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HomeMy WebLinkAboutResolution 2017-099 Marana Town Code Chapter 3-4 adopted by Ordinance 2017.022 MARANA RESOLUTION NO, 2017-099 RELATING TO PROCUREMENT; DECLARING AS A PUBLIC RECORD FILED WITH THE TOWN CLERK THE COMPREHENSIVE REWRITE OF MARANA TOWN CODE CHAPTER 3-4 (PROCUREMENT) ADOPTED BY ORDINAN-CE NO. 2017.022 BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, that the comprehensive rewrite of Marana Town Code Chapter 3-4 (J)rocurement), a copy of which is attached to and incorporated in this resolution as Exhibit A and one paper copy and one electronic copy of which are on file in the office of the Town Clerk, is hereby declared to be a ptiblic record and ordered to remain on file with the Town Clerk. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE r]"OW-N OF MARANA, ARIZONA, this 7th day of November, 2017. Mayor Ed nea ATTEST: APPROV D AS 0 FORM: celyn C. onson, Town Clerk Fr k Cassi o w* - n Att MARANA AZ 00054684.DOCX/I Marana Resolution No.2017-099 SECTION 1. Marana Town Code Title 3 (Administration) is hereby amended to delete existing Chapter 3-4 (Purchasing) in its entirety and to replace it with new Chapter 3-4 (Procurement) as follows: CHAPTER 34. PROCUREMENT I.GENERAL PROVISIONS 3-4-1 Short title This chapter may be cited as the town of Marana procurement code. 3-4-2 Purpose It is the purpose and intent of this chapter to: A. Simplify,clarify, and modernize the laws governing town procurement. P. Permit the continued development of procurement policies and practices. C. Foster and maintain public confidence in the procurement process. D. Ensure the fair and equitable treatment of all persons involved in the town's public procurement process. E. Maximize the purchasing value of public funds through competitive procurement practices. F. Provide a procurement system of quality,integrity,and transparency. G. obtain in a cost-effective and responsive manner the materials, services, and construction required by the town to better serve the town's businesses and residents. H. Ensure the proper disposal of property, equipment and materials that are no longer of value to the town. 3-4-3 Supplementary general principles of law applicable Unless displaced by the particular provisions of this chapter, the principles of law and equity,including the uniform commercial code of this state, the common law of contracts as applied in this state and law relative to agency, fraud, misrepresentation, duress, coercion and mistake supplement the provisions of this chapter. 3-4-4 Requirement of good faith All parties involved in the negotiation, performance, or administration of town contracts are required to act in good faith. 3-4-5 Definitions The following definitions shall apply throughout this chapter unless the context clearly indicates otherwise. 1 A. "Business" means any corporation, partnership, individual, sole proprietorship,joint stock company,joint venture,or any other legal entity. B. "Change order" means a written document authorized by the purchasing director which directs the contractor to make changes with or without the consent of the contractor. C. "Confidential information"' means any information which is available to any employee only because of the employee's status as an employee of the town and is not a matter of public knowledge or available to the public on request. D. "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. It does not include the routine operation, routine repair or routine maintenance of existing facilities, structures,buildings or real.property. E. "Contract" means all types of agreements, regardless of what they may be called,for the procurement of supplies, services, or construction. F. "Contract modification" or "bilateral change" means any written alteration in specifications, delivery,point, rate of delivery, period of performance, price, quantity, or other provisions of any contract accomplished by mutual action of the parties to the contract. G. "Contractor" means any person having a contract with the town. H. "Cooperative purchasing" means procurement conducted by, or on behalf of, one or more public procurement units, including the state of Arizona, any other state, an agency of the United States, any political subdivision of the state of Arizona or another state, any agency, board, department or other instrumentality of such political subdivision, and any nonprofit corporation created solely for the purpose of administering a cooperative purchase. I. "Design services" means architect services, engineer services or landscape architect services. J. "Disadvantaged business" means a small business owned or controlled by a majority of persons including but not limited to members of minority groups who have been deprived of the opportunity to develop and maintain a competitive position in the economy because of social disadvantages. K. "Employee" means an individual drawing a salary or wages from the town, whether elected or not; any non-compensated individual performing personal services for the town or any department, agency, commission, council, board, or any other entity established by the executive or legislative branch of the town; and any non-compensated individual serving as an elected official of the town. L. "Gratuity" means a payment, loan, subscription, advance, deposit of money, service, or anything of more than nominal value, present or promised, unless consideration of substantially equal or greater value is received. 