2020-R-06 - CDBG Procurement Policy RESOLUTION#2020-R-06
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF EDGEWATER,
FLORIDA ADOPTING A POLICY RELATING TO CITY PURCHASES
INCLUDING A MINORITY BUSINESS ENTERPRISE POLICY FOR USE IN
ADMINISTERING COMMUNITY DEVELOPMENT BLOCK GRANTS;
PROVIDING DEFINITIONS; DEFINING AN ACTION PLAN; AND PROVIDING
AN EFFECTIVE DATE.
WHEREAS,the City Council of the City of Edgewater desires to establish a policy regarding
purchases under the City's Community Development Block Grants (CDBG),women owned and
minority businesses, and
WHEREAS, the City Council of the City of Edgewater recognize the need to adopt a plan for
purchases under the Community Development Block Grant;
NOW THEREFORE, BE IT RESOLVED BY CITY COUNCIL OF THE CITY OF
EDGEWATER,FLORIDA,AS FOLLOWS:
CITY OF EDGEWATER
COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM
PURCHASING POLICY
INCLUDING THE
MINORITY BUSINESS ENTERPRISE POLICY
Section 1 PURPOSE
This policy is adopted to assure that commodities and services for the Community Development Block
Grant Programs are obtained efficiently and effectively in free and open competition and through the use
of sound procurement practices. All City staff and other persons (subgrantees or contractors) with
designated responsibility for the administration of CDBG award contracts are responsible for ensuring
compliance with all applicable federal and state laws and regulations. These include but are not limited
to: OMB Circular A-102, attachment O; 2 CFR Part 200; s. 255.0525 and 287.055 Florida Statutes,
Chapter 73C-23 Florida Administrative Code.
Section 2 APPLICATION OF POLICY
This policy shall apply to contracts or agreements for the procurement of all materials, supplies, services,
construction and equipment for any Community Development Block Grant Program solicited or entered
into after the effective date of this policy.
Section 3 PURCHASING DIRECTOR
The City Manager or his/her designee shall serve as the central purchasing officer (the "Purchasing
Officer")of the City of Edgewater for all contracts or agreements described in Section 2.
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Section 4 PURCHASING AND CONTRACT AWARD PROCEDURES
Section 4.01 PURCHASING CATEGORIES,THRESHOLD AMOUNTS
Except as to Sole Source Purchases (Section 4.06) and Cooperative Purchasing (Section 4.07), all
purchases and contract awards are to be made subject to the provisions of the appropriate Section
according to the following threshold amounts:
A. Small Purchases(Section 4.02) .......................................... $1.00 to$4,999.99
B. Informal Quotes ..................................................................$5000.00 to $14,999.99
C. Purchasing Quotes(Section 4.03) ........................................$15,000.00 to $44,999.99
D. Competitive Sealed Bids/Proposals
(Section 4.04&4.05)...........................................................$25,000.00 and above
Section 4.02 SMALL PURCHASES
The purchase of commodities, equipment and services which cost less than the threshold authorized in
Section 4 does not require solicitation of quotes or bids. Small purchases shall be authorized by the
Purchasing Officer or his/her designees.
Section 4.03 PURCHASING QUOTES
The purchase of goods and services which cost within the range authorized for purchasing quotes in
Section 4 shall require competitive quotations from three or more vendors. The quotations shall be
obtained by the respective project lead within the requesting department and shall be reviewed and
awarded by the Purchasing Officer.
Section 4.04 COMPETITIVE SEALED BIDDING
1. Conditions for Use. All contracts for purchases of a single item, services or aggregate in excess
of the established base amount for Competitive Sealed Bids/Proposals in Section 4, where price,
not qualifications, is the basis for contract award, shall be awarded by competitive sealed bidding.
2. Invitation to Bid. Under Section 255.0525(2), F.S. and Rule 73-23.00521(2)(a), F.A.C., an
invitation to bid for construction projects that are projected to cost more than $200,000.00 shall
be published in at least one daily newspaper of general circulation in Volusia County as well as a
nearby federal Office of Management and Budget(OMB)designated metropolitan statistical area
(MSA) at least 21 days prior to the established bid opening and at least 5 days prior to any
scheduled pre-bid conference. An invitation to bid for construction projects that are projected to
cost more than $500,000.00 shall be publicly advertised at least once in a newspaper of general
circulation in Volusia County at least 30 days prior to the established bid opening and at least 5
days prior to any scheduled pre-bid conference. Additionally, Notice shall be sent to those
vendors and contractors on the City's MBE/WBE solicitation list. Alternatively, the City may
substitute the above notice with any solicitation procedure which generates at least three
responsible and responsive bids or proposals which can be considered. However, if three
responsible and responsive bids or proposals are not received,the procurement will be invalid.
An Invitation to Bid shall be issued and shall include specifications, all contractual terms and
conditions, and the place, date, and time for opening or submittal. No later than five working
days prior to the date for receipts of bids, a vendor shall make a written request to the City for
interpretations or corrections of any ambiguity, inconsistency or error which the vendor may
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discover. All interpretations or corrections will be issued as addenda. The City will not be
responsible for oral clarifications. No negotiations, decisions or actions shall be initiated or
executed by the proposer as a result of any discussions with any City employee prior to the
opening of proposals. Only those communications which are in writing from the City may be
considered as a duly authorized expression on the behalf of the Council. Also, only
communications from firms or individuals which are in writing and signed will be recognized by
the Council as duly authorized expressions on behalf of proposers.
(1) Alternate(s). Alternate bids will not be considered unless authorized by and defined in
the Special Conditions of the bid specifications.
(2) Approved Equivalents. The City reserves the right to determine acceptance of item(s) as
an approved equivalent. Bids which do not comply with stated requirements for
equivalents in the bid conditions are subject to rejection. The procedure for acceptance
of equivalents shall be included in the general conditions of the bid.
3. Public Notice. Public Notice shall be by publication in a newspaper of general circulation at least
twelve (12) working days prior to bid opening or in accordance with Section 4.04-2 above as
appropriate. Notice of the Invitation to Bid shall give date, time, and place set forth for the
submittal of proposals and opening bids.
