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Agenda 12/13/2011 Item #10Bn EXECUTIVE SUMMARY QQ 12/13/2011 Item 10.B. Recommendation to accept the findings of the Independent legal review of the County's Current Purchasing Policy and direct staff to return with an ordinance to adopt the proposed revisions. OBJECTIVE: To inform the Board of the findings of outside legal counsel regarding the legal status of the County's existing purchasing policy and recommended prospective changes to the policy. CONSIDERATIONS: The Board of County Commissioners prescribes a purchasing policy that provides direction to departments under the purview of the Board regarding the purchase of commodities and services. The policy authorizes the creation of an administrative procedures manual and establishes the procurement authority of the County Manager, the Purchasing /General Services Director, and other County staff. On March 8, 2011, the Board of County Commissioners directed staff to hire the firm of Becker & Pollakoff to comprehensively review the current policy and recommend changes where appropriate. The engagement was_ managed by Attorney William Cea, a Shareholder with the firm. Mr. Cea is a Florida Board- Certified Construction attorney with extensive governmental procurement experience representing both private entities in bid and contract disputes and governmental agencies with drafting, amending and implementing purchasing policies and procedures. Mr. Cea has completed his review of the policy and a copy of his summary findings is attached. A brief overview of Mr. Cea's comments is as follows: • The current policy which is coded in a Board- approved resolution and authorized by County ordinance 87 -25, as amended, should be included within and adopted strictly by ordinance. • Collier County's purchasing policy is substantially similar to that of other (chartered and unchartered) counties throughout Florida. • To varying degrees, the ordinances and procedures employed by other counties provide purchasing thresholds for "formal" and "informal" purchases as well as monetary limits for purchases made by administration, and those which must be specifically approved by county commission boards. • Section 125.01(3)(a) states among other things that the enumeration of powers granted to the governing body shall not be deemed as "exclusive" or "restrictive." • Section 125.01(3)(b) states that the governing body's powers and duties "shall be liberally construed in order to effectively carry out the purpose of this section." • Section 125.71 draws a distinction between the policy making functions of the Board of County Commissioners and the need to relieve the Board of the "multitude of details which must necessarily arise from the operation of a county." • Collier County's existing. purchasing policy appears to be consistent with all of these considerations. Staff will bring proposed changes to the policy back at a future BCC meeting. Packet Page -663- 12/13/2011 Item 10. B. GROWTH MAWEMENT IMPACT: There is no Growth Management Impact associated with this Executive Summary. FISCAL IMPACT: At the Board's request, staff has asked Mr. Cea to be available to present his findings and answer questions from the Board. The estimated cost for his time and expenses is not expected to exceed $3,000. Funds for this are available within the Purchasing Department's operating budget: LEGAL CONSIDERATIONS: This item has been reviewed and approved by the County Attorney's Office, is legally sufficient for Board action and only requires a majority vote for approval- -SRT'. RECOMMENDATION: That the Board of County Commissioners accepts pts Mr. Cea's findings regarding the County's purchasing policy and directs staff to return with a proposed ordinance to adopt the proposed revisions to the purchasing policy. PREPARED BY: Steve Cameii, Purchasing/General Services Director Packet Page -664- COLLIER COUNTY Board of County Commissioners Item Number: 10.13. 12/13/2011 Item 10.13. Item Summary: Recommendation to accept the findings of the independent legal review of the County's Current Purchasing Policy and direct staff to return with an ordinance to adopt the proposed revisions. (Len Price, Administrative Services Administrator) Meeting Date: 12/13/2011 Prepared By Approved By Name: SmithKristen Title: Administrative Secretary,Risk Management n Date: 12/1/2011 10:28:33 AM Name: MuckelCynthia Title: Applications Analyst,Information Technology Date: 12/1/20112:04:51 PM Name: PriceLen Title: Administrator - Administrative Services, Date: 12/1/20112:28:30 PM Name: TeachScott Title: Deputy County Attomey,County Attorney Date: 12/5/20118:57:10 AM Name: KlatzkowJeff Title: County Attorney, Date: 12/5/20119:29:41 AM Name: FinnEd Date: 12/5/2011 10:00:56 AM Name: OchsLeo Title: County Manager Date: 12/5/20112:18:19 PM Packet Page -665- 12/13/2011 Item 10.13. Packet Page -666- BECKER &-' POLIAI<OFF ADMINISTRATIVE OFFICE 3111 STIRLING ROAD FORT LAUDERDALE, FL 33312 954.987.7550 WW W. BECKER•POLIAKOFF.COM BPCZDBECKER•POLIAKOFECOM FLORIDA OFFICES BOCA RATON /'-'N FORT MYERS FORT WALTON BEACH HOLLYWOOD HOMESTEAD MELBOURNE- MIAMI NAPLES ORLANDO PORT ST. LUCIE SARASOTA TALLAHASSEE TAMPA BAY WEST PALM BEACH May 12, 2011 VIA E -MAIL SteveCarnell @colliergov.net & US MAIL Bank of `America') 12/13/2011 Item 10.13. 625 N. Fiagler- Drive, 7th Floor West Palm Beach, Florida 33401 Phone: (561) 655 - 5444`' Fax: (561) 832 -8987 Reply To: West Palm Beach William J. Cea, Esq. Board Certified Construction Attorney Direct dial: (561) 820 -2888 WCea «beeker- poliakoff.com Also Admitted in District of Columbia Steve Y. Carrell, Purchasing and General Services Director Collier County Board of County Commissioners 3301 East Tamiami Trail Naples, Florida 34112 -4902 Re: Collier County - Proposed - Updated Purchasing Policy Dear Mr. Carnell: Pursuant to your request, we have reviewed the proposed revisions and updates to the Collier County Purchasing Policy ( "Policy "). Attached hereto is a copy of the Policy with our suggested revisions for your consideration. In performing our review, we have considered current and established law. As you know, based upon changes in the law that occur over time, we recommend that the Policy be periodically reviewed to determine whether any such changes affect the terms and conditions thereof Additionally, purchasing policies generally contain terms and conditions that are both driven by statutory mandates and policy decisions. Accordingly, we did not undertake to rewrite the Policy or recommend revisions that are in the nature of policy decisions for the County. Also, please note that our comments have been drafted to comport to the current form of the Policy. Specifically, the Policy is currently authorized by U.S. &GLOBAL OFFICES Ordinance, and adopted by Resolution of the Board of County Commissioners. NASSAU Florida Statutes, Chapter 125 does not specifically mandate that purchasing NEWYORK CITY procedures be adopted by ordinance. There are references to "ordinances ", PARIS• however, including in F.S., Section 255..20 and 287.055. Accordingly, we PRAGUE recommend that the County consider direct adoption of the Policy itself by TEL AVIV • ordinance. by oppoi emenl only LEGAL AND BUSINESS STRATEGISTS ME—ENS OF CONSULEGIS AN INTERNATI, Packet Page -667- NETWORK OF LEADING LAW FIRMS 12/13/2011 Item 10.13. Steve Y. Carnell, Purchasing and General Services Director May 12, 2011 Page 2 In addition to our specific suggested revisions which are set forth in the attached, you had also requested that our office review the Policy in the context of Florida Statutes, Chapter 125. In that regard, it appears that the Policy provides procedures which are substantially similar to those established by counties throughout the State of Florida, including non- charter counties. To varying degrees, the ordinances and procedures employed by other counties provide purchasing thresholds for "formal" and "informal" purchases, as well as monetary limits for purchases made by administration, and those which must be specifically approved by county commission boards. Our legal research failed to reveal any case or authority which thoroughly and with particularity analyzes the parameters and details of what county purchasing procedures may provide for. The Policy, however, appears to be consistent with the Florida Constitution and Florida Statutes, Chapter 125. In reviewing Chapter 125, and a significant number of purchasing ordinances and policies throughout the State of Florida, it is clear that counties generally seek to strike a balance between governmental decision making and policy setting, which must necessarily be performed by county commissions, and routine purchases of goods and supplies, which from a practical standpoint, must be administered on a day to day basis. This approach also seems to be consistent with the distinction delineated by Chapter 125 between the functions of county commissions and county administration. For example, Florida Statutes Section 125.01(3)(a), in pertinent part, provides that the "enumeration of powers herein shall not be deemed exclusive or restrictive, but shall be deemed to