2 M. "Invitation for bids" means all documents, whether attached or incorporated by reference,used for soliciting bids. N. "Person" means any business, individual, union, committee, club, other organization,or group of individuals. o. "Procurement" means buying, purchasing, renting, leasing or otherwise acquiring any materials, services, construction or construction services. Includes all functions that pertain to obtaining any materials, services, construction or construction services, including description of requirements, selection and solicitation of sources, preparation and award of contract and all phases of contract administration. P. "Public notice" means the distribution or dissemination of information to interested parties using methods that are reasonably available, including publication in newspapers of general circulation, electronic or paper mailing lists,and web sites designated by the town and maintained for that purpose. Q. "Purchasing director" means the town's f finance director or the finance director's designee. R. "Request for proposals" means all documents, whether attached or incorporated by reference,utilized for soliciting proposals. S. "Responsible bidder or offeror" means a person who has the capability in all respects to perform fully the contract requirements, and the experience, integrity, reliability, capacity, facilities, equipment, and credit which will assure good faith performance. T. "Responsive bidder" means a person who has submitted a bid which conforms in all material respects to the requirements set forth in the invitation for bids. U. "Services" means the furnishing of labor, time or effort by a contractor or subcontractor that does not involve the delivery of a specific end product other than required reports and performance. This term shall not include employment agreements or collective bargaining agreements. V. "Small business" means an independently owned business not dominant in its field of operation and not affiliated with or subsidiary to a business dominant in its field of operation. W. "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. X. "Supplies" means all property, including but not limited to equipment, materials, printing, insurance, and leases of real property,excluding land or a permanent interest in land. Y. "Surplus supplies" means any supplies no longer having any use to the town, including obsolete supplies, scrap materials, and supplies that have completed their useful life cycle. 3 Z. "Technical registrant" means a person who provides any of the professional services listed in Arizona revised statutes, title 32,chapter 1,as amended, and includes, but is not limited to, architects, assayers, engineers, geologists, land surveyors and landscape architects. 3-4-6 Application;exclusions A. This chapter shall apply to: 1. Every expenditure of public funds for the procurement of supplies, services, and construction entered into by the town irrespective of the source of the funds, unless otherwise specified in this code. Nothing in this chapter shall prevent the town or any department from complying with the terms and conditions of any grant, gift, or bequest that is otherwise consistent with law. 2. The inventory and disposal of town materials and supplies, unless otherwise provided by law. B. This chapter shall not apply to: 1. Contracts between the town and the federal government, the state of Arizona and political subdivisions of the state of Arizona, except as provided in this procurement code. 2. Contracts for expert services, if the purpose of such services is to provide for professional services relating to an existing or probable lawsuit in which the town is or may become a party or to contracts for special investigative services for law enforcement or administrative investigation purposes. 3. Agreements negotiated by legal counsel representing the town in settlement of pending litigation or threatened.litigation. 4. Development agreements, as defined in Arizona revised statutes section 9-500.05,as amended. 5. Contracts for the purchase or sale of real property and ancillary services related thereto, such as title insurance, appraisals or environmental assessments to the extent that they are negotiated in connection with a contract for purchase or sale of real property. II.PROCUREMENT ORGANIZATION 3-4-7 Town council approval A. The town council approves purchases by or on behalf of the town through inclusion of the purchase in the town's legally adopted annual budget. B. Notwithstanding other provisions of this chapter, separate town council approval of purchases is required in the following instances: 1. Where prior approval is required by state law or town code. 4 2. where the purchase exceeds $50,000 and funds for the purchase are not provided in the budget as adopted. 3. where the purchase is authorized in the adopted budget but the funds exceed the budgeted amount by more than$50,000. 4. For change orders that individually or cumulatively exceed$50,000. C. A town council resolution or action approving a purchase or contract may include change order authorization exceeding the amounts otherwise set forth in this chapter. 3-4-8 Town manager approval. A. The town manager or designee is authorized to approve all of the following unless prior town council approval is required by state law or town code: 1. Any purchase up to$54,000. 2. Any purchase authorized in the adopted budget and not more than $50,000 higher than the budgeted amount. 3. change orders that individually or cumulatively total$50,000 or less. B. The town manager or designee may approve change orders to public improvements contracts that exceed the authority otherwise granted by this section if the town manager reasonably determines that doing so will avoid unnecessary contractor delay claims or costs or public health or safety hazards that would otherwise occur while awaiting town council approval, provided that town council ratification occurs as soon as practicable thereafter. 