Bid Opening, Bids shall be opened publicly. The Purchasing Officer or his/her designee shall
open bids in the presence of one or more witnesses at the time and place designated in the
Invitation to Bid. The amount of each bid, and other such relevant information as may be deemed
appropriate by the Purchasing Officer together with the name of each bidder, and all witnesses
shall be recorded. The record(Bid Report)and each bid shall be open to public inspection.
4. Bid Acceptance and Evaluation. Bids shall be unconditionally accepted without alteration or
correction, except as authorized in this policy. Bids shall be evaluated based on the requirements
set forth in the Invitation to Bid, which may include, but not be limited to criteria to determine
acceptability such as; inspection, testing, quality, recycled or degradable material content,
workmanship, delivery, and suitability for a particular purpose. Those criteria that will affect the
bid price and be considered in evaluation for award shall be objectively measured, such as
discounts, transportation costs, and total or life cycle costs. No criteria may be used in bid
evaluation that are not set forth in the Invitation to Bid, in regulations,or in this policy.
5. Bid Agenda Item. After evaluation,the Purchasing Officer will prepare a recommendation and
shall place the item on the agenda of the City Council.
6. Correction or Withdrawal of Bids; Cancellation of Awards. Correction or withdrawal of
inadvertently erroneous bids before or after award, or cancellation of awards or contracts based
on such bids mistakes, shall be permitted where appropriate. Mistakes discovered before bid
opening may be modified or withdrawn by written or telegraphic notice received in the office
designated in the Invitation to Bid prior to the time set for bid opening. After bid opening,
corrections in bids shall be permitted only to the extent that the bidder can show by clear and
convincing evidence that a mistake, of non judgmental character was made, the nature of the
mistake, and the bid price actually intended. After bid opening, no changes in the bid price or
other provisions of bids prejudicial to the interest of the City or fair competition shall be
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permitted. In lieu of bid correction, a low bidder alleging a material mistake of fact may be
permitted to withdraw his bid if:
(1) the mistake is clearly evident on the face of the bid document but the intended correct bid
is not similarly evident; or
(2) the bidder submits evidence which clearly and convincingly demonstrates that a mistake
was made. All decisions to permit the correction or withdrawal of bids or to cancel
awards or contracts based on bid mistakes shall be supported by a written determination
made by the Purchasing Officer.
7. Multi-Step Sealed Bidding_ When it is considered impractical to initially prepare a purchase
description to support an award based on price, an Invitation for bids may be issued requesting
the submission of unpriced offers to be followed by an invitation for bids limited to those bidders
whose offers have been determined to be technically acceptable under the criteria set forth in the
first solicitation.
8. Award. The contract shall be awarded with reasonable promptness to the lowest responsible and
responsive bidder whose bid meets the requirements and criteria set forth in the Invitation to Bid.
(1) Notice of Intended Award. The contract shall be awarded by written notice. Every
procurement of contractual services shall be evidenced by a written agreement. Notice of
intended award, including rejection of some or all of bids received, may be given by
posting the bid tabulations where the bids were opened, by telephone, by first class mail,
or by certified United States mail, return receipt requested, whichever is specified in bid
solicitation. A vendor may request, in their bid submittal, a copy of the tabulation sheet
to be mailed in a vendor provided, self-addressed envelope for their records.
(2) Notice of Right to Protest. All notices of decision or intended decisions shall contain the
statement: "Failure to file a protest within the time prescribed in Section 4.08 of the
CDBG Purchasing Policy of the City of Edgewater shall constitute a waiver of
Proceedings under that section of this policy".
9. Cancellation of Invitations for Bids. An Invitation for bids or other solicitation may be canceled,
or any or all bids may be rejected in whole or in part when it is in the best interests of the City, as
determined by the Council provided such action does not violate CDBG program requirements.
Notice of cancellation shall be sent to all businesses solicited. 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 procurement of similar
items.
10. Disqualification of Vendors. For any specific bid, vendors may be disqualified by the Finance
Director or City Clerk for the following reasons:
(1) Failure to perform according to bidding provisions.
(2) Conviction in a court of law of any criminal offense in connection with the conduct of
business.
(3) Clear and convincing evidence of a violation of any federal or state anti-trust law based
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on the submission of bids or proposals,or the awarding of contracts.
(4) Clear and convincing evidence that the vendor has attempted to give a City employee a
gratuity of any kind for the purpose of influencing a recommendation or decision in
connection with any part of the City's purchasing activity.
(5) Failure to execute a Public Entity Crimes Statement as required by Florida Statutes
Chapter 287.133 (3)(a).
(6) Failure to be a responsive bidder according to the bidding procedures and provisions will
result in disqualification of a bid.
Section 4.05 COMPETITIVE SEALED PROPOSALS
All contracts for purchases of a single item or services or aggregate in excess of the established base
amount for Competitive Sealed Bids/Proposals in Section 4, where qualifications, not price, is the basis
for contract award, shall be awarded by competitive sealed proposals. All contracts for the procurement
of professional architectural, engineering, landscape architectural, and land surveying services will be
awarded according to the provisions of Section 4.051. All other contracts required to be awarded by
competitive sealed proposals will be awarded according to the provisions of Section 4.052.
Section 4.051 PROFESSIONAL ARCHITECTURAL,ENGINEERING LANDSCAPE
ARCHITECTURAL,AND LAND SURVEYING SERVICES
1. Public Announcement. It is the policy of the City to publicly announce all requirements for
professional architectural, engineering, landscape architectural, and land surveying services and
to negotiate such contracts on the basis of demonstrated competence and qualifications at fair and
reasonable prices. In the procurement of such services, the City may require firms to submit a
statement of qualifications, performance data and other related information for the performance
of professional services.