incorporate all implied powers necessary or incident to carrying out such powers enumerated ". Further, Section 125.01(3)(b) provides that in the context of the governing body's powers and duties, they "shall be liberally construed in order to effectively carry out the purpose of this section and to secure for the counties the broad exercise of home rule powers authorized by the State Constitution ". Moreover, Section 125.71 draws a distinction between the fundamental policy making purpose of county commissions, and the necessity for coordinated administration to relieve county commissions of the "multitude of details which must necessarily arise from the operation of a county... ". Further, the powers and duties of county administrators include: to "Develop, install, and maintain centralized budgeting, personnel, legal, and purchasing procedures ". See, Florida Statutes, Section 125.74(1)(i). Additionally, in the context of determining the legality of expenditures, one of the factors that a court would consider is whether funds were spent in confonnity with county "purchasing procedures or statutory bidding procedures ". See, for example, Alachua County v. Powers, 351 So, 2d 32 (Fla. 1977). The Florida Supreme Court's reference to both "purchasing procedures" and "statutory bidding procedures" is also consistent with the blended approach between policy and statutory mandates referenced above. For example, there are- certain statutes that apply to local governments, including counties, and that would control in the event of a conflict. These would include, Florida Statutes, Section 287.055 Packet Page -668- 12/13/2011 Item 10.B. n Steve Y. Carrell, Purchasing and General Services Director May 12, 2011 Page 3 (Consultants' Competitive Negotiation Act), and Florida Statutes, Section 255.20 as to local construction projects. The Florida Attorney General's Office has also issued opinions which distinguish between policy making, and administration. For example, in Attorney General Opinion 99 -75, the Attorney General's Office found that a school board's purchasing policy which authorized its purchasing director to make purchases up to a specific monetary limit was "primarily administrative ". Additionally, in AGO 94 -58, the Attorney General's Office concluded that there is a distinction between a policy establishing a zoning board, and the administrative function of the zoning board in implementation of the policy. Thus, there is a practical and legal distinction between the setting of policy as a governmental function, and administration of the policies established by a governing body. Once you have had the opportunity to review our suggested revisions, please advise if you have any questions or would like for us to review any additional issues. We are also available to meet directly with staff, and participate in further efforts to assist the County in updating its Policy. Thank you for your time and attention to the above. 'William J. Cea y For the Firm WJ C /mbk cc: Scott R.Teach, Esq., Deputy County Attorney ACTIVE: 33651051 Packet Page -669- 12/13/2011 Item 10.B. PURCHASING POLICY OF COLLIER COUNTY ESTABLISHMENT OF PURCHASING POLICY Ordinance No. 87 -25 provides for the adoption of a Purchasing Policy. Collier County Resolution No. 97435 establishes the following Purchasing Policy. II. PURCHASING DEPARTMENT RESPONSIBILITIES A. The Purchasing Department shall be responsible for. 1. Seeking Maximum Value: Act to procure for the County the highest quality commodities, and contractual services at least expense to the County. 2. Encouraging competition: Endeavor to obtain as full and open competition as possible on all purchases and sales. 3. Procedures: Establish and amend, when necessary, operational procedures for the implementation of the Purchasing Policy provided by ordinance. Said procedures shall become effective only when approved in writing by the County Manager. Copies of the procedures shall be maintained on file in the office of the Purchasing Department. 4. Purchasing Analysis: Keep informed of current developments in the field of purchasing, prices, market conditions and new products, and secure 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. 5. Purchasing Manual: Prescribe and maintain a standard Purchasing Manual for all using agencies. The content of said manual will be governed by this Policy. 6. Forms: Prescribe and maintain such forms as shall be found reasonably necessary to the operation of this Policy. 7. Vendor Certification: Document that vendors doing business with the County have acknowledged their understanding and acceptance of the terms and conditions of the County's Purchasing Policy and have agreed to abide by those terms. 8. Bulk Purchases: Exploit the possibilities of buying "in bulk" so as to take full advantage of discount. 9. Vendors' Catalog File: Prepare, adopt and maintain a vendor's catalog file. Said catalog shall be organized according to materials and /or services and shall contain descriptions of vendors' commodities, prices and discount. 10. Tax Exemptions: Act so as to procure for the County tax exemptions to which it is entitled. 11. Cooperation: Cooperate with using agencies so as to secure for the County the maximum efficiency in budgeting and accounting. Packet Page -670- 12/13/2011 Item 10.B. 12. Suspension and Debarment of Vendors: To oversee and facilitate the suspension and /or debarment of vendors as set forth under Section XXIX of this policy. 13. Inquiry and Control: Have full authority to question the quality, quantity, and kinds of items requisitioned in order that the best interests of the County are served. The Purchasing Director shall have final approval authority for all purchases at or below the formal competitive threshold. To ensure the timely, proper and orderly acquisition of services to the various using agencies, all authority granted to the Purchasing Director in this policy may be formally delegated by the Purchasing Director in whole or in part to appropriate staff members within the County Manager's agency. PURCHASES NOT EXCEEDING $3,000 Purchases that do not exceed $3,000 may be approved by the Purchasing Director without informal or formal competition by means of a purchase order, purchasing card or formal agreement (or any combination therein) as defined under this policy or deemed appropriate by the Purchasing Director. IV. INFORMAL COMPETITION (PURCHASES EXCEEDING $3,000 BUT NOT GREATER THAN $50,000) A. All purchases exceeding $3,000 but not more than $50,000 shall be awarded by the Purchasing Director to the qualified and responsive vendor submitting the lowest or best overall quote which meets all specifications, unless the requirement for competition is waived by the Purchasing Director in accordance with Section 4.6. All such purchases may be solicited and awarded without formal public announcement and without formal competition, 1. Minimum Number Quotes: Open market purchases or sales in excess of $3,000 but less than or equal to the formal competitive threshold shall be based on a good faith effort by the Purchasing Department or the using agency r^ to obtain at least three (3) competitive quotes (including all "no quote" responses). Award shall be made to the lowest, qualified and responsive quote in accordance with the standards set forth in this Policy. Z Solicitation of Quotes: The Director may solicit quotes orally, written, or electronically for open market pricing or sale, using available bidders' and supplier lists. The Director shall determine in which instances quotations shall be solicited in writing. Further the Director shall determine which agency (e.g.; Purchasing or the using agency) shall obtain the quotations. All quotes in excess of ten thousand dollars $10,000 shall be tendered or confirmed in writing or electronically submitted by the vendor prior to purchase. 3. Public Record: The Director shall keep a record of all open market quotes submitted and such records shall be open to public inspection a#eF award -#gas been raade.in accordance with F.S- Chapter 119. B. The requirements for requesting quotes from three (3) or more sources are waived and do not require Board action for: 1. Purchase of library books, education and /or Personnel tests, similar audio visual materials, periodicals, printed library cards, etc. Packet Page -671- 2. Professional services; and, in instances when authorized by the Purchasing Director where commodities or services are purchased directly from the owner of a copyright or patent, a governmental agency, a recognized educational institution, a not - for - profit entity or when there are no other identifiable sources available. 3. Purchases that the Director has determined to be legitimate single source purchases. 4. Valid public emergencies or other instances deemed by the Director to be in the best interests of the County. 5. Purchases of services from experts or consultants by or through the Office of the County Attorney for purposes of preparing for or defending against imminent or pending civil litigation or administrative proceedings. 