a. There is a single contract for design services and construction services. b. Design and construction of the project may be in sequential phases or concurrent phases. c. Finance services, maintenance services, operations services, preconstruction services and other related services may be included. Finance services means financing for a construction services project. Job-order-contracting means a project delivery method in which: a. The contract is a requirements contract for indefinite quantities of construction. b. The construction to be performed is specified in job orders issued during the contract. Draft Procurement Code 11/14/2007 page 18 of 31 c. Finance services, maintenance services, operations services, preconstruction services, design services and other related services may be included. Maintenance services means routine maintenance, repair and replacement of existing facilities, structures, buildings or real property. Operations services means routine operation of existing facilities, structures, buildings or real property. Preconstruction services means advice during the design phase. Professional Design Services means architect services, assayer services, engineering services, geologist services, landscape architect services, and land g g surveY in service or any combination of those services that are legally required to be accomplished, reviewed, and approved by professionals registered to practice in the pertaining discipline in the State of Arizona. Procurement of Construction Contracts for construction shall be solicited through a competitive sealed bid process except as otherwise provided for in this Article. The Procurement Agent shall award and administer contracts for construction in accordance with the requirements of A.R.S. Title 34 and the Town Procurement Code. Procurement of Professional Design Services Contracts for professional design services shall be solicited through a request for qualifications except as otherwise provided for in this Article. The Procurement Agent shall award and administer contracts for professional design services in accordance with the requirements of A.R.S. Title 34 and the Town Procurement Code. Procurement of Construction Services Contracts for construction services shall be solicited through a design-build, construction-manager-at-risk or job-order-contracting selection process utilizing a request for qualifications except as otherwise provided for in this Article. The Procurement Agent shall award and administer contracts for construction services in accordance with the requirements of A.R.S. Title 34 and the Town Procurement Code. Construction by Town Employees Any building, structure, addition or alteration may be constructed either with or without the use of the Town's regularly employed personnel without advertising Draft Procurement Code 11/14/2007 page 19 of 31 for bids provided that the total cost of the work, excluding materials and equipment previously acquired by bid, does not exceed limits as established in A.R.S. Title 34-201. 3-4-6 Contract Terms and Conditions All Town contracts shall include clauses providing for adjustments in prices, time of performance, termination for default or convenience, liquidated damages as appropriate or other contract provisions as appropriate to define the rights and responsibilities of the parties to the contract. 3-4-7 Cost Principles Principles The Procurement Agent shall establish cost principles which shall be used to determine the allowability of incurred costs for the purpose of reimbursing costs under contract provisions which provide for the reimbursement of costs. Cost or Pricing Data The submission of current cost or pricing data may be required in connection with any award, change order or contract modification. 3-4-8 Materials Management Definitions In this section, unless the context otherwise requires: Property means supplies,materials, goods or fixed assets Surplus property means property no longer needed by using agencies for their operations, property in poor or non-working condition, or property that has become obsolete. Unclaimed, lost and confiscated property means all property used as evidence in the courts and remaining unclaimed after final disposition, property seized by a peace officer as being used unlawfully, and all property coming into the hands of any Town Officer or employee as lost or unclaimed. Materials Management Guidelines The Procurement Agent shall establish regulations governing: a. the sale, lease, or disposal of surplus property Draft Procurement Code 11/14/2007 page 20 of 31 b. the sale or disposition of unclaimed, lost or confiscated property Surplus Property Listing Using agencies shall submit to the Procurement Agent, at such time and in such form prescribed, reports showing all supplies and equipment which are no longer used or have become obsolete or worn out. A listing of surplus property shall be maintained and such property shall be transferred between departments and divisions as needed prior to pursuing any disposal method. Disposal of Surplus Property The Procurement Agent shall have the authority to dispose of any surplus property which it principally had a right to acquire. If the property cannot be used by any department or division or has become unsuitable for Town use, the procurement agent may pursue any disposal process which benefits the Town to include: a. Sell the surplus property at public auction, live or electronic. b. Trade the surplus property for credit against new purchases. c. Sell the surplus property through the competitive sealed bidding process after proper public notice. d. Consign surplus property to third parties for sale upon terms advantageous to the Town. Such method may not be used unless, in the opinion of the Procurement Agent, it is the