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Ordinance 2017-08 ORDINANCE NO.2017-08 AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, AMENDING ORDINANCE NO. 2013-69, AS AMENDED, KNOWN AS THE COLLIER COUNTY PROCUREMENT ORDINANCE, IN ORDER TO ADD PROCUREMENT METHODS, ESTABLISH EXEMPT PROCUREMENT CATEGORIES, AND TO UPDATE AND CLARIFY OTHER PROVISIONS OF THE ORDINANCE; PROVIDING FOR CONFLICT AND SEVERABILITY; PROVIDING FOR INCLUSION INTO THE CODE OF LAWS AND ORDINANCES; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Board of County Commissioners (the Board) desires to seek the maximum value for the County by procuring the best value in obtaining commodities and contractual services; and WHEREAS, to better effectuate this desire, on December 10, 2013, the Board adopted Ordinance No.2013-69,known as the Collier County Purchasing Ordinance;and WHEREAS, the Board subsequently amended Ordinance No. 2013-69 through its adoption of Ordinance No, 2015-37, Ordinance No. 2015-51, Ordinance No. 2016-11, and Ordinance No. 2016-19; and WHEREAS,the Board seeks additional revisions to Ordinance No. 2013-69,as amended, to increase efficiency and ease of administration, NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that Ordinance No. 2013-69, as amended,is further amended as follows: SECTION ONE: Title and Citation. This Ordinance shall be known and may be cited as the "Collier County Procurement Ordinance" or"Procurement Ordinance." SECTION TWO: Purpose. The purpose of this Procurement Ordinance is to codify and formalize Collier County's Procurement Policy, to provide for the fair and equitable treatment of all persons involved in public purchasing by the County, to maximize the purchasing value of public funds in procurement, and to provide safeguards for maintaining a procurement system of quality and integrity. Any provision of this Ordinance in conflict with statute is null and void as to the conflict. SECTION THREE: Applicability and Approved Thresholds. 1. This Procurement Ordinance applies to the procurement of goods and services by the County after the effective date of this Procurement Ordinance. This Procurement Ordinance shall apply to all expenditures of public funds by the Board of County Commissioners for public purchasing, irrespective of the source of the funds. Nothing in this section shall prevent the County from complying with the terms and conditions of any grant, gift or bequest that is otherwise consistent with law. 2. Nothing contained herein shall be construed as requiring Collier County's Constitutional Officers (Clerk of the Circuit Court, Property Appraiser, Sheriff, Supervisor of Elections, and Tax Collector), Court Administration, State Attorney, Public Defender or the Collier County Metropolitan Planning Organization non-county funds to be covered by the provisions of this Procurement Ordinance. However, .the services of the Collier County Procurement Services Division Procurement Services Director may be made available for consultation. 3. The Board of County Commissioners shall execute formal contracts in excess of $50,000 having a binding effect upon the County, to include revenue generating contracts, and hereby delegates to the County Manager or designees, the authority to approve contracts or agreements and amendments, extensions, and renewals of such contracts or agreements, including change orders, work orders and other ancillary documents, providing the total amount of County expenditure for any such contract or agreement does not exceed $50,000 unless otherwise specified by action of the Board of County Commissioners. 2 The $50,000 limitation set forth above shall be determined by the following: a. the per fiscal year dollar total expenditure for term contracts, b. the per fiscal year dollar expenditure for fixed-fee agreements, c. the per fiscal year dollar expenditure for lease agreements, d. the total dollar expenditure included in the contract for lump-sum or specific project agreements. 4. Following formal action taken by the Board of County Commissioners on purchases greater than the formal competitive threshold, the Board delegates to the County Manager or designee the authority to carry out the administrative and ministerial actions necessary to effectuate the Board's action, including but not limited to the subsequent issuance of Work or Purchase Orders. SECTION FOUR: Definitions. Agency shall mean all departments, divisions, units and offices under the Board of County Commissioners, including the Collier County Redevelopment Agencies, the Collier County Airport Authority, Collier County Water Sewer District and all departments under the auspices of the County Manager. Also included are those elected or appointed officials that agree to utilize procurement services provided by the Collier County Board of County Commissioners. Change Order shall mean a written order by a project manager, approved by the Procurement Services Director and the Board of County Commissioners, directing the contractor to change a contract's amount, requirements, or time. All changes must be within the original scope of the contract and in accordance with the Board approved contract's changes clause or, if no such clause is set forth within the agreement, in accordance with this Procurement Ordinance. Consultant/Contractor/Supplier/Vendor shall mean a provider of goods or services to the County agency. These terms may be used interchangeably. Continuing Contract shall mean a contract for professional services as defined under Florida Statute 287.055. 3 County Manager shall mean the County Manager or County Administrator of Collier County, or designee, as defined in the County Administration Law of 1974, F.S. ch. 125,pt. III. Extension shall mean an increase in the time allowed for the contract period due to circumstances which make performance impracticable or impossible, or which prevent a new contract from being executed. An extension must be in writing, and may not change the contract's amount or requirements unless provided for in the original solicitation, contract, or as otherwise stated in this Ordinance. Fixed Term Contract is a type of contract in which a source of supply is established for a specific period of time for specified services or supplies; usually characterized by an estimated or definite minimum quantity, with the possibility of additional requirements beyond the minimum, all at a predetermined unit price. Fixed-Fee Agreement is a contract providing for a firm price, or a price that may be adjusted only in accordance with contract clauses providing for revisions of the contract price under stated circumstances. Lease Agreement is a contract outlining the terms in which one party agrees to rent property owned by another party, which may include real estate or personal property for a specified amount of time. Lump Sum or Specific Project Agreement is a contract where a firm fixed total price is offered by the vendor for the completion of a project; typically this is done through a competitive process and where the final invoicing will require no cost breakdown. Minority business enterprise or any other designation assigned by the Office of Supplier Diversity shall mean a firm or individual whom satisfies the registration requirements of that agency and/or satisfies the requirements outlined in Florida Statute Chapter 287.0943(2)(e), Chapter 295.187,Chapter 60A-9,Florida Administrative Code. Purchase Order shall mean a form of contract which encumbers appropriated funds and which is directed to a single vendor to furnish or deliver commodities or services to the County. 4 Purchasing Card shall mean a credit card officially assigned to specific employees under the purview of the Board of County Commissioners for the purpose of transacting small and/or strategic purchases. Responsible Bidder/Proposer shall mean a vendor who has the financial and technical capacity to perform the requirements of the solicitation and subsequent contract. Responsive Bidder/Proposer shall mean a vendor who has submitted a bid or proposal that fully conforms in all material respects to the solicitation and all of its requirements, including form and substance. Single source refers to a procurement directed to one source because of standardization, warranty, or other factors,even though other competitive sources may be available. Sole source refers to a procurement where the selection of one particular supplier to the exclusion of all others may be based on a lack of competition, proprietary technology, copyright, warranty or a supplier's unique capability. Work Order/Work Assignment is a contract instrument issued under the terms and conditions of an approved continuing or fixed fee agreement, which authorizes a contractor or consultant to perform a specific task within the broader scope of the master agreement. Nothing in the work order shall conflict with the terms and conditions of the fixed fee contract, and all work done must fall within the scope and term of the underlying agreement. SECTION FIVE; Establishment of Procurement Services Division and Procurement Services Director. 1. There is hereby established the Collier County Procurement Services Division, which shall be a distinct administrative department under the direction of the County Manager. a. The Procurement Services Director of the Procurement Services Division shall have the authority to negotiate all purchases for all Agencies. Except as required by State, Federal or Local Law. In keeping with F.S. ch. 125, this Procurement Ordinance grants to the Procurement Services Director only those powers and duties which are administrative and ministerial in 5 nature and does not delegate any governmental power imbued in the Board of County Commissioners as the governing body of the County pursuant to Fla. Const. Art. VIII, § 1(e). The Procurement Services Director may delegate to one or more Procurement Services Division employees any and all aspects of the authority vested in the Procurement Services Director by the County Manager. Except as otherwise specified by law, this Article shall apply to every procurement under the authority of the Collier County Board of County Commissioners and to elected or appointed officials (Clerk of the Circuit Court, County Attorney, Property Appraiser, Sheriff, Supervisor of Elections, Tax Collector and Collier County M.P.O.) who choose to utilize procurement services provided by the Collier County Board of County Commissioners. b. Notwithstanding any other provision of the Procurement Ordinance, the Procurement Services Director is authorized to issue purchase orders at the written request of elected or appointed officials. c. Nothing in this article shall limit the Collier County Board of County Commissioners' right to waive any provisions contained herein when the Collier County Board of County Commissioners shall deem it in the best interest of the County. SECTION SIX: Duties of Procurement Services Division. Within the constructs of this Ordinance, the Procurement Services Division shall be responsible for: 1. Seeking Maximum Value: Acting to procure for the County the highest quality commodities and contractual services at least expense to the County. 