3-4-9 Authority of purchasing director The purchasing director shall have general supervision, responsibility and authority to: A. Procure, contract for and execute agreements for supplies and services, including rentals, service agreements, and leases needed by any town department,in accordance with this procurement code. B. Approve and sign change orders to contracts in accordance with this procurement code. C. Establish and amend all regulations, forms, procedures and rules necessary and proper to implement the provisions of this procurement code. D. Suspend or debar vendors consistent with the provisions of this procurement code. E. centralize procurement, consistent with this procurement code, by which materials, supplies, equipment and contractual services for all town departments are purchased. F. Inform town employees and contractors of the ethical standards for public contracting. 5 G. Sell, trade, or otherwise dispose of surplus supplies belonging to the town, as deemed advantageous. H. Designate another town representative to have the authority to perform any or all of the above tasks. 3--4-10 Determinations Written determinations required by this chapter shall be retained in the official bid file of the purchasing director. 3-4-11 Public access to procurement information Procurement information shall be a public record and available to the public to the extent provided in Arizona's public records law. 3-4.12 Authorization for the use of electronic transmissions The use of electronic media, including acceptance of electronic signatures, is authorized consistent with applicable statutory, regulatory, or other authorization and guidance for use of electronic media, and provided that the electronic media (i) has appropriate security to prevent unauthorized access to the bidding, approval, and award processes and (ii) can be accurately retrieved or converted into a medium capable of being inspected and copied. III.ETHICS 3-4-13 Ethical standards A. It is a violation of this procurement code,-- 1. ode:1. For any person to attempt to or influence any town employee to violate the provisions of ethical conduct set forth in this procurement code. 2. For any person preparing specifications or plans pursuant to this procurement code or any policy or procedure of the town to receive any direct pecuniary benefit from the use of such plans or specifications. 3. For any employee or agent acting on behalf of the town to directly or indirectly participate in or benefit or receive any pecuniary benefit from a procurement in violation of state or federal law. 4. For any person to offer, give, or agree to give to any town employee, or for any town employee to solicit, demand, accept, or agree to accept from another person, a gratuity or an offer of employment in connection with any decision, approval, disapproval, recommendation, or preparation of any part of a program requirement or a purchase request, influencing the content of any specifications or procurement standard, or advice, investigation, auditing, or any other advisory communication or service, in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to any program requirement or a contract or subcontract, or to any solicitation, bid, or proposal therefor. 6 5. For any payment, gratuity or offer of employment to be made by or on behalf of 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. Violation of this standard shall constitute grounds for termination of a contract with the town and debarment of the vendor from doing any further business with the town. G. For a person to be retained, or to retain a person, to solicit or secure a town contract upon an agreement or understanding for a commission, percentage, brokerage or contingent fee, except for retention of bona fide established selling agencies for the purpose of securing business. 7. For any employee who is participating directly or indirectly in a procurement process to become the employee of any person under contract with the town concerning any matters that the employee participated in during the same procurement process for a period of 12 months following his or her employment with the town. S. For any employee or former employee of the town to disclose or use confidential information acquired by the employee in the performance of the employee's official duties for anticipated pecuniary benefit, or for the actual or anticipated pecuniary benefit of any person. B. It is no defense to a violation of this section that the employee to whom a benefit or offer of employment was made was not qualified to act in the desired manner. C. An employee or person may violate this section by intentionally or knowingly engaging in a violation or by recklessly or negligently engaging in a violation. 3-4-14 Recovery of value transferred or received in breach of ethical standards A. The value of anything transferred or received in breach of the ethical standards of this chapter by a town employee or a nonemployee may be recovered from both the town employee and the nonemployee. B. Upon a showing that a subcontractor made a kickback to a 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 town and will be recoverable from the recipient. In addition, that amount may also be recovered from the subcontractor making the kickbacks. Recovery from one offending party shall not preclude recovery from other offending parties. 