HomeMy WebLinkAbout2023-08-28 23-256 OrderCITY COUNCIL ACTION
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23-256
AUGUST 28, 2023
CITY OF BANGOR
PROCUREMENT
POLICY
as adapted
from
The Model Procurement Ordinance
for Local Governments
By
The American Bar Association
in cooperation with
The National Institute of Governmental
Purchasing
Adopted by the Bangor City Council
January 10, 1994
Revised June, 1997
Revised October 27, 2003
Revised March 28, 2011 (C011-110)
Revised October 24, 2011 (C011-313)
Revised September 2016
Revised August 28, 2023
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Table of Contents
ARTICLE 1 GENERAL PROVISIONS...........................................................................5
Part A - Purpose and Application.................................................................................5
1-101 Purpose. ....................................................................................................5
1-102 Application. ................................................................................................5
PartB - Definitions.......................................................................................................6
1-201 Definitions..................................................................................................6
Part C - Public Access to Procurement Information.....................................................8
1-301 Public Access to Procurement Information. ...............................................8
1-302 Authorization to Use Electronic Transmissions..............................................9
ARTICLE 2 - OFFICE OF THE PURCHASING AGENT..................................................9
2-101 Establishment, Appointment, and Tenure. .................................................9
2-102 Authority and Duties...................................................................................9
2-103 Delegations to Other City Officials........................................................... 10
ARTICLE 3 - SOURCE SELECTION AND CONTRACT FORMATION......................... 10
Part A - Methods of Source Selection........................................................................ 10
3-101 Competitive Sealed Bidding..................................................................... 10
3-102 Request for Proposals/Qualifications....................................................... 13
3-103 Contracting for Designated Professional Services................................... 14
3-104 Revenue Contracts ...................................................................................... 14
3-105 Purchases................................................................................................ 15
3-106 Sole Source Procurement........................................................................ 16
3-107 Emergency Procurements ....................................................................... 18
3-108 Tie Bids.................................................................................................... 19
3-109 Cancellation of Request for Bids or Requests for Proposals/Qualifications.
19
Part B - Qualifications and Duties.............................................................................. 19
3-201 Responsibility of Bidders and Offerors..................................................... 19
3-202 Cost or Price Analysis.............................................................................. 19
3-203 Bid and Performance Bonds on Service Contracts..................................20
3-204 Insurance on Supply or Service Contracts...............................................20
Part C - Types of Contracts and Contract Administration ..........................................21
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3-301 Types of Contracts...................................................................................21
3-302 Contract Clauses and Their Administration..............................................22
3-303 Change Orders ........................................................................................24
3-304 Contract Administration............................................................................25
3-305 Right to Audit Records.............................................................................28
3-306 Reporting of Anticompetitive Practices ....................................................29
3-307 City Procurement Records.......................................................................29
ARTICLE 4 - SPECIFICATIONS ...................................................................................29
4-101 Maximum Practicable Competition...........................................................29
4-102 Brand Name or Equal Specification. ........................................................29
4-103 Brand Name Specification. ......................................................................30
ARTICLE 5 - PROCUREMENT OF CONSTRUCTION, ARCHITECT, ENGINEER AND
LAND SURVEYING SERVICES....................................................................................30
Part A - Management of Construction Contracting.....................................................30
5-101 Responsibility for Selection of Methods of Construction Contracting
Management ..........................................................................................................31
Part B - Bid Security and Performance Bonds ...........................................................33
5-201 Bid Security..............................................................................................33
5-202 Contract Performance and Payment Bonds.............................................33
5-203 Copies of Bond Forms .............................................................................34
5-204 Insurance Requirements..........................................................................34
Part C - Fiscal Responsibility.....................................................................................34
5-301 Contract Changes and Approval Process................................................34
5-302 Fiscal Responsibility ................................................................................35
ARTICLE 6 - DEBARMENT OR SUSPENSION............................................................35
6-101 Authority to Debar or Suspend.................................................................35
6-102 Decision to Debar or Suspend. ................................................................36
6-103 Notice of Decision....................................................................................36
6-104 Finality of Decision...................................................................................36
6-105 Debarment and Suspension Requirements for FTA Funded Procurements.
36
ARTICLE 7 - COST PRINCIPLES.................................................................................37
7-101 Federal Cost Principles for FTA Funded Procurements..............................37
ARTICLE 8 - SUPPLY MANAGEMENT ........................................................................37
ARTICLE 9 - APPEALS AND REMEDIES.....................................................................37
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9-101 Bid Protests .............................................................................................37
ARTICLE 10 - COOPERATIVE PURCHASING ............................................................40
10-101 Authority to Join Groups.......................................................................40
ARTICLE 11 - ASSISTANCE TO DISADVANTAGED BUSINESS ENTERPRISE
PROGRAM....................................................................................................................41
ARTICLE 12 - ETHICS IN PUBLIC CONTRACTING ....................................................42
ARTICLE 13 — COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM ..............42
13-101 General Provisions.....................................................................................42
13-102 Small Purchase Procedures.......................................................................43
13-103 Sealed Bids................................................................................................43
13-104 Competitive Proposals ...............................................................................44
13-105 Non-Competitive Proposals .......................................................................44
13-106 Ineligible Beneficiaries ...............................................................................44
Article 14 — BUY AMERICA REQUIREMENTS .............................................................44
14-101 Buy America Requirements for FTA Funded Procurements.......................44
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ARTICLE 1 GENERAL PROVISIONS
Part A - Purpose and Application
1-101 Purpose.
The Purpose of this Policy is to provide for the fair and equitable treatment of all persons involved
in public purchasing by the City of Bangor, to maximize the purchasing value of public funds in
procurement, and to provide safeguards for maintaining a procurement system of quality and
i nteg rity.
This policy is also intended to ensure that City of Bangor complies with Federal Transit
Administration (FTA) standards to ensure full and open competition consistent with:
• FTA Circular 4220.iF "Third Party Contracting Guidance" or latest version thereof;
• Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal
Awards, 2 CFR Part 200 (referred to now as the ��Super Circular"and which replaced and
consolidated OMB Circulars A-87, A-102, A-110, A-122, and A-133);
• Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal
Awards, 2 CFR part 1201, which replaces 49 CFR parts 18 and 19
Purchases made with any FTA funds for the transit program must follow the specific FTA
requirements as outlined in this Policy. Purchases made with local funds only and for purposes
other than transit may follow the City of Bangor's requirements.
1-102 Application.
1. This Policy applies to contracts for the procurement of supplies, services, and construction,
entered into by the City of Bangor after the effective date of this Policy, unless the parties
agree to its application to contracts entered into prior to the effective date. It shall apply
to every City of Bangor expenditure irrespective of the source of the funds. When the
procurement involves the expenditure of Federal assistance or contract funds, such as
with the Federal Transit Administration and Community Development Block Grant Program
(See Article 14), the procurement shall be conducted in accordance with any mandatory
applicable Federal law and regulations. Nothing in this Policy shall prevent any City
department from complying with the terms and conditions of any grant, gift, or bequest
that is otherwise consistent with law.
2. Prohibited Practices for FTA Funded Procurements:
Solicitations with requirements that contain features that unduly restrict competition may
not be used. City of Bangor shall not:
• Impose unreasonable business requirements for bidders or offerors.
• Impose unnecessary experience requirements for bidders and offerors.
• Use prequalification procedures that are restrictive of competition.
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• Make a noncompetitive award to any person or firm on a retainer contract with City of
Bangor, if that award is not for the property or services specified for delivery under the
retainer contract.
• Impose unreasonable restrictive bonding requirements on bidders and offerors in excess
of FTA and state requirements.
• Specify only a ��brand name" product without allowing offers of an ��equal" product, or
allowing an ��equal" product without listing the salient characteristics that the ��equal"
product must meet to be acceptable for award.
• Specify in-state or local geographical preferences, or evaluating bids or proposals in light
of in-state or local geographic preferences, even if those preferences are imposed by State
or local laws or regulations. The only exception expressly mandated or encouraged by
Federal law that may be applicable to City of Bangor is the procurement of Architectural
and Engineering (A&E) Services. Geographic location may be a selection criterion in the
procurement of A&E services if an appropriate number of qualified firms are eligible to
compete for the contract in view of the nature and size of the project.
• Engage in practices that result in organizational conflicts of interest. An organizational
conflict of interest occurs when any of the following circumstances arise:
o Lack of Impartiality or Impaired ObjectivitX—When the bidder or offeror is unable,
or potentially unable, to provide impartial and objective assistance or advice to
City of Bangor due to other activities, relationships, contracts, orcircumstances.
o Unequal Access to Information — When the bidder or offeror has an unfair
competitive advantage through obtaining access to nonpublic information during
the performance of an earlier contract.
o Biased Ground Rules — When during the conduct of an earlier procurement, the
bidder or offeror has established the ground rules for a future procurement by
developing specifications, evaluation factors, or similar documents.
• Support or acquiesce in noncompetitive pricing practices between firms or between
affiliated companies.
• Take any arbitrary action in the procurement process.
• Use tag-ons where work is added that is beyond the scope of the original contract.
Part B - Definitions
1-201 Definitions.
(1) Architect, Engineer and Land Surveying Services. Those professional services within the
scope of the practice of architecture, professional engineering, or land surveying, as
defined by the laws of the State of Maine.
(2) Brand Name or Equal Specification. A specification limited to one or more items by
manufacturers' names or model numbers to describe the standard of quality, performance,
and other salient characteristics needed to meet the City of Bangor's requirements, and
which provides for the submission of equivalent products.
(3) Brand Name Specification. A specification limited to one or more items by manufacturers'
names or model numbers.
Brand Name Requirement for FTA Funded Procurements:
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If used, salient characteristics must be listed so that alternatives can be proposed under
Federally funded procurements.
(4) Business. Any corporation, partnership, individual, sole proprietorship, joint stock
company, joint venture, or any other private legal entity.
(5) Change Order. A written order signed by the City Manager, authorizing the contractor to
make changes.
(6) Contract Modification. 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.
(7) Construction. The process of building, altering, repairing, improving, or demolishing any
structure or building, or other improvements of any kind. It does not include the routine
operation, routine repair, or routine maintenance of existing structures, buildings, or real
property.
(8) Contract. All types of City of Bangor agreements, regardless of what they may be called,
for the procurement of supplies, services, or construction.
(9) Contractor. Any person having a contract with the City of Bangor or a using agency
thereof.
(10) Cost Analysis. The evaluation of cost data for the purpose of arriving at costs actually
incurred or estimates of costs to be incurred, prices to be paid, and costs to be reimbursed,
including profits.
