HomeMy WebLinkAbout2011-10-24 11-313 ORDER COUNCIL ACTION
Item No, 11 312
Date: October 24, 2011
Item/Subject: Order, Amending the City of Bangor Procurement Policy
Responsible Department: Finance
Commentary:
Over the last several weeks, the Finance Committee has been reviewing the City's Procurement
Policy. Attached is an amended version of the City's current policy for Council consideration. Many
of the changes proposed are minor in nature but are reflective of the City's current practices and
Charter language. More substantive changes proposed address specific areas of Council concern
including low bid, local vendors and appeals process language.
The amended policy removes reference to awarding contracts to the lowest responsible and
responsive bidder. The proposed language refers to awarding contracts to the bidder whose bid
best meets the established criteria identified in the request. Within the existing policy the only
reference to local vendors was in the case of a tie bid. The attached amendment removes all
references to local vendor from the policy. As it is difficult at best to define what a local vendor truly
is i.e. taxpayer, physical location, ownership, etc. As a result of these two changes, the City has
greater flexibility in awarding bids on a case by case basis.
Lastly, the amended policy would assign responsibility to hear bid protests to the City Council as a
whole, regardless of the value of the contract. This level of appeal would represent the one and
only opportunity to appeal a bid award at the City level. If the bidder was not satisfied at this point,
they would have to take legal action.
Both Committee and staff members had indicated a desire to review the City's procurement policy in
its entirety. The attached is the culmination of these efforts, which the Finance Committee
unanimously recommends for Council approval.
Department Head
Manager's Comments: n
OS& , (ibtOtS/
City Manager
Associated Information: Order
Budget Approval:
Finance Director
Legal Approval:
City Solicitor
Introduced for
X Passage
First Reading Page _ of_
Referral
11 313
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rAssigned to Councilor — Bronson October 24, 2011
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(TITLE.) Order, Amending the City of Bangor Procurement Policy
By the City Council of the City of Bangor.
ORDERED, THAT the attached Procurement Policy hereby adopted and shall supersede
all previous versions in their entirety.
IN CITY COUNCIL •
October 24, 2011
Passed
FAd d - 2 "J # 1 1-313
CITY ' ' * i♦ •
1
ORDER
• (TITLE,) Amending the City of Bangor
Procurement Policy
•
►�
Assigned to Councilor ole L _
x 31 3
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 (CO11-110)
TABLE OF CONTENTS
Pagc I of 26
. 3.1. 3
ARTICLE 1 - GENERAL PROVISION
Part A- Purpose and Application
1-101 Purpose 9
1-102 Application 9
Part B - Definitions
1-201 Definitions
( 1) Architect, Engineer and Land Surveying Services 7
( 2) Brand Name or Equal Specification 7
( 3) Brand Name Specification 7
( 4) Business 7
( 5) Change Order 7
( 6) Contract Modification 7
( 7) Construction 7
( 8) Contract 8
( 9) Contractor 8
(10) Cost Analysis 8
(11) Employee 8
(12) Financial Interest 8
(13) Person(s) 8
(14) Price Analysis 8
(15) Pricing Data 8
(16) Procurement 8
(17) Request for Bids 9
(18) Request for Proposals/Qualifications 9
(19) Responsible Bidder or Offeror 9
(20) Responsive Bidder 9
(21) Services 9
(22) Specification(s) 9
(23) Supplies 9
Part C- Public Access to Procurement Information
1-301 Public Access to Procurement Information 9
1-302 Authorization for the Use of Electronic Transmissions 9
ARTICLE 2 - OFFICE OF THE PURCHASING AGENT
2-101 Establishment, Appointment, and Tenure 10
(1) Establishment of the Position of Purchasing Agent 10
(2) Appointment 10
(3) Tenure 10
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11 313
2-102 Authority and Duties 10
(1) Principal Public Purchasing Official 10
(2) Authority 10
(3) Duties 10
(3) Operational Procedures 10
2-103 Delegations to other (City) Officials 11