6. Purchases of advertisements from various commercial media sources. C. All purchases greater than $1,000 but less than or equal to $3,000 will generally be processed using a regular purchase order. However, such purchases may be processed using a purchasing card in accordance with Section XXIV of this policy. V. FORMAL COMPETITIVE THRESHOLD (Purchases in excess of $50.000) A. It is the intent of the Board of County Commissioners to establish an amount of fifty thousand dollars ($50,000) as the County's formal competitive threshold for purchases. The established limit shall be applied to all methods of purchase by agencies under the purview of the Board of County Commissioners, including but not limited to competitive sealed bids, competitive proposals and competitive selection and negotiation. The requirement for formal competition may be waived by the Board of County Commissioners where permitted by law, under the following circumstances: 1. Purchase of library books, education and/or personnel tests, similar audio visual materials, periodicals, printed library cards, etc. 2. Single source purchases (pursuant to subsection C). 3. Valid public emergencies (pursuant to SectionXXI). 4. Where it is determined to be in the best interests of the County to do so. B. C Exemption For Single Source Commodities: Purchases of commodities and services from a single source may be exempted from formal competition upon certification by the Purchasing Director of both of the following conditions: 1. The item(s) is the only one available that can properly perform the intended function(s); 2. The recommended vendor /contractor is the only one ready, willing and able to meet the County's requirements. Packet Page -672- 12/13/2011 Item 10.13. 12/13/2011 Item 10.13. All Single Source purchases in excess of the formal competitive threshold shall be exempted from formal competition; however, approval of the Purchase by the Board is required. Recurring single source purchases shall not require subsequent Board approval (in the same or in any subsequent fiscal year) provided that there are sufficient budget appropriations to make each purchase. Purchases less than or equal to the formal competitive threshold may be exempted from competition by the Purchasing Director, and as otherwise may be permitted by law D. Use of Past Performance Data: In order to promote the qualitative delivery of commodities and services, County departments shall record and consider the past performance of vendors in the award of contracts exceeding the formal competitive threshold. This objective shall be accomplished as follows: 1. The Purchasing Department shall be responsible for each of the following: 1. Developing, implementing and maintaining appropriate administrative procedures, instructions and technologies necessary to collect and access vendor performance data. 2. Ensuring that relevant past performance data is properly gathered and considered prior to award of subsequent contracts. 2. Using agencies shall be responsible for each of the following: a. Conducting periodic performance evaluations of vendors under contract with the County pursuant to the procedures established pursuant to subsection V.D.1a. b. Considering the past performance of vendors during the evaluation of formal bids and proposals for subsequent contract awards as set forth in the administrative procedures referenced under subsection V.D.1a. VI. COMPETITIVE BID PROCESS Any purchase of commodities or services which is estimated or costing in excess of the formal competitive threshold shall be accomplished by competitive sealed bid, by competitive selection and negotiation (per section V11) or by competitive proposals (per section VIII). Award of Bid Contract shall be made by the Board to the lowest, qualified and responsive bidder except where otherwise provided for in this policy- ar�-"ess -an e*eeptiwi is gFanted by the Rowel. Bid limits for requirements utilizing federal or state funds will be those required by said agency granting the funds or the County's requirements, whichever takes precedence. A. Notice Inviting Bids: 1. Announcement: Notice inviting bids shall be publicly posted by the Purchasing Department in a consistent public location at least ten (10) days preceding the last day established for the receipt of bid proposals. Bids may be solicited and /or received in one or more steps as permitted by law and deemed appropriate by the Purchasing Director. 2. Scope of Notice: The public notice required herein shall include a general description of the commodities /services to be purchased or sold, shall state where bid instructions and specifications may be secured and the time and place for opening bids. Packet Page -673- 12/13/2011 Item 10.13. Bidders' List: The Director shall also solicit sealed bids from qualified prospective vendors/contractors who have registered their names on the Collier County Purchasing Department vendor database, which will electronically send them a notice of the proposed purchase or sale. Notices sent to the vendors /contractors on the Collier County Purchasing Department vendor database shall be limited to commodities or services that are similar in character and ordinarily handled by the trade group to which the notices are sent. Vendors/contractors are responsible for maintaining their profiles in the database to ensure proper notifications are received. Vendors/contractors may be removed from the database by the Director for continual non - response to formal solicitations and violations to the Purchasing Policy. The Director shall have the discretion to continue to issue formal solicitations and accept formal bids, proposals and other tenders using paper where appropriate. The County's use of a vendor database is not a guaranty that notice will actually be received Accordingly, nothing herein will be construed to relieve prospective vendors /contractors from the responsibility to timely submit bids, proposals or resoonses to a County solicitation. _ - _ Formatted: Font: Not Bold 4. Bid Deposits: When deemed necessary by the Director, bid deposits shall be prescribed in the public notices inviting bids. Said deposits shall be in the amount equal to five percent of the bid submitted. The Director shall have the authority to return the deposits of all bidders prior to award of bid contract by the Board of County Commissioners. A successful bidder shall forfeit any deposit required by the Director upon failure on the vendor's part to enter into a contract within ten (10) working days after written notice of award. The form of the deposit shall be specified in the solicitation, and may include bid bonds, certified checks, or other security as provided by F. S., Section 255.051. 5. Bid Addenda: An addendum to a specification shall be defined as an addition or change in the already prepared specifications for which an invitation has been issued for formal quotations or an announcement has been posted for a formal sealed bid. Any addendum to a request for formal sealed bids shall be approved by the Department Director or designee and the Purchasing Director. The addendum shall clearly point out any addition or change to the invitation for bids. The Purchasing Department shall be responsible for insuring that addenda are available on the e- procurement website and that all prospective bidders who have downloaded specifications are notified of the addendum prior to opening of bids. B. Procedure for Bids: 1. Sealed Bids: Sealed bids shall be submitted manually or electronically to the Director and if manual shall be clearly identified as bids on the outside of the sealed envelope. 2. Opening: Bids shall be opened publicly at the time and place stated in the public notices and shall be witnessed and certified by the Purchasing Department. 1 Tabulation: A tabulation of all bids received shall be made either electronically or manually by the Purchasing Department and shall be available for public inspection. 4. Compliance with federal Immigration Law: All formal bid solicitations for the purchase of services shall include language advising prospective contractors that they must sign up to use the federal E- Verify system prior Packet Page -674- to tendering a bid offer with the County. Bidders shall also be advised that evidence that the contractor has in fact signed up for E Verify must be on file with the Purchasing Department prior to award of a contract by the Board to that bidder. 5. Single or Multi-Step Solicitations: Unless otherwise prohibited by applicable federal, or state law or the terms of a grant program, Olds may be solicited and/or received in one or more steps, nd Is deemed appropriate by the Purchasing Director. C. Tie Bids: Where there are low tie bids, the award process shall first be subject to Section 287.087, F.S. In the event that all of the tied bidders comply with Section 287.087, F.S., the Purchasing Department shall determine if any of the bidders would be considered a local business as defined under Section XI of this policy. If one (and only one) of the bidders is determined to be a local business, then award of contract shall be made to that bidder. In the event that two or more local bidders are tied thereafter, award of contract shall be made in accordance with Section XI.2(a) of this policy. D. Refection Of Bids And Negotiation. 