only viable disposal method available. e. Gift to charity if in the opinion of the Procurement agent the Surplus property cannot otherwise be disposed of using any of the other methods described in this section. Surplus Property Proceeds All proceeds from the sale of surplus property, less selling expenses shall be deposited in the appropriate revenue account of the Town. Disposition of Unclaimed,Lost or Confiscated Property Unclaimed or lost property excluding knives, firearms, ammunition or other weapons may be transferred to using agencies upon submission of a detailed request from the using agency to the Procurement Agent. Draft Procurement Code 11/14/2007 page 21 of 31 Unless otherwise provided for, all remaining unclaimed, lost and confiscated property shall be disposed of in accordance with procedures established in this Article. Proceeds of the auction, less selling expenses if applicable, will be deposited to the Town's General Fund unless otherwise required. Town Property Records All surplus property sold at auction, traded, donated, or otherwise disposed of shall be reported to the Finance Department on the required forms for the purpose of updating applicable Town property registries. 3-4-9 Legal and Contractual Remedies Definitions Debarment means an action taken by the Procurement Agent under this Article to prohibit a person from participating in Town procurements. Interested party means an actual or prospective bidder, respondent or offeror whose economic interest may be affected substantially and directly by the issuance of a solicitation, the award of a contract or by the failure to award a contract. Whether an economic interest exists will depend upon the circumstances of each case. An interested party does not include a supplier, subconsultant or subcontractor to an actual or prospective bidder, respondent or offeror. Suspension means an action taken by the Procurement Agent temporarily disqualifying a person from participating in Town procurements. Right to Protest Any actual or prospective bidder, offeror, or respondent who is aggrieved in connection with the solicitation or award of a contract may protest to the Town Manager. Authority to Resolve Protests The Manager shall have the authority, prior to the commencement of an action in court concerning the controversy, to settle and resolve a protest of an aggrieved bidder, offeror, or contractor, actual or prospective, concerning the solicitation or award of a contract. This authority shall be exercised in accordance with this Article. Draft Procurement Code 11/14/2007 page 22 of 31 Filing of a Protest Content of Protest Thep rotest shall be in writing and shall include the following information: a. The name, address,telephone number and email address of the protestant; b. The signature of the protestant or its representative; c. Identification of the solicitation or contract number; d. A detailed statement of the legal and factual grounds of the protest including copies of relevant documents; and e. The form of relief requested. Time for Filing Protests A protest with respect to a solicitation shall be submitted in writing prior to the solicitation due date, unless the aggrieved person did not know and should not have known of the facts giving rise to the protest prior to the solicitation due date. In all cases the protest shall be submitted within ten calendar days after such aggrieved person knows or should have known of the facts giving rise thereto. In no event shall the protest be filed later than 10 days following contract award. The Manager, without waiving the Town's right to dismiss the protest for lack of timeliness, may consider any protest that is not filed timely. The Manager shall give notice of the protest to the successful contractor if award has been made or, if no award has been made, to all interested parties. Interested parties have the right to intervene. Stay of Procurements during the Protest In the event of a timely protest, the Town may proceed further with the solicitation or with the award of the contract unless the Manager makes a written determination that there is a reasonable probability that the protest will be sustained or that the stay of procurement is not contrary to the substantial interests of the Town. Confidential Information Draft Procurement Code 11/14/2007 page 23 of 31 Material submitted by a protestant shall not be withheld from any interested party except to the extent that the withholding of information is permitted or required by law or as determined pursuant to this Article. If the protestant believes the protest contains material that should be withheld, a statement advising the Manager of this fact shall accompany the protest submission in accordance with this Article. Dismissal The Manager may dismiss, upon a written determination, a protest if the protest is untimely pursuant to (citation to time for filing protests) or the protest does not contain a statement as to the legal or factual basis for protest. Decision The Manager shall issue a written decision within twenty one days after a protest has been filed in accordance with this Article. The decision shall contain an explanation of the basis of the decision. A copy of the decision shall be mailed or otherwise furnished immediately to the contractor. If the Manager fails to issue a decision within the time limits set forth this Section, the protestant may proceed as if the Manager had issued an adverse decision. Remedies If the Manager sustains the protest in whole or part and determines that a solicitation, evaluation process, proposed contract award, or contract award does not comply with the Town procurement code, the Manager shall implement an appropriate remedy. In determining an appropriate remedy, the Manager shall consider all the circumstances