7 Iv. SOURCE SELECTION AND CONTRACT FORMATION 3-4-15 Public improvements A. Procurement of public improvements contracts. The town shall procure all contracts for construction for public improvement projects in the manner prescribed by title 34 of the Arizona revised statutes, as amended. If public competitive bidding is not required pursuant to state law, then the requirements of this chapter shall apply. If there is a conflict between this chapter and Arizona revised statutes, title 34, as amended, the provisions of title 34 shall govern. B. 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 chapter. The procurement agent shall award and administer contracts for construction services in accordance with the requirements of A.R.S. title 34 and this chapter. C. 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 for bads; provided, that the total cost of the work, excluding materials and equipment previously acquired by bid, does not exceed limits established in A.R.S. §34-201. 3-4--16 competitive sealed bidding A. Conditions for use. Contracts shall be awarded by the use of competitive sealed bidding except as otherwise provided in this procurement code. B. Invitation for bids. An invitation for bids shall be issued and shall include spec ications, and all contractual terms and conditions applicable to the procurement. C. Public notice. Public notice of an invitation for bids shall be in a manner that is reasonable in the judgment of the purchasing director, given the commercial context of the proposed purchase. 1. The public notice shall state the date, time, and place of bid opening. 2. Notice may be given in any publication of general circulation that is reasonably available to prospective bidders in the judgment of the purchasing director. 3. For purposes of this paragraph, reasonable notice shall be defined as not less than ten calendar days. s D. 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. 1. The amount of each bid, and such other relevant information as the purchasing director deems appropriate, together with the name of each bidder, shall be recorded. 8 2. The record of bids shall be open to public inspection immediately, but individual bids shall be open to public inspection only after the contract is awarded. E. Bid acceptance and bid evaluation. Bids shall be unconditionally accepted without alteration or correction, except as authorized in this chapter. 1. Bids shall be evaluated based on the requirements set forth in the invitation for bids, which may include criteria to determine acceptability such as Inspection, testing, quality, workmanship, delivery, and suitability for a particular purpose. 2. Those criteria that will affect the bid price and be considered in the evaluation for award shall be objectively measurable, such as discounts, transportation costs,and total or life cycle costs. 3. The invitation for bids shall set forth the evaluation criteria to be used. 4. No criteria may be used in bid evaluation that are not set forth in the invitation for bids. F. Correction or withdrawal of bids; cancellation of awards. Corrections 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 in the purchasing director's sole discretion. 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 director. 1. Mistakes discovered before bid opening may be modified or withdrawn by written notice received in the office designated in the invitation for bids prior to the time set for bid opening. Z. 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 a nonjudgmental character was made, the nature of the mistake, and the bid price actually intended. 3. After bid opening, no changes in bid prices or other provisions of bids prejudicial to the interest of the town or fair competition shall be permitted. 4. In lieu of bid correction, a low bidder alleging a material mistake of fact may be permitted to withdraw its bid if: a. The mistake is clearly evident on the face of the bid document but the intended correct bid is not similarly evident; or b. The bidder submits evidence that clearly and convincingly demonstrates that a mistake was made. G. Award. 9 1. The contract shall be awarded with reasonable promptness by written notice to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the invitation for bids. 2. If the low responsive and responsible bid for a construction project exceeds available funds as determined by the purchasing director, the purchasing director is authorized, when time or economic considerations preclude resolicitation of work of a reduced scope, to negotiate an adjustment of the bid price with the low responsive and responsible bidder,in order to bring the bid within the amount of available funds. H. 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. 3--4-17 competitive sealed proposals A. Conditions for use. when the purchasing director or authorized designee determines that the use of competitive sealed bidding is either not practicable or not advantageous to the town, a contract may be entered into by use of the competitive sealed proposals or other approved methods. B. Requests for proposals. Proposals shall be solicited through a request for proposals. C. Public notice. Adequate public notice of the request for proposals shall be given in the sante manner as provided in section 3-4-16 C. D. Receipt of proposals. Proposals shall be submitted at the time and place designated in the public notice. 1. Proposals shall be opened so as to avoid disclosure of the contents of any proposal to competing offerors during the process of negotiation. 2. A register of proposals shall be prepared containing the name of each offeror, the number of modifications received, if any, and a description sufficient to identify the item offered. 