1. The Board of County Commissioners shall have the authority to reject any and all bids. 2. Subsequent to applying the procedures set forth under Section XI (2)(a), where applicable), if the lowest, qualified responsive bid exceeds the budgeted amount and if the purchase is not funded in whole or in part with interagency grant dollars, the Purchasing Director may negotiate changes with the apparent lowest qualified 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 Purchasing Director shall be authorized to conduct such negotiations provided said actions are not prohibited by law or .� the grant conditions. 10—\ If no bid is received, the Board of County Commissioners may authorize the Purchasing Director to purchase by negotiation under conditions most favorable to the public interest and when said purchase will result in the lowest ultimate cost of the commodities or services obtained. E. Waiver Of Irregularities: The Board of County Commissioners shall have the authority to waive any and all non - material irregularities in any and all formal bids or proposals. A minor or non - substantive lack of conformity may be considered a interests of the County. Award Of Bid Contract: The Chairman, when authorized by majority vote of the Board or as otherwise provided for in this policy, shall execute formal contracts having a binding effect upon the County. Formal, bilateral contracts shall not be required where a purchase order is sufficient. A formal contract shall be awarded by the Board of County Commissioners to the lowest qualified and responsive bidder. In addition to the pFir.9 shall be the fellowin I determining Packet Page -675- 12/13/2011 Item 10.13. 12/13/2011 Item 10.13. whether a bidder is gualified the Board may consider factors which include but are not limited to, the following : 1. The ability, capacity and skill of the bidder to perform the contract. 2. The ability of the bidder to perform the contract within the time required or the least time, if appropriate, without delay or interference. 3. The experience and efficiency of the bidder. 4. The quality and performance of previous contracts awarded to the bidder. 5. The previous and existing compliance by the bidder with laws and ordinances relating to the contract. 6. The quality, availability and adaptability of the commodities or contractual services to the particular use required. 7. The ability of the bidder to provide future maintenance and service (where applicable). 8. t4fbet i9F COU ty or th fkrreat Gf-tttigatlerr-a gainst the County Is Imminent Litigation history references: criminal records: prior pending or imminent claims or disputes with the County or other public agencies: as well as comparable relevant information as to the bidder's principals and affiliated entities ------------------------------ Formatted: Font: Not Bold All recommendations for award for bid contract will be reviewed and approved by the Purchasing Director prior to presentation to the Board of County Commissioners. Bidders competing for a prospective bid award (and their agents/representatives) will not be permitted to publicly or privately address the Board regarding a prospective purchase prior to the time of award unless requested to do so by the Purchasing Director or by a majority vote of the Board. VII. PROCUREMENT OF PROFESSIONAL SERVICES A. Because differences in price may only be a minor concern compared to qualitative considerations, professional services may be exempted by the Purchasing Director from the competitive bidding process. Instead, professional services will be typically acquired through one of the following methods: 1. Competitive Selection and Negotiation. 2. Competitive Proposals (pursuant to Section VIII). B. A professional service shall be defined as assistance obtained in support of County operations from an independent contractor in one or more of the following professional fields: 1. Appraisal Services- real and personal property appraisers. 2. Architecture, professional engineering, landscape architecture, or registered land surveying services (as per Section 287.055, F.S.). Packet Page -676- ^, 12/13/2011 Item 10. B. 3. Audit and Accounting Services - auditors and accountants (excepting the selection of the annual auditor which shall be conducted as per Section 11.45, F.S.). 4. Consultants - planning, management, technological or scientific advisors. 5. Financial Services - bond counsel, rating and underwriting, financial advisor, and investment services. 6. Legal Services - attorneys and legal professionals. 7. Medical Services - medicine, psychiatry, dental, hospital, and other health professionals. C. Requests exclusively for services defined under VI1.B.2 will be procured in a manner consistent with Section 287.055, F.S., known as TT-hethe- "Consultants 's Competitive Negotiation Act' as required by said statute. Projects may include, but are not strictly limited toy one or more of the following: 1. Fixed assignment contracts: A grouping of minor professional service (including construction inspection services) assignments. 2. Fixed term contracts: Countywide agreements for various and miscellaneous minor professional services (including construction inspection services) on an as needed basis. 3. General Professional Services: Includes administration, support and management of engineering, architectural, surveying and planning activities. I.Q! 3, the �\ isl prejest- OFta pesif+s-prepesaIG € 9M are sensiderad. Each solicitation shall include at minimum a description of work to be performed and the criteria to be used to evaluate each proposal. FeF all =best atien , eriteria -Work orders may be authorized -by the Purchasing Director in accordance with the terms of the contract - Formatted: Not Strikethrough The Director shall be authorized to approve all work orders where the maximum initial dollar amount does not exceed two hundred thousand dollars ($200,000) and where the maximum initial contract amount does not exceed seven hundred fifty thousand dollars ($750,000). Any work order and/or contract that exceeds that amount subsequent to award and prior to completion of the work shall be subject to the provisions of Section XV.0 of this resolution. Projects shall not be sub - divided to circumvent the dollar thresholds established herein. All fixed term agreements issued under this section shall be eligible for extension or renewal in accordance with the provisions of Sections XV.D and E respectively. Nothino set forth in this Policv shall be construed as precludino the Countv from awarding continuing contracts in accordance with F.S., Section 287.055. Based thereon. the County may award any of the following types of continuing contracts for: (a) whereby the firm provides professional services to the County for projects in which the estimated construction cost of each individual project under the contract Packet Page -677- 12/13/2011 Item 10.13. must provide a termination clause. D. For all service procurements in excess of the formal competitive threshold under the Competitive Selection and Negotiation method, authority to announce and distribute Requests for Proposals or Letters of Interest and Qualifications and to appoint and empower a selection committee shall be pursuant to Section VIII.B. hereof. E. Final selection of the professional service provider (award of contract) shall be made by the Board of County Commissioners. R Purchases for all professional services estimated to be equal to or less than the formal competitive threshold may be approved by the Purchasing Director, as pamitted by tawand unless otherwise prohibited by applicable federal or state law. G. Requests for outside legal services will be referred to the County Manager and the County Attorney for review and comment as to whether said services are necessary and/or appropriate. Requests for outside legal services may be exempted from formal competition by the Board of County Commissioners at the request of the County Manager or County Attorney. H. The acquisition of services from experts or consultants for purposes of preparing for or defending against imminent or pending litigation or administrative proceedings shall be exempt from all competitive requirements of this policy. Any such acquisitions that do not exceed $50,000 may be approved by the County Attorney and the Purchasing Department without further action. Acquisitions that exceed $50,000 may be authorized by the County Attorney and the Purchasing Department, but will be reported at a regular meeting of the Board for ratification. VIII. COMPETITIVE PROPOSALS A. The Competitive Proposals process is a method of contract selection that may be utilized by the Purchasing Director under circumstances where one or more of the following conditions exist: 1. Where qualitative considerations are of equal or greater concern than pricing considerations. 2. Where the conditions of the purchase do not lend themselves to the formal sealed bid process or the award of a firm, fixed fee contract. 