(11) Employee. An individual drawing a salary or wages from the City of Bangor, whether
elected or not; any noncompensated individual performing personal services for the City
or any department, agency, commission, council, board, or any other entity established
by the executive or legislative branch of the City; and any noncompensated individual
serving as an elected official of the City.
(12) FinancialInterest.
(a) Direct or indirect ownership of any interest or involvement in any relationship from
which, or as a result of which, a person within the past year has received, or is
presently or in the future entitled to receive, more than $500 per year, or its
equivalent;
(b) Direct or indirect ownership of 10% of any property or business to include 10% of
the stock of a private corporation; or
(c) Holding a position in a business such as officer, director, trustee, partner, employee,
or the like, or holding any position of management.
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(13) Person(s). Any business, individual, union, committee, club, other organization, or group
of individuals.
(14) Price Analysis. The evaluation of price data, without analysis of the separate cost
components and profit as in cost analysis, which may assist in arriving at prices to be paid
and costs to be reimbursed.
(15) Pricing Data. Factual information concerning prices for items substantially similar to those
being procured. Prices in this definition refer to offered or proposed selling prices,
historical selling prices and current selling prices. The definition refers to data relevantto
both prime and subcontract prices.
(16) Procurement. The buying, purchasing, renting, leasing, or otherwise acquiring of any
supplies, services, or construction. It also includes all functions that pertain to the
obtaining of any supply, service, or construction, including description of requirements,
selection, and solicitation of sources, preparation and award of contract, and all phases
of contract administration.
(17) Request for Bids (Sealed Bids). All documents, whether attached or incorporated by
reference, utilized for soliciting sealed bids.
(18) Request for Proposals/Qualifications. All documents, whether attached or incorporated by
reference, utilized for soliciting proposals/qualifications.
(19) Responsible Bidder or Offeror. A person who has the capability in all respects to perform
fully the contract requirements, and the tenacity, perseverance, experience, integrity,
reliability, capacity, facilities, equipment, and credit which will assure good faith
performance.
(20) Responsive Bidder. A person who has submitted a bid which conforms in all material
respects to the requirements set forth in the request for bids.
(21) Services. The furnishing of labor, time, or effect by a contractor, not involving the delivery
of a specific product other than reports which are merely incidental to the required
performance. This term shall not include employment agreements or collective bargaining
agreements.
(22) Specifications. 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 fordelivery.
(23) Supplies. All property, including but not limited to equipment, materials, printing,
insurance, and leases of real property, excluding land or a permanent interest in land.
Part C - Public Access to Procurement Information
1-301 Public Access to Procurement Information.
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Procurement information shall be a public record to the extent provided in 1 MRSA Section
401 et. seq. and shall be available to the public as provided in such statute.
1-302 Authorization to Use Electronic Transmissions
The use of electronic media, including acceptance of electronic signatures, is authorized
consistent with the City's applicable statutory, regulatory or other guidance for use of such media,
so long as such guidance provides for:
(a) appropriate security to prevent unauthorized access to the bidding, approval and
award processes; and
(b) accurate retrieval or conversion of electronic forms of such information into a
medium which permits inspection and copying.
ARTICLE 2 - OFFICE OF THE PURCHASING AGENT
2-101 Establishment, Appointment, and Tenure.
(1) Establishment of the Position of Purchasing Agent. There is hereby created the position
of Purchasing Agent, who shall be the City's principal public purchasing official.
(2) Appointment. The City Manager or his or her designee shall act as Purchasing Agent until
or unless the City Council by ordinance shall provide for the appointment of a Purchasing
Agent.
(3) Tenure. The Purchasing Agent shall be appointed to serve an indefinite term and may be
removed from office by the City Manager in accordance with City Policy.
2-102 Authority and Duties.
(1) Principal Public Purchasing Official. Except as otherwise provided herein, the Purchasing
Agent shall serve as the principal public purchasing official for the City, and shall be
responsible for the procurement of supplies, services, and construction in accordance with
this Policy, as well as the management and disposal of supplies.
(2) Authority. The Purchasing Agent shall have the authority to award bids and/or contracts
where the value is $75,000 or less under the following conditions:
(a) funding for the item or service has been approved in the current year budget; and
(b) the recommendation is to award to the low bidder; and
(c) the City has previous experience with the bidder; and
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(d) where vendors, staff, Councilors or members of the public have not expressed
concern/or heightened interest in some form about the item bid or the bid process
itself.
All bids or contracts awarded under this section shall be reported to the Finance Committee on a
monthly basis.
(3) Duties. In accordance with this Policy, and subject to the supervision of the City Manager,
the Purchasing Agent shall:
(a) procure or supervise the procurement of all supplies, services, and construction
needed by the City;
(b) sell, trade, or otherwise dispose of surplus supplies belonging to the City;and
(c) establish and maintain programs for specifications development, contract
administration, inspection and acceptance, in cooperation with the departments
using the supplies, services, and construction.
(4) Operational Procedures. Consistent with this Policy, and with the approval of the City
Manager, the Purchasing Agent may adopt operational procedures relating to the
execution of his/her duties.
2-103 Delegations to Other City Officials.
With the approval of the City Manager, the Purchasing Agent may delegate authority to
purchase certain supplies, services, or construction items or used vehicles and equipment to other
City officials, if such delegation is deemed necessary for the effective procurement of those items.
Procurement guidelines may be waived for the purchase of used vehicles or equipment after
coordination with the Purchasing Agent. Written documentation consistent with purchasing
guidelines must be available for all such purchases. Purchases of used vehicles or equipment in
excess of $25,000 must be reported to the Finance Committee.
ARTICLE 3 - SOURCE SELECTION AND CONTRACT FORMATION
Part A - Methods of Source Selection
3-101 Competitive Sealed Bidding.
(1) Conditions for Use. All contracts of the City shall be awarded by competitive sealed bidding
except as otherwise provided in Sections 3-102 (Request for Proposals/Qualifications), 3-
103 (Contracting for Designated Professional Services), 3-104 (Purchases), 3-105 (Sole
Source Procurement), and 3-106 (Emergency Procurements).
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(2) FTA Requirements for Sealed Bids:
The sealed bid method of procurement is a formal method in which bids are publicly
solicited and a firm fixed price contract is awarded to the responsible bidder whose bid,
conforming to all the material terms and conditions of the Invitation for Bids, is lowest in
price. The vehicle through which bids are solicited is an Invitation for Bids (IFB). The IFB
document contains technical specifications for the product or service to be purchased, a
description of the procedures for submitting a bid, and the forms on which bids must be
submitted.
(a) When Appropriate — The sealed bid method of procurement is the preferred method for
acquiring products and services that, including construction services, cost greater than
$250,000. The sealed bid method of procurement may also be used for small purchases
if it is determined to be appropriate. The sealed bid method of procurement is appropriate
if the following conditions apply:
(1) Precise Specifications — A complete, adequate, precise, and realistic specification
or purchase description is available.
(2) Adequate Sources — Two or more responsible bidders are willing and able to
compete effectively for the business.
(3) Fixed Price Contract — The procurement generally lends itself to a firm fixed price
contract.
(4) Price Determinative — The successful bidder can be selected on the basis of price
and those price-related factors listed in the solicitation including, but not limited
to, transportation costs, life cycle costs, and discounts expected to be taken. Apart
from responsibility determinations, contractor selection may not be determined on
the basis of other factors whose costs cannot be measured at the time ofaward.
(5) Discussions Unnecessary — Discussions with one or more bidders after bids have
been submitted are expected to be unnecessary as award of the contract will be
made based on price and price-related factors alone.
(b) Requirements for Sealed Bids—The following requirements apply to the sealed bid method
of procurement:
(1) Publici —The Invitation for Bids must be publicly advertised.
i. The Director of Finance shall ensure that sufficient time is allowed
to prepare bids before the date of bid opening.
ii. Notice of bidding opportunities may be provided in other ways in
addition, but not as a substitute,to a published notice. The methods
may include, but not necessarily be limited to:
a. Direct notice, based on compiled vendor lists or from pre-
qualification list, sent to prospective offerors; or
b. Use of advertisement by electronic means.
(2) Adequate Sources — Bids must be solicited from an adequate number of known
suppliers.
(3) Adequate Specifications —The Invitation for Bids, including any specifications and
pertinent attachments, must describe the property or services sought in sufficient
detail that a prospective bidder will be able to submit a proper bid.
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(4) Sufficient Time — Bidders must be allowed sufficient time to prepare bids before
the date of bid opening.
(5) Public Openinq—All bids must be publicly opened at the time and place prescribed
in the Invitation for Bids.
(6) Fixed Price Contract — A firm fixed price contract must be awarded in writing to
the lowest responsive and responsible bidder unless the Invitation for Bids
specifically allowed for award of a fixed price incentive contract or the inclusion of
an economic price adjustment provision.
(7) Rejection of Bids—Any or all bids may be rejected if there is a sound, documented
business reason.
(3) Request for Bids. A request for bids shall include specifications, and all contractual terms
and conditions applicable to the procurement.
(4) Public Notice. A public notice of the request for bids shall be given no less than seven (7)
calendar days prior to the date set forth therein for the opening of bids. Such notice may
include publication in a newspaper of general circulation or posting on the City's website.
The public notice shall state the place, date, and time of bid opening.
(5) Bid Opening. Bids shall be opened publicly in the presence of one or more witnesses at
the time and place designated in the request for bids. The amount of each bid, and such
other relevant information as the Purchasing Agent deems appropriate, together with the
name of each bidder shall be recorded; the record and each bid shall be open to public
inspection in accordance with Section 1-301 (Public Access to Procurement Information),
(6) Bid Acceptance and Bid Evaluation. Bids shall be unconditionally accepted without
alterations or correction, except as authorized in this Policy. Bids shall be evaluated based
on the requirements set forth in the request for bids, which may include criteria to
determine acceptability such as inspection, testing, quality, 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 measurable, such as discounts, transportation costs, and total or life cycle
costs. The request for bids shall set forth the evaluation criteria to be used. No criteria
should be used in bid evaluation that are not set forth in the request for bids.
(7) Correction or Withdrawal of Bids; Cancellation of Awards. Correction or withdrawal of
inadvertently erroneous bids before or after bid opening, or cancellation of awards or
contracts based on such bid mistakes, may be permitted where appropriate. Mistakes
discovered before bid opening may be modified or withdrawn by written or electronic
notice received in the office designated in the request for bids 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 a nonjudgmental
character was made, the nature of the mistake, and the bid price actually intended. After
bid opening changes in bid prices may only be allowed if the bid price was based on
incorrect information provided by the City. No other changes in bid prices 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 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 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 Agent.