surrounding the procurement or proposed procurement including, but not limited to: a. the seriousness of the procurement deficiency; b. the degree of prejudice to other interested parties or to the integrity of the procurement process; c. the good faith of the parties; d. costs to the Town; and e. the urgency of the procurement Draft Procurement Code 11/14/2007 page 24 of 31 An appropriate remedy may include one or more of the following: a. Reject all bids,proposals or offers; b. Terminate the contract; c. Reissue the solicitation; d. Issue a new solicitation; e. Award a contract consistent with the procurement code; f. Such other relief as is determined necessary to ensure compliance with the Code Finality of Decision Decisions issued in accordance with this Article shall be final and conclusive. Contract and Breach of Contract Controversies Applicability This Section applies to controversies between the Town and a contractor and which arise under, or by virtue of, a contract between them. This includes without limitation controversies based upon breach of contract, mistake, misrepresentation, or other cause for contract modification or rescission. Authority to Resolve Claims The Procurement Agent shall have the authority, prior to the commencement of an action in court concerning the controversy, to settle and resolve a claim of a contractor as described in this Article. This authority shall be exercised in accordance with this Article. Content of Claim The claim shall be in writing and shall include the following information: a. The name, address, telephone number and email address of the claimant; b. The signature of the claimant or its representative; c. Identification of the contract number; d. A detailed statement of the legal and factual grounds of the claim including copies of relevant documents; and Draft Procurement Code 11/14/2007 page 25 of 31 e. The form of relief requested. Procurement Agent's Decision If a contract claim cannot be resolved by mutual agreement, the Procurement Agent shall, upon a written request by the contractor for a final decision, issue a written decision no more than sixty days after the request is filed. Before issuing a final decision, the Procurement Agent shall review the facts pertinent to the contract claim or controversy and secure any necessary assistance from legal, financial,procurement, and other advisors. Decision The decision shall include: a. A description of the claim; b. A reference to the pertinent contract provision; c. A statement of the factual areas of agreement or disagreement; and d. A statement of the Procurement Agent's decision, with supporting rationale A copy of the decision shall be mailed or otherwise furnished immediately to the contractor. If the Procurement Agent fails to issue a decision within the time limits set forth this Section, the protestant may proceed as if the Procurement Agent had issued an adverse decision. Finality of Decision Decisions issued in accordance with this Article shall be final and conclusive. Authority to Debar or Suspend The Procurement Agent has the sole authority to debar or suspend a person from participating in Town procurements. Debarment or Suspension Causes The causes for Debarment or Suspension shall be limited to the following: Draft Procurement Code 11/14/2007 page 26 of 31 Conviction of any person or any affiliate of any person for commission of a criminal offense arising out of obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract. Conviction of any person or any affiliate of any person under any statute of the federalg overnment, this state or any other state for embe77lement, theft, fraudulent schemes and artifices, fraudulent schemes and practices, bid rigging, perjury, forgery, bribery, falsification or destruction of records, or receiving stolen rJm'y, g ; or any other offense indicating a lack of business integrity or business property; honesty which currently, seriously, and directly affects responsibility as a Town contractor and which conviction arises out of or obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract. Conviction or civil judgment finding a violation by any person or affiliate of any person under state or federal antitrust statutes arising out of the response to a solicitation. Violations of contract provisions within three years of current debarment action, as set forth below, of a character which are reasonably deemed to be so serious as to justify debarment action: a. Abandonment of a contract without good cause; or b. Knowingly fails without good cause to perform in accordance with the specifications or within the time limit provided in the contract; c. Failure to perform or unsatisfactory performance in accordance with the terms of one or more contracts, except that failure to perform or unsatisfactory performance caused by acts beyond the control of the contractor shall not be considered to be a basis for debarment; or d. Failure to pay a contractor, subcontractor or material provider as required by A.R.S. Section 32-1129. e. Any other cause that the Procurement Agent reasonably determines to be so serious and compelling as to affect responsibility as a Town contractor, including suspension or debarment of such person or any affiliate of such person by another governmental entity for any cause listed in this Section. Initiation of Debarment Upon receipt of information concerning a possible cause for debarment, the Procurement Agent may investigate the possible cause. If the Procurement Agent has a reasonable basis to believe that a cause for debarment exists, the Procurement Agent may debar a person in accordance with this Article. Draft Procurement Code 11/14/2007 page 27 of 31 Period of Debarment The period of time for a debarment shall not exceed three years from the date