(1) Scope of Project Requirements. Prior to submission of the request for proposals for
professional services as an agenda item for approval by the Council, the Purchasing
Officer shall submit to the City written project requirements indicating the nature and
scope of the professional services needed, including but not limited to the following:
(a) the general purpose of the services or study;
(b) the objectives of the study or services;
(c) estimated period of time needed for the services or the study;
(d) the estimated cost of the service or study;
(e) whether the proposed study or service would or would not duplicate any prior
or existing study or services;
(f) list of current contracts or prior services or studies which are related to the
proposed study or service;
(g) the described qualifications, listed in order of importance,of the person or
firm applicable to the scope and nature of the services requested.
(2) Distribution of Project Requirements. The Purchasing Officer shall distribute the written
project requirements as approved by the City Council to all persons on the mailing list
who have indicated an interest in being considered for the performance of such
professional services and to any additional persons as the Purchasing Officer or using
agency deems desirable. The written project requirements shall include a statement of the
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relative importance of each of the requirements. The project requirements shall be
accompanied by an Invitation to such persons to submit an indication of interest in
performing the required services, and by notification of the date and time when such
indications of interest are due. This date shall not be less than twelve calendar days from
the date of public notice when the Purchasing Officer shall publish in at least one daily
newspaper of general circulation in the County where the project is located and in a
nearby federal Office of Management and Budget (OMB) designated metropolitan
statistical area (MSA). Alternatively, the City may substitute the above notice with any
solicitation procedure which generates at least three responsible and responsive bids or
proposals which can be considered. However, if three responsible and responsive bids or
proposals are not received,the procurement will be invalid.
(3) Modification Prohibition. After the publicized submission time and date, indications of
interest shall not be modified or allowed to be modified in any manner except for
correction of clerical errors or other similar minor irregularities as may be allowed by
the Selection Committee (defined in Section 4.051B) prior to making its selection of
those best qualified to be formally interviewed.
(4) Reuse of ExistingPThere shall be no public notice requirements or utilization of
the selection process as provided in this section for projects in which the City is able to
reuse existing plans from a prior project. However,public notice of any plans which are
intended to be reused at some future time shall contain a statement which provides that
the plans are subject to reuse.
2. Selection Committee Membership and Evaluation. Depending on the expected complexity and
expense of the professional services to be contracted,the City may determine whether a three
member or five-member selection committee will best serve the needs of the Council.
(1) Three Member Committee Composition. Membership of a three-member selection
committee shall be appointed by the City Council.
(2) Five Member Committee Composition. Membership of a five-member selection
committee shall be appointed by the City Council.
(3) Selection Committee Evaluation. Only written responses of statements of
qualifications, performance data, and other data received in the purchasing office by the
publicized submission time and date shall be evaluated. Only those respondents who are
determined to be best qualified based upon the evaluation of written responses and
selected for Formal interview may submit additional data. From among those persons
evidencing, by timely submission of written responses, an interest in performing the
services the Selection Committee shall:
(a) prepare an alphabetical list of those persons determined by the Selection
Committee to be qualified, interested and available;and
(b) designate no less than three persons on the alphabetical list considered by the
Selection Committee to be best qualified to perform the work required.
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(4) Shortlistina. The best qualified respondents shall be based upon the Selection
Committee's ability to differentiate qualifications applicable to the scope and nature of
the services to be performed.
The Selection Committee shall determine qualifications, interest and availability by
reviewing the written responses that express an interest in performing the services,and by
conducting formal interviews of no less than three selected respondents that are
determined to be best qualified based upon the evaluation of written responses. The
determination may be based upon,but not limited to,the following considerations:
(a) competence, including technical educational and training, experience in the kind
of project to be undertaken, availability of adequate personnel, equipment and
facilities, the extent of repeat business of the persons, and where applicable, the
relationship of construction costs estimates by the person to actual cost on
previous projects;
(b) current work load;
(c) financial responsibilities;
(d) ability to observe and advise whether plans and specifications are being
compiled with,where applicable;
(e) record of professional accomplishments;
(f) proximity to the project involved, if applicable;
(g) record of performance; and
(h) ability to design an approach and work plan to meet the project requirements,
where applicable.
(5) Interview and Council Approval. After conducting the formal interviews,the Selection
Committee shall list those respondents interviewed in order of preference based upon the
considerations listed in subsection (4) above. The respondents so listed shall be
considered to
be the most qualified and shall be listed in order of preference starting at the top of the
list.
The list of best qualified persons shall be forwarded to the Council for approval prior to
beginning contract negotiations. Negotiation sequence shall be based on the order of
preference.
3. Negotiation Staff. Contract negotiations shall be conducted by the Purchasing Officer unless the
Council President directs that negotiations be conducted by a Negotiation Committee.
Negotiation. The Purchasing Officer or the Negotiation Committee shall negotiate a contract
with the firm considered to be the most qualified to provide the services at compensation and
upon terms which the Purchasing Officer or the Negotiation Committee determines to be fair and
reasonable to the City. In making this decision, the Purchasing Officer or the Negotiation
Committee shall take into account the estimated value, the scope, the complexity, and the
professional nature of the services to be rendered. As a part of the negotiation, the Purchasing
Officer or the Negotiation Committee shall conduct a cost analysis, including evaluation of profit,
based on a cost breakout by the firm of its proposed price. Should the Purchasing Officer or the
Negotiations Committee be unable to negotiate a satisfactory contract with the firm considered to
be the most qualified, negotiations with that firm will be formally terminated. The Purchasing
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Officer or the Negotiation Committee shall then undertake negotiations with the second most
qualified firm. Failing accord with the second most qualified firm, the Purchasing Officer or the
Negotiation Committee shall formally terminate negotiations, and then shall undertake
negotiations with the third most qualified firm. Should the Purchasing Officer or the Negotiation
Committee be unable to negotiate a satisfactory contract with any of the selected firms, the
Selection Committee shall select additional firms in order of their competence and qualifications,
and the Purchasing Officer or Negotiation Committee shall continue negotiations in accordance
with this section until an agreement is reached or until a determination has been made not to
contract for services.
Section 4.052 OTHER COMPETITIVE SEALED PROPOSALS (non-287.055 services)
1. Conditions for Use. All contracts required by Section 4.05 to be awarded by competitive sealed
proposals that are not for the procurement of professional architectural, engineering, landscape
architectural, and land surveying services, will be awarded according to the provisions of this
section.