(8) Award. The contract shall be awarded with reasonable promptness by appropriate notice
to the bidder whose bid best meets the requirements and criteria set forth in the request
for bids. In the event the bid for a construction project exceeds available funds as certified
by the Finance Director, does not exceed such funds by more than five (5) percent, the
Purchasing Agent is authorized, when time or economic considerations preclude
resolicitation of work of a reduced scope, to negotiate an adjustment of the bid price in
order to bring the bid within the amount of available funds. Any such negotiated
adjustment shall be based only upon eliminating independent deductive items specified in
the request for bids.
(9) Multi-Step Sealed Bidding. When it is considered impractical to prepare initially a purchase
description to support an award based on identified criteria, a request for bids may be
issued requesting the submission of unpriced offers to be followed by a request for bids
limited to those bidders whose offers have been determined to be technically acceptable
under the criteria set forth in the first solicitation.
3-102 Request for Proposals/Qualifications.
(1) Conditions for Use. When the Purchasing Agent determines that the use of competitive
sealed bidding is either not practicable or not advantageous to the City, a contract may
be entered into by use of a request for proposals/qualifications.
(2) Conditions for FTA Funded Procurements:
When Appropriate — The competitive proposal method of procurement is appropriate for
the acquisition of products and services that cost greater than $250,000 when the nature
of the procurement does not lend itself to sealed bidding and City of Bangor expectsthat
more than one source will be willing and able to submit a proposal. The competitive
proposal method of procurement may also be used for small purchases if it is determined
to be appropriate. The competitive proposal method of procurement may not be used for
the procurement of construction services, unless it is a Design-Build Procurement. The
competitive proposal method of procurement is appropriate when any of the following
circumstances are present;
(1) Tvpe of Specifications — The products or services to be acquired are
described in a performance or functional specification, or if described in
detailed technical specifications, other circumstances such as the need for
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discussions or the importance of basing contract award on factors other
than price alone are present.
(2) Uncertain Number of Sources — Uncertainty about whether more than one
bid will be submitted in response to an Invitation for Bids.
(3) Price Alone Not Determinative — Due to the nature of the procurement,
contract award need not be based exclusively on price or price-related
factors.
(4) Discussions Expected — Separate discussions with individual offerors are
expected to be necessary after they have submitted their proposals.
(3) Public Notice. Adequate public notice of the request for proposals/qualifications shall be
given in the same manner as provided in Section 3-101(3) (Competitive Sealed Bidding,
Public Notice),
(4) Evaluation Factors. The request for proposals/qualifications should include all evaluation
factors and selection criteria that will be used in the evaluation process. All evaluation
factors cited in the request shall be considered equal unless the relative importance of
such factors is so noted or assigned to each factor listed in the request for
proposal/qualifications.
(5) Discussion with Responsible Offerors and Revisions to Proposals/Qualifications. As
provided in the request for proposals/qualifications, 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. 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 submissions and prior to award for the purpose
of obtaining best and final offers.
(6) Award. Award shall be made to the responsible offeror whose proposal/qualification is
determined to be the most advantageous to the City, taking into consideration price and
the evaluation factors set forth in the request for proposals/qualifications. The contract
file shall contain the basis on which the award is made.
3-103 Contracting for Designated Professional Services.
(1) Procurement of Services. For the purpose of procuring the services of accountants,
lawyers, appraisers, construction contract manager, architect, engineer, land surveyor or
other professionals Section 3-102 (Request for Proposals/Qualifications) shall be used
except as provided under Section 3-105 (Sole Source Procurement) or Section 3-106
(Emergency Procurement)
3-104 Revenue Contracts
(1) FTA Requirements for Revenue Contracts:
City of Bangor may enter into a revenue contract with a third party to generate revenues
in connection with a transit related activity, or to create business opportunities utilizing an
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FTA funded asset. Any such said contract opportunity will follow competitive selection
procedures and principles outlined herein.
3-105 Purchases.
(1) General. Any contract costing less than $25,000 may be made in accordance with the
purchase procedures authorized in this Section. Contract requirements shall not be
artificially divided so as to constitute a purchase under this Section.
(2) Purchases costing $10,000 but less than $25,000. In so far as it is practical, no less than
three businesses shall be solicited to submit written quotations on vendor letterhead.
Award shall be made to the business offering the lowest acceptable quotation. The names
of the businesses submitting quotations, and the date and amount of each quotation, shall
be recorded and maintained as a public record. All pricing information shall be sent directly
to the Purchasing Agent.
(3) Purchases costing over $1,000 but less than $10,000. The Purchasing Agent shall adopt
operational procedures for making purchases of $1,000 - $10,000. Such operational
procedures shall provide for obtaining adequate and reasonable competition for the
supply, service, or construction being purchased; further, such operational procedures
shall require the preparation and maintenance of written records adequate to document
the competition obtained, properly account for the funds expended, and facilitate an audit
of the purchase made.
(4) Purchases costing up to $1,000. Purchases of up to $1,000 may use a single selection,
after contact, based on reasonable price, stock availability and delivery requirements.
(5) Purchase Thresholds for FTA Funded Procurements:
Requirements applicable to micro-purchases ($10,000 or
less):
(1) Competition not required,
(2) Must document determination that price is fair and reasonable and how the
determination was derived,
(3) Prohibit splitting of procurements to avoid competition, and
(4) When competition is not obtained, require equitable distribution among
qualified suppliers.
Requirements applicable to small purchase threshold (from $10,000 to $250,000):
(1) Must obtain price or rate quotations from an adequate number of qualified
sources, and
(2) Document file that price is fair and reasonable.
Required Competition
Price or rate quotations must be obtained from an adequate number of
qualified sources. It is the responsibility of City of Bangor to ensure that an
adequate number of quotations, bids, or proposals are received.
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Prohibited Divisions
The size or dollar value of procurements may not be divided or reduced
merely to come within the small purchase limit. The only allowable exception
to this restriction is for the express purpose of fostering greater participation
of DBE, small and minority firms and women's business enterprises in City of
Bangor Federally-assisted procurements.
Documentation
Every small purchase must be documented in the grantee's written
procurement history file. Contracts above the small purchase threshold must
contain remedies for breach of contract. Contracts in excess of$25,000 must
have termination for cause and termination for convenience provisions.
Requirements applicable for large purchase greater than $250,000:
Definition: Large purchases are those purchases of products and services that cost
greater than Formal Threshold or the Federal threshold of$250,000.
Large purchases must be made through the formal methods found in other
sections of this policy. See, e.g., sections 3-101, 3-106.
City of Bangor reserves the right to use formal purchase methods instead of the micro-
purchase or small purchase methods described herein, even if small purchase thresholds
are met, if the Director of Finance believes it is in the best interests of the City of Bangor
to do so.
3-106 Sole Source Procurement.
(1) A contract may be awarded without competition when the Finance Committee determines
after conducting a good faith review of available sources, that there is only one source for
the required supply, service, or construction item. The Purchasing Agent or respective
department head shall conduct negotiations, as appropriate, as to price, delivery, and
terms. 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, a listing of the
item(s) procured under each contract, and the identification of each contract file,
(2) Sole Source Requirements for FTA Funded Procurements: *Note: Change Orders beyond
the scope of the contract are treated as Sole Source Procurements
When City of Bangor requires products or services available from only one responsible
source, and no other products or services will satisfy its requirements, City of Bangor may
make a sole source award with the prior approval of FTA or if otherwise allowed by the
conditions below. Note that while the City of Bangor may contact FTA for prior approval,
this approval is not required. In addition, when City of Bangor requires an existing
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contractor to make a change to its contract that is beyond the scope of that contract, City
of Bangor has made a sole source award that must be justified. Sole source awards are
only appropriate when one of the following conditions apply:
(a) Unique Capability or AvailabilitX—The products or services are available from a single
source if one of the conditions described below is present:
(1) Unique or Innovative Conce�t — The offeror demonstrates a unique or
innovative concept or capability not available from another source. Unique or
innovative concept means a new, novel, or changed concept, approach, or
method that is the product of original thinking, the details of which are kept
confidential or are patented or copyrighted, and is available to City of Bangor
only from one source and has not in the past been available to City of Bangor
from another source.
(2) Patents or Restricted Data Riahts — Patent or data rights restrictions preclude
competition.
(3) Substantial Duplication Costs — In the case of a follow-on contract for the
continued development or production of highly specialized equipment and
major components thereof, when it is likely that award to another contractor
would result in substantial duplication of costs that are not expected to be
recovered through competition.
(4) Unacceptable Delay — In the case of a follow-on contract for the continued
development or production of highly specialized equipment and major
components thereof, when it is likely that award to another contractor would
result in unacceptable delays in fulfilling City of Bangor needs.
(b) Procurement by noncompetitive negotiation may be used only when the award of a
contract is not feasible under small purchase procedures, sealed bids, or competitive
proposals and at least one of the following circumstances exists:
• The item is available only from a single source;
• A public urgency or emergency for the item exists which will not permit a delay
resulting from competitive solicitation;
• FTA authorizes noncompetitive negotiations;
• After solicitation of a number of sources, competition is determined inadequate; or
• The item is an associated capital maintenance item as defined in 49 USC 5307 a 1
etsea that is procured directly from the original manufacturer or supplier of the item
to be replaced. The grantee must first certify that such manufacturer or supplier is
the only source for the item and the price of the item is no higher than the price paid
for item by like customers; and
• Cost analysis, %e., verifying the proposed cost data, the projections of the data,and
the evaluation of the specific elements of cost and profit, is required.
(c) Sinale Bid or Proposal — Upon receiving a single bid or proposal in response to a
solicitation, City of Bangor should determine if competition was adequate. This should
include a review of the specifications for undue restrictiveness and might include a
survey of potential sources that chose not to submit a bid or proposal.
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(1) Adequate Competition — Competition is adequate
when the reasons for a single response were caused
by conditions beyond City of Bangor control.
(2) Inadequate Competition—Competition is inadequate
when the reasons for a single response were caused
by conditions within City of Bangor control.
(d) Unusual and Compellina Uraency — City of Bangor may limit the number of sources
from which it solicits bids or proposals when City of Bangor has such an unusual and
urgent need for the products or services that City of Bangor would be seriously injured
unless it were permitted to limit the solicitation. City of Bangor may also limit the
solicitation when the public exigency or emergency will not permit a delay resulting
from competitive solicitation for the products or services.