3. Where the County is incapable of specifically defining the scope of work for which the commodity(s) or service(s) is required and where the qualified offeror is asked to propose a commodity(s) or service(s) to meet the needs of the County. 4. Where the County desires to enter into a single contract for the design and construction of a public construction project(s). 5. Where the County desires to enter into a contract which generates revenue to the County (including, but not limited to concessionaire agreements) with an estimated annual revenue of $50,000 or more. Packet Page -678- B. For purchases in excess of the formal competitive threshold and where appropriate or required by law, the competitive proposals process will be utilized. The process will be conducted in a manner similar to the sealed bid process as set forth under Section VI except where otherwise stated in this section. The competitive proposals process shall proceed as follows: 1. A Request for Proposals (RFP) will be prepared and distributed in a manner consistent with the definition of said term found in Section 2 of Collier County Ordinance No. 87 -25. Notice of said request(s) shall be publicly posted by the Purchasing Department at least 21 calendar days preceding the last day established for the receipt of proposals. 2. Each Request for Proposals shall identify the appropriate evaluation procedures and criteria to be applied to the selection of the best proposal among the respondents. Each RFP pertaining to the award of a design/build contract(s) shall be subject to the requirements of Section 287.055 F.S. 3. Prior to the announcement and distribution of the RFP, a selection committee shall be appointed by the County Manager or his designee to evaluate the proposals received. For all purchases made under the Competitive Proposals method, the County Manager or his designee may empower the selection committee to designate and rank the proposals prior to the commencement of negotiations and to negotiate a tentative agreement, subject to award by the Board. 4. Proposals may be solicited and /or received in one or more steps as permitted by law and deemed appropriate by the Purchasing Director. Unless otherwise prohibited by law, the Purchasing Director shall have the discretion to solicit and conduct simultaneous or concurrent negotiations with one or more firms. 5. Compliance with Federal immigration Law: All formal RFP solicitations for the purchase of services shall include language advising prospective respondents that they must sign up to use the federal E- Verify system prior to tendering a proposal with the County. Prospective respondents shall also be advised that evidence that they have in fact signed up for E- Verify must be on file with the Purchasing Department prior to award of a contract by the Board to that firm. C. For purchases in excess of the formal competitive threshold, final selection of the awardee will be made by the Board of County Commissioners. Purchases less than or equal to the formal competitive threshold may be authorized by the Purchasing Director, as- pwmitted- by- lawand unless otherwise required by applicable federal or state laws -shall not require formal solicitation or announcement unless deemed necessary by the Purchasing Director, IX. PROCUREMENT OF DESIGN /BUILD CONTRACTS• CONSTRUCTION MANAGEMENT SERVICES A. Procurements for the design and construction of public construction projects may be obtained through a single contract with a firm selected in a manner permitted under Section 287.055, F.S. and the procedures set forth in this section. In the event of any conflict between Section 287.055. F.S. and this Policy, Section 10 Packet Page -679- 12/13/2011 Item 10.13. 12/13/2011 Item 10.13. 287.055 shall control The County may use a oualifications -based selection Section IX.B. Formatted: Tabs: 1.08 "�Left �• - - ` Formatted: Indent: Left: B. Where a competitive proposal process is selected, and uUpon completion of the- - - - Formatted: Indent: Left: 0.28 , Design Criteria Package, procurements of Design - /Build services shall be Hanging: 0.59", Tabs: 0.88 ",left+ processed in a manner consistent with Section VIII hereof entitled "Competitive I Not at 0.5^ Proposals" provided that the procedure shall provide for the following:. —(1) the C. Administrative procedures shall also be established by the County Manager or his designee to further provide for utilization of the design criteria professional concerning the evaluation of the proposals submitted by the design/build firms, the supervision or the approval by the County of the work drawings of the project and evaluation of the project construction with the design criteria package. D. The Board of County Commissioners may declare a public emergency, where appropriate and authorize the using agency to negotiate an agreement for Board approval with the best qualified design -build firm available at that time. X. Small and Disadvantaged Minority and Women Business Enterprises A. Policy Statement: Collier County stands committed to providing equal opportunities to small businesses and disadvantaged business enterprises (DBE), minority business enterprises (MBEs) and women 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 will require its vendors, consultants, contractors and subcontractors to provide qualified small businesses and DBE's Packet Page -680- with an equal opportunity to participate in the formal competitive processes for the n 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 help ensure that small businesses and DBEs, MBEs, WBEs, and all qualified vendors, consultants, contractors and subcontractors have an equal opportunity 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. B. Definitions: For purposes of this policy, the term "small business" shall have the same definition as set forth under Section 288.703.(1), F.S. The term "DBE" shall include any "small business" as defined pursuant to Section 288.703(1) that is at least 51 percent owned or controlled by a person or persons defined as "socially and economically disadvantaged" individuals pafsuaA! W nd as referenced at F.S.. Section 337.139 Reference to these definitions, however, shall in no way be construed to provide that the County has adopted or is subject to the provisions of the Statute or Code referenced herein. C. implementing Measures: In an effort to implement this policy, the County may undertake the following measures: 1. Designate the Purchasing Director to administer this policy. 2. Utilize outreach programs to identify, register and educate small businesses and DBEs, MBEs and WBEs to participate in the procurement/contract process including, but not limited to: a. Attending trade fairs which include representatives from these enterprises. b. Attending meetings and social events wherein these enterprises participate. c. Utilizing publications aimed at reaching these enterprises. d. Utilizing directories and other reference sources that list these enterprises. e. Publicizing this Policy to encourage these enterprises to participate in the County's procurement process. f. Other actions designed to identify these enterprises who seek to provide commodities and services to the County. 3. Maintain a list of these enterprises. 4. 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. 12 Packet Page -681- 12/13/2011 Item 10.13. 12/13/2011 Item 10.13. Conformity with Applicable Law The provisions of this section shall be construed in conformity with applicable state and federal iaw. To the extent that state law conflicts with federal law, federal law shall supersede such state law. XI. 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 the purchasing policy, 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 valid occupational license issued by Collier County at least one year prior to bid or proposal submission to do business within Collier County that authorizes the business to provide the commodities or services to be purchased, and a physical business address located within the limits of Collier County from which the vendor operates or performs business. Post Office Boxes are not verifiable and shall not by 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, the 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 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 qualified and responsive, non -local business submits the lowest price bid, and the bid submitted by one or more qualified and responsive local businesses is within ten percent of the price submitted by the non -local business, then the local business with the apparent lowest bid offer (i.e.; the lowest local bidder) shall have the opportunity to submit, an offer to match the prioe(s) offered by the overall lowest, qualified and responsive bidder. In such instances, staff shall first verify if the lowest non -local bidder and the lowest local bidder are in fact qualified and responsive bidders. Next, the Purchasing Department shall determine if the lowest local bidder meets the requirements of Section 287.087, F.S. If the lowest local bidder meets the requirements of 287.087. F.S., the Purchasing Department shall invite the lowest local bidder to submit a matching offer to the Purchasing Department which shall be submitted to the