3. The register of proposals shall be open for public inspection only after contract award. E. Evaluation factors. The request for proposals shall state the relative importance of price and other evaluation factors; specific numerical weighting is not required. F. Discussion with responsible offerors and revisions to proposals. Discussions may be conducted with responsible offerors who submit proposals determined to be reasonably susceptible of being selected for award for the purpose of clarification to assure full understanding of, and conformance to, the solicitation requirements. 10 1. Offerors shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals. 2. Revisions may be permitted after submissions and prior to award for the purpose of obtaining best and final offers. 3. In conducting discussions, there shall be no disclosure of any information derived from proposals submitted by competing offerors. G. Award. The award shall be made to the responsible and responsive offeror whose proposal is determined, in writing, to be the most advantageous to the town and to best meet the overall,needs of the town taping into consideration the evaluation factors set forth in the request for proposals. 1. No other factors or criteria may be used in the evaluation other than as set forth in the request for proposals. 2. The contract file shall contain the basis upon which the award is made. H. Debriefings. The purchasing director is authorized to provide debriefings that furnish the basis for the source selection decision and contract award. 3-4-18 Professional services contracts;statements of qualifications A. Technical registrants. The town shall procure professional services from technical registrants in the manner prescribed by title 34, chapter 6 of the Arizona revised statutes,as amended,if either of the following applies: 1. The contract is with a technical registrant other than an architect and is for an amount of more than$500,000. 2. The contract is with an architect and is for an amount of more than $250,000. B. Professional legal services. The town attorney is authorized to directly select legal counsel for any legal matters involving the town. C. Other professional services. Except as provided in paragraphs A and B of this section, the town may procure professional services by soliciting statements of qualifications for providing such services; provided, however, that the town may procure professional services by direct selection pursuant to administrative regulations promulgated by the purchasing director. The procurement of professional services through the use of statements of qualifications shall be as follows: 1. The purchasing director or authorized designee shall give adequate notice of the need for such services through a request for qualifications or request for proposals. The request shall describe the services required,list the types of information and data required of each offeror, and state the relative importance of particular qualifications. 2. Persons engaged in providing the designated types of professional services may submit statements of qualifications in providing such 11 professional services. The town shall supply a uniform format for statements of qualifications based upon department needs. 3. The purchasing director or authorized designee shall appoint a committee to review qualifications. The committee shall consist of the purchasing director or authorized designee and one or more professionals licensed, registered or admitted to the profession which is the subject of the procurement. Discussions with offerors who submit proposals may be conducted to determine qualifications for further consideration. Award shall be made to the offeror determined in writing to be the best qualified. Compensation shall be negotiated after an award is made. 4. The purchasing director or authorized designee shall conduct negotiations with the offeror determined to be the most qualified to establish fair and reasonable compensation. If compensation cannot be agreed upon with the best qualified offeror, then negotiations will be formally terminated with the selected offeror. If proposals were submitted by one or more other offerors determined to be qualified, negotiations may be conducted with such other offeror or offerors, in the order of their respective qualification ranking, and the contract may be awarded to the offeror then ranked best qualified if the amount of compensation is determined to be fair and reasonable. 5. The contract award shall be made to the offeror determined in writing by the purchasing director or authorized designee to be best qualified based upon: a. The evaluation factors set forth in the request for qualifications or request for proposals;and b. Agreement between the town and the offeror as to fair and reasonable compensation. 3-4-79 Small purchases A. Any procurement not exceeding$25,000 may be made in accordance with the small purchase procedure authorized in this section. B. For small purchases in excess of $2,500 no fewer than three businesses shall be solicited to submit quotations. 1. In awarding contracts for services, in addition to quoted fees, the purchasing director may consider the relative qualifications of businesses submitting quotes. 2. Award shall be made to the business offering the lowest acceptable quotation. 3. The names of the businesses submitting quotations, and the date and amount of each quotation, shall be recorded and maintained as a public record. 12 C. The purchasing director shall adopt operational procedures for small purchases of$2,500 or less. 1. The operational procedures shall provide for obtaining adequate and reasonable competition for the supply or service being purchased. 