(e) Authorized by FTA — City of Bangor may request permission from FTA to allow it to
use noncompetitive proposals for a particular procurement.
(fi� Procurement Procedures — The following requirements apply when City of Bangor
completes a procurement utilizing less than full and open competition:
(1) Potential Sources — City of Bangor must solicit offers from as many potential
sources as is practicable under the circumstances,
(2) Sole Source Justification —City of Bangor must justify all sole source procurements
in writing. Sole source procurement justifications must describe the reasons for
why a sole source procurement is appropriate, state which of the authorized
justifications listed in 3-106(a)-(e) are applicable, include a cost analysis and be
signed by the Director of Finance. If City of Bangor decides to solicit an offer from
only one source, City of Bangor must justify its decision in writing. The written
justification must include the same elements as a sole source justification except
that it must state which of the authorized justifications listed in 3-106(a)-(e)are
applicable to the sole source purchase.
(3) Cost Analysis — City of Bangor must prepare or obtain a cost analysis verifying the
proposed cost data, the projections of the data, and the evaluation of the costs
and profits. A price analysis shall not be adequate to justify a sole source purchase.
3-107 Emergency Procurements.
Notwithstanding any other provisions of this Policy, the Purchasing Agent 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; provided that such emergency
procurements shall be made with such competition as is practicable under the circumstances. A
written determination of the basis for the emergency and for the selection of the particular
contractor shall be included in the contract file, As soon as practicable, a record of each
emergency procurement shall be made and shall set forth the contractor's name, the amount and
type of the contract, a listing of the item(s) procured under the contract, and the identification of
the contract file,
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3-108 Tie Bids.
Tie bids shall be resolved by the drawing of lots or the flip of a coin. Such tie breaking
procedures shall be performed by the Purchasing Agent in the presence of one or more witnesses
and reported to the Finance Committee.
3-109 Cancellation of Request for Bids or Requests for Proposals/Qualifications.
A request for bids, a request for proposals/qualifications, or other solicitation may be
canceled, or any or all bids or proposals/qualifications may be rejected in whole or in part as may
be specified in the solicitation, when it is for good cause and in the best interest of the City. The
reasons therefor shall be made part of the contract file.
Each solicitation issued by the City shall state that the solicitation may be canceled and
that any bid or proposal may be rejected in whole or in part for good cause when in the best
interests of the City.
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 resolicitation of any future procurement of similar
items.
Part B - Qualifications and Duties
3-201 Responsibility of Bidders and Offerors.
(1) Determination of Nonresponsibility. 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 Agent. Any
grounds which would give the City the right to demand adequate assurance or due
performance as to an awarded contract under 11 MRSA §2-609 shall be deemed adequate
grounds for a determination of nonresponsibility under this section. The unreasonable
failure of a bidder or offeror to supply promptly information in connection with an inquiry
with respect to responsibility may be grounds for a determination of nonresponsibility with
respect to such bidder or offeror. A copy of the determination shall be sent promptly to
the nonresponsible bidder or offeror. The final determination shall be made part of the
contract file and be made a public record,
(2) Responsibility Determination Requirements for FTA Funded Procurements:
Before selecting a contractor for award, the recipient must consider such matters as
contractor integrity, compliance with public policy, record of past performance, and
financial and technical resources. See additional information in Section 6-105 regarding
Debarment or Suspension.
3-202 Cost or Price Analysis.
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(1) A cost analysis or a price analysis, as appropriate, shall be conducted prior to award of
the contract other than one awarded under Section 3-101 (Competitive Sealed Bidding).
(2) Independent Cost Estimates for FTA Funded Procurements:
For every procurement over the micro-purchase threshold, City of Bangor shall make a
written independent estimate of cost prior to receiving price quotes, bids or proposals.
(3) Cost or Price Analysis for FTA Funded Procurements:
City of Bangor shall perform a cost or price analysis in connection with every procurement
action above the Federal small acquisition threshold, including contract modifications.
Price Analysis:
If City of Bangor determines that competition was adequate, a written price
analysis, rather than a cost analysis, is required to determine the reasonableness
of the proposed contract price.
Cost Analysis:
City of Bangor must perform or obtain a cost analysis when:
(a) A price analysis will not provide sufficient information to determine the
reasonableness of the contract cost.
(b) When the offeror submits elements of the estimated cost.
(c) When only a sole source is available, even if the procurement is a contract
modification.
(d) In the event of a change order.
City of Bangor must perform cost and profit analysis when adequate price
competition is lacking.
3-203 Bid and Performance Bonds on Service Contracts.
Bid and performance bonds or other security may be requested for service contracts as
the Purchasing Agent deems advisable to protect the City's interests. Any such bonding
requirements shall be set forth in the solicitation. Bid or performance bonds shall not be used as
a substitute for a determination of a bidder or offeror's financial or other responsibility.
3-204 Insurance on Supply or Service Contracts.
Comprehensive general liability, fire hazard, property damage, workers compensation or
other insurance coverage may be required in connection with any City contract, when the
Purchasing Agent or City Solicitor deems such insurance is advisable to protect the City's interests.
Any such insurance requirement shall be set forth in the solicitation. Insurance shall not be used
as a substitute for a determination of the bidder or offeror's financial or other responsibility.
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Part C - Types of Contracts and Contract Administration
3-301 Types of Contracts.
(1) General Authority. Subject to the limitations of this Section, any type of contract which is
appropriate to the procurement and which will promote the best interests of the City may
be used, provided that the use of a cost-plus-a-percentage-of-cost contract is prohibited.
A cost reimbursement contract may be used only when a determination is made in writing
that such contract is likely to be less costly to the City than any other type or that it is
impracticable to obtain the supply, service, or construction item required except under
such a contract,
(2) Contract Type Requirement for FTA Funded Procurements:
Time and Materials Type Contracts may only be used:
(1) After a determination that no other type of contract is suitable, and
(2) If the contract specifies a ceiling price that the contractor shall not exceed except
at its own risk.
(3) Multi-Term Contracts.
(a) Specified Period. 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 interest
of the City, 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) Determination Prior to Use. Prior to the utilization of a multi-term contract, it shall
be determined:
(i) that estimated requirements cover the period of the contract and are
reasonably firm and continuing; and
(ii) that such a contract will serve the best interests of the City by encouraging
effective competition or otherwise promoting economies in the City's
procurement.
(c) Cancellation Due to Unavailability of Funds in Succeeding Fiscal Periods. When funds
are not appropriated or otherwise made available to support continuation of
performance in a subsequent fiscal period, the contract shall be canceled and the
contractor shall be reimbursed for the reasonable value of any nonrecurring 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.
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(4) Multiple Source Contracting.
(a) General. A multiple source award is an award of an indefinite quantity contract for
one or more similar supplies or services to more than one bidder or offeror. The
obligation to order the City's actual requirements is limited by the provision of
Uniform Commercial Code, 11 MRSA §2-306(1).
(b) Limitations on Use. A multiple source award may be made when award to two or
more bidders or offerors for similar products is necessary for adequate delivery,
service, product compatibility, or to be in the City's best interest. Any multiple
source award shall be made in accordance with the provision of Section 3-101
(Competitive Sealed Bidding), Section 3-102 (Request for Proposal/Qualification),
Section 3-104 (Purchases), and Section 3-106 (Emergency Procurements), as
applicable. Any such awards shall be limited to the least number of suppliers
necessary to meet the valid requirements.
(c) Contract and Solicitation Provisions. All eligible users of the contract shall be named
in the solicitation, and it shall be mandatory that the actual requirements of such
users that can be met under the contract be obtained in accordance with the
contract, provided that:
(i) the City shall reserve the right to take bids separately if a particular quantity
requirement arises which exceeds its normal requirement or an amount
specified in the contract; and
(ii) the City shall reserve the right to take bids separately if the Purchasing Agent
approves a finding that the supply or service available under the contract
will not meet a nonrecurring special need of the City.
(d) Intent to Use. If a multiple source award is anticipated prior to issuing a solicitation,
the City shall reserve the right to make such an award and the criteria for award
shall be stated in the solicitation.
(e) Determination Required. The Purchasing Agent shall make a written determination
setting forth the reasons for a multiple source award, which shall be made a part of
the procurement file.
3-302 Contract Clauses and Their Administration.
(1) 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 Agent, after consultation with the City Solicitor, may issue clauses
appropriate for supply, service, or construction contracts, addressing among others the
following subjects:
(a) the unilateral right of the City to order in writing changes in the work within the
scope of the contract;
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(b) 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;
(c) variations occurring between estimated quantities of work in contract and actual
quantities;
(d) defective pricing;
(e) liquidated damages;
(fi� specified excuses for delay or nonperformance;
(g) termination of the contract for default;
(h) termination of the contract in whole or in part for the convenience of the City;
(i) suspension of work on a construction project ordered by the City;
(j) 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:
(i) when the contract is negotiated;
(ii) when the contractor provides the site or design; or
(iii) when the parties have otherwise agreed with respect to the risk of differing
site conditions.
(k) the right of the City to require that the contract be performed in compliance with all
applicable City ordinances, building codes, and State and Federal laws;
(I) specifying whether and under what conditions contract disputes may be subject to
binding or non-binding arbitration; and
(m) specifying what law is applicable to resolution or contract disputes.
(2) FTA Required Clauses for FTA Funded Procurements:
City of Bangor must ensure all Federal requirements, required clauses, and
certifications (including Buy America) are properly followed and included, whether in
the master intergovernmental contract or in the grantees purchase document. It is the
City of Bangor's responsibility to ensure that the provisions are included and followed.
If such requirements, clauses, and certifications were not included in the original
purchase solicitation and contracts, due to an omission or a change in federal contract
clause requirements, City of Bangor may request the vendor to append the required
Federal clauses in the purchase order or other document that affects the City of Bangor
procurement. When this method is used, City of Bangor shall obtain Buy America
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certification before entering into the purchase order. This method cannot be used to
circumvent FTA's Buy America requirements.
(3) Price Adjustments.
a. Adjustments in price resulting from the use of contract clauses required by
Subsection (1) of this Section shall be computed in one or more of the following
ways:
(i) by agreement on a fixed price adjustment before commencement of the
pertinent performance or as soon thereafter as practicable;
(ii) by unit prices specified in the contract or subsequently agreed upon;
(iii) by the 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;
(iv) in such other manner as the contracting parties may mutually agree; or
(v) 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, as
accounted for in accordance with [reference to cost principles] and subject
to the provision of Article 9 (Appeals and Remedies).
b. A contractor shall be required to submit cost or pricing data if any adjustment in
contract price is subject to the provision of Section 3-202 (Cost or Pricing Data).