2. Consultant's Competitive Negotiation Act. Professional services within the scope of the practice
of architecture, professional engineering, landscape architecture, or registered land surveying, as
defined under the Consultant's Competitive Negotiation Act (Section 287.055, Florida Statutes),
shall be secured under the provisions of Section 4.051.
3. Council Approval. Proposals anticipated to exceed the threshold established in Section 4 for
Competitive Sealed Proposals shall be approved by the City of Edgewater prior to solicitation.
4. Public Notice. Adequate public notice of the Request for Proposal shall be given in the same
manner as provided in subsection 4.04-3 of this policy for competitive sealed bidding. Notice
shall also be sent to those vendors and contractors on the City's MBE/"E solicitation list.
5. Evaluation Factors. The Request for Proposals shall state the relative importance of criteria
outlined in the scope of services, fee proposal,and other evaluation.
6. Proposal Cancellation or Postponement. The Purchasing Officer may, prior to a proposal
opening,elect to cancel or postpone the date and/or time for proposal opening or submission.
7. Revisions and Discussions with Responsible Offerors. As provided in the Request for Proposals,
and under regulations promulgated by the City Council of the City of Edgewater,discussions may
be conducted with responsible offerors who submit proposals determined to be qualified of being
selected for award for the purpose of clarification to assure full understanding of, and
responsiveness to, the solicitation requirements. Offerors shall be accorded fair and equal
treatment with respect to any opportunity for discussion and revision of proposals, and such
revisions may be permitted after submission and prior to award for the purpose of obtaining the
best and final offers. In conducting discussions, there shall be no disclosure of any information
derived from proposals submitted by competing offerors. The Purchasing Officer shall prepare a
written summary of the proposals and make written recommendation of award to the City
Council. As a part of the recommendation, the Purchasing Officer shall conduct a cost analysis,
including evaluation of profit, based on a cost breakout by the firm of its proposed price.
Award. Award shall be made by the City Council to the lowest responsive and responsible offer
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or whose proposal is determined in writing to be the most advantageous to the City of Edgewater,
taking into consideration the evaluation factors set forth in the Request for Proposals. No other
factors or criteria shall be used in the evaluation criteria that is not included in the Request for
Proposal.
Section 4.06 SOLE SOURCE PURCHASES
Sole Source Certification. The procurement for all professional services and any contract
resulting from a non-competitive procurement process must meet the requirements of 2 CFR Part
200 and Section 287.055 of the Florida Statutes. The City's Purchasing Officer must conduct a
cost or price analysis of all proposed prices on sole source purchases, analysis shall include a
review of profit as a separate element. Sole source purchases must be approved by DEO in
writing.
Section 4.07 COOPERATIVE PURCHASING
1. State Contracts. The Purchasing Officer is authorized to purchase goods or services for any
dollar amount from authorized vendors listed on the respective state contracts of the Department
of General Services, subject otherwise to the requirements of this policy.
2. Other Governmental Units. The Purchasing Officer shall have the authority to join other units of
government in cooperative purchasing ventures when the best interest of the City would be served
thereby,and the same is in accordance with this policy and with the City and State Law.
Section 4.08 BID PROTEST
1. Right to Protest. Any actual prospective bidder, offeror, or contractor who is aggrieved in
connection with the solicitation or award of contract may protest to the City Council. Protestors
shall seek resolution of their complaints initially with the Purchasing Officer and secondly with
the City Clerk prior to protesting to the City Council.
2. Filing a Protest. Any persons who is affected adversely by the decision or intended decision of
the City shall file with the Purchasing Officer a notice of protest in writing within 72 hours after
the posting of bid tabulation or after receipt of the notice of intended decision; and file a formal
written protest within 10 calendar days after he/she filed the notice of protest. Failure to file a
notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings
under this Section. A written protest is filed with the City when it is delivered to and received in
the office of the Purchasing Officer.
(1) The notice of protest shall contain at a minimum: the name of the bidder; the
bidders address and phone number; the name of the bidder's representative to whom
notices may be sent; the name and bid number of the solicitation; and a brief factual
summary of the basis of the protest.
(2) The formal written protest shall; identify the protestant and the solicitation involved;
include a plain, clear, statement of the grounds on which the protest is based; refer to the
statutes, laws,ordinances,or other legal authorities which the protestant deems applicable
to such grounds; and specifically request the relief to which the protestant deems himself
entitled by application of such authorities to such grounds.
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(3) The protestant shall mail a copy of the notice of protest and the formal written protest to
any person with whom he/she is in dispute.
3. Settlement and Resolution. The Purchasing Officer shall; within 14 days of the formal written
protest, attempt to resolve the protest prior to any proceedings arising from the position.
Provided, however, if such settlement will have the effect of determining a substantial interest of
another party or business, such settlement must be reached in the course of the proceedings
provided herein.
4. Protest Proceedings. If the protest cannot be resolved by mutual agreement, the Purchasing
Officer shall conduct or designate another to conduct a protest proceeding pursuant to the
following procedures:
(1) Protest Proceeding Procedures.
(a) The presiding officer shall give reasonable notice to all substantially affected
persons or businesses. Otherwise petitions to intervene will be considered on
their merits as received.
(b) At or prior to the protest proceeding, the protestant may submit any written or
physical materials, objects, statements, or affidavits, and arguments which
he/she deems relevant to the issues raised.
(c) In the proceeding, the protestant, or his/her representative or counsel, may
also make an oral presentation of his evidence and arguments. However,
neither direct nor cross examination of witnesses shall be permitted, although
the presiding officer may make whatever inquiries he/she deems pertinent to a
determination of the protest.
(d) The judicial rules of evidence shall not apply and the presiding officer shall
base his/her decision on such information given in the course of the proceeding
upon which reasonable prudent persons rely in the conduct of their affairs.
(e) Within seven (7) working days of the conclusion of the proceeding, the
presiding officer shall render a decision which sets forth the terms and
conditions of any settlement reached. Such decision of the presiding officer
shall be conclusive as to the recommendation to the City Council.