2. The operational procedures shall require the preparation and maintenance of records adequate to document the competition obtained, to properly account for the funds expended, and to facilitate an audit of the small purchase made. D. Contract requirements shall not be artificially divided so as to constitute a small purchase under this section. 3-4-20 Sole source procurement A. A contract may be awarded without competition when the purchasing director determines, after conducting a good faith review of available sources, that there is only one source for the required supply, service, or construction item, or no reasonable alternative sources exist. B. The purchasing director shall conduct negotiations, as appropriate, as to price, delivery,and terms. C. A record of sole source procurements shall be maintained as a public record and shall list each contractor's name, the amount and type of each contract, and a listing of the item(s) procured under each contract 3-4-21 Emergency procurements A. Notwithstanding any other provisions of this chapter, the purchasing director may make or authorize others to make emergency procurements of supplies, services, or construction items when there exists a threat to public health,welfare, or safety. B. Emergency procurements shall be made with such competition as is practicable under the circumstances. C. A record of each emergency procurement shall be maintained as a public record and shall list each contractor's name, the amount and type of each contract, a listing of the item(s) procured under the contract, and a written determination of the basis for the emergency and for the selection of the particular contractor. 3-4-22 Used items Upon compliance with this section and after determining in writing that it is in the town's best interests, the purchasing director may make or authorize others to make procurements of used items. A. The purchasing director may waive or modify any or all bid procedures with respect to the used items. 13 B. The purchasing director's written determination shah not be made without the approval of the town manager. C. This section does not apply to any procurement the town attorney determines in writing to be contrary to applicable law. 3-4-23 cooperative purchasing A. The purchasing director is authorized to participate in, sponsor, conduct, or administer a cooperative purchasing agreement for the procurement of any supplies, services or construction with one or more eligible procurement units, including a state, another political subdivision of a state, state cooperatives, and the federal government in accordance with an agreement entered into between the participants. B. All cooperative purchasing conducted under this section shall be through contracts awarded through full and open competition, including use of source selection methods substantially equivalent to those specified in this code. C. The town shall not enter into a cooperative purchasing agreement for the purpose of circumventing this chapter. 3-4-24 cancellation of invitations for bids or requests for proposals A. An invitation for bids, a request for proposals, or other solicitation may be cancelled, or any or all bids or proposals may be rejected in whole or in part as may be specified in the solicitation, when the purchasing director determines it is in the best interests of the town to do so. B. The reasons for the cancellation or rejection shall be made part of the contract file. 3-4-25 Determination of nonresponsibility;right of nondisclosure A. If a bidder or offeror who otherwise would have been awarded a contract is found nonresponsible, a written determination of nonresponsibility, setting forth the basis of the finding, shall be prepared by the purchasing director. A copy of the written determination shall be sent to the nonresponsible bidder or offeror and shall be made part of the contract file. B. The unreasonable failure of a bidder or offeror to promptly supply information regarding an inquiry with respect to responsibility may be grounds for a determination of nonresponsibility. C. Confidential information furnished by a bidder or offeror pursuant to this section shall not be disclosed outside of the office of the purchasing director without prior written consent by the bidder or offeror. 3-4-26 Bid and contract security A. The purchasing director or authorized designee may require the submission of security to guarantee faithful bid and contract performance. 14 B. In determining the amount and type of security required for each bid or contract, the purchasing director shall consider the nature of the performance and the need for future protection to the town. C. The requirement for security must be included in the invitation for bids or request for proposals. D. Bid, performance, and payment bonds shall not be used as a substitute for a determination of bidder responsibility. E. The purchasing director or authorized designee may waive the security requirement if he or she finds by clear and convincing evidence that waiver is in the best interest of the town. 3-4-27 Types of contracts Subject to the limitations of this section, any type of contract that will promote the best interests of this town may be used, except that the use of a cost-plus-a- percentage-of-cost contract is prohibited. 