(4) Standard Clauses and Their Modification. The Purchasing Agent, after consultation with
the City Solicitor, may establish standard contract clauses for use in City contracts. If the
Purchasing Agent establishes any standard clauses addressing the subjects set forth in
Subsection (1) of this Section, such clauses may be varied provided that any variations
are reviewed by the City Solicitor.
3-303 Change Orders
(1) Required Submissions Relating to Change Orders or Contract Modifications. A contractor
shall submit cost or pricing data prior to the pricing of any change order or contract
modification, including adjustments to contracts awarded by competitive sealed bidding,
whether or not costs or pricing data was required in connection with the initial pricing of
the contract.
(2) Contract Changes for FTA Funded Procurements:
City of Bangor may not use Federal assistance to finance:
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(a) Improper Contract Expansion — A contract has been improperly expanded when it
includes significantly larger quantities, or options beyond the recipient's reasonably
anticipated needs. A contract has also been improperly expanded when excess
capacity has been added primarily to permit assignment of those contract rights to
another entity.
(b) Cardinal Chanaes—A significant change in contract work that causes a major deviation
from the original purpose of the work or the intended method of achievement, or
causes a revision of contract work so extensive, significant, or cumulative that, in
effect, the contractor is required to perform very different work from that described
in the original contract, is a cardinal change or��tag-on". A change within the scope of
the contract is not a cardinal change or��tag-on."
3-304 Contract Administration.
(1) Each department shall ensure that a contractor is performing in accordance with the
solicitation under which the contract was awarded, and the terms and conditions of the
contract, shall be maintained.
(2) Contract Administration for FTA Funded Procurements:
(a) City of Banaor Staff Responsibilities
Prior to execution of third party contracts, City of Bangor shall designate a Project
Manager to serve as City of Bangor principal contact with the contractor and as
the primary administrator of the contract. The designated Project Manager for
each contract shall have responsibility for directing and overseeing the work
performed by the contractor; reviewing and approving deliverables and invoices
from the contractor; determining percentage of contract completion for progress
payments (if applicable); making recommendations on the exercise of contract
options (if applicable); recommending contract changes; preparing justifications
for contract changes; performing independent cost estimates and cost or price
analyses for contract changes; making recommendations on approval or rejection
of subcontractors; assisting with the resolution of contract disputes; making
recommendations on contract termination or other contractor disciplinaryactions;
maintaining complete contract files; and other contract administration duties that
may be necessary.
(b) Period of Performance
The period of performance generally should not exceed the time necessary to
accomplish the purpose of the contract. City of Bangor will also consider
competition, pricing, fairness, and public perception. City of Bangor procurement
files will document its rationale for determining the performance period designated
for each contract. City of Bangor third party contracts (such as property, services,
leases, construction, revenue, and so forth) are limited to a maximum period of
performance of five (5)years, unless the City justifies the business need or reason
for establishing a longer term. City of Bangor may enter into a multi-year contract
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to buy rolling stock with an option not exceeding five (5) years to buy additional
rolling stock or replacement parts (49 U.S.C. § 5325(e)(1)). City of Bangor may
not exercise that option later than five (5) years after the date of its original
contract.
(c) Time Extensions
Consistent with the general tone of FTA Circular 4220.iF, contract time extensions
shall be considered in light of whether they are permissible changes or
impermissible cardinal changes. Once City of Bangor awards a third party contract,
an extension of the contract term length that amounts to a cardinal change will
require a sole source justification. The Director of Finance has the sole authority
to approve and execute contract modifications. The Project Manager for the
contract shall review all contract modifications as to whether additional time can
be granted. The Project Manager shall prepare a written justification and cost
analysis (if applicable) for the contract time extension and shall negotiate the
appropriate contract modification with the contractor.
(d) Advance Payments
Advance payments utilizing FTA funds are prohibited unless prior written
concurrence is obtained from FTA.
(e) Proaress Payments
Progress payments are payments for contract work that has not been completed.
City of Bangor may use FTA assistance to support progress payments provided the
City obtains adequate security for those payments and has sufficient written
documentation to substantiate the work for which payment is requested. Adequate
security for progress payments may include taking title or obtaining a letter of
credit or taking equivalent measures to protect the recipient's financial interest in
the progress payment. Adequate security should reflect the practical realities of
different procurement scenarios and factual circumstances. FTA acknowledges the
practical reality that taking title to work in progress may not be desirable in some
circumstances. The recipient should always consider the costs associated with
providing security (for example, the recipient may need to acquire bonds or letters
of credit in the commercial marketplace) and the impact of those costs on the
contract price, as well as the consequences of incomplete performance, Applicable
provisions of Circular 4220.iF requires that any progress payments for
construction contracts be made on a percentage of completion method described
therein. City of Bangor however, may not make progress payments for other than
construction contracts based on this percentage method.
(fi� Remedies
City of Bangor shall include provisions that address remedies in its third party
contracts. Provisions related to remedies may include provisions for:
a. Liquidated Damages
City of Bangor may use liquidated damages if City of Bangor reasonably
expects to suffer damages through delayed contract completion, or if
weight requirements are exceeded, and the extent or amount of such
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damages are uncertain and would be difficult or impossible to determine.
Rate and measurement standards must be calculated to reasonablyreflect
City of Bangor costs should the standards not be met, and must be
specified in the solicitation and contract. The assessment for damages may
be established at a specific rate per day for each day beyond the contract's
delivery date or performance period. A measurement other than a day or
another period of time, however, may be established if that measurement
is appropriate, such as weight requirements in a rolling stock purchase.
The contract file must include a record of the calculation and rationale for
the amount of damages established. Any liquidated damages recovered
must be credited to the project account.
b. Violation or Breach
Third party contracts exceeding $250,000 must include administrative,
contractual, or legal remedies for violations or breach of the contract by
the third party contractor.
c. Suspension of Work
City of Bangor may include provisions pertaining to suspension of work in
its third party contracts.
d. Termination
Termination for cause and termination for convenience provisions mustbe
included in third party contracts exceeding $25,000.
(g) Contents of Complete Contract Files
The following documents shall comprise the contents of a complete contract file
for procurements above the micro-purchase level:
a. Written Record of Procurement History
City of Bangor shall maintain written records detailing the history of the
procurement for at least three years after the grant period concludes,
including records relating to:
1. Procurement Method
City of Bangor must provide its rationale for the method of
procurement it used for each contract, including a sole source
justification for any acquisition that does not qualify as competitive.
2. Contract Type
City of Bangor must state the reasons for selecting the contract
type it used.
3. Contractor Selection
City of Bangor must state its reasons for contractor selection or
rejection, including written justification and evaluation documents;
4. Contractor Responsibility
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City of Bangor must provide a written determination of
responsibility for the successful contractor;
5. Cost or Price
City of Bangor must evaluate and state its justification for the
contract cost or price, including the independent cost estimateand
cost or price analysis; and
6. Reasonable Documentation
City of Bangor must retain documentation commensurate with the
size and complexity of the procurement, including documents
related to solicitation, receipt and evaluation of offers, and contract
award, negotiation and execution.
(h) Contract Administration and Close-Out Documents
City of Bangor shall maintain written records detailing the performance and close-
out of the contract, including records relating to:
(i) Contractor Performance
City of Bangor must maintain documents related to contractor adherence to budget
and schedule, compliance with contract terms and conditions, DBE participation,
progress reports, disputes and disciplinary actions.
(j) Contract Deliverables
City of Bangor must maintain copies of all contract deliverables and records
relating to approval, rejection and requested modifications of contract deliverables.
(k) Contract Chanaes
City of Bangor must maintain copies of all contract modifications, including
documentation related to the determination of need, written justification and
rationale, cost analysis, negotiation and execution.
(I) Contract Payments
City of Bangor must retain documentation of invoices, approval of payments,
requests for modifications to invoices, determination of percentage of contract
completion for partial payments (if applicable), and ownership of title to partial
work products.
(m)Contract Close-Out
City of Bangor must retain documentation related to contractor performance and
evaluation, approval of final deliverables and payments, transfer of title to
complete work products to City of Bangor and contract audit and final
reconciliation.
3-305 Right to Audit Records.
(1) Audit of Cost or Pricing Data. The City may at reasonable times and places, audit the
books and records of any contractor who has submitted cost or pricing data pursuant to
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Section 3-202 (Cost or Pricing Data) to the extent that such books, documents, papers,
and records are pertinent to such cost or pricing data. Any person who receives a contract,
change order, or contract modification for which cost or pricing data is required, shall
maintain such books, document, papers, and records that are pertinent to such cost or
pricing data for three (3) years from the date of final payment under the contract.
(2) Contract Audit. The City shall be entitled to audit the books and records of a contractor
or a subcontractor at any tier under any negotiated contract or subcontract other than a
firm fixed price contract to the extent that such books, documents papers, and records
are pertinent to the performance of such contract or subcontract. Such books and records
shall be maintained by the contractor for a period of three (3) years from the date of final
payment under the prime contract and by the subcontractor for a period of three (3)years
from the date of final payment under the subcontract.
3-306 Reporting of Anticompetitive Practices.
When for any reason collusion or other anticompetitive practices are suspected among
any bidders or offerors, a notice of the relevant facts shall be transmitted to the State Attorney
General and the City Solicitor.
3-307 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 by
the Purchasing Agent.
(2) Retention of Procurement Records. All procurement records shall be retained and disposed
of by the City in accordance with State record retention guidelines.
NOTE: Records as to awarded contracts should be retained for at least six (6) years
following final performance thereunder. Statute of limitations under 14 MRSA
§751 et. seq. is 20 years for actions on contracts under seal and maximum ten
(10) years for negligence of design professionals.
ARTICLE 4 - SPECIFICATIONS
4-101 Maximum Practicable Competition.
All specifications shall be drafted so as to promote overall economy for the purposes
intended and encourage competition in satisfying the City's needs, and shall not be unduly
restrictive. The policy enunciated in this Section applies to all specifications including but not
limited to, those prepared for the City by architects, engineers, designers, and draftsmen.
4-102 Brand Name or Equal Specification.
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(1) Use. Brand name or equal specifications may be used when the Purchasing Agent
determines that:
(a) no other design, performance specification or qualified product is available;
(b) time does not permit the preparation of another form of purchase description, not
including a brand name specification;
(c) the nature of the product or the nature of the City's requirements makes use of a
brand name or equal specification suitable for the procurement; or
(d) use of a brand name or equal specification is in the City's best interests.