(f) Any party may arrange for the proceedings to be stenographically recorded and
shall bear the expense of such recording.
(2) Intervenor. The participation of intervenors shall be governed by the terms of the
order issued in response to a petition to intervene.
(3) Time Limits. The time limits in which protests must be filed as provided herein may
be altered by specific provisions in invitation for bids or request for proposal.
(4) Entitlement to Costs. In no case will the protesting bidder or offeror be entitled to
any costs incurred with the solicitation, including bid preparation costs and
attorney's fees.
5. Stay of Procurement During Protests. In the event of a timely protest under Subsection A of this
Section, the Purchasing Officer shall not proceed further with the solicitation or award of the
contract until all administrative remedies have been exhausted or unless the City Council makes a
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determination that the award of a contract without delay is necessary to protect the substantial
interest of the City.
Section 4.09 CONTRACT CLAIMS
1. Authority of the Purchasing Officer to Settle Bid Protests and Contract Claims The Purchasing
Officer is authorized to settle any protest regarding the solicitation or award of a City contract, or
any claim arising out of the performance of a City contract, prior to an appeal to the City Council
or the commencement of an action in a court of competent jurisdiction, but may not settle any
such protest or claim for consideration of$1,000.00 or greater in value without prior approval of
the City Council.
2. Decision of the Purchasing Officer. All claims by a contractor against the City relating to a
contract, except bid protests, shall be submitted in writing to the Purchasing Officer for a
decision. The contractor may request a conference with the Purchasing Officer on the claim.
Claims include, without limitation, disputes arising under a contract,and those based upon breach
of contract, mistake,misrepresentation,or other cause for contract modification or rescission.
3. Notice to the Contractor of the Purchasing Officer's Decision The decision of the Purchasing
Officer shall be promptly issued in writing, and shall be immediately mailed or otherwise
furnished to the contractor. The decision shall state the reasons for the decision reached, and
shall inform the contractor of his appeal rights.
4. Finality of the Purchasing Officer Decision,• Contractor's Right to Appeal The Purchasing
Officer's decision shall be final and conclusive unless, within 10 calendar days from the date of
receipt of the decision,the contractor files a notice of appeal with the City Council.
5. Failure to Render Timely Decision. If the Purchasing Officer does not issue a written decision
regarding any contract controversy within fourteen calendar days after receipt of a written request
for a final decision, or within such longer period as may be agreed upon between the parties,then
the aggrieved party may proceed as if an adverse decision had been issued.
Section 4.10 REMEDIES FOR SOLICITATION OR AWARDS IN VIOLATION OF LAW
1. Prior to Bid Opening or Closing Date for Receipt of Proposals If prior to the bid opening or the
closing date for receipt of proposals, the Purchasing Officer after consultation with the City
Attorney, determines that solicitation is in violation of federal, state, or local law or ordinance,
then the solicitation shall be canceled or revised to comply with applicable law.
2. Prior to Award. If after bid opening or the closing date for receipt of proposals, but prior to the
award contract, the Purchasing Officer after consultation with the City Attorney, determines that
a solicitation or a proposed award of a contract is in violation of federal, state, or municipal law
or ordinance,then the solicitation or proposed award shall be canceled.
3. After Award. If, after award, the Purchasing Officer after consultation with the City Attorney,
determine that a solicitation or award of a contract was in violation of applicable law or
ordinance,then;
(1) if the person awarded the contract has not acted fraudulently or in bad faith:
(a) the contract may be terminated and the person awarded the contract shall be
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compensated for actual costs reasonably incurred under the contract plus a
reasonable profit,but excluding attorney's fees,prior to termination; or
(2) if the person awarded the contract has acted fraudulently or in bad faith the contract
may be declared null and void or voidable, if such action is in the best interest of the
City.
Section 5 CONTRACT ADMINISTRATION
Section 5.1 CONTRACT PROVISION
1. Standard Contract Clauses and Their Modification. The City after consultation with the City
Attorney, may establish standard contract clauses for use in City contracts. However, the
Purchasing Officer may, upon consultation with the City Attorney, vary any such standard
contract clauses for any particular contract.
2. Contract Clauses. All City contracts for supplies, services, and construction shall include
provisions necessary to define the responsibilities and rights of the parties to the contract. The
Purchasing Officer after consultation with the City Attorney, may propose provisions appropriate
for supply, service,or construction contracts,addressing among others the following subjects:
(1) the unilateral right of the City to order, in writing, changes in the work within the
scope of the contract;
(2) the unilateral right of the City to order in writing temporary stopping of the work or
delaying performance that does not alter the scope of the contract;
(3) variations occurring between estimated quantities or work in contract and actual
quantities;
(4) defective pricing;
(5) time of performance and liquidated damages;
(6) specified excuses for delay or nonperformance;
(7) termination of the contract for default;
(8) termination of the contract in whole or in part for the convenience of the City;
(9) suspension of work on a construction project ordered by the City;
(10) site conditions differing from those indicated in the contract, or ordinarily
encountered, except that a differing site conditions clause need not be included in a
contract
(a) when the contract is negotiated;
(b) when the contractor provides the site or design; or
(c) when the parties have otherwise agreed with respect to the risk of differing site
conditions;
(11) value engineering proposals;
(12) remedies;
(13) access to records/retention records;
(14) environmental compliance;and
(15) prohibition against contingency fees;
(16) insurance to be provided by contractor covering employee property damage,
liability and other claims, with requirements of certificates of insurance and
cancellation clauses;
(17) bonding requirements as set by the City Council;
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(18) causes of and authorization for suspension of contract for improper contractor
activity.
Section 5.2 PRICE ADJUSTMENTS
1. Method of Price Adjustment. Adjustments in price during the term of a contract shall be
computed in one or more of the following ways upon approval by the City:
(1) by agreement on a fixed price adjustment before adjustment before commencement
of the pertinent performance or as soon thereafter as practicable;
(2) by unit prices specified in the correct or subsequently agreed upon;
(3) by costs attributable to the events or situations under such clauses with adjustment of
profit or fee,all as specified in the contract or subsequently agreed upon by the City;
(4) in such other manner as the contracting parties may mutually agree; or
(5) in the absence of agreement by the parties, by a unilateral determination by the City
of the costs attributable to the events or situations under such clauses with
adjustment of profit or fee as computed by the City, subject to the provisions of this
Section.