ARTICLE 3 - SOURCE SELECTION AND CONTRACT FORMATION
Part A - Methods of.Source Selection
3-101 Competitive Sealed Bidding 11
(1) Conditions for Use 11
(2) Request for Bids 11
(3) Public Notice 11
(4) Bid Opening 11
(5) Bid Acceptance and Bid Evaluation 11
(6) Correction or Withdrawal of Bids,
Cancellation of Awards 12
(7) Award 12
(8) Multi-Step Sealed Bidding 12
3-102 Request for Proposals/Qualifications 12
(1) Conditions for Use 12
(2) Public Notice 12
(3) Evaluation Factors 13
(4) Discussion with Responsible Offerors and
Revisions to Proposals/Qualifications 13
(5) Award 13
3-103 Contracting for Designated Professional Services 13
(Other than Architect, Engineer & Land Surveying Services)
(1) Procurement of Services 13
3-104 Purchases 13
(1) General 13
(2) Purchases ($1,000 - <$5,000) 13
(3) Purchases ($500 - <$1,000) 13
(4) Purchases Under (up to$500) 14
3-105 Sole Source Procurement 14
3-106 Emergency Procurements 14
3-107 Tie Bids 14
Page 3 of 26
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3-108 Cancellation of Invitations for Bids or Request
for Proposals/Qualifications 14
Part B - Qualifications and Duties
3-201 Responsibility of Bidders and Offerors 15
(1) Determination of Nonresponsibility 15
3-202 Cost or Price Analysis 15
3-203 Bid and Performance Bonds on Service Contracts 15
3-204 Insurance on Supply or Service Contracts 15
Part C -Types of Contracts and Contract Administration
3-301 Types of Contracts 15
(1) General Authority 15
(2) Multi-Term Contracts 16
(3) Multiple Source Contracting 16
3-302 Contract Clauses and Their Administration 17
(1) Contract Clauses 17
(2) Price Adjustments 18
(3) Standard Clauses and Their Modification 18
3-303 Change Orders 19
(1) Requested Submission Relating to Change Orders
or Contract Modifications 19
3-304 Contract Administration 19
3-305 Right to Audit Records 19
(1) Audit of Cost or Pricing Data 19
(2) Contract Audit 19
3-306 Reporting of Anticompetitive Practices 19
3-307 City Procurement Records
(1) Contract File 19
(2) Retention of Procurement Records 19
ARTICLE 4— SPECIFICATIONS
4-101 Maximum Practicable Competition 20
4-102 Brand Name or Equal Specification 20
(1) Use 20
Pagc 4 of 26
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(2) Designation of Several Brand Names 20
(3) Required Characteristics 20
(4) Nonrestrictive Use of Brand Name or Equal
Specification 20
4-103 Brand Name Specification 21
(1) Use 21
(2) Competition 21 .
ARTICLE 5 - PROCUREMENT OF CONSTRUCTION,
ARCHITECT, ENGINEER AND LAND SURVEYING SERVICES
Part A - Management of Construction Contracting
5-101 Responsibility for Selection of Methods of
Construction Contracting Management 21
Part B - Bid Security and Performance Bonds
5-201 Bid Security 21
(1) Requirement for Bid Security 21
(2) Amount of Bid Security 21
(3) Rejection of Bids for Noncompliance with
Bid Security Requirement 21
(4) Withdrawal of Bids 21
5-202 Contract Performance and Payment Bonds 22
(1) When Required and Amounts 22
(2) Authority to Require Additional Bonds 22
(3) Suits on Payment Bonds - Right to Institute 22
(4) Suits on Payment Bonds - Where and When Brought 22
(5) City of Bangor Subrogation Rights 22
5-203 Copies of Bond Forms 23
5-204 Insurance Requirements 23
Part C- Fiscal Responsibility
5-301 Contract Changes and Approval Process 23
5-302 Fiscal Responsibility 23
ARTICLE 6 - DEBARMENT OR SUSPENSION
6-101 Authority to Debar or Suspend 23
Page 5 of 26
11. 3 + 3
6-102 Decision to Debar or Suspend 24
6-103 Notice of Decision 24
6-104 Finality of Decision 25
ARTICLE 7 - COST PRINCIPLES
(RESERVED)
ARTICLE 8 - SUPPLY MANAGEMENT
(RESERVED)
ARTICLE 9 - APPEALS AND REMEDIES
9-101 Bid Protest 25
(1) Right to Protest 25
(2) Stay of Procurements During Protests 25
(3) Entitlement to Costs 25
ARTICLE 10 - COOPERATIVE PURCHASING
10-101 Authority to Join Groups 25
ARTICLE 11 -ASSISTANCE TO AND DISADVANTAGED BUSINESS PROGRAM
(RESERVED)
ARTICLE 12 - ETHICS IN PUBLIC CONTRACTING
Chapter 33, City of Bangor Ordinance)
Page 6 of 26
1 Al i
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 integrity.