(2) Designation of Several Brand Names. Brand name or equal specifications shall seek to
designate three, or as many different brands as are practicable, as "or equal" references
and shall further state that substantially equivalent products to those designated will be
considered for award.
(3) Required Characteristics. Unless the Purchasing Agent determines that the essential
characteristics of the brand names included in the specifications are commonly known in
the industry or trade, brand name or equal specifications shall include a description of the
particular design, functional, or performance characteristics which are required.
(4) Nonrestrictive Use of Brand or Equal Specifications. Where a brand name or equal
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.
4-103 Brand Name Specification.
(1) Use. Since use of a brand name specification is restrictive of product competition, it may
be used only when the Purchasing Agent determines that only the identified brand name
item or items will satisfy the City's needs.
(2) Competition. The Purchasing Agent 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 procurement shall be made under Section 3-105 (Sole Source
Procurement).
ARTICLE 5 - PROCUREMENT OF CONSTRUCTION,ARCHITECT, ENGINEER AND LAND
SURVEYING SERVICES
Part A - Management of Construction Contracting
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5-101 Responsibility for Selection of Methods of Construction Contracting Management.
(1) The Purchasing Agent shall have the discretion to select the appropriate method of
construction contracting management for a particular project. In determining which
method to use,the Purchasing Agent may consult with the City Engineer and shall consider
the City's requirements, its resources, and the potential contractor's capabilities. If a
method of construction contracting management other than a single prime contractor is
selected, the Purchasing Agent shall include in the contract file a written statement setting
forth the reasons for the alternate method of construction contracting management for
that project.
(2) Architectural and Engineering (A&E) Requirements for FTA Funded Procurements:
FTA's enabling legislation at 49 U.S.C. Section 5325(b)(1) requires the use of the
qualifications-based procurement procedures contained in the ��Brooks Act," 40 U.S.C. §
1101 through 1104, to acquire A&E services.
(a) Qualifications-Based Procurement Procedures Required — City of Bangor must use
qualifications-based procurement procedures to acquire architectural and engineering
(A&E) services as well as certain other services that are directly in support of, directly
connected to, directly related to, or lead to construction, alteration, or repair of real
property. In addition to A&E services, other services that must be procured by
qualifications-based procurement procedures include:
• Program management;
• Construction management;
• Feasibility studies;
• Preliminary engineering;
• Design, architectural, engineering;
• Surveying, mapping; and
• Other related services.
The nature of the work to be performed and its relationship to construction, not the nature
of the prospective contractor, determine whether qualifications-based procurement
procedures may be used.
(b) Qualifications-Based Procurement Procedures Prohibited — Unless FTA determines
otherwise in writing, qualifications-based procurement procedures may not be used to
acquire other types of services if those services are not directly in support of, directly
connected to, directly related to, or do not lead to construction, alteration, or repair
of real property. Qualifications-based procurement procedures may not be used for
actual construction, alteration or repair to real property.
(c) Qualifications-Based Procurement Procedures — The following procedures apply to
qualifications-based procurements:
(1) Qualifications—Unlike other two-step procurement procedures in which
price is an evaluation factor, an offeror's qualifications are evaluated to
determine contract award.
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(2) Price — Price is excluded as an evaluation factor.
(3) Most Qualified — Negotiations are first conducted with only the most
qualified offeror.
(4) Next Most Qualified - Only after failing to agree on a fair and reasonable
price may negotiations be conducted with the next most qualified
offeror. Then, if necessary, negotiations with successive offerors in
descending order may be conducted until contract award can be made
to the offeror whose price the recipient believes is fair and reasonable.
(3) FTA Funded Design-Build Procurements:
The City of Bangor must procure design-build services through means of qualifications-
based competitive proposal procedures based on the Brooks Act as set forth in 4220.iF,
VI, 3. h. when the preponderance of the work to be performed is considered to be for
architectural and engineering (A&E) services as defined in 4220.iF, VI, 3.
f. Qualifications-based competitive proposal procedures should not be used to procure
design-build services when the preponderance of the work to be performed is not of an
A&E nature as defined in 4220.iF, VI, 3. f, unless required by State law adopted before
August 10, 2005.
(4) Prevailing Wages Requirements for FTA Funded Procurements (Davis Bacon):
Under 49 U.S.C. Section 5333(a), Davis-Bacon Act prevailing wage protections apply to
laborers and mechanics employed on FTA assisted construction projects. City of Bangor
will ensure that any third party contracts at any tier exceeding $2,000 shall include
provisions requiring compliance with the Davis-Bacon Act, 40 U.S.C. § 3141 etseq., and
implementing DOL regulations, ��Labor Standards Provisions Applicable to Contracts
Governing Federally Financed and Assisted Construction" (29 CFR Part 5). The Davis-
Bacon Act requires contractors to pay wages to laborers and mechanics at a rate notless
than the minimum wages specified in a wage determination made by the Secretary of
Labor. The Davis-Bacon Act also requires contractors to pay wages not less than once a
week. City of Bangor will include a copy of the current prevailing wage determination
issued by DOL in each contract solicitation and will condition contract award upon the
acceptance of that wage determination.
(5) Anti-Kickback Requirements for FTA Funded Procurements:
For all third party construction and repair contracts exceeding $100,000, City of Bangor,
shall require provisions for compliance with the Copeland ��Anti-Kickback" Act, as
amended, 18 U.S.C. § 874, and implementing DOL regulations, ��Contractors and
Subcontractors on Public Building or Public Work Financed in Whole or in part by Loans
or Grants from the United States," 29 CFR Part 3. The Act prohibits a contractor from
inducing, by any means, any employee, to give up any part of his or her compensation to
which he or she is otherwise entitled. Section 4104(c) of the Federal Acquisition
Streamlining Act of 1994, 40 U.S.C. § 3701(b)(3)(A)(iii), increased the threshold for
construction and repair to $100,000 from $2,000 as set forth in the Super Circular, so that
a federally assisted construction contract must exceed $100,000 before these ��Anti-
Kickback" prohibitions apply to that contract.
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Part B - Bid Security and Performance Bonds
5-201 Bid Security.
(1) Requirement for Bid Security. Bid security shall be required for all competitive sealed
bidding for construction contracts when the price is estimated to exceed $75,000. Bid
security shall be a bond provided by a surety company authorized to do business in the
State of Maine, certified check, or otherwise supplied in a form satisfactory to the
Purchasing Agent. Nothing herein shall prevent the requirement of such bonds on
construction contracts under $75,000 when the circumstances warrant.
(2) Amount of Bid Security. Bid security shall be an amount equal to at least 5%of the amount
of the bid.
(3) Rejection of Bids for Noncompliance with Bid Security Requirements. When the request
for bids requires security, noncompliance requires that the bid be rejected unless it is
determined that the bid fails to comply only in a nonsubstantial manner with the security
requirements.
(4) Withdrawal of Bids. If a bidder is permitted to withdraw his/her bid before award as
provided in Section 3-101(6) (Competitive Sealed Bidding; Correction or Withdrawal of
Bids; Cancellation of Awards), no action shall be made against the bidder or the bid
secu rity.
5-202 Contract Performance and Payment Bonds.
(1) When Required and Amounts. When a construction contract is awarded in excess of
$75,000, the following bonds or security shall be delivered to the City and shall become
binding on the parties upon the execution of the contract:
(a) a performance bond satisfactory to the City, executed by a surety company
authorized to do business in the State of Maine or otherwise secured in a manner
satisfactory to the City, in an amount to equal to 100% of the price specified in the
contract; and
(b) a payment bond satisfactory to the City, executed by a surety company authorized
to do business in the State of Maine or otherwise secured in a manner satisfactory
to the City, for the protection of all persons supplying labor and material to the
contractor or its subcontractors for the performance of the work provided for in the
contract. The bond shall be in an amount equal to 100% of the price specified in
the contract.
(2) Authority to Require Additional Bonds. Nothing in this Section shall be construed to limit
the authority of the City to require a performance bond or other security in addition to
those bonds, or in circumstances other than specified in Subsection (1) of this Section.
(3) Suits on Payment Bonds - Right to Institute. Unless otherwise authorized by law, any
person who has furnished labor or materials to the contractor or subcontractors for the
work provided in the contract, for which a payment bond is furnished under this Section,
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and who has not been paid in full within 90 days from the date on which that person
performed the last of the labor or supplied the material, shall have the right to sue on the
payment bond for any amount unpaid at the time the suit is instituted and to prosecute
the action for the amount due that person. However, any person having a contract with
a subcontractor of the contractor, but no express or implied contract with the contractor
furnishing the payment bond, shall have a right of action upon the payment bond upon
giving written notice to the contractor within 90 days from the date on which that person
performed the last of the labor or supplied the material. That person shall state in the
notice the amount claimed and the name of the party to whom the material was supplied
or for whom the labor was performed. The notice shall be served personally or by
registered or certified mail, postage prepaid, in an envelope addressed to the contractor
at any place the contractor maintains an office or conducts business.
(4) Suits on Payment Bonds - Where and When Brought. Unless otherwise authorized by law,
every suit instituted upon a payment bond shall be brought in a court of competent
jurisdiction in Penobscot County.
(5) City of Bangor Subrogation Rights. The City of Bangor may reserve by contract the right
to make payments directly to any supplier or subcontractor who shall not have received
timely payment from the contractor for labor or materials provided to a City project.
In the event the City shall make such payments, it shall be deemed subrogated to the
rights of the supplier or subcontractor concerned to the extent of the payments made,
and may institute suit on any payment bond as provided above, the City's right to institute
suit under this paragraph shall be in addition to the City's rights in regard to payment of
contract funds to the contractor or to institute suit against the contractor for enforcement
of any performance bond.
5-203 Copies of Bond Forms.
Any person may request and obtain from the City a certified copy of a bond upon payment
of the cost of reproduction of the bond and postage, if any. A certified copy of a bond shall be
prima facie evidence of the contents, execution, and delivery of the original.
5-204 Insurance Requirements
Where the Purchasing Agent has required liability or hazard insurance in accordance with
section 3-204, the minimum coverage amount of such insurance shall be $1,000,000 for
comprehensive general liability coverage and the value of the City property affected for fire,
hazard or property damage insurance. A higher coverage limit may be specified. The City shall
be named as an additional insured on all such insurance policies, which shall be issued by an
insurance company authorized and licensed to do business in the State of Maine.