3-4-28 Multi-year contracts A. Unless otherwise provided by law, a contract for supplies or services may be entered into for any period of time deemed to be in the best interests of the town, provided 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 shall be subject to the availability and appropriation of funds therefor. B. A multi--year contract is authorized when: 1. Estimated requirements cover the period of the contract and are reasonably firm and continuing;and 2. Such a contract will serve the best interests of the town by encouraging effective competition or otherwise promoting economies in town procurement. C. When funds are not appropriated or otherwise made available to support continuation of performance in a subsequent fiscal period, the contract shall be cancelled and the contractor shall be reimbursed for the reasonable value of any non--recurring costs incurred but not amortized in the price of the supplies or services delivered under the contract. The cost of cancellation may be paid from any appropriations available for such purposes. 3-4-29 Reporting of anticompetitive practices When for any reason collusion or other anticompetitive practices are suspected among any bidders of offerors, a notice of the relevant facts shall be transmitted to the state attorney general's office. 15 3-4-30 Retention of procurement records All procurement records shall be retained and disposed of in accordance with records retention guidelines and schedules approved by the state of Arizona. 3-4-31 Supply management A. The purchasing director shall be responsible for the management of town supplies during their entire life cycle. B. The purchasing director may sell, lease, transfer, or dispose of surplus supplies in accordance with state law,in the best interests of the town, and in as competitive a manner as the purchasing director determines to be practicable. C. No town employee shall be entitled or permitted to purchase any surplus supplies from the town. D. Unless otherwise provided by law, all proceeds from the sale of surplus property will be deposited into the town's general fund. Proceeds from sale of enterprise, federal, grant or other special designation property will be reimbursed, less prorated selling expenses, to the appropriate fund, after completion of each sale. 3-4-32 Specifications A. Preparation. Each solicitation shall include specifications for the supplies, services,or construction to be provided. B. Multiple or conflicting provisions. 1. If specifications for a solicitation address the same subject matter as a provision of this chapter, they shall be harmonized and read together, to the extent possible. Z. To the extent a specification directly conflicts with a provision of this chapter, the provision of this chapter shall control unless the purchasing director is notified of and approves in writing the conflicting specification before the contract is awarded. C. Purchasing director's duties. 1. The purchasing director shall determine and ensure the adequacy of specifications in solicitations issued under this chapter. 2. The purchasing director shall obtain expert advice and assistance from the department or departments for whose benefit the solicitation is occurring in the development of specifications. 3. The purchasing director may delegate in writing to a department head the authority to prepare and utilize its own specifications. D. 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. 16 E. Specifications prepared by other than town personnel. The requirements of this article regarding the maximum practicable competition 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. F. Brand name or equal specification. A brand name or equal specification may be used to describe the standards of quality, performance, 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. G. Brand name specification. A brand name specification may be used to identify the sole acceptable item that meets the town's needs. 1. The using agency requesting a brand name specification shall provide written evidence to support a brand name determination. 2. A written determination by the procurement agent of the basis for the brand name shall be maintained as public record. 3. Past success in the material's performance, traditional purchasing practices, or inconvenience of drawing specifications do not justify the use of a brand name specification. 3-4-33 Assistance to small and disadvantaged businesses A. Policy. The town hereby adopts and implements a policy to assist small and disadvantaged businesses in learning how to do business with the town. B. Implementation. Implementing the town's policy to assist small and disadvantaged businesses, the purchasing director shall do all of the following: 1. Where feasible, provide appropriate staff to assist small and disadvantaged businesses in learning how to do business with the town. 2. Give special publicity to procurement procedures and issue special publications designed to assist small and disadvantaged businesses in learning how to do business with the town. 3. Compile, maintain, and make available source lists of small and disadvantaged businesses for the purpose of encouraging procurement from small and disadvantaged businesses. 