2. Costs or Priciniz Data Required. A contractor shall be required to submit cost or pricing data if
any adjustment in contract price is subject to the provisions of this Section.
Section 5.3 CHANGE ORDERS/CONTRACT AMENDMENTS
Change orders and contract amendments, which provide for the alteration of the provisions of a contract
may be approved by an appropriate person based upon the dollar value of the change or amendment. The
purchasing categories thresholds designated in Section 4.01 shall govern the appropriate level of
approval.
Section 5.4 ASSIGNMENTS OF CONTRACTS
No agreement made pursuant to any section of this policy shall be assigned or sublet as a whole or in part
without the written consent of the City nor shall the contractor assign any monies due or to become due to
the contractor hereunder without the previous written consent of the City.
Section 5.5 RIGHT TO INSPECT PLANT
The City may, as its discretion, inspect the part of the plant or place of business of a contractor or any
subcontractor which is related to the performances of any contract awarded, or to be awarded,by the City.
The right expressed herein shall be included in all contracts or subcontracts that involve the performance
of any work or service involving the City.
Section 6 CITY PROCUREMENT RECORDS
1. Contract File. All determinations and other written records pertaining to the solicitation, award,
or performance of a contract shall be maintained for the City in a contract file.
2. Retention of Procurement Records. All procurement records shall be retained and disposed of by
the City in accordance with records retention guidelines and schedules established by the State of
Florida and Federal Guidelines. For CDBG related activities that retention period is six years.
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Section 7 SPECIFICATIONS
Section 7.1 MAXIMUM PRACTICABLE COMPETITION
All specifications shall be drafted to promote overall economy and encourage competition in satisfying
the City needs and shall not be unduly restrictive. The policy applies to all specifications including, but
mot limited to,those prepared for the City by architects, engineers,designers,and draftsmen.
Section 7.2 USE OF BRAND NAME OR EQUIVALENT SPECIFICATIONS
1. Use. Brand name or equivalent specifications may be used when the City determines that:
(1) no other design,performance,or qualified product list is available;
(2) time does not permit the preparation of another form of purchase description, not
including a brand name specification;
(3) the nature of the product or the nature of the City requirements makes use of a brand
name equivalent specifications suitable for the procurement; or
(4) use of brand name or equivalent specification is in the City's best interest.
2. Designation of Several Brand Names. Brand names or equivalent specifications shall seek to
designate three, or as many different brands as are practicable, as "or equivalent" references and
shall further state the substantially equivalent products to those designated may be considered for
award.
3. Required Characteristics. The brand name or equivalent specifications shall include a
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description of the particular design,functional,or performance characteristics required.
4. Nonrestrictive Use of Brand Name or Equivalent Specifications. Where a brand name or
equivalent specification is used in a solicitation, the solicitation shall contain explanatory
language that the use of a brand name is for the purpose of describing the standard of quality,
performance,and characteristics desired and is not intended to limit or restrict competition.
5. Determination of Equivalents. Any prospective bidder may apply, in writing, for a pre-bid
determination of equivalence by the Purchasing Director. If sufficient information is provided by
the prospective bidder, the Purchasing Director may determine, in writing and prior to the bid
opening time, that the proposed product would be equivalent to the brand name used in the
solicitation.
6. Specifications of Equivalents Required for Bid Submittal. Vendors proposing equivalent
products must include in their bid submittal the manufacturer's specifications for those products.
Brand names and model numbers are used for identification and reference purposes only.
Section 7.3 BRAND NAME SPECIFICATIONS
1. Use of Brand Name Specifications. Since the use of a brand name specification is restrictive of
product competition, it may be used only when the Purchasing Director makes a determination
that only the identified brand name item will satisfy the City needs.
2. Competition. The Purchasing Director shall seek to identify sources from which the designated
brand name item or items can be obtained and shall solicit such sources to achieve whatever
degree of price competition is practicable. If only one source can supply the requirement, the
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procurement shall be made under Section 4.10, Sole Source Purchases.
Section 8 ETHICS IN PUBLIC CONTRACTING
Section 8.1 CRIMINAL PENALTIES
To the extent that violations of the ethical standards of conduct set forth in this section constitute
violations of the State Criminal Code they shall be punishable as provided therein. Such penalties shall in
addition to civil sanctions set forth in this part.
Section 8.2 EMPLOYEE CONFLICT OF INTEREST
1. Participation. It shall be unethical for any City employee, officer, or agent to participate directly
or indirectly in a procurement or administration of a contract. A conflict of interest would arise
when:
(1) the City employee,officer or agent;
(2) any member of his immediate family;
(3) his or her partner; or
(4) an organization which employs, or is about or employ, any of the above, has a
financial or other interest in the firm selected for award. The officer's employees or
agents will neither solicit nor accept gratuities, favors or anything of monetary value from
contractors, or parties to sub-agreements.
Section 8.3 CONTEMPORANEOUS EMPLOYMENT PROHIBITED
It shall be unethical for any City employee who is participating directly or indirectly in the procurement
process to become or to be,while such a City employee,the employee of any person contracting with the
City of Edgewater.
Section 8.4 USE OF CONFIDENTIAL INFORMATION
It shall be unethical for any employee knowingly to use confidential information for actual or anticipated
personal gain, or for the actual or anticipated personal gain of other persons.
Section 8.5 GRATUITIES AND KICKBACKS
1. Gratuities. It shall be unethical for any person to offer,give,or agree to give any City employee,
officer,or agent to solicit,demand,accept,or agree to accept from another person,a gratuity or
an offer of employment in connection with the decision,approval, disapproval,recommendation,
or preparation of any part of a program requirement or a purchase request, influencing the content
of any specification or procurement standard rendering of advise, investigation,auditing,or
performing in any other advisory capacity in any proceeding or application,request for ruling,
determination,claim or controversy,or other particular matter, subcontract,or to any solicitation
or proposal theretofore.