2. Encouraging competition: Endeavoring to obtain as full and open competition as possible on all purchases, services and sales. 6 3. Procurement Analysis: Keeping informed of current developments in the field of purchasing,prices, market conditions and new products, and securing for the County the benefits of research conducted in the field of purchasing by other governmental jurisdictions, national technical societies, trade associations having national recognition, and by private business and organizations. 4. Procurement Manual: Preparing and recommending for adoption by the County Manager a Procurement Manual for the implementation of this Procurement Ordinance. The Procurement Manual shall be maintained and published on-line for the benefit of the public. 5. Division Systems, Procedures and Standards: The adoption of systems, procedures, forms, standards, reporting and evaluation tools related to: (i) the effective development, negotiation and administration of County contracts, and (ii) the evaluation of performance of contractors, suppliers and vendors doing business with Collier County. 6. Non-Contract Purchases: Reviewing non-contract purchases under$50,000.00, as defined in SECTION THREE, to determine if an aggregated contract approach may provide value and offer pricing advantages to the County. 7. Tax Exemption: Procuring items for the County to exercise its tax exemption status when eligible. 8. Inquiry and Control: Full authority to: a. Question the quality, quantity, and kinds of items requisitioned in order that the best interests of the County are served; b. Ensure the timely,proper and orderly acquisition of services to the various operating divisions; c. Ensure purchases are consistent with the Procurement Ordinance; d. Determine if specific purchases should be approved by the Board prior to the purchase. 7 e. Determine work assignment rotation schemes when multiple contracts are awarded for the same service. 9. Records of Procurement activity shall be maintained in compliance with the Chapter 119, Florida Statutes,"Public Records." SECTION SEVEN: Ethical Standards. 1. Every employee, elected or appointed official of Collier County has the responsibility to maintain the confidence of the citizens of Collier County by conducting the procurement process in an ethical, fair and transparent manner. Collier County employees shall act in good faith to discharge their duties and avoid either the intent or appearance of unethical practices in procurement relationships,actions and communications. 2. Any attempt by Collier County employees, elected or appointed official of Collier County to realize personal gain from the procurement process is a breach of public trust. All County employees shall govern themselves in accordance with the Standards of Conduct as set forth in applicable Collier County Government Regulations,to include the Collier County Ethics Ordinance No. 2003-53 as amended, County Manager Administrative Procedures (CMA) Code of Ethics, and F.S. ch. 112. 3. Collier County requires each vendor who seeks to do business with Collier County to comply with the following ethical standards: a. No vendor shall discuss or consult with other vendors intending to compete for the same or similar contract for the purpose of bid rigging, collusion or other activities that are illegal, unethical or limiting competition. b. No vendor shall submit false information or intentionally submit misleading information to Collier County. 8 c. After the issuance of any solicitation, no current or prospective vendor or any person acting on their behalf, shall contact, communicate with or discuss any matter relating to the solicitation with any Collier County employee or elected or appointed official, other than the Procurement Services Director or his/her designees. This prohibition ends upon execution of the final contract or upon cancellation of the solicitation. Any current or prospective vendor that lobbies any Collier County employee or elected or appointed official while a solicitation is open or being recommended for award (i) may be deemed ineligible for award of that solicitation by the Procurement Services Director, and (ii) will be subject to Suspension and Debarment outlined in SECTION TWENTY- EIGHT. 4. Failure to comply with this Section shall be deemed a violation of ethical standards subject to administrative actions and may be subject to civil, and/or criminal penalties for ethical violations as described below: a. Employees who violate the ethics standards described in this section shall be subject to administrative disciplinary action, following Collier County Government Human Resources procedures and guidelines, up to and including dismissal from Collier County Government employment. b. Vendors who violate the ethics standards described in this Section shall be subject to Suspension and Debarment as provided in SECTION TWENTY-EIGHT of this Article. 5. Vendors doing business with Collier County shall comply with the provisions of Section 287.133,Florida Statutes("Public Entity Crimes Act"). SECTION EIGHT: Exemptions to the Competitive Process. The following categories of procurements may be eligible for exemption to the competitive process waivers of competition based upon the determination of the County 9 Manager or designee Procurement Services Director that approval of such an exemption waiver is in the best interest of the County. 1. Purchases from another government agency or from a nonprofit organization authorized to do business in the State of Florida. 2. Dues and memberships in trade or professional organizations; registration fees for trade or career fairs;fees and costs of job-related seminars and training. 3. Subscriptions, periodicals, newspapers, books, electronic information, media, maps,pamphlets and similar material in printed or electronic form. 4. Advertisements. 5. Utility Services: water, sewer, electrical, gas, or other regulated utility, communications and data transmission services subject to government rate control. 6. Educational or academic programs; educational or recreational field trip instructors, trainers,facilitators,professional advisors and speakers. 7. Legal services including retaining services of law firms or other outside counsel for any reason, expert witnesses, court reporter services, appraisal services, trial consultants or similar persons or firms deemed by the Collier County Attorney as necessary to address the legal needs of Collier County, together with document management and production, legal research, and information technology products and services. 8. Goods or services purchased from grants,gifts,bequests or donations to the extent of the application of this Article would conflict with the requirements, conditions, or limitations attached to the grant, gift,bequest,or donation. 9. Products or services necessary to maintain existing warranties and licenses or to maintain compatibility with existing Collier County systems. 10. Repairs based upon shop estimates for equipment that has been disassembled. 11. Personnel services; recruitment services. 10 12. Works of Art for Public Display 13. Direct purchase orders issued when it is in the best interest of Collier County. Collier County may make direct purchases of goods and services when the County can procure these items at a lower cost and/or realize a tax or delivery savings. 14. Financial Instruments: professional services required for the issuance of Collier County debt, debt service and Collier County investments related thereto, including the selection of investment bankers for Collier County's Underwriting Pool and the selection of Collier County's Financial Advisor. 15. Entertainment services for County-sponsored events. 16. Services for management studies, executive analysis and related matters as directed by the County Manager. 17. Where specified by general law, ordinance or Collier County Board of County Commissioners policies, any purchase governed by explicit provisions of general law or other Collier County ordinance or Collier County Board of County Commissioners policies (resolution) unless the solicitation indicates the applicability of this Article, and this Article shall apply only to the extent set out in the solicitation. SECTION NINE: Small Purchases(Purchases$3,000 or less). A purchase shall not be artificially divided or split so as to qualify under this or any other section of this Procurement Ordinance. All small purchases will be obtained by a Single Quote, with documentation, and generally be processed using a regular purchase order, or a purchasing card in accordance with SECTION TWENTY-SEVEN 26 of this Procurement Ordinance. Operating Division staff should make all reasonable efforts to purchase goods and services under Board approved contracts. In the event a contract is not utilized, staff will procure the highest quality items or services at the least expense to the County. Only the Board's Procurement Services staff may approve a qualification based Small Purchase. SECTION TEN: Informal Competition (Purchases Exceeding $3,000 but Not Greater Than$50,000). A purchase shall not be artificially divided or split so as to qualify under this or any other section of this Procurement Ordinance. Operating Division staff should make all reasonable efforts to purchase goods and services under Board approved contracts. In the event a contract is not available, or staff demonstrates that the price under contract exceeds the price on a non- contract, staff will procure the highest quality items or services at the least expense to the County by using the following informal competition process: 1. Purchases exceeding $3,000 but not greater than $50,000 may be solicited by quotation as follows: a. Minimum Number Quotes: Purchases in excess of$3,000 but not greater than $50,000 shall be based on a good faith effort by either Operating Division Staff or Procurement Staff to obtain at least three(3)documented competitive quotes. b. Solicitation of Quotes: Quotes may be solicited in writing or electronically. Only the Procurement Services staff may issue a qualification based solicitation. Final recommended award of any quote will be reviewed and approved by the Procurement Services Director. SECTION ELEVEN: Procurement Methods. Collier County's procurement methods may include,but are not limited to the following: 1. Informal quotes may be solicited and awarded by designated Collier County employees as set forth in the Procurement Manual without public announcement and without formal competition. 2. Request for Quote (RFQ) may be issued by either the Operating Division Staff or by the Procurement Staff. Any resulting contract shall be awarded to the responsible and responsive vendor submitting the lowest or best overall quote which meets all specifications. 12 3. Invitations to Bid(ITB) shall be issued by the Procurement Services Director with public announcement and competition. Any resulting contract shall be awarded to the responsive and responsible bidder submitting the lowest or best overall bid which meets all specifications. 