of the debarment determination. If debarment is based solely upon debarment by another governmental agency, the period of debarment may run concurrently with the period established by that other debarring agency. Notice of Debarment If the Procurement Agent implements debarment, the Procurement Agent shall notify the person in writing within seven days of the debarment action. The notice of debarment shall state: a. The basis for debarment; b. The period, including dates, of the debarment; c. That bids, proposals or offers shall not be solicited or accepted from the person and, if received, will not be considered; and d. That the person may request a meeting with the Procurement Agent to present additional facts pertinent to the case and request reconsideration of the decision to debar. Suspension The Procurement Agent may suspend a person from receiving any award in order to protect the Town's interests. Period and Scope of Suspension The period of suspension shall not be more than sixty (60) days unless the Procurement Agent is informed of compelling reasons to extend the period of suspension. Notice of Suspension If the Procurement Agent implements suspension, the Procurement Agent shall notify the person in writing within seven days of the suspension action. The person may submit a request to the Procurement Agent for an administrative Draft Procurement Code 11/14/2007 page 28 of 31 hearing within fourteen days of issuance of the Procurement Agent's suspension action. If a hearing is granted, it shall be conducted in accordance with this Article. The notice of suspension shall state: a. The basis for suspension; b. The period, including dates, of the suspension; c. That bids or proposals shall not be solicited or accepted from the person and, if received, will not be considered; and d. That the person may request a meeting with the Procurement Agent to present additional facts pertinent to the case and request reconsideration of the decision to suspend. If a debarred or suspended party requests reconsideration by the Procurement Agent, the Procurement Agent shall issue a decision to reinstate or uphold the prior decision within fourteen days of the meeting. Reinstatement The Procurement Agent may at any time after a final decision on debarment or suspension reinstate a debarred or suspended person or rescind the debarment or suspension upon a determination that the cause upon which the debarment or suspension is based no longer exists. Any debarred or suspended person may request reinstatement by submitting a petition to the Procurement Agent supported by documentary evidence showing that the cause for debarment or suspension no longer exists or has been substantially mitigated. The Procurement Agent may require a hearing on the request for reinstatement. The decision on reinstatement shall be in writing and specify the factors on which it is based. Judicial Review of Protests, Claims, Debarments or Suspensions Any final decision of the Procurement Agent of a protest, claim, debarment or suspension under this Article is subject to special action review by any party to the proceeding. Exhaustion of the procedures set forth in this Code shall be a Draft Procurement Code 11/14/2007 page 29 of 31 condition precedent to seeking judicial review and the party seeking review shall file the complaint within thirty days of a final decision by the Procurement Agent. Exclusive Remedy Notwithstanding any law to the contrary, this Article shall provide the exclusive procedure for asserting a claim or cause of action against this Town arising in relation to any procurement conducted under this Article. 3-4-10 Cooperative Procurement Definitions In this Article, unless the context otherwise requires: Cooperative procurement means procurement conducted by, or on behalf of, more than one public procurement unit. Public Procurement Unit means any state, county, city, town, and any other political subdivision, public authority, educational, health or other institution, and to the extent provided by law, any other entity which expends public funds for the procurement of supplies, services and construction, and any not-for-profit entity. Cooperative Procurement Authorized The Town may either participate in, sponsor, conduct or administer a cooperative procurement agreement for the procurement of any materials, services, or construction with one or more public procurement units in accordance with an agreement entered into between the participants. Parties under a cooperative procurement agreement may: a. Sponsor, conduct or administer a cooperative agreement for the procurement or disposal of any materials, services, or construction. b. Cooperatively use materials or services. c. Commonly use or share warehousing facilities, capital equipment and other facilities. d. Provide personnel, except that the requesting eligible procurement unit may pay the public procurement unit providing the personnel the direct and indirect cost of providing the personnel, in accordance with the agreement. e. On request, make available to other eligible public procurement units informational, technical or other services that may assist in improving the Draft Procurement Code 11/14/2007 page 30 of 31 efficiency or economy of procurement. The public procurement unit furnishing the informational or technical services has the right to request reimbursement for the reasonable and necessary costs of providing such services. f. All payments received by a public procurement unit supplying personnel or services shall be available to the supplying public procurement unit to defray the cost of the cooperative program. The activities described in Paragraphs (a) through (f) do not limit the activities of parties under a cooperative procurement agreement. Draft Procurement Code 