2. Kickbacks. It shall be unethical for any payment, gratuity,or offer of employment to be made by
or behalf a subcontractor under a contract to the prime contractor or higher tier subcontractor or
any person associated therewith,as an inducement for the award of a subcontract or order.
3. Contract Clause. The prohibition against gratuities and kickbacks prescribed in this section shall
conspicuously set forth in every contract and solicitation therefore.
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Section 8.6 SANCTIONS
1. Employee Sanctions. Upon violation of the ethical standards by an employee, officer or agent of
the City,or other appropriate authority may:
(1) impose one or more appropriate disciplinary actions as defined in the City Personnel
Rules and regulations,up to and including termination of employment; and;
(2) may request investigations and prosecution
2. Non-employee Sanctions. The Council may impose any one or more of the following sanctions
on a non-employee for violation of the ethical standards:
(1) written warnings;
(2) termination of contracts; or
(3) debarment or suspension as provided in Section 11-8.
Section 8.7 RECOVERY OF VALUE TRANSFERRED OR RECEIVED IN BREACH OF
ETHICAL STANDARDS
1. General Provisions. The value of anything being transferred or received in breach of the ethical
standards of this policy by a City employee or non-employee may be recovered from both the
City employee and non-employee.
2. Recovery of Kickbacks by the City of Edgewater. Upon a showing that a subcontractor made a
kickback to prime contractor or a higher tier subcontractor in connection with the award of a
subcontract or order thereunder, it shall be conclusively presumed that the amount thereof was
included in the price of the subcontract or order and ultimately borne by the City and will be
recoverable hereunder from the recipient. In addition, that amount may also be recovered from
the subcontractor making such a kickback. Recovery from one offending party shall not preclude
recovery from other offending parties.
Section 9 FEDERAL POLICY NOTICE
Section 9.1 PATENTS
If a contract involving research and development,experimental,or demonstration work is being funded in
whole or in part by assistance from a federal agency, then the contract shall include the following
provisions:
1. Notice to Contractor. The contract shall give notice to the contractor of the applicable grantor
agency requirements and regulations concerning reporting of, and rights to, any discovery or
inventions arising out of the contract.
2. Notice by Contractor. The contract shall require the contractor to include a similar provision in
all subcontracts involving research and development,experimental,or demonstration work.
Section 9.2 NOTICE OF FEDERAL PUBLIC POLICY REQUIREMENTS
1. Applicability. If the contract is being funded in whole or in part by assistance from any federal
agency,the contract is subject to one or more federal public policy requirements such as:
(1) equal employment opportunity;
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(2) Copeland"anti-kickback"Act;
(3) Davis Bacon Act;
(4) Contract Work Hours and Safety Act;
(5) Americans with Disabilities Act;and
(6) Other requirements set forth in any contract.
2. Notice. The Purchasing Director shall include in the contract all appropriate provisions giving
the contractor notice of these requirements. Where applicable, the Purchasing Director shall
include in the contract provisions the requirement that the contractor give similar notice to all of
its subcontractors.
Section 10 PAYMENT TO VENDORS
All payment to vendors shall also in accordance with the amended "Prompt Payment Act", Chapter 89-
297,Florida Statutes.
Section 11 MINORITY BUSINESS ENTERPRISE PARTICIPATION PROGRAM
1. Purpose and Scope. The purpose of the Minority Business Enterprise Program is to enhance the
participation of qualified minority and women-owned businesses in providing goods and services
and construction contracts required by the City Council. This program describes procedures to
accomplish this purpose and to monitor and evaluate progress. All Department and Divisions
under the jurisdiction of the City Council are responsible for implementing this program.
2. Policy Statement.
(1) It is the policy goal of the City that two percent (2%) of the Council approved
procurement as contained with both operating and capital improvement budgets
(exclusive of in-house services and construction) shall be identified and let through the
competitive bid process to minority and women businesses and persons. The program is
based on an in-depth evaluation of all actual as well as projected procurement (Capital
Improvement Projects, equipment, commodities and services) and on the market place.
Procurement identified to establish a base for this program are not limited to those items
only. This evaluation is the main factor in building a realistic program with attainable
targets.
(2) All departments and divisions under the jurisdiction of the City Council are responsible
for implementing this program and for making every reasonable effort to utilize MBEs
i and WBE's when opportunities are available. The Purchasing Officer will take the lead
role in this process by taking active steps to encourage minority or women owned
businesses.
(3) Regarding the implementation of this policy, it is the Council's intent to foster economic
development in the City's area by establishing its MBE goals based on availability of
minority and women-owned businesses located within the City. This is no way intended
to limit or restrict competition. Rather, availability of area companies will be used to
guide MBE goals. Such geographical preferences may be adjusted, amended or repealed
by the City Council,with or without a public hearing, as deemed necessary.
3. Definition. Minority Business Enterprise (MBE)as used herein, means a business that is owned
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and controlled at least 51% by one or more minority persons (MBE) or by one or more women
(WBE)and whose management and daily operations are controlled by one or more such persons.
4. Administrative Responsibilities. The Purchasing Officer is responsible for the coordination of
the Minority Business Enterprise Program and registration.
(1) Capital Improvement Projects
(a) REVIEW
The Purchasing Officer and an appropriate department representative
shall review each proposed project or bid to determine potential for
utilization of MBE/WBEs and report their finds to the City Council.
This review is based on known availability of capable MBE/WBEs in the
area in relation to the scope of the bid package and considers how a
project might be broken down into sub-bids.
(b) PRE-BID ACTIVITY
(1) Language regarding the Minority Business Enterprise Program will be
inserted into bid specifications to assure that prospective bidders are
aware of a requirement to make good faith efforts to utilize MBE/WBEs.
(2) Registered MBE/WBEs,the Minority Contractors Association and other
organizations for minority and women owned businesses will be notified
in writing regarding pre-bid conferences where information on project
scope and specifications will be presented,along with other types of
technical assistance.