4. Cooperative Purchasing a. Piggybacking The Procurement Services Director shall have the authority to procure goods or services from vendors who have been selected, as a result of a competitive selection process for a federal, state or municipal government, or any other governmental agency, political subdivision, or government- related association, provided that the originating entity utilized a competitive process similar to Collier County's. The Procurement Services Director shall annually bring forward to the Board of County Commissioners a list of recommended cooperatives for Board consideration. b. Consolidated Joint Purchasing The Procurement Services Director shall have the authority to join with other government entities and consortiums in cooperative purchasing ventures when in the best interest of Collier County. 5. Request for Proposals(RFP)shall be issued by the Procurement Services Director with public announcement and competition. Any resulting contract shall be awarded to the responsive and responsible proposer submitting the best proposal according to the criteria set forth in the solicitation. 6. Request for Professional Services (RPS) shall be issued by the Procurement Services Director to procure professional engineering, architectural, landscape architectural or surveying and mapping services in accordance with the Consultants' Competitive Negotiation Act(CCNA),F.S. § 287.055. 13 7. Invitation to Negotiate (ITN) shall be issued by the Procurement Services Director with public announcement and competition. An ITN is used when it is determined beneficial to issue a written solicitation for competitive sealed replies to select one or more vendors with which to conduct negotiations. 8. Emergency Procurements may be used in the event of an unexpected and urgent need where health and safety or the conservation of public resources is at risk, or during Board absences (all efforts should be made to obtain Board approval prior to anticipated recesses), using such competition as is practical under the circumstances, as follows: a. Following a declaration of the existence of an emergency situation by the County, the Collier County Board of County Commissioners or their designee may declare the existence of an emergency procurement condition and may suspend any or all of the provisions of this article and authorize an emergency procurement. b. The Collier County Manager or his/her designee, on a case by case basis may approve an emergency purchase based upon the Procurement Services Director's good faith review of the available sources that may timely respond to the urgent need for goods and services and the documentation of the emergency conditions related to that purchase. Upon written determination and approval of the Collier County Manager, the emergency purchase may be made. The Collier County Manager will report to the Collier County Board of County Commissioners all such emergency procurements at the next available Board meeting. c. This section in no way constrains the provisions of Collier County's Civil Emergency powers and authority pursuant to F.S. ch. 252, Emergency Management. 9. Invitation for Qualifications (IFQ) shall be issued by the Procurement Services Director when it is in Collier County's best interest to limit participation in the solicitation 14 process to those bidders,proposers or offerors who demonstrate a capability to provide the goods and services required by the Collier County or when qualifications are the only criteria. 10. Sole Source Procurement is a selection of one particular supplier to the exclusion of all others. This decision may be based on lack of competition, proprietary technology, copyright,warranty or a supplier's unique capability. 11. Single Sourcing is a procurement decision whereby purchases are directed to one source because of standardization, warranty, or other factors, even though other competitive sources may be available. 12. Reverse Auctions shall be issued by the Procurement Services Director when it is deemed to be the most efficient means of obtaining the best price through open competition. 13. Requests for Information (RFI) shall be issued by the Procurement Services Director when it is in Collier County's best interest to request information from potential vendors prior to the issuance of a planned solicitation. 14. It is the intent of the Board of County Commissioners to establish an amount of fifty thousand dollars ($50,000.00)as the County's threshold for formal competitive solicitations to include IFB, RFP, RPS, ITN, IFQ, and Reverse Auctions administered under the supervision of the Procurement Services Director. Award of any resulting agreements or contracts shall be made by the Board except where otherwise provided for in this Procurement Ordinance or unless an exception is granted by the Board. 15. Use of Past Performance Data: In order to promote the quality delivery of commodities and services, County departments shall record and consider the past performance of vendors in the award of contracts exceeding the competitive threshold. This objective shall be accomplished as follows: a. The Procurement Services Division shall be responsible for each of the following: 15 (1) Developing, implementing and maintaining administrative procedures, instructions and technologies necessary to collect past vendor performance data. (2) Ensuring that relevant past performance data is properly gathered and considered prior to award of subsequent contracts. b. Operating departments shall be responsible for each of the following: (1) Conducting periodic performance evaluations of vendors under contract with the County pursuant to the procedures established in SECTION 11. (2) Considering the past performance of vendors during the evaluation of bids and proposals pursuant to the procedures established in SECTION 11, subsection 15.a.(2). SECTION TWELVE: RESERVED RIGHTS. 1. Reserved Rights: Collier County reserves the right in any solicitation to accept or reject any or all bids, proposals or offers; to waive minor irregularities and technicalities; or to request resubmission. Also, Collier County reserves the right to accept all or any part of any bid, proposal,or offer,and to increase or decrease quantities to meet additional or reduced requirements of Collier County. Notwithstanding any other provisions of this Article, if none or only one responsive and responsible bid or proposal is 'received following any solicitation, the County Manager, or designee, reserves the right to reject all bids, proposals or offers and to negotiate with any responsible providers to secure the best terms and conditions in the sole interest of the County unless otherwise provided by law. 2. Rejection of Bids and Negotiation: a. The Procurement Services Director shall have authority to review all submittals in response to a County solicitation and to review these submittals for responsiveness, responsibility, price and other factors in 16 making a determination for Recommendation of Award. The Procurement Services Director may reject any submittal and cancel any solicitation at anytime prior to a contract being signed. The Board of County Commissioners shall have the authority to reject any and all bids at any time. b. If the lowest, responsive bid exceeds the budgeted amount and, if the purchase is not funded in whole or in part with interagency grant dollars, the Procurement Services Director may negotiate changes with the apparent lowest responsible and responsive bidder that will bring prices into budgeted limits subject to the final approval and acceptance of the Board. If the budgeted amount includes grant funds, the Procurement Services Director shall be authorized to conduct such negotiations provided said actions are not prohibited by law or the grant conditions. All Notices of Recommended Award will be generated and posted by the Procurement Services Director prior to presentation of any contract for signature by the Board of County Commissioners. SECTION THIRTEEN: Unsolicited Proposals. 1. The Board incorporates by reference F.S. § 255.065, as may be amended from time to time, which addresses the procurement of services for qualifying projects through public- private partnerships,including through an offer of an unsolicited proposal. 2. a. The Board shall by separate Resolution establish all Application Fees referenced under F.S. §255.065 that a private entity must pay concurrent with the submission of an unsolicited proposal. Payment shall be made by cash, cashier's check, or some other non-cancellable instrument. Personal checks shall not be accepted. 17 b. To the extent that the cost to evaluate an unsolicited proposal costs more than the Initial Application Fee adopted by Resolution, the County may request payment of any additional amounts required to conduct its review as provided in F.S. §255.065. SECTION FOURTEEN: Small and Disadvantaged Minority and Women Business Enterprises. 1. Policy Statement: Collier County stands committed to providing equal opportunities to small businesses and disadvantaged business enterprises (DBE), minority business enterprises (MBEs) and women business enterprises (WBEs) as well as to all vendors, consultants,contractors and subcontractors who seek to do business with the County. Pursuant to this policy, Collier County encourages its vendors, consultants, contractors and subcontractors to provide qualified small businesses and DBE's with an equal opportunity to participate in the formal competitive processes for the procurement of commodities and services by the County. The Policy is not intended to require or to allow partiality toward or discrimination against any small business or DBE, MBE, WBE, or any other vendor, consultant, contractor or subcontractor on the basis of gender, race or national origin, or other such factors, but rather to create an opportunity for small businesses and DBEs, MBEs, WBEs, and all qualified vendors, consultants, contractors and subcontractors to participate in the County's formal competitive processes. Nothing in this Policy shall be construed to provide for or require any preference or set-aside based on gender,race,national origin or any other such factor. 2. Implementing Measures: In an effort to implement this policy, the County may undertake the following measures: a. Designate the Procurement Services Director to administer this policy. b. Utilize outreach programs to identify, register and educate small businesses and DBEs, MBEs and WBEs to participate in the procurement/contract process which may include: 18 (1) Attending trade fairs which include representatives from these enterprises. (2) Attending meetings and social events wherein these enterprises are present. (3) Utilizing publications aimed at reaching these enterprises. (4) Utilizing Purchasing Directories and other reference sources that list these enterprises. (5) Publicizing this Policy to encourage these enterprises to participate in the County's procurement process. (6) Other actions designed to identify opportunities for these enterprises who seek to provide commodities and services to the County. c. Maintain a list of these enterprises. d. Disseminate information regarding competitive opportunities with the County in order to allow qualified small businesses and DBEs, MBEs and WBEs to participate in the County's procurement process. 