1-102 Application.
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, 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.
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.
(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.
Page 7 of 26
1. i .`313
(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.
(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) Financial Interest.
(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.
(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 relevant
to 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.
Page 8 of 26
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(17) Request for 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
for delivery.
(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.
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
consistant with the City's applicable statory, 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 retrival or conversion of electronic forms of such information into a
medium which permits inspection and copying.
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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 $50,000 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
(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.
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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 consistant with
purchasing guidelines must be available for all such purchases. Purchases of used vehicles or
equipment in excess of$10,000 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).
(2) Request for Bids. A request for bids shall include specifications, and all contractual terms
and conditions applicable to the procurement.
(3) 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.
(4) 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).
(5) 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.
Page I I of 26
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(6) 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 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.
(7) 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.
(8) 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) 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).
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(3) 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.
(4) 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.
(5) 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 Purchases.
(1) General. Any contract costing less than $10,000 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 $2,000 but less than $10,000. 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 $500 but less than $2,000. The Purchasing Agent shall adopt
operational procedures for making purchases of $500 - $2,000. 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.
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(4) Purchases costing up to $500. Purchases of up to $500 may use a single selection, after
contact, based on reasonable price, stock availability and delivery requirements.
3-105 Sole Source Procurement.
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 repective
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.
3-106 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.
3-107 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.
3-108 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.
Page 14 of 26
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 nonresponsiblity 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.
3-202 Cost or Price Analysis.
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). A
written record of such cost analysis or price analysis shall be made a part of the contract file.
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
asubstitute 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.
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.
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(2) 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.
(3) 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:
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(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;
(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;
(f) 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:
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(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) 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).
(3) 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.
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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.
3-304 Contract Administration.
Each department shall insure 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.
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
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.
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NOTE: Records as to awarded contracts should be retained for at least six (6) years
following final performance thereunder. Statue 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 induding but not
limited to, those prepared for the City by architects, engineers, designers, and draftsmen.
4-102 Brand Name or Equal Specification.
(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 Spedfications. 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.
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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
5-101 Responsibility for Selection of Methods of Construction Contracting Management.
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.
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 $50,000. 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 $50,000 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
security.
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5-202 Contract Performance and Payment Bonds.
(1) When Required and Amounts. When a construction contract is awarded in excess of
$50,000, 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,
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.
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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 fade 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 $400,000 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
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 the
requested 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
$100,000 under a construction contract with the City shall be subject to prior approval by the
aty 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.
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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 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
(f) 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.
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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.
ARTICLE 7 - COST PRINCIPLES
(RESERVED)
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
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.
ARTICLE 10 - COOPERATIVE PURCHASING
10-101 Authority to Join Groups.
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.
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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.
ARTICLE 11 - ASSISTANCE TO DISADVANTAGED BUSINESS ENTERPRISE PROGRAM
(RESERVED)
ARTICLE 12 - ETHICS IN PUBLIC CONTRACTING
(Chapter 33, City of Bangor Ordinance)
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