Part C - Fiscal Responsibility
5-301 Contract Changes and Approval Process
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Every contract modification, change order, or contract price adjustment under a
construction contract with the City shall be subject to prior approval by the City Manager after
receiving a report from the department head or other appropriate City official that therequested
change is appropriate and that sufficient funds are available for the change.
5-302 Fiscal Responsibility.
Every contract modification, change order, or contract price adjustment in excess of
$250,000 under a construction contract with the City shall be subject to prior approval by the City
Council after receiving a report from the appropriate City official as to the effect of the contract
modification, change order, or contract price adjustment on the total project budget or the total
contract budget.
ARTICLE 6 - DEBARMENT OR SUSPENSION
6-101 Authority to Debar or Suspend.
After reasonable notice to the person involved and reasonable opportunity for that person
to be heard, the Purchasing Agent, after consulting with the City Solicitor, is authorized to debar
a person for cause from consideration for award of contracts. The debarment shall be for a period
of not more than three (3) years.
After consultation with the City Solicitor, the Purchasing Agent is authorized to suspend a person
from consideration for award of contracts if there is probable cause to believe that the person
has engaged in any activity which might lead to debarment. The suspension shall be for a period
not to exceed one (1) year. The causes for debarment include:
(a) 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;
(b) 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 honest which currently, seriously,
and directly affects responsibility as a City contractor;
(c) conviction under State or Federal antitrust statutes arising out of the submission of
bids or proposals;
(d) Violation of contract provisions, as set forth below, of a character which is regarded
by the Purchasing Agent to be so serious as to justify debarment action:
(i) deliberate failure without good cause to perform in accordance with the
specifications or within the time limit provided in the contract; or
(ii) a recent record of failure to perform or of unsatisfactory performance in
accordance with the terms of one or more contracts; provided that failure to
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perform or unsatisfactory performance caused by acts beyond the control of
the contract shall not be considered to be a basis for debarment.
(e) any other cause the Purchasing Agent determines to be so serious and compelling
as to affect responsibility as a City contractor including debarment by another
governmental entity for any cause listed in this Policy; and
(fi� for violation of the ethical standards as set forth in Ethics in Public Contract, (See
Chapter 33, City of Bangor Ordinance).
6-102 Decision to Debar or Suspend.
The Purchasing Agent 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 involved
of its rights concerning judicial or administrative review.
6-103 Notice of Decision.
A copy of the decision required by Section 6-102 (Decision to Debar or Suspend) shall be
mailed or otherwise furnished immediately to the debarred or suspended person.
6-104 Finality of Decision.
A decision under Section 6-102 (Decision to Debar or Suspend) shall be final and
conclusive, unless fraudulent, or the debarred or suspended person within 10 days after receipt
of the decision takes an appeal to the Board of Appeals or commences a timely action in court in
accordance with applicable law,
6-105 Debarment and Suspension Requirements for FTA Funded Procurements.
Debarment and Suspension:
Debarment and suspension regulations and guidance include the following provisions.
DOT Debarment and Suspension Reaulations:
U.S. Department of Transportation (DOT) regulations, ��Nonprocurement Suspension and
Debarment," 2 CFR Part 1200 apply to each third party contract at any tier of $25,000 or
more, to each third party contract at any tier for a federally required audit (irrespective of
the contract amount), and to each third party contract at any tier that must be approved
by an FTA official irrespective of the contract amount. See, 2 CFR Part 1200. City of Bangor
shall apply DOT's debarment and suspension requirements to itself and each third party
contractor at every tier to the extent required by DOT's regulations that incorporate the
requirements of Office of Management and Budget (OMB), ��Guidelines to Agencies on
Government Wide Debarment and Suspension (Nonprocurement)," 2 CFR Part 180.
Svstem for Award Manaaement:
The System for Award Management (SAM) combines federal procurement systems and
the Catalog of Federal Domestic Assistance into one new system. SAM includes the
functionality from the following systems:
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• Central Contractor Registry (CCR)
• Federal Agency Registration (Fedreg)
• Online Representations and Certifications Application
• Excluded Parties List System (EPLS)
At its discretion, City of Bangor may collect a debarment and suspension certification from
the prospective third party contractor or include a clause in the third party contract
requiring disclosure. Additionally, it shall be the policy of City of Bangor to verify that the
prospective third party vendor is not listed as a debarred contractor on the SAM website
at SAM.gov. Documentation of SAM searches shall be retained in the permanent history
file associated with each procurement.
ARTICLE 7 - COST PRINCIPLES
7-101 Federal Cost Principles for FTA Funded Procurements.
Applicable provisions of 2 CFR Part 200.400 require project costs to conform to applicable
Federal cost principles for allowable costs. City of Bangor must follow the cost principles
outlined in Title 48 Chapter 1 Subchapter E Part 31. In general, costs must be necessary
and reasonable, allocable to the project, authorized or not prohibited by Federal law or
regulation, and must comply with Federal cost principles applicable to the recipient.
ARTICLE 8 - SUPPLY MANAGEMENT
(RESERVED)
ARTICLE 9 -APPEALS AND REMEDIES
9-101 Bid Protests.
(1) Right to Protest. 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 City Council.
Protesters are urged to seek resolution of their complaints initially with the Purchasing
Agent. A protest with respect to a request for bids or request for proposals/qualifications
shall be submitted in writing prior to the opening of bids or the closing date of proposals,
unless the aggrieved person did not know and should not have known of the facts giving
rise to such protest prior to bid opening or the closing date for proposals. The protest
shall be submitted within five (5) calendar days after such aggrieved person knows of the
facts giving rise thereto. The decision of the City Council is final.
(2) Stay of Procurements During Protests. In the event of a timely protest under Subsection
(1) of this Section, the Purchasing Agent shall not proceed further with the solicitation or
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award of the contract unless the City Council makes a written determination that the
award of a contract without delay is necessary to protect substantial interests of the City.
(3) Entitlement to Costs. In addition to any other relief, when a protest is sustained and the
protesting bidder or offeror should have been awarded the contract under the solicitation
but is not, then the protesting bidder or offeror shall be entitled to the reasonable costs
incurred in connection with the solicitation, including bid preparation costs other than
attorney's fees.
(4) Protest Procedures for FTA Funded Procurements:
(a) Statement of Policv
City of Bangor is responsible for resolving all contractual and administrative issues,
including protests of evaluations and contract awards, arising out of its third party
procurements using good administrative practices and sound business judgment.
In general, FTA will not substitute its judgment for that of City of Bangor unless
the matter is primarily a Federal concern. Nevertheless, FTA can becomeinvolved
in City of Bangor administrative decisions when a City of Bangor protest decision
is appealed to FTA.
City of Bangor shall give timely notification to FTA when it receives a third party
procurement protest and will keep FTA informed about the status of any such
protest. City of Bangor shall disclose all information about any third party
procurement protest to FTA upon request.
City of Bangor shall insert its protest procedure in all solicitation documents for
products and services having an estimated value of $250,000 or greater.
(b) City of Banaor Staff Responsibilities
The following staff responsibilities shall be assigned in all protests:
• Director of Finance — Responsibilities include: ensuring that the City of Bangor
Protest Procedure is included in all solicitation documents; and providing
information to and assisting Legal Counsel with the resolution of protests.
• Legal Counsel — Responsibilities include: reviewing all procurement protests;
and advising and assisting the City of Bangor as needed with the resolutionof
all procurement protests.
(c) Solicitation Provision
City of Bangor shall insert the following provision in all solicitation documents:
• Pre-Proposal Protests
All protests concerning solicitation specifications, criteria and/or procedures
shall be submitted in writing (defined as being sent or received via letter or
facsimile on official firm/agency letterhead or by electronic mail)to the Director
of Finance as specified below not later than ten (10) business days prior to the
deadline for submission of bids/proposals.
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The Director of Finance may, within his or her discretion, postpone the deadline
for submission of bids/proposals, but in any case, shall provide a written
response to all protests not later than five (5) business days prior to the
deadline for submission of bids/proposals. If the deadline for submission of
bids/proposals is postponed by the Director of Finance as the result of a protest
the postponement will be announced through an addendum to the solicitation.
The decision by the Director of Finance shall be the final agency decision on
the matter but shall be subject to judicial review as set forth by FTA below.
• Pre-Award Protests
With respect to protests made after the deadline for submission of
bids/proposals but before contract award by «Dba_Name», protests shall be
limited to those protests alleging a violation of Federal or State law, a challenge
to the bids/proposals evaluation and award process, «Dba_Name»'s failure to
have or follow its protest procedures or its failure to review a complaint or
protest. Such protests shall be submitted in writing (defined as being sent or
received via letter or facsimile on official firm/agency letterhead or by
electronic mail)to the Director of Finance as specified below not later than five
(5) business days after the Recommendation for Contract Award
announcement by City of Bangor.
The Director of Finance may, within his or her discretion, postpone the award
of the contract, but in any case, shall provide a written response to all protests
not later than three (3) business days prior to the date that City of Bangor shall
announce the contract award.
The decision by the Director of Finance shall be the final agency decision on
the matter but shall be subject to judicial review as set forth or review byFTA
as specified below.
(d) Requirements for Protests
All protests must be submitted to City of Bangor in writing (defined as being sent
or received via letter or facsimile on official firm/agency letterhead or by electronic
mail), with sufficient documentation, evidence and legal authority to demonstrate
that the Protestor is entitled to the relief requested. The protest must be certified
as being true and correct to the best knowledge and information of the Protestor,
and be signed by the Protestor. The protest must also include a mailing address
to which a response should be sent.
Protests received after the deadlines for receipt of protests specified above are
subject to denial without any requirement for review or action by City of Bangor.
All protests must be directed in writing (defined as being sent or received via letter
or facsimile on official firm/agency letterhead or by electronic mail) to the Director
of Finance at the address shown in the solicitation documents.
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(e) Protest Response
The Director of Finance shall issue written responses to all protests received by
the required protest response dates. All protest responses shall be transmitted by
first-class U.S. Postal Service to the address indicated in the protest letter.
For convenience, City of Bangor will also send a copy of the response to a protest
to the Protester by facsimile and/or electronic mail if a facsimile number and/or
electronic mail address are indicated in the protest letter. The protest response
transmitted by U.S. Postal Service shall be the official City of Bangor response to
the protest and City of Bangor will not be responsible for the failure of the Protester
to receive the protest response by either facsimile or electronic mail.