3. Conformity with Applicable Law: The provisions of this section shall be construed in conformity with applicable state and federal law. To the extent that state law conflicts with federal law,federal law shall supersede such state law. SECTION FIFTEEN: Procedure to Provide Preference to Local Businesses in County Contracts. Except where otherwise provided by federal or state law or other funding source restrictions or as otherwise set forth in this Procurement Ordinance, purchases of commodities and services shall give preference to local businesses in the following manner: 1. "Local Business" defined. Local business means the vendor has a current Business Tax Receipt issued by the Collier County Tax Collector for at least one year prior to 19 bid or proposal submission to do business within Collier County, and that identifies the business with a permanent physical business address located within the limits of Collier County from which the vendor's staff operates and performs business in an area zoned for the conduct of such business.A Post Office Box or a facility that receives mail,or a non-permanent structure such as a construction trailer, storage shed, or other non-permanent structure shall not be used for the purpose of establishing said physical address. In addition to the foregoing, a vendor shall not be considered a "local business" unless it contributes to the economic development and well-being of Collier County in a verifiable and measurable way. This may include, but not be limited to, the retention and expansion of employment opportunities, support and increase to the County's tax base, and residency of employees and principals of the business within Collier County. Vendors shall affirm in writing their compliance with the foregoing at the time of submitting I their bid or proposal to be eligible for consideration as a "local business" under this section. A vendor who misrepresents the Local Preference status of its firm in a proposal or bid submitted to the County will lose the privilege to claim Local Preference status for a period of up to one year. 2. Preference in purchase of commodities and services by means of competitive bid, request for proposals, qualifications or other submittals and competitive negotiation and selection. Under any such applicable solicitation, bidders/proposers desiring to receive local preference will be invited and required to affirmatively state and provide documentation as set forth in the solicitation in support of their status as a local business. Any bidder/proposer who fails to submit sufficient documentation with their bid/proposal offer shall not be granted local preference consideration for the purposes of that specific contract award. Except where federal or state law, or any other funding source, mandates to the contrary, Collier County and its agencies and instrumentalities,will give preference to local businesses in the following manner: a. Competitive bid (local price match option). Each formal competitive bid solicitation shall clearly identify how the price order of the bids received will be evaluated and determined. When a responsible and responsive, non-local business submits the lowest price bid, and the bid submitted by one or more responsible and responsive local businesses is within ten percent of the price submitted by the non-local business, then the local 20 business with the apparent lowest bid offer (i.e., the lowest local bidder) shall have the opportunity to submit an offer to match the price(s),less one (1) dollar, offered by the overall lowest, responsible and responsive bidder. In such instances, staff shall first verify if the lowest non-local bidder and the lowest local bidder are in fact responsible and responsive bidders. Next, the Procurement Services Division shall determine if the lowest local bidder meets the requirements of F.S. § 287.087 (Preferences to businesses with drug-free workplace programs). If the lowest local bidder meets the requirements of F.S. §287.087,the Procurement Services Division shall invite the lowest local bidder to submit a matching offer, less one (1) dollar, within five (5) business days thereafter. If the lowest local bidder submits an offer that fully matches the lowest bid, less one (1) dollar, from the lowest non-local bidder tendered previously, then award shall be made to the local bidder. If the lowest local bidder declines or is unable to match the lowest non-local bid price(s), then award will be made to the lowest overall responsible and responsive bidder. If the lowest local bidder does not meet the requirement of F.S. § 287.087, and the lowest non-local bidder does, award will be made to the bidder that meets the requirements of the reference state law. b. Request for proposals, qualifications or other submittals and competitive negotiation and selection. For all purchases of commodities and services procured through the Competitive Proposals or Competitive Selection and Negotiation methods not otherwise exempt from this local preference section, the RFP solicitation shall include a weighted criterion for local preference that equals 10 percent of the total points in the evaluation criteria published in the solicitation. Purchases of professional services as defined and subject to F.S. § 287.055 and audit and accounting services subject to F.S. § 11.45shall not be subject to this local preference section. c. Should a tie bid occur between a non-local bidder and a local bidder, the County shall award the contract to the local bidder. Should a tie occur 21 between two local bidders, the County will "flip a coin" between the two lowest bidders. The coin toss winner will be awarded the contract upon approval by the Board of County Commissioners. 3. Waiver of the application of local preference. The application of Local Preference to a particular purchase or contract may be waived upon approval of the Board of County Commissioners, or as identified where exempt from competitive process in SECTION EIGHT. 4. Comparison of qualifications. The preferences established herein in no way prohibit the right of the Board of County Commissioners to compare quality of materials proposed for purchase and compare qualifications, character, responsibility and fitness of all persons, firms or corporations submitting bids or proposals. Further, the preferences established herein in no way prohibit the right of the County Commission from giving any other preference permitted by law instead of the preferences granted herein. 5. Reciprocity. In the event Lee County,or any other Florida county or municipality ("local government") deemed appropriate by the Collier County Board of Commissioners, extends preferences to local businesses, Collier County may enter into an interlocal agreement with such local government wherein the preferences of this section may be extended and made available to vendors that have a valid occupational license issued by that specific local government to do business in that local government that authorizes the vendor to provide the commodities and services to be purchased, and a physical business address located within the limits of that local government. Post Office Boxes are not verifiable and shall not be used for the purpose of establishing said physical address. In addition to the foregoing, a vendor shall not be considered a "local business" unless it contributes to the economic development and well-being of the said local government whichever is applicable, in a verifiable and measurable way. This may include, but not be limited to,the retention and expansion of employment opportunities, the support and increase to that local government's tax base, and residency of employees and principals of the business located within the limits of that local government. Vendors shall affirm in writing their compliance with the foregoing at the time of submitting their bid or proposal to be eligible for consideration as a"local business" under this section. In no event shall the amount 22 of the preference accorded other local government firms exceed the amount of preference that such local government extends to Collier County firms competing for its contracts. 6. Purview and administration of this Local Preference Policy. This policy shall apply to all departments and units under the direct purview of the Board of County Commissioners. For purchases of$50,000.00 or less, the Procurement Services Division shall systematically encourage departments to include local vendors when soliciting quotations in accordance with this policy. 7. This Policy shall not be utilized with respect to any competitive solicitation for construction services in which 50 percent or more of the cost will be paid from state- appropriated funds which have been appropriated at the time of the competitive solicitation. SECTION SIXTEEN: Payment of Invoices. 1. Agencies under the purview of the Board of County Commissioners shall be in compliance with F.S. § 218.70, otherwise known as the "Local Government Prompt Payment Act." Pursuant to this,the requirements of this section shall apply to the following transactions: a. The purchase of commodities and services; b. The purchase or lease of personal property; c. The lease of real property. 2. The County Manager shall establish and maintain procedures that authorize minor payment variances between the purchase order and invoice where warranted. The authority to pay such variances shall not exceed 5%of the purchase order amount or$500,whichever is less. 3. The County Manager shall establish and maintain a process to address freight and delivery charges not in compliance with FOB destination terms contained in the County General Terms and Conditions. 4. It shall be the responsibility of the County Manager, in consultation with the Clerk's Finance Director and operating Divisions,to establish,procedures for the timely payment 23 of all transactions as defined herein. Such procedures shall include, but are not limited to the following: a. Formally defining the County's requirements for the content and submission of a proper invoice, codifying the County's payment requirements and notifying each vendor of their availability. b. Steps required for the receipt of all invoices and the prompt return of improper invoices. c. Steps required for the resolution of payment disputes between the County and a vendor. 