Purchasing Department within five (5) business days thereafter. If the lowest local bidder submits an offer that fully matches the lowest bid 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 Packet Page -682- qualified and responsive bidder. If the lowest local bidder does not meet the n requirement of Section 287.087, F.S. and the lowest non -local bidder does, award will be made to the bidder that meets the requirements of the referenced 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 (Section VI) or Competitive Selection and Negotiation (Section VIII) 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 identified under subsection VII.B.2 (which are subject to Section 287.055, F.S.) and subsection VI1.B.3 (which are subject to Section 11.45, F.S.) shall not be subject to this local preference section. (3) Waiver of the application of local preference. The application of Local Preference to a particular purchase or contract for which the Board of County Commissioners is the awarding authority may be waived upon approval of the Board of County Commissioners. (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 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 policy. This policy shall apply to all departments and units under the direct purview of the Board of County Commissioners. The Purchasing Department shall be responsible for developing, implementing and maintaining administrative procedures in support of this policy. For purchases of $50,000 or less, the policy requirements set forth shall not strictly apply. Rather, the Purchasing Department shall systematically encourage departments to solicit prise -quotes #rem 'anal Nfendors and-t9Gal Y @n include local vendors when solicitina auotations in accordance with this Policv. (7) Subsequent Review and Sunset Provision. Pursuant to the adopting resolution, this local preference section is being added to the purchasing policy in support of the local economy 14 Packet Page -683- 12/13/2011 Item 103. during difficult economic times in Collier County. On or about one year of the effective date, the Purchasing Department will provide the Board with an update of the results and impacts to date of this local preference policy. Within two years of the effective date, the Board shall receive a similar report from the Purchasing Department and shall determine whether to continue or modify this policy. Should the Board not elect to continue the local preference policy, it will expire at that time. XII. PAYMENT OF INVOICES A. It is the intent of the Board of County Commissioners that all agencies under its purview be in compliance with Section 218.70 F.S., et sea.. othenMse known as the "Local Government Prompt Payment Act'. PuFwant -to thisAs set forth at F.S.. Section 218.72, the requirements of this section shall apply to the following transactions: 1. The purchase of commodities and services; 2. The purchase or lease of personal property; 3. The lease of real property. B. The Purchasing Director shall have the authority to establish and maintain a procedure that authorizes 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. C. Additionally, the Purchasing Director shall be permitted to establish and maintain a procedure that authorizes the payment of freight and delivery charges that are not specifically identified on the purchase order. D. It shall be the responsibility of the Purchasing Director, in consultation with the Finance Director and using agencies, to establish, distribute and administer procedures for the timely payment of all transactions as defined under XILA hereof. Such procedures shall include, but not be limited to the following: 1. Formally defining the County's requirements for the content and submission of a proper invoice, codifying the County's payment requirements and formally notifying each vendor of their availability. 2. Steps required for the receipt of all invoices and the prompt return of improper invoices. 3. Steps required for the resolution of payment disputes between the County and a vendor. E. Each December, the Finance Director and the Purchasing Director shall submit a joint report to the Board listing the number and total dollar amount of interest penalty payments made during the preceding fiscal year. XIII. PAYMENT OF DUES FOR MEMBERSHIP IN PROFESSIONAL ORGANIZATIONS County funds may be used to pay for dues for membership in a professional or other organization provided that such expenditure meets the following criteria: 15 Packet Page -684- 12/13/2011 Item 10.13. 101-\ 1. Such membership is deemed necessary to meet duties and responsibilities required by Federal, State or local mandate or to facilitate proper professional development. 2. The organization of membership is of a non - profit nature. 3. Sufficient funds are available within the proper appropriation unit/summary code. XIV. STANDARDIZATION COOPERATIVE PURCHASING AND GOVERNMENTAL CONTRACTS A. Where standardization is determined to be desirable by the Director, the purchase of commodities may be made by negotiation with the approval of the Board of County Commissioners if more than the competitive bid limit or by the County Purchasing /General Services Director if less than or equal to the competitive bid or negotiation threshold. B. The Director shall have the authority to approve purchases under State of Florida and Federal GSA cooperative contracts. The Director shall also be authorized to join with other units of government in cooperative purchasing ventures prior or subsequent to award when in the best interests of the County. If funds have already been budgeted, no further Board action will be required. In authorizing all such purchases under pre- existing agreements, the Director shall have determined that the term and conditions of the purchase are competitive in the market and favorable to the County. C. In the event that the County wishes to purchase commodities or services under an existing contract previously let by and entered into by another up biic entity, the Director shall first verify that: 1. The existing contract was publicly eempetedprocured by another public entity or pfesufed -by-a recognized up biic cooperative purchasing entity using a procedure substantially similar to the procedures established by this Policy. 2. The existing contract is active at the time of order. 3. The prices, products and /or scone of services offered to the County are substantially similar to those in the existing contract. 4. Where applicable, certificates of insurance and /or contract - related bonds have been obtained in accordance with prevailing County standards and state statutes. XV. CONTRACT ADMINISTRATION A. 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: 16 Packet Page -685- 12/13/2011 Item 10.13. _ - - J Formatted: Font: Not Bold -� 1. A listing of the scope of services to be performed or commodities to be purchased. 2. A provision specifying the criteria and the final date by which such criteria must be met for completion of the contract. 3. A provision specifying the terms of cancellation by the County and where applicable, a provision specifying the terms of renewal. 4. 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. 5. Where applicable, pursuant to Section 287.133 F.S., 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. The Purchasing Director shall have the discretion to determine the circumstances under which a purchase order (and all documents included by reference) shall serve as the contract document B. Contract Manager: Every procurement of services shall be administered by the using agency (requesting department). C. Contract Changes: Notices issued under a purchase or contract may be authorized and executed by the Purchasing /General Services Director, excepting notices that terminate a Board - approved purchase or contract in its entirety. Modifications to a Board approved purchase or contract, including but not limited to change orders, supplemental agreements, amendments and changes by letter may be authorized and executed by the Purchasing /General Services Director provided that the change (or the sum of the changes) amounts to not more than the greater of (i) 10 percent of the current Board approved amount. or (ii) $10,000. The proviso at the end of the previous paragraph shall not be applicable to term 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 using agency(ies). Such purchases shall be subject to all other provisions of this policy. Notices that terminate an entire purchase or contract that was Board approved, and contract modifications that increase the total contract amount beyond the limits set forth above as applicable, shall require the approval of the Board of County Commissioners or as otherwise provided for in this policy. The Board shall have broad authority, within the limits of the law, to evaluate and approve any recommended contract modification without requiring further competition. All deductive changes pertaining to the use of direct material purchases, including those that reduce the contract amount by more than ten percent below the current Board approved contract amount shall be reported to the Board monthly as part of the monthly contract changes report and shall not require prior Board approval. 