(fi� Review of Protests by FTA
All protests involving contracts financed with Federal assistance shall bedisclosed
to FTA. Protesters shall exhaust all administrative remedies with City of Bangor
prior to pursuing protests with FTA. FTA limits its reviews of protests to: a grantee's
failure to have or follow its protest procedures; a grantee's failure to review a
complaint or protest when presented an opportunity to do so; or violations of
Federal law or regulation. Appeals to FTA must be received within five (5) working
days of the date the Protester has received actual or constructive notice of City of
Bangor final decision or within five (5) working days of the date the Protester has
identified other grounds for appeal to FTA.
ARTICLE 10 - COOPERATIVE PURCHASING
10-101 Authority to Join Groups.
(1) The Purchasing Agent shall have the authority to join cooperative purchasing groups or
other units of government in order to purchase goods or services when such action is
deemed in the best interest of the City. Authorization and award of purchases made under
cooperative purchasing arrangements shall be in accordance with the award requirements
cited in Article 3, Source Selection and Contract Formation.
(2) Piggybacking requirements for FTA funded procurements:
Assignment of Contract Rights (��Piggybacking") — If a recipient of FTA assistance finds
that it has inadvertently acquired contract rights in excess of its needs, it may assign those
contract rights to City of Bangor if the original contract contains an assignability provision
that permits the assignment of all or a portion of the specified deliverables under the
terms originally advertised, competed, evaluated, and awarded, or contains other
appropriate assignment provisions. City of Bangor may use contractual rights through
assignment from another recipient of FTA assistance after first determining the contract
price remains fair and reasonable, and the contract provisions are adequate for
compliance with all Federal requirements. City of Bangor need not perform a second price
analysis if a price analysis was performed for the original contract; however, City of Bangor
must determine whether the contract price or prices originally established are still fair and
reasonable before using those rights. City of Bangor shall be responsible for ensuringthe
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contractor's compliance with FTA's Buy America requirements and execution of all the
required pre-award and post-delivery Buy America review certifications. Before proceeding
with the assignment, however, City of Bangor shall review the original contract toensure
that the quantities the assigning recipient acquired, coupled with the quantities that City
of Bangor would acquire, do not exceed the amounts available under the assigning
recipient's contract and that the required FTA clauses are included.
ARTICLE 11 -ASSISTANCE TO DISADVANTAGED BUSINESS ENTERPRISE PROGRAM
(1) Disadvantaged Business Enterprises (DBE) FTA Requirements:
City of Bangor must comply with applicable Federal laws and regulations that provide
competitive opportunities for a contractor that qualifies as a disadvantaged business
enterprise (DBE), minority owned firm, women's business enterprise, or small business.
FTA desires to make available at least 10 percent of its funding under that Act for contracts
with small business concerns owned and controlled by socially and economically
disadvantaged people. City of Bangor assists FTA in meeting this national goal. To receive
FTA assistance, City of Bangor must comply with applicable requirements of DOT
regulations, ��Participation by Disadvantaged Business Enterprises in Department of
Transportation Financial Assistance Programs,"49 CFR Part 26.
Small and Minority Firms and Women's Business Enterprises
FTA Circular 4220.iF, Chapter IV, Section 2a(6)(b) requires City of Bangor and its
subrecipients (if any) to take steps to ensure that it uses small and minority firms and
women's business enterprises (irrespective of whether they qualify as DBEs) to the fullest
extent practicable,
(a) Notice —City of Bangor shall make information available to potentially qualified firms
about procurement opportunities. City of Bangor shall include these contractors on
solicitation lists and request their participation when they are potential sources.
(b) Contract Size—To foster greater participation of small and minority firms and women's
business enterprises, City of Bangor may divide total requirements into smaller tasks
or quantities, when economically feasible.
(c) Delivery Schedule—City of Bangor may specify delivery schedules that encourage their
participation.
(d) Small Business Administration and the Department of Commerce Minority Business
Development Aaency — City of Bangor may use the services and assistance of the
Small Business Administration and the Department of Commerce's Minority Business
Development Agency.
(e) Subcontractina Opportunities — City of Bangor may require its prime third party
contractors to include the preceding provisions in FTA assisted subcontracts.
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(fi� Prompt Payment-City of Bangor requires prime contractors to pay subcontractors for
satisfactory performance of their contracts no later than 30 days from receipt ofeach
payment you make to the prime contractor.
City of Bangor ensures prompt and full payment of retainage from the prime contractor
to the subcontractor within 30 days after the subcontractor's work is satisfactorily
completed.
ARTICLE 12 - ETHICS IN PUBLIC CONTRACTING
(See also Chapter 33, City of Bangor Ordinance)
Conflicts of Interest for FTA Funded Procurements:
Organizational conflicts of interest may result in bias and potentially provide an unfair competitive
advantage to a potential offer or. An organizational conflict of interest occurs due to the type of
work to be performed under a third party contract, or because of other activities or relationships
such as:
• A contractor is unable, or potentially unable, to render impartial assistance or advice to
the City of Bangor.
• A contractor's objectivity in performing contract work is or might otherwise be impaired;
or
• A contractor has an unfair competitive advantage.
Bias arises when a contractor is placed in a situation where there may be an incentive to distort
advice or decisions. Whenever a contract is awarded that involves the rendering of advice, the
question must always be asked as to whether the potential for a conflict of interest exists for the
contractor rendering the advice. City of Bangor will utilize a "Conflict of Interest Disclosure
Statement," in its solicitation when contracting for services of this nature.
ARTICLE 13 - COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM
13-101 General Provisions
(1) When procuring goods or services using Community Development Block Grant
funding,the City and its subrecipients, must follow federal procurement rules when
purchasing services, supplies, materials, or equipment.
(2) The City must adhere to federal procurement requirements found in 24 CFR Part
85 and as amended. Subrecipients must adhere to federal procurement
requirements found in 2 CFR Part 215.44, as implemented through 24 CFR Part 84
and as amended.
(3) Subrecipients are those entities and individuals receiving loans or grants to fulfill
a CDBG national objective using CDBG funding and/or matching funds.
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Subrecipients include, but are not limited to, businesses, nonprofit organizations,
housing developers and single family home owners. Sub recipients are not
required to receive the City's authorization to award contracts using CDBG funding
so long as these procurement policies are adhered to and documented.
(4) There are four categories of procurement pertaining to CDBG funding:
(a) Small purchase procedures,
(b) Sealed bids,
(c) Competitive proposals and
(d) Non-competitive proposals.
13-102 Small Purchase Procedures
This category may be used for goods and services totaling no more than $250,000. The
Director of Community & Economic Development, or his/her designee, has authority to award
contracts within this category.
(1) .
(2) Non Housing Rehabilitation - Under the small purchases method, a request for
quotes may be sent to a reasonable number of potential vendors with a detailed
description of the goods or services needed. Once three or more competitive
written quotations are received from qualified sources, a contract may be awarded
to the lowest responsive and responsible source.
(3) Housing Rehabilitation — Under the small purchases method, a request for quotes
shall be sent to a reasonable number of pre-qualified vendors with a detailed
description of the goods or services needed. Once three or more competitive
written quotations are received from qualified sources, a contract may be awarded
to the lowest responsive and responsible source.
13-103 Sealed Bids
(1) This category may be used for construction contracts and goods totaling over
$250,000. The City Council must approve all contracts within this category.
(2) Competitive and publicly solicited sealed bids are required for this category. A
firm-fixed-price lump sum or unit price contract shall be awarded to the responsible
bidder whose bid, conforming with all the material terms and conditions of the
invitation for bids, is lowest in price. A minimum of two bidders is required.
(3) The invitation for bids must be publicly advertised in a newspaper of general
circulation and a minimum of two bids must be received in order to award the
contract. All bids must be opened publicly at the time and place stated in the
invitation for bids. The public is allowed at that time to review the bids. All bids
may be rejected when sound documented reasons exist.
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13-104 Competitive Proposals
(1) Competitive proposals are used to purchase professional services where the total
cost will exceed $250,000. The Director of Community & Economic Development,
or his/her designee, has authority to award contracts within this category.
(2) Bids may be solicited under this category using two methods:
(a) A request for proposals
(b) A request for qualifications for architect and engineering services.
(3) The invitation for bids must be publicly advertised in a newspaper of general
circulation and a minimum of two bids/qualifications must be received in order to
award the contract.
13-105 Non-Competitive Proposals
(1) Non-competitive procurement may be used only when the award of a contract is
infeasible under small purchase procedures, sealed bids, or competitive proposals
and one of the following circumstances applies:
(a) Where the item is available only from a single source;
(b) Where a public emergency or urgent situation is such that the
urgency will not permit a delay beyond the time needed to employ one or
the other procurement methods;
(c) Where after solicitation of a number of sources, competition is
determined inadequate.
Any contract in excess of $250,000 must be awarded by the City Council.
Contracts under $250,000 may be awarded by the Director of Community &
Economic Development, or his/her designee.
13-106 Ineligible Beneficiaries
(1) No member of the Bangor City Council, nor any other public official, officer,
employee or agent of the City, shall have any personal or pecuniary interest,
direct or indirect, in this agreement or the proceeds thereof.
(2) No member or delegate to the Congress of the United States, nor any Resident
Commissioner, shall be permitted any share or part of the proceeds of this
Agreement or any benefit that may arise herefrom.
Article 14 - BUY AMERICA REQUIREMENTS
14-101 Buy America Requirements for FTA Funded Procurements.
(1) Preference for U.S. Property--Buy America
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FTA's��Buy America"regulations apply to procurements in excess of $150,000 that
involve the purchase of iron, steel, manufactured goods, or rolling stock to be
delivered to City of Bangor under the third party contract for incorporation into the
FTA project.
(2) Any construction contract exceeding $150,000 entered into by City of Bangor with
FTA assistance shall include provisions that require the third party contractor to
provide property produced or manufactured in the United States for use in the
construction project that the recipient acquires, unless FTA has granted a waiver
authorized by those regulations. FTA cautions that its Buy America regulations are
complex and different from the Federal ��Buy American Act" regulations in FAR
Subparts 25.1 and 25.2.
(3) Property that the contractor acquires to perform its construction activities for the
recipient, such as tools, machinery, and other equipment or facilities, is not
covered by FTA's Buy America requirements unless the recipient intends to take
possession of that property upon completion of the project. Thus, if a third party
contractor is acquiring property for its general inventory of equipment or facilities
to conduct its overall business affairs, City of Bangor may enter the cost of that
acquisition into its calculations of overhead amounts applicable to the FTA assisted
project irrespective of whether that property would comply with FTA's Buy America
regulations.
Page 45 of 45
IN CITY COUNCIL
AUGUST 28, 2023
CO 23-256
Passed
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CITY CLERK