5. Vendor Payment Dispute Resolution Process. The purpose of this section is to establish a procedure whereby payment disputes with vendors who provide goods and services to the County are resolved in a timely manner and in keeping with the Local Government Prompt Payment Act. a. Definitions. The definitions set forth in the Local Government Prompt Payment Act(F.S. § 218.72,2016)are hereby incorporated by reference. b. If an improper payment request or invoice is submitted by a vendor, the County shall, within 10 days after the improper payment request or invoice is received, notify the vendor, in writing, that the payment request or invoice is improper and indicate what corrective action on the part of the vendor is needed to make the payment request or invoice proper. c. If the parties are unable to reach resolution on the payment dispute, the County Manager shall appoint a Hearing Examiner, to whom the matter will be referred to. The Hearing Examiner shall have the sole and full authority to thereafter resolve the dispute. The proceedings before the Hearing Examiner to resolve the dispute shall commence within 45 days after the date the payment request or improper invoice was received by the County and shall be concluded with final written decision by the Hearing Examiner within 60 days after the date the payment request or improper 24 invoice was received by the County. These proceedings are not subject to F.S. ch. 120, and do not constitute an administrative hearing. Rather,these proceedings are intended to be quasi-judicial, open to the public, with the written decision of the Hearing Examiner being final, subject only to certiorari review. If the dispute is resolved in favor of the County, interest charges shall begin to accrue 15 days after the Hearing Examiner's final decision. If the dispute is resolved in favor of the Vendor, interest begins to accrue as of the original date the payment became due. d. If the County does not timely commence this dispute resolution process within the time required,a contractor may give written notice to the County of the failure to timely commence this dispute resolution procedure. If the County fails to commence this dispute resolution procedure within four business days after such notice, any amounts resolved in the contractor's favor shall bear mandatory interest, as set forth in F.S. ch. 218, from the date the payment request or invoice containing the disputed amounts was submitted to the County, If the dispute resolution procedure is not commenced within 4 business days after the notice, the objection to the payment request or invoice shall be deemed waived. The waiver of an objection pursuant to this paragraph does not relieve a contractor of its contractual obligations. e. In an action to recover amounts due under this part, the court shall award court costs and reasonable attorney's fees, including fees incurred through appeal,to the prevailing party. f. The conduct of the Hearing Examiner proceedings, including notice, process, and criteria, shall be set forth in the Procurement Division's Policies and Procedures. SECTION SEVENTEEN: Advanced Payments for Goods and Services. Procedures for the pre-payment of goods and services with County funds including, but not limited to, dues and membership, insurance, maintenance agreements, subscriptions, travel 25 arrangements, postage, and other purchases as prescribed by the Department of Financial Services through their Administrative Rules. As provided for in F.S. § 28.235, the Clerk of the Circuit Court is authorized to make advanced payments on behalf of the County for goods and services based on those established procedures. SECTION EIGHTEEN: Standardization, Cooperative Purchasing Agreements and Governmental Contracts. 1. Where standardization is determined to be desirable by the Board of County Commissioners or included in the Procurement Manual, the purchase of commodities may be made by negotiation with the approval of the purchase by the Board } if under the Formal Competitive Threshold,with approval of the purchase by the Procurement Services Director. 2. Annually, the Board of County Commissioners will approve a list of authorized purchasing cooperative organizations and governmental schedules and contracts. The Procurement Services Director may approve purchases using these approved cooperative organizations, agreements and contracts with no further action required by the Board providing that funds have been budgeted for these specific purposes. Additionally, the Procurement Services Director may join other public agencies in cooperative purchasing organizations and/or agreements if is determined to be in the County's best interest, and if the consortium agreement has not had prior Board approval. The use of any new cooperative agreement must be approved by the Board prior to the use of the agreement. SECTION NINETEEN: Contract Administration. 1. Contract Document: Every procurement of contractual services or commodities shall be evidenced by a written document containing all provisions and conditions of the procurement. Said document shall include,but not be limited to: a. A listing of the scope of services to be performed or commodities to be purchased. b. A provision specifying the criteria and the final date, or number of days, by which such criteria must be met for completion of the work. 26 c. A provision specifying the terms of cancellation by the County and where applicable,a provision specifying the terms of renewal. d. Where applicable, a provision establishing the appropriate types and levels of insurance to be carried by the vendor. Said provision shall be employed in a manner consistent with minimum insurance standards approved by the Board of County Commissioners. e. A provision requiring the contractor/vendor to inform the County if he/she has been convicted of a public entity crime subsequent to July 1, 1989. A purchase order that embodies these provisions shall be sufficient documentation of the procurement. Except as otherwise provided in this Procurement Ordinance, the Procurement Services Director shall determine the circumstances under which a Board approved purchase order(and all documents included by reference) shall serve as the contract document. 2. Contract Manager: Every procurement of services shall be administered by the requesting Agency/Department. 3. Contracts: Notices that terminate in its entirety a Board-approved purchase or contract must be approved by the Board of County Commissioners prior to its termination. a. Modifications to Work Orders, Change Orders, and Amendments issued under a purchase order or contract that exceed ten percent (10%) of the current Board approved aggregate amount, or twenty percent(20%)of the current Board approved number of days must be approved by the Board. b. Modifications to Work Orders, Change Orders, and Amendments issued under a purchase order or contract that do not exceed ten percent(10%) of the current Board approved aggregate amount, or twenty percent (20%) of the current Board approved number of days will be reported on the Procurement Services Administrative Ratification Report and presented to the Board for approval. 27 c. Modifications to Board approved purchases or contracts by the issuances of the following, but not limited to, direct material purchases, notices to proceed or noncompliance, stop work notices, authorization for the use of approved allowances and reallocation of funds between line items, supplemental agreements, and changes by letter may be authorized and executed by the Procurement Services Director without further approval by the Board. d. All material changes in scope of contracts must be approved by the Board in advance. e. Sections 3.a through 3.b shall not be applicable to term contracts, fixed-fee contracts, or blanket purchase orders where the County desires to procure commodities and/or services on an as needed basis without having to obligate itself to a total contract amount. Rather, such purchases shall be based on fixed unit prices or other predetermined pricing methods and shall be limited in quantity by the amount of funds appropriated in the budget of the operating Division(s). Such purchases shall be subject to all other provisions of this Procurement Ordinance. The Board shall have broad authority, within the limits of the law, to evaluate and approve any recommended contract modification without requiring further competition. 4. Contract Extension: Extension(s) of a Board-approved contract for commodities or non-construction services may be requested by the contract manager to the Procurement Services Director in writing for a period not to exceed six(6)months (cumulatively) and shall be subject to the same terms and conditions set forth in the contract, if the extension period is provided for in the Board approved contract. The Procurement Services Director shall have the authority to authorize and execute all such extensions, which must be issued prior to the expiration of the contract. Any extension(s) that exceed six months (cumulatively) shall be approved by the Board of County Commissioners. 5. Contract Renewal: The Procurement Services Director shall authorize and execute renewals of contracts for commodities and/or services subject to the following conditions: 28 a. That the Contractor has performed in a satisfactory manner and that the Procurement Services Director has received a request to renew from the Contractor or Project Manager verifying the Contractor's satisfactory performance. b. That the Board-approved contract pursuant to SECTION ELEVEN Paragraph 14 provided for a renewal and is renewed subject to the terms and conditions set forth in the initial contract. Cost and term modifications are addressed in the original solicitation document and/or resultant contract. c. That the renewal is done for a set period of time identified in the solicitation document and/or contract, commencing at the end of the contract period. d. That a contract under the formal competitive threshold with multiple renewal year option terms may be approved annually by the Procurement Services Director. Proposed renewals that fail to meet one or more of the conditions set forth herein will require the approval of the Board of County Commissioners. 6. Contract Approval: All contracts for commodities and services exceeding SECTION ELEVEN Paragraph 14, Formal Competitive Threshold, shall be authorized by the Board of County Commissioners. Once approved, subsequent purchase orders referencing those Board approved contracts may be issued by the Procurement Services Director. Contracts below SECTION ELEVEN Paragraph 14, Formal Competitive Threshold, shall be subject to the review and approval by the County Attorney staff and signed by the Procurement Services Director.Purchase orders may be issued by the Procurement Services Director. 7. Work Orders: The Procurement Services Director may execute any work order if the work order is equal to or below such Board approval parameters for work orders as are set forth in the Board approved term contract for services under which the work order is generated. 29 Work orders must be in sufficient detail to audit according to the approved contract. 8. Consent to Assignments of Contract: For all Board approved contracts, the Board of County Commissioners shall approve all assignments of contracts requested by the predecessor contracting party. 