4. Include small and disadvantaged businesses on solicitation mailing lists, where appropriate. C. compliance with federal and contract requirements. where a procurement involves the expenditure of federal assistance or contract funds, the purchasing director shall comply with the requirements associated with the 17 federal assistance or contract funds, even if they mandate actions not reflected in this chapter. V.LEGAL AND CONTRACTUAL REMEDIES 3-4-34 Bid protests A. Any actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation or award of a contract may protest to the purchasing director. The protest shall be submitted in writing within ten calendar days after the town's issuance of the notice of intent to award contract. B. The purchasing director is authorized, prior to the commencement of an action in court concerning the protest, to take any necessary and appropriate action to settle and resolve a protest of an aggrieved bidder, offeror, or contractor, actual or prospective, concerning the solicitation or award of a contract. C. If the protest is not resolved by mutual agreement, the purchasing director shall promptly issue a decision in writing. The decision shall: 1. Sustain or deny the protest; 2. State the reasons for the action taken;and 3. Inform. the aggrieved party of its right to judicial review of the matter, if appropriate. D. A copy of the decision shall be mailed or otherwise furnished immediately to the aggrieved party and any other party intervening. E. The purchasing director's decision regarding a bid protest shall constitute final administrative action. The aggrieved party may seek judicial review of the administrative action in any court of competent jurisdiction. 3-4-35 Debarment or suspension A. The purchasing director, after consulting with the town attorney, is authorized to debar or suspend a person for cause from consideration for award of contracts. B. A debarment shall be for a period of not more than three years. A suspension shall be for a period not to exceed three months. C. The causes for debarment or suspension include the following: 1. conviction for commission of a criminal offense as an incident to obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract; 2. Conviction under state or federal statutes of embezzlement, theft,forgery, bribery, falsification or destruction of records, receiving stolen property, or any other offense indicating a lack of business integrity or business 18 honesty which currently, seriously, and directly affects responsibility as a town contractor; 3. Conviction under state or federal antitrust statutes arising out of the submission of bids or proposals; 4. Violation of contract provisions, as set forth below, of a character which is regarded by the purchasing director to be so serious as to justify debarment action: a. Deliberate failure without good cause to perform in accordance with the specifications or within the time limit provided in the contract;or b. A recent record of failure to perform or of 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; 5. Any other cause the purchasing director determines to be so serious and compelling as to affect responsibility as a town contractor, including debarment by another governmental entity for any cause listed in this section;and 6. For violation of the ethical standards set forth in this chapter. D. The purchasing director shall issue a written notice of intent to debar or suspend to the person involved. The notice shall include justification for the debarment or suspension with references to the statutes, ordinances, codes or substantive policy statements on which the debarment or suspension is based. The notice shall be mailed or otherwise furnished immediately to the person. E. The person receiving the notice of intent may object to the debarment or suspension by responding in writing to the purchasing director within 14 calendar days of receipt of the notice. If the person does not object within the allotted time, the purchasing director shall finalize the debarment or suspension in the manner set forth in this section. F. The purchasing director is authorized to take any necessary and appropriate action regarding the proposed debarment or suspension, including but not limited to, meeting with the person involved, requesting more information from the person, or conducting further investigation regarding the reasons for debarment or suspension. G. After taking any necessary and appropriate action, the purchasing director shall issue a written decision to debar or suspend. The decision shall state the reasons for the action taken and inform the debarred or suspended person of its rights concerning judicial review. H. A copy of the written decision shall be mailed or otherwise furnished immediately to the debarred or suspended person and any other party intervening. 19 I. The purchasing director's decision regarding a debarment or suspension shall constitute final administrative action. The aggrieved party may seek judicial review of the administrative action in any court of competent jurisdiction. 3-4-36 contract claims A. Any contractor may submit a contract claim in writing to the purchasing director. The contractor may request a conference with the purchasing director on the claim. Maims 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. B. The purchasing director is authorized, prior to the commencement of an action in court concerning the claim, to take any necessary and appropriate action to settle and resolve the claim. C. If the claim is not resolved by mutual agreement, the purchasing director shall promptly issue a decision in writing. The decision shall: 1. Sustain or deny the claim 2. State the reasons for the action taken 3. Inform the contractor of its right to judicial review of the matter, if appropriate. D. A copy of the decision shall be mailed or otherwise furnished immediately to the contractor. E. The purchasing director's decision regarding a contract claim shall constitute final administrative action. The aggrieved party may seek judicial review of the administrative action in any court of competent jurisdiction. F. If the purchasing director does not issue a written decision regarding any contract claim within seven days after written request for a final decision, or within such longer period. as may be agreed upon between the parties, then the contractor may proceed as if an adverse decision had been received.. 20