17 Packet Page -686- 12/13/2011 Item 10.13. D. Contract Extension: Extension(s) of a Board - approved contract for commodities or services may be requested by the contract manager to the Purchasing /General 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 initial contract. The Purchasing /General Services Director shall have the authority to authorize and execute all such extensions. Any extension(s) that exceed six months (cumulatively) shall be approved by the Board of County Commissioners. Extensions of contracts that do not (inclusive of the extension) exceed the formal competitive threshold may be authorized and executed by the Purchasing /General Services Director without Board action. E. Contract Renewal: The Purchasing /General Services Director shall have the authority to authorize and execute renewals of contracts for commodities and /or services subject to the following conditions: 1. That the Contractor has performed in a satisfactory manner and that the Director has received a request to renew from the Contract Manager verifying the Contractor's satisfactory performance. 2. That the agreement is renewed subject to the terms and conditions set forth in the initial contract. Costs and terms of any contemplated renewals are included in the invitation to bid or request for proposals. 6. That the renewal is done on an annual basis, commencing at the end of the initial contract period. Any such contracts shall not be renewed for more than 3 years unless competitively procured. 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. F. Contract Approval: All formal, bilateral contracts for commodities and services in excess of the formal; competitive threshold shall be authorized -by the Board of County Commissioners. Purchases -less than or equal to the formal; competitive threshold may be authorized and executed by the Purchasing Director, subject to the review and approval for legal sufficiency of the purchase order or agreement by the Office of the County Attorney. Formal, bilateral contracts (this ear subject to Board approval shall be presented on the Board with such back up information as may be necessary to afford the Board a meaningful opportunity to review the proposed award. . r, being vender's - sr- ssntrartees -ag t- form) or where -staff-has f e agreement will be Ineluded as ba6k up to the agenda Item. G. Work Orders (Not Under CCNA): The Purchasing /General Services Director may authorize and execute any work order if the work order is equal to or below such 18 Packet Page -687- 12/13/2011 Item 10H Board approval parameters for work orders as are set forth in either the Board approved term contract for services under which the work order is generated, the solicitation document (s) that resulted in the contract or the Executive Summary that pertains to the contract. Modifications to a work order may be authorized and executed by the Purchasing /General Services Director, provided that the work order, as modified, does not exceed $100,000 or if it does, the change (or sum of the changes) does not exceed 10% of the current Board approved amount. The above provisions of the Section G shall not apply to work orders, or modifications to work orders, governed by Section VII.0 above. Consent to Assignments of Contract: For all contracts which exceed the formal competitive threshold, the Board of County Commissioners shall approve all assignments of contracts requested by the predecessor contracting party. For such requests for agreements below the formal competitive threshold, the Purchasing /General Services Director shall have the authority to approve assignments on behalf of the agency. Authority Limitation and Delegation) Promulgation of Procedures: The Purchasing/General Services Director may delegate to one or more other Board employees any or all aspects of the authority vested in the Purchasing /General Services Director to authorize and /or execute contracts or contract- related documents pursuant to Section VII.0 above and Sections C through G of this Article XV or otherwise under law. All authority to authorize and execute documents that is vested pursuant to this Article XV in the Purchasing /General Services Director or any other person shall be subject to the limits of any applicable federal, state or other law. The Purchasing Department shall be responsible for establishing and maintaining administrative procedures that set forth any delegations of authority made pursuant to the foregoing provisions of this Section I, that set forth formal processes for each of the instruments referenced in this Article XV, and that are in all respects subject to the provisions of this Article XV. These procedures shall also set forth generalized requirements for (i) such pre - execution reviews of documents by the Office of the County Attorney and (ii) pre - execution reviews of documents by such other departments, if any, as the Purchasing /General Services Director determines to be appropriate and advisable. J. Payments to Contractors. Vendors and Consultants Prior to the execution of a formal contract subject to this policy, the Purchasing Department shall have the discretion to establish a formal payment schedule and payment terms within the agreement. Such terns and conditions shall be consistent with the requirements of all applicable laws and the formal solicitation documents. The terms and conditions for payment shall be in accordance with the entered into by the County. 19 Packet Page -688- 12/13/2011 Item 10.13. /01\ In accordance with Section 218.735 (8), F.S., and as to construction contracts, the Purchasing Director shall establish procedures to reduce to 5% the amount of retainage withheld from each subsequent progress payment issued to a contractor where applicable. The Purchasing Director, or his designee, shall have the discretion to establish, in writing, a schedule(s) to further reduce the percentage of cumulative retainage held throughout the course of the project schedule where warranted. The discretion of the project manager to reduce the percentage of cumulative retainage shall be subject to the following: 1. 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) ". 2. That any decision to reduce retainage shall be formally communicated in a letter to the Contractor's appropriate representative and that the letter affirmatively states that the Contractor has performed the contract work in a satisfactory manner. 3. That the cumulative retainage not be adjusted until at least 50% of the work has been completed and payment has been issued. 4. That the Purchasing Director's letter expressly sets forth the percentage of cumulative retainage to be held for the remaining pay requests. The Purchasing Director's designee shall also be granted the discretion to authorize the partial release or payment of contract retainage to the contractor prior to final completion of all project work provided that: 1. The contractor has performed in a satisfactory manner to date. 2. 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) 3. 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. 194he- even"hata Bent endo. provides predusts -arid seFVices ollAgatien to pay the invoim XVI. 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 Purchasing 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 20 Packet Page -689- 12/13/2011 Item 10.B. the performance bond if so provided for in the bid and contract documents. All such bonds or letters of credit shall be approved as to form by the County Attorney. XVII. UNAUTHORIZED PURCHASES No County officer or employee shall intentionally order, other than by purchasing card as permitted under this policy, the purchase of any commodities or services, or make any contract within the purview of this policy other than through the Purchasing Director. Any purchase order or contract made contrary to the provisions hereof shall be raet nesessaAyr unenforceable against the County_ bound thereby. —All purchases made within the provisions of this Policy shall be made with a purchase order or purchasing card, whichever is appropriate. In the event that a purchase transaction is found to be in violation of this policy, the Purchasing Director shall determine the facts pertaining to the transaction. In consultation with the appropriate operating department director, the Purchasing Director shall determine whether it is in the best interests of the County to proceed with the purchase and if so, under what conditions. If a determination is made to proceed with the purchase, all such transactions in excess of the formal competitive threshold (or other applicable Board authorization thresholds set forth in this policy) shall require the approval of the Board. All such transactions equal to or less than the formal competitive threshold may be approved by the Purchasing Director. A. Exceptions: This section shall not apply to the payment of premiums for insurance policies that have been acquired through prior Board action. This section shall not apply to nor supersede Resolution Nos. 86 -30, 86 -209 and 87 -16. XVIII. PROHIBITION AGAINST SUBDIVISION