9. Authority Limitation and Delegation;Promulgation of Procedures: The Procurement Services Director may delegate to one or more Procurement Services Division employees any or all aspects of the authority vested in the Procurement Services Director. All authority to execute documents that is vested in the Procurement Services Director or any other person shall be subject to the limits of any applicable federal, state or other law. 10. Payments to Contractors,Vendors and Consultants: Prior to the execution of a formal contract subject to this Procurement Ordinance, the Procurement Services Director shall establish a formal payment schedule and payment terms within the agreement. Such terms and conditions shall be consistent with the requirements of all applicable laws and the formal solicitation documents. In accordance with F.S. § 218.735(8), the Procurement Services Director may establish, subject to Board approval, procedures to reduce to 5% the amount of retainage withheld from each subsequent progress payment issued to a contractor where applicable. The Procurement Services Director may establish, in writing, a schedule(s) to further reduce the percentage of cumulative retainage held throughout the course of the project schedule where warranted and according to law. Recommendation to reduce the percentage of cumulative retainage shall be subject to the following: a. That the term "cumulative retainage" is defined to mean "the dollar total of the funds retained from all payments issued under the contract divided by the gross dollar total of all monthly pay requests (or the total of all payment amounts deemed allowable by the project manager, whichever is less)". 30 b. That any decision to reduce retainage shall be formally communicated in a letter to the Contractor's representative and that the letter affirmatively states that the Contractor has performed the contract work in a satisfactory manner. c. That the cumulative retainage not be adjusted until at least 50% of the work has been completed and payment has been issued. d. That the Procurement Services Director's letter expressly sets forth the percentage of cumulative retainage to be held for the remaining pay requests. 11. The Procurement Services Director may authorize the partial release or payment of contract retainage to the contractor prior to final completion of all project work provided that: a. The contractor has performed in a satisfactory manner to date as verified in writing by the Project Manager. b. The total aggregate work under the agreement is at least 50% completed and accepted (i.e.; payments equaling at least 50% of the contract amount less retainage have been issued). c. The retainage dollar amount to be released is based upon and consistent with the prevailing percentage of cumulative retainage being held at the time that the retainage is released. SECTION TWENTY: Performance and Payment Bonds. A contractor or vendor shall provide a surety bond from a surety company to guarantee full and faithful performance of a contract obligation and the payment of labor and material expended pursuant to a contract whenever, and in such amounts, as required by statute or otherwise as deemed necessary by the Procurement Services Director. An irrevocable letter of credit from a financial institution operating within the State of Florida(or other alternative forms of surety as permitted under Florida law) may be sufficient in place of the performance bond if so provided for in the bid and contract documents. All such bonds or letters of credit shall be 31 approved as to form by the County Attorney, and held by the Clerk's Board Minutes and Records Department. SECTION TWENTY ONE: Unauthorized Purchases. All purchases made shall be consistent and in compliance with the Procurement Ordinance. Any purchase or contract made contrary to the provisions hereof and contrary to Florida law shall not be approved and the County shall not be bound thereby. SECTION TWENTY-TWO: Prohibition against Subdivision. No contract or purchase shall be subdivided to avoid the requirements of this Procurement Ordinance or of State law. SECTION TWENTY-THREE: Protest of Bid or Proposal Award. The purpose of this section is to accommodate legitimate protests concerning formal competitive solicitations and recommended contract awards prior to award of a contract by the Board of County Commissioners. 1. Any respondent to an IFB, ITN, RFP, IFQ or RPS who alleges to be aggrieved in connection with the solicitation or award of a contract, (hereafter referred to as "the protesting party") may protest to the Procurement Services Director, who shall serve as the sole recipient of any and all notices of intent to protest and all formal protests. 2. With respect to a protest of the terms, conditions and specifications contained in a solicitation, including any provisions governing the methods for evaluation of bids, proposals or replies, awarding contracts, reserving rights for further negotiation or modifying or amending any contract, the protesting party shall file a notice of intent to protest within three (3) days, excluding weekends and County holidays, after the first publication, whether by posting or formal advertisement of the solicitation. The formal written protest shall be filed within five (5) days of the date the notice of intent is filed. Formal protests of the terms, conditions and specifications shall contain all of the information required for the Procurement Services Director; to render a decision on the formal protest and determine whether postponement of the bid opening or proposal/response closing time is appropriate. The Procurement Services Director's 32 decision shall be considered final and conclusive unless the protesting party files an appeal of the Procurement Services Director's decision. 3. Any actual bidder or respondent to who desires to protest a recommended contract award shall submit a notice of intent to protest to the Procurement Services Director within three (3) calendar days, excluding weekends and County holidays, from the date of the initial posting of the recommended award. 4. All formal protests with respect to a recommended contract award shall be submitted in writing to the Procurement Services Director for a decision. Said protests shall be submitted within five (5)calendar days,excluding weekends and County holidays,from the date that the notice of intent to protest is received by the Procurement Services Director, and accompanied by the fee, as set forth below. The protesting party must have standing as defined by established Florida case law to maintain a protest. The formal protest shall contain,but not be limited to the following information: a. Name and address of County Agency affected and the solicitation number and title. b. The name and address of the protesting party. c. A statement of disputed issues of material fact. If there are no disputed material facts,the written letter must so indicate. d. A concise statement of the ultimate facts alleged and of any relevant rules, regulations, statutes, and constitutional provisions entitling the protesting party to relief. e. The protesting party's entitled demand for the relief. f. Such other information as the protesting party deems to be material to the issue. The formal protest shall contain all arguments, facts or data supporting and advancing the protestor's position. Under no circumstances shall the protestor have the right to amend, 33 supplement or modify its formal protest after the filing thereof. Nothing herein shall preclude the County's authority to request additional information from the protesting party or other bidders or proposers in conjunction with the review and rendering of decisions on the protest,including any subsequent appeal. 5. In the event of a timely protest of contract award consistent with the requirements of this section, the Procurement Services Director shall not proceed further with the award of the contract until all appropriate administrative remedies as delineated under this section have been exhausted or until the Board of County Commissioners makes a determination on the record that the award of a contract without delay is in the best interests of the County. During this process, the protesting party shall limit their communications with the County to the Office of the County Attorney, and neither the protesting party, their agents or their representatives shall have any private contact or discussions with individual County Commissioners, the County Manager, other County employees, or any independent hearing officer (where applicable) regarding the protest except such communications as may be required or permitted during a hearing, if applicable, or a meeting of the County Commission wherein the solicitation or award is to be considered. 6. The Procurement Services Director shall review the merits of each timely protest and in consultation with the Contract Manager and other appropriate County staff, issue a decision stating the reasons for the decision and the protesting party's rights of appeal under this section. Said decision shall be in writing and mailed or otherwise furnished to the protesting party. The decision of the Procurement Services Director shall be final and conclusive unless the protesting party delivers a subsequent written notice of appeal to the County Manager within three (3) calendar days, excluding weekends and County holidays from the date of receipt of the decision. In filing a written objection to the Procurement Services Director's decision, the protestor shall not introduce new arguments or alter in any other way their protest submission. An appeal of the Procurement Services Director's decision shall be limited to a review of the grounds set forth in the formal protest, and no new grounds or arguments will be introduced or considered. 7. In the event of a subsequent appeal pursuant to subsection F,the County Manager shall determine whether to appoint an independent Hearing Officer to review the formal protest 34 and the Procurement Services Director's decision. The Hearing Officer's review shall be limited to the grounds set forth in the formal protest. The protesting party shall have the burden of proof. The Hearing Officer shall consider the formal protest, the Procurement Services Director's decision, and supporting documents and evidence presented at the hearing. In any hearing, irrelevant, immaterial or unduly repetitious evidence shall be excluded. All other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible whether or not such evidence would be admissible in a trial in the courts of Florida. The Hearing Officer may grant the motion of any person having standing under Florida law to intervene in the proceedings. Persons or parties shall have the right to be represented by counsel in the proceedings, to call witnesses, and present evidence; provided, however, that the Hearing Officer shall not have the right to compel attendance of witnesses or to permit or compel any discovery. The Hearing Officer will have a maximum of 60 days to schedule and conduct a hearing into the matter and issue a recommended finding of fact and an opinion in writing to the County Manager or designee for submission to the Board of County Commissioners. Should the Hearing Officer find in favor of the County, the protesting party pay, in full, the costs of the Hearing Officer. If the Hearing Officer's recommended decision is in favor of the protesting party, then the County will assume this cost. The County Manager's discretion as to whether to appoint a Hearing Officer shall in no way afford the protestor the right to demand such an appointment or hearing. The decision of a Hearing Officer on a protesting party's appeal shall be submitted to the Board for its consideration as part of a final award decision. Nothing herein shall be construed as creating a right of judicial review of the Hearing Officer's decision,nor shall such decision be binding upon the Board. Additionally, nothing herein shall be construed as limiting the Board's right to reject any and all bids or proposals. 