(3) Upon request available plans and specification will be provided to
MBE/WBE associations along with any special instructions on how to
pursue bids.
(4) Majority (prime) contractors on a bid list will be sent a letter outlining
the Minority Business Enterprise Program procedures,the supportive
documentation required for submittal with their bid, and a list of
MBE/WBE contractors on the bid list.
(5) Prior to award the Prime Contractor must provide documentation on
attempts to solicit participation from MBE/WBE firms.
(6) The Prime Contractor attempts to utilize MBE/WBE firms during the
project must be documented as part of the Prime's contract award
responsibilities under this program. Documentation to include but not
limited to requests for bids,bids received and justification for not
utilizing MBE/WBE firms when bid amounts received are comparable.
Failure to keep these commitments will be deemed noncompliance with
the contract and may result in a breach of contract.
(2) Contractor Responsibilities
(a) Contractors must indicate all MBE/WBEs,contacted for quotes regarding a
particular scope of work and submit a completed"Intent to Perform"sheet
containing information and documentation obtained from each MBE/WBEs.
(b) A contractor who determines that a MBE/WBEs,names in the bid submittal,is
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unavailable or cannot perform, will request approval from the Purchasing Officer
to name an acceptable alternate. Such requests will be approved when adequate
documentation of cause for the change is presented by the contractor.
(c) A contractor's MBE/WBE plan will utilize MBE/WBEs to perform
commercially useful functions in the work bid. A MBE/WBE is performing a
commercially useful function when it is responsible for the management and
performance of a distinct element of the total work.
(d) Contractors are required to make good faith efforts to obtain MBE/WBE
participation when so stipulated by bid specifications and/or contracts. If these
efforts are unsuccessful,the contractor will submit a non-availability or refusal to
participate and will request waiver of MBE/WBE participation.
(e) The contractor who is the successful bidder will attend pre-construction
conferences with appropriate City representatives to review the project scope and
the MBE/WBE utilization plan.
(f) The contractor who is the successful bidder must request a change order for any
modification to the MBE/WBE plan. Change orders require Council approval
and are contingent on contractor documentation of MBE/WBE involvement in
the change requested and documentation of cause for these changes.
5. Joint Venture Responsibilities
Definition of Joint Venture -A business arrangement in which two or more parties agree to pool
their resources for the purpose of accomplishing a specific task.All parties agree to share in the
profit and losses of the enterprise.
(1) All joint ventures between minority and non-minority contractors must meet the
"joint venture"definition included in the policy.
(2) The use by MBE/WBEs or prime contractors of"minority fronts"or other fraudulent
practices which subvert the true meaning and spirit of the Minority Business Enterprise
Program,will not be tolerated and may result in termination of participation.
(3) A joint venture consisting of minorityand non-minority business enterprise will be
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credited with MBE/WBE participation on the basis of the percentages of the dollar
amount of the work to be performed by the MBE/WBEs.
(4) Contracts subject to this policy shall contain provisions stating that liquidated damages
may be assessed against the general contractor and/or the MBE/WBE specifications in
the contract(s). Such liquidated damage provisions shall be in a form approved by the
Council.
6. Fulfilling MBE/WBE Participation Requirements
For the purpose of this policy, a general contractor may utilize the services of a MBE/WBE
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subcontractor, manufacturer, and/or supplier in estimating and satisfying the scope of work,
provided that written contract/agreement is executed between the general contractor and the
subcontractor, manufacturer, and/or the supplier.
7. Pant
(1) Payment will be expedited by the City Council within thirty(30)days upon completion
and acceptance of the project. Special consideration may be given to hardship cases upon
notification by MBEs/WBEs.
(2) The City will provide work progress payments to all business at the completion and
subsequent acceptance by Council representatives within various stages of a particular
project.
8. Bid List.
A bid list for the purpose of bid solicitations shall be maintained by the City. The list shall
consist of firms that apply.
(1) The Council may remove firms from the bid list for the following reasons:
(a) failure to perform according to contract provisions;
(b) conviction in a court of law of any criminal offense in connection with the
conduct of business.
(c) clear and convincing evidence of a violation of any federal or state anti-trust
law based on the submission of bids or proposals or the awarding of contracts.
(d) clear and convincing evidence that a vendor has attempted to give a
Council employee, officer or agent a gratuity of any kind for the purpose of
influencing recommendation or decision in connection with any part of the City
Council purchasing activity;
(e) violation of circumvention of the Minority Business Enterprise Program; or
(f) other reasons deemed appropriate by the City Council
(2) This policy is consistent with the City's Purchasing Policy. Wherever conflicts may
exist,the provision in this Purchasing Policy will prevail.
9. Reporting,
The Purchasing Officer or appropriate person will report, at least annually, to the Council on the
Status of the Minority Business Enterprise Program. Records will be maintained reflecting
participation of local minority and women owned businesses and shall be reported.
10. Severability Clause.
Each separate provision of this program is deemed independent of all other provisions herein so
that if any provision or provisions be declared invalid, all other provisions hereof shall remain
valid and full force and effect.
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DULY PASSED AND ADOPTED by the City Council of the City of Edgewater, Florida at
a regular meeting on this ?rv' day of LV*-�, , 2020.
After Motion by ' �r.s�r: �r,,.,� c -� with Second by
the vote on this resolution held on June 1,2020 was as follows:
AYE NAY
Mayor Mike Thomas V
Councilwoman Christine Power �►
Councilwoman Kimberly Klein-Yaney
Councilwoman Megan O'Keefe
Councilman Gary Conroy
PASSED AND DULY ADOPTED this 1 sc day of June,2020.
ATTEST CITY C UNCILNHE
EDGE A f
Robin L.Matusick Mi T o
City Clerk/Paralegal May
For the use and reliance only by the City of Approved by the City Council of the City of
Edgewater,Florida. Approved as to form and Edgewater at during the Council meeting held on
legality by: Aaron R.Wolfe,Esquire the 1 st day of June 2020 under Agenda Item 8
City Attorney
Doran,Sims,Wolfe,Ciocchetti&Yoon
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