11/14/2007 page 31 of 31 REVISIONS TO TOWN CODE ARTICLE 3-4 PROCUREMENT Brian P.Garrity,C.P.M.,CPPB 1 INTRODUCTION Current Procurement Code —First adopted 09/1989 —Last revised 09/2000 —Procurement authority afforded to Town Manager or designee —Establishes dollar thresholds for small, informal and formal purchasing procedures —Provides basic framework for procurement process and procedure Town of Oro Valley INTRODUCTION Needed Improvements —Dollar thresholds —Advertising requirements —Timeliness —Professional services —Alternative Project Delivery Methods (JOC, CMAR, DB) —Local Business consideration —Protest and claim procedures Town of Oro Valley 1 MODEL PROCUREMENT New Town Procurement Code —Drafted based on the ABA Model Procurement Code for State and Local Governments —Intent •to simplify,clarify,and modernize the law governing procurement by the Town; • to provide for increased public confidence; •to ensure the fair and equitable treatment of all persons; • to maximize to the fullest extent practicable the purchasing value of public funds. Town of oro Valley MODEL PROCUREMENT NIGP Study — In accordance with recommendations detailed in the June,2006 Procurement Management Review Comparisons —City of Tucson —City of Sierra Vista —City of Yuma —City of Prescott —City of Apache Junction —State of Arizona Town of Oro Valley Town of Oro Valley Procurement Code Article I General Provisions: Broad policies that outline the general rationale and applicability to the Code. The Code is intended to clarify and modernize Town Procurement functions as well as provide confidence to the general public in the procurement activities of the Town. This section also contains definitions for terms used through the Code. Key Considerations —None Tow—f or.valley 2 Town of Oro Valley Procurement Code Article II i Procurement Organization: Designates the person holding the lead procurement position in the Town as the Procurement Agent for the Town. Defines the duties for the Procurement Agent as procurement, materials management,surplus management and disposal,and specifications development. Key Considerations — Procurement authority changes from Town Manager to Procurement Administrator. Town of Oro Valley Town of Oro Valley Procurement Code Article Ill Source Selection and Contract Formation: Defines the methods of source selection available for Town use(competitive sealed bids,competitive sealed proposals,small purchases, sole source,emergency and special procurements) along with the requirements and solicitations forms for each method. Includes provisions for public notice, cancellation or rejection,and contract award. Town of Oro Valley Town of Oro Valley Procurement Code Article Ill (cont.) Key Considerations — Provides for public notice through electronic posting — Institutes processes and procedures for late offers, correction or withdrawal of offers and cancellation of awards. —Tax Offset Policy • Provides an advantage for OV businesses in competitive sealed bids — Increases small purchase threshold to$2,500 Town of Oro Valley 3 Town of Oro Valley Procurement Code Article Ill (cont.) Key Considerations (cont.) —Ties formal procurement threshold to State of Arizona($50,000) 4 • Conforms to dollar value of capital project —Removes requirement for Council approval • Already approved in budget and CIP process 4 • Significantly improves time of award —Provisions for sole source, emergency and special procurements Town of Oro Valley Town of Oro Valley Procurement Code Article IV Specifications: Promotes maximum competition in solicitations and limits use of specifications that restrict competition. Key Considerations —None Town of Oro Valley Town of Oro Valley Procurement Code Article V Procurement of Professional Design Services, Construction and Construction Services: Defines and allows for use of Alternative Project Delivery Methods and defers solicitation and administration requirements to those defined in Arizona Revised Statutes. Key Considerations — Allows use of JOC, CMAR and DB Town of Oro Valley 4 Town of Oro Valley Procurement Code Article VI Contract Terms and Conditions: States that the Town shall incorporate terms and conditions in each contract that define the rights and responsibilities of each party Key Considerations —None Town d Oro Valley Town of Oro Valley Procurement Code Article VII Cost Principles: States that The Procurement Agent shall establish cost principles which shall be used to determine the allowability of incurred costs reimbursed under contract Key Considerations —None Town d Oro Valley Town of Oro Valley Procurement Code Article VIII Materials Management: Provides Procurement Agent authority to establish guidelines for the sale or disposal of surplus property. Key Considerations —Allows for use of electronic auctions(web- based) Town of Oro Valley 5 Town of Oro Valley Procurement Code Article IX Legal and Contractual Remedies: Defines procedures for solicitation protests,award protests and contract claims. Gives the Procurement Agent and the Town Manager the authority to resolve protests or claims as a prerequisite to litigation. Gives Procurement Agent the authority to debar or suspend a contractor for illegal activities or breach of contract. Key Considerations — Increases public confidence in Town procurements — Provides administrative procedure for protests and claims Town d Oro Va6ey Town of Oro Valley Procurement Code Article X Cooperative Procurement: Authorizes the Town to participate in, sponsor or administer a cooperative agreement with any public procurement unit or not-for-profit entity. Key Considerations — Allows for broadest use of cooperative contracting — In accordance with Arizona Revised Statutes Town d Om Valby TOWN OF ORO VALLEY PROCUREMENT CODE QUESTIONS? Brian P.Garrity,C.P.M.,CPPB 6