8. Decisions of the Procurement Services Director and Hearing Officer (where applicable) will be provided to the protestor prior to the award recommendation being presented to the Board of County Commissioners. Neither the County Manager's decision nor the Hearing Officer's recommended decision shall be construed as an award recommendation triggering additional rights of protest pursuant to this policy. Notwithstanding anything set forth herein to 35 the contrary, the Board of County Commissioners shall retain the authority to make the final award decision. 9. Failure to file a formal protest within the time and manner prescribed by this policy shall constitute a waiver of the right to protest by any protesting party as defined by subsection"A" of this policy. 10. As a condition of filing a formal protest to the Procurement Services Director the protesting party shall submit a non-refundable filing fee for the purpose of defraying the costs of administering the protest. The filing fee shall be submitted with the formal protest. Failure to pay the filing fee shall result in the denial of the protest. The amount of the filing fee shall be as follows: Estimated Contract Amount Filing Fee $250,000,00 or less $500.00 $250,000.01 to $500,000.00 $1,000.00 $500,000.01 to $5 million $3,000.00 $5 million or more $5,000.00 This fee may be modified by Resolution of the Board of County Commissioners. SECTION TWENTY-FOUR: Contract Claims. All actual or prospective claims arising against the County from contractors, vendors or any other party in direct privity with the County to provide goods or services shall first be directly addressed by the parties' administrative representatives in a manner consistent with the agreement between the parties and in accordance with the County's procedures Manual. For any prospective or actual claims or disputes arising under any contract entered into by the County, the Procurement Services Director must determine the facts of the dispute. All 36 contract claims should follow the County's Vendor Payment Dispute Resolution Process outlined in SECTION SIXTEEN. SECTION TWENTY-FIVE: Inspection and Testing. The Procurement Services Director shall inspect, or supervise the inspection of, or cause to be inspected, all deliveries of commodities or services to determine their conformance with the specifications set forth in an order or contract. 1. Inspection by Operating Department: The Procurement Services Director shall authorize operating departments to inspect, prior to use, all deliveries made to such operating departments under rules and regulations which the Procurement Services Director shall prescribe. 2. Testing: The Procurement Services Director shall have the authority to require chemical and physical tests of samples submitted with bids and samples of deliveries which are necessary to determine their quality and conformance with specifications. In the performance of such tests, the Procurement Services Director shall have the authority to make use of laboratory facilities of any Agency of the County or of any contracted outside laboratory. SECTION TWENTY-SIX: Purchasing Card Program. The Procurement Services Director shall be responsible for the overall management and operation of the County's purchasing card program in conformance with the Collier County Administrative Practices and Procedures Manual. For the purpose of this Procurement Ordinance, a purchasing card is a credit card officially assigned to specific employees under the purview of the Board of County Commissioners' agency for the purpose of transacting small and/or strategic purchases. The Procurement Services Director shall be authorized to assign cards to employees for these purchases. The Procurement Services Director shall be responsible for establishing the following dollar limits for each assigned card: 1. Single Transaction Limit: Not to exceed $1,000.00 per card unless otherwise authorized by the Procurement Services Director. 37 2. Monthly Spending Limit: Not to exceed $10,000.00 per card unless otherwise authorized by the Procurement Services Director. 3. Strategic Purchases: The Procurement Services Director may utilize (or delegate the authority to other Agency staff to utilize) a purchasing card to place orders that exceed the limits set forth under this section in instances where one or more of the following is true: a. Where the purchase is to address a valid public emergency; or b. Where the County will earn revenue through card program rebates;or c. Where a vendor is requiring the County to order by purchasing card. 4. Sales Tax Compliance: Pursuant to F.S. § 212.08(6), County purchases transacted with vendors within the State of Florida are exempt from the State sales and use tax. In such instances, it is the responsibility of the cardholder to provide the vendor with the appropriate tax exemption information when the card is presented to the vendor. In the event that the cardholder fails to provide the vendor with the appropriate tax exemption information when the card is presented the cardholder may be responsible for payment of the tax. It is the position of the Board that it is not cost effective or in the public interest to require a cardholder to seek a credit for sales tax collected when the total sale does not exceed $300. In the event that the total sale exceeds $300, the cardholder's Director is responsible to ensure the tax is returned to the County for the purchase. In all such instances, the Procurement Services Director shall ensure that the purchase has been approved subject to all other provisions of this policy. All fixed assets purchased using a purchasing card shall be properly reported to the Fixed Assets Section of the Clerk of Courts Finance Division so that it can be properly recorded. SECTION TWENTY-SEVEN: Conflict of Interest. The procurement of goods and shall comply with all applicable state, local and federal laws concerning ethics and conflict of interest. SECTION TWENTY-EIGHT: Debarment and Suspension. 38 The County Manager may suspend and/or debar vendors, contractors, consultants and other interested and affected persons from active participation in obtaining County contracts upon approval of the Board. The purpose of any such action shall be to protect the County's interests and the integrity of the County's contracting process. The suspension and debarment processes shall be considered to be separate from and in addition to the award evaluation and vendor performance evaluation processes authorized elsewhere in this Procurement Ordinance. 1. Definition of Terms: For the purposes of this section, the following terms have been defined as follows: a. Affiliate refers to associated business entities or individuals that control or could control the contractor or are controlled by the contractor or could be controlled by the contractor. b. Civil Judgment refers to a judgment or finding of a civil offense by any court of competent jurisdiction. c. Contractor means any individual or legal entity that: (1) Directly or indirectly (e.g.; through an affiliate), submits offers for or is awarded, or reasonably may be expected to submit offers for or be awarded, a County contract for construction or for procurement of commodities and services, including professional services;or (2) Conducts business, or reasonably may be expected to conduct business, with the County as an agent, surety, representative or subcontractor of another contractor. d. Conviction means a judgment or conviction of a criminal offense, felony or misdemeanor, by any court of competent jurisdiction, whether entered upon a verdict or a plea, and includes a conviction entered upon a plea of nolo contendere. 39 e. Debarment means action taken by the County to exclude a contractor from County contracting and County-approved subcontracting for a reasonable, specified period as provided herein. f. Preponderance of the Evidence means proof by information that, compared with that opposing it, leads to the conclusion that the fact at issue is more probably true than not. g. Subcontractor: Any individual or legal entity that offers or agrees to provide commodities or services to a party deemed to be a contractor under this section. h. Suspension refers to action taken by the County Manager to temporarily disqualify a contractor from County contracting or County-approved soting ntion f Bard. 2. Suspension:ubc subcontracting The Procurementpeding acSeryoices the Directoroshall recommend to the County Manager the suspension of a contractor, subcontractor or person from consideration for award of contracts if there appears to be a reasonable basis for debarment as set forth herein. If a suspension precedes a debarment, the suspension period shall be considered in determining the debarment period. The suspension period shall not exceed thfee six (6) months without the approval of the Board of County Commissioners. 3. Debarment: a. Causes for Debarment: The prospective causes for debarment include one or more of the following: (1) Conviction for commission of a criminal offense as an incident to obtaining or attempting to obtain a public or private contract or subcontract,or in the performance of such contract or subcontract. (2) Conviction under state or federal law of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, or any other offense indicating a lack of business 40 integrity or business honesty which currently, seriously and directly affects responsibility as a contractor. (3) Conviction under state or federal antitrust laws arising out of the submission of bids,proposals or other competitive offers. (4) Violation(s) of County contract(s) provisions, which is (are) deemed to be serious and to warrant debarment, including the failure, without good cause, to perform in accordance with the terms, conditions, specifications, scope, schedule or any other provisions of the contract(s). (5) Refusal to provide bonds,insurance or other required coverage and certifications thereof within a reasonable time period. (6) Refusal to accept a purchase order, agreement or contract, or perform accordingly provided such order was issued timely and in conformance with the solicitation and offer received. (7) Presence of principals or corporate officers in the business of concern, who were principals within another business at the time when the other business was suspended or debarred within the last three(3)years under the provisions of this section. (8) Violation of the ethical standards set forth under applicable state or county laws. (9) Debarment of the contractor by another public agency. 41 (10) Submitting false invoices or invoices that mislead, misrepresent the true costs incurred or falsely identify either a source of material or a provider of a service. (11) Any other cause deemed to be so serious and compelling as to materially affect the qualifications or integrity of the contractor. b. Procedure: (1) The county department requesting the suspension or debarment action shall submit to the Procurement Services Director a written complaint setting forth the reason(s)for seeking debarment. (2) The Procurement Services Director shall review the complaint, verify whether it is compliant with the provision of this Procurement Ordinance, direct any appropriate changes and forward the complaint to the contractor. (3) The contractor shall review the complaint and shall provide a written response (with supporting documentation) to each allegation. The response shall be provided to the Procurement Services Director within ten (10) business days of receipt of the notice of allegations. In the event that the contractor fails to respond to the complaint within the prescribed time period, the complaint, as forwarded to the contractor, shall become an effective suspension or debarment decision without further appeal. (4) In the event that the contractor files a timely and complete response to the complaint and the suspension or debarment action is based upon a conviction,judgment or other event(s) where there 42 is no significant dispute over material facts, the Procurement Services Director shall determine the period of debarment on the basis of the undisputed material information set forth or referenced in the complaint,the contractor's reply and the parameters set forth in this section. In the event that the Contractor objects to the Procurement Services Director's recommendation, the Contractor shall have a maximum of three (3) business days to file an appeal of the debarment decision with the Procurement Services Director. The appeal will be forwarded to and considered by the County Manager, who will review the record compiled by the initiating department and the contractor. Should the County Manager overturn the Procurement Services Director's decision; the County Manager shall formally cite the reasons for doing so. (5) In the event that the contractor files a timely and complete reply to the complaint and where the facts are in dispute, the Procurement Services Director will convene a committee (hereinafter referred to as "the committee") consisting of at least three individuals who will review the complaint and the contractor's reply. The County Manager shall formally appoint the committee, which will generally consist of county employees, none of whom shall be a member of the department initiating the complaint. At the discretion of the County Manager, a member from private industry with a particular area of relevant expertise may be appointed to the committee, provided that this member is not a direct or indirect competitor of the firm in question. The Office of the County Attorney shall appoint a representative to attend the committee's review of the findings. The representative shall not be considered a voting member of the committee, but shall be available to provide legal counsel to the committee as necessary. All members appointed to serve on the debarment committee shall disclose, to 43 the Procurement Services Director any actual or prospective conflicts of interest at the time of appointment or at the time in which the member becomes aware of the actual or prospective conflict. (6) The Procurement Services Director shall chair the committee and serve as the Procurement Department's representative to the committee. The Procurement Services Director shall preside over and facilitate the deliberations of the committee as a non-voting member and serve as the County's liaison to the Contractor. All voting committee members are prohibited from having any communication regarding the issue outside the committee deliberations with any of the parties involved in the specific suspension or debarment or their representatives until after the committee decision has been issued or, in the event of an appeal of that decision by the contractor, until the conclusion of the appeal process. All committee deliberations are subject to F.S. § 286.011. (7) Where the material facts are in dispute, the committee shall evaluate the evidence,judge the credibility of witnesses and base its decision upon the preponderance of the evidence. Should the contractor fail to appear at the hearing, the contractor shall be presumed to be unresponsible and or non-responsive and shall be subject to suspension or debarment. The committee decision shall be by a majority vote of those voting members in attendance. The committee shall be the sole trier of fact. In the event that the committee decides to impose a debarment, the decision will formally include, but not be strictly limited to the following information: (i) The specific reasons for the action; 44 (ii) The scope of the debarment; and (iii) The period of debarment, including the effective and expiration dates. The committee's decision shall be issued in writing within 20 business days of the conclusion of the hearing unless the committee extends this period for good cause. (8) The Procurement Services Director shall forward the committee's decision to the contractor and affiliates involved. Should the contractor object to the committee's decision, the contractor shall have a maximum of three (3)business days to file an appeal of the decision with the Procurement Services Director. The appeal will be forwarded to and considered by the County Manager, who will review the record compiled by the initiating department, the contractor and the committee. Should the County Manager overturn the committee's decision; the County Manager shall formally cite the reasons for doing so. Final recommendation for debarment shall be approved by the Board. c. Debarment Period: (1) The committee shall recommend the period of debarment. The debarment period shall be commensurate with the severity of the cause(s)and approved by the Board. 45 (2) The committee (having the same or different composition) may recommend to the Board a reduction in the debarment period upon a written request from the contractor to do so, based on one or more of the following reasons: • (i) Newly discovered material evidence; (ii) A reversal of the conviction, civil judgment or other action upon which the debarment was based; (iii) Bona fide change in ownership or management; (iv) Elimination of other causes for which the debarment was imposed;or (v) Other reasons that the committee might deem appropriate. The contractor's request shall be submitted to the Procurement Services Director in writing and shall be based on one or more of the aforementioned reasons. 3. The decision of the Board regarding a reduction of the debarment period is final and not subject to appeal. d. The Effects of Debarment: (1) Debarred contractors are excluded from receiving County contracts. Departments shall not solicit offers from, award contracts to, or consent to subcontractors with debarred contractors. Debarred contractors are excluded from conducting 46 business with the County as agents, representatives, subcontractors or partners of other contractors. (2) The Procurement Services Division-shall maintain a list of firms places under a Suspended or Debared category and shall make that list known as a public record. (3) Divisions may not renew or otherwise extend the duration of current contracts with debarred contractors in place at the time of the debarment unless the Board determines that it is in the best interests of the County to allow the contractor to continue or finish the work within an additional,limited period of time. (4) When a debarred contractor is proposed as a subcontractor for any subcontract subject to County approval, the department shall not consent to subcontracts with such contractors. (5) The County shall not be responsible for any increases in contract costs or other expenses incurred by a contractor as a result of rejection of proposed subcontractors, provided that the subcontractor was debarred prior to the submission of the applicable bid or proposal offer. e. The Scope of Debarment: Debarment applies to all officers, Directors, Managers, principals, Procurement Services Directors, partners, qualifiers, divisions or other organizational elements of the debarred contractor, • unless the debarment decision is limited by its terms to specific divisions, organizational elements or commodity/services. The committee's decision includes any existing affiliates of the contractor if they are specifically named and are given written notice of the proposed debarment and an 47 opportunity to respond. Future affiliates of the contractor are subject to the pre-existing terms of the committee's decision. SECTION TWENTY-NINE: Waiver of Ordinance. The Board of County Commissioners shall have the authority to waive any and all Procurement Ordinance provisions within lawful guidelines and upon formal Board action. SECTION THIRTY: Conflict and Severability. In the event this Ordinance conflicts with any other ordinance of Collier County or other applicable law,the more restrictive shall apply. If any phrase or portion of the Ordinance is held invalid or unconstitutional by any court of competent jurisdiction,such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion. SECTION THIRTY-ONE: Inclusion in the Code of Laws and Ordinances. The provisions of this Ordinance shall become and be made a part of the Code of Laws and Ordinance of Collier County,Florida. The sections of the Ordinance may be renumbered or relettered to accomplish such, and the word "ordinance"may be changed to "section," "article," or any other appropriate word. SECTION THIRTY-TWO: Effective Date. This Ordinance shall be effective upon filing with the Department of State. 48 PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier County, Florida,this 14th day of March , 2017. Al-FEST: BOARD OF COUNTY COMMISSIONERS DWIGHT E.BROCK, Clerk COLLIER COUNTY,FLORIDA • Atttk N1► I . By. By: - ? Attest as to Chairman's'�eputy Cler PENNY TA , , C .��: • signature only. Arov as too d legality: \ I 1 iL ► Scott R.' e. h Deputy County Attorney This ordinance filed with tni Secretary of Stpte's Office tht- f S411gy of 121 v" and acknowledgement of that filing received this .L day of 'NW c, By . O,w,r C 49 ;i ce � ; r F . .1, pwf0:I.,1?"' FLORIDA DEPARTMENT Of STATE RICK SCOTT KEN DETZNER Governor Secretary of State March 15, 2017 Honorable Dwight E. Brock Clerk of the Circuit Court Collier County Post Office Box 413044 Naples, Florida 34101-3044 Attention: Martha Vergara, BMR Senior Clerk Dear Mr. Brock: Pursuant to the provisions of Section 125.66, Florida Statutes,this will acknowledge receipt of your electronic copy of Collier County Ordinance No. 2017-08,which was filed in this office on March 15, 2017. Sincerely, Ernest L. Reddick Program Administrator ELR/lb R. A. Gray Building • 500 South Bronough Street • Tallahassee, Florida 32399-0250 Telephone: (850) 245-6270 www.dos.state.fl.us