No contract or purchase shall be subdivided to avoid the requirements of this Policy. XIX. PROTEST OF BID OR PROPOSAL AWARD The purpose of this section is to accommodate legitimate protests concerning formal competitive —invAatiensprocurements and recommended contract awards above the competitive bid or proposal thresholds prior to award of the contract by the Board of County Commissioners. A. Any actual or prospective bidder or respondent to an Invitation for Bids --Gf a Request for Proposals, or Request for Qualifications who has a substantial interest and 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 Purchasing Director, who shall serve as the sole recipient of any and all notices of intent to protest and all formal protests. B, 21 Packet Page -690- 12/13/2011 Item 10.13. /0—%, n tome a . The Purchasing Director, in consultation with the contract manager (and other appropriate County staff), shall #gave —the autheAf render a decision on the formal protest. -f and teshal► also - determine whether postponement of the bid opening or proposal /response closing time is appropriate. The Purchasing Director's decision shall be considered final and conclusive unless the protesting party files an appeal of the Purchasing Director's decision. C. Any actual or prospective bidder or respondent to an linvitation for Bbids,--G; a Request for Proposals. or Request for Qualifications -who desires to ferMaily protest a recommended contract award shall submit a notice of intent to protest to the Purchasing Director within two (2) calendar days, excluding weekends and County holidays, from the date of the initial posting of the recommended award. D. All formal protests with respect to a recommended contract award shall be submitted in writing to the Purchasing 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 Purchasing Director. 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: 1. Name and address of County agency affected and the bid number and title. 2. The name and address of the protesting party. 3. A statement of disputed issues of material fact. If there are no disputed material facts, the written letter must so indicate. 4. A concise statement of the ultimate facts alleged and of any relevant rules, regulations, statutes, and constitutional provisions entitling the protesting party to relief. 5. A demand for the relief to which the protesting party deems himself entitled. 6. Such other information as the protesting party deems to be material to the issue. The formal protest shall contain aA arguments, facts or data supporting and advancing the protestoes position. Under no circumstances shall the protestor have the right to amend, supplement or modify their- - pFetest 9F to E. In the event of a timely protest of contract award consistent with the requirements of this section, the Purchasing 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. Neither the protesting party, their agents or their representatives shall have any private contact or discussions with individual County Commissioners the County Manager or any independent hearing officer (where 22 Packet Page -691- 12/13/2011 Item 10.B. 12/13/2011 Item 10.13. applicable) regarding the protest eltheF of the sinned unless este,d to ale by iL.e se DifeGW xcept such communications as may be reauired or permitted during a hearing, if applicable, or meeting of the County Commission wherein the solicitation or award is to be considered. F- F. The Purchasing Director shall review the merits of each timely filed formal- - - Formatted: Indent: Left: 0.35 ", protest and in consultation with the contract manager and other appropriate County Hanging: 0.52° staff, issue a decision stating the reasons for the decision and the protesting party's Formatted: Bullets and Numbering 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 Purchasing Director shall be final and conclusive unless the protesting party delivers a subsequent written ebjestiea- notice of appeal to the Purchasing Director within two (2) calendar days, excluding weekends and County holidays, from the date of receipt of the decision. ' , F -- G. In the event of a subsequent ebjeGboapooeal - pursuant to subsection F, the County Manager shall review the formal protest, the Purchasing Manager's decision, and his/her sole discretion appoint an independent Hhearing Oefficer to review the fauls Felevant to the pFe formal protest and the Purchasing Director's decision. The Hearing Officer's review shall be limited to the grounds set 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 for submission to the Board of County Commissioners. Prior to commencement of the hearing, the protesting party shall be required to post a cash surety in an amount equal to one (1) percent of the using agency's estimate of the contract amount or one theusand4l4eed to define ]dollars ($# 998_), whichever is less, and conditioned upon payment of the Hearing Officer, court reporter, and facilities charges, if any. Should the Hearing Officer find in favor of the County, the protesting party shall forfeit the surety as partial payment fer -undue 4delayfgr the costs incurred by the County. The cash surety shall remain in place until a written decision is rendered by the Hearing 23 Packet Page -692- �1 Officer. If the Hearino Officer's recommended decision is in favor of the motestina swety will be Felumed to the pFetestiRg . The County Manager's discretion as to whether to appoint a Hearing Officer shall in no way afford the protestor the right to demand - a-heaFinq ef€iseFsuch an _appointment or hearing. The County ManageF shall be solely FespeR6lble fe The decision of the proposals. 4"4e-event t by mutaai sen be mfeFred t test here applicable) will be provided to the protestor and other prior to the award recommendation being presented to the Commissioners- 4n — pubtiG session. Neither tThe award decision.. Failure to file a formal protest within the time and manner prescribed by this sSecfion XIX -shall constitute a waiver of the right to protest by any protesting party as defined by subsection A of this section. J. As a condition of filing a formal protest, the protesting party shall submit a nonrefundable filing fee for the purpose of defraying the costs in 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 Up to $250.000 $500 $250,,001 - $500,000 $1,000 $500,001 -$5 million $3,000 Over $5 million $5,000 XX. 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 commercial commodities 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 Procurement Administrative Procedures Manual. For any prospective or actual claims or disputes arising under any contract entered into by the County, the Purchasing Director shall have the discretion to arbitrate or mediate 24 Packet Page -693- 12/13/2011 Item 10.13. _ - Formatted: Font: Not Bold - - Formatted: Font: Not Bold Formatted: Font: Not Bold the claim or dispute or may appoint an independent third party to do so within the authorization threshold limits of this policy. Nothing herein shall be construed as a waiver of any right or remedy that the County may have at law or in equity relative to any contract or purchase order. XXI. EMERGENCY PURCHASES A. By County Manager: In case of an emergency which requires immediate purchase of commodities or services in excess of the formal competitive threshold, the County Manager shall be empowered to authorize the Director to secure by open market procedure as herein set forth, any commodities or services. The County Manager shall have the authority to act in the case of any emergency including the issuance of emergency change orders/supplemental agreements. Any emergency action shall be reported at the first available regular or special meeting of the Board of County Commissioners. The County Manager shall further be authorized to approve payment(s) to vendors at the time of or shortly after purchase should the circumstances warrant. B. By Purchasing Director. In case of any emergency which requires immediate purchase of commodities or services equal to or less than the formal competitive threshold, the Purchasing Director shall be empowered to secure such services and commodities by open market procedure as herein set forth. Such action shall be reported immediately to the County Manager when appropriate. This section in no way constrains the provisions of Collier County Ordinance No. 84 -37. XXII. INSPECTION AND TESTING The 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. A. Inspection by Using Agency: The Director shall have the authority to authorize using agencies having the staff and facilities for adequate inspection to inspect all deliveries made to such using agencies under rules and regulations which the Director shall prescribe. B. Testing: The 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 Director shall have the authority to make use of laboratory facilities of any agency of the County or of any outside laboratory. XXIII. SURPLUS COMMODITIES AND TANGIBLE PERSONAL PROPERTY All using agencies shall submit to the Director, at such times and in such form as shall be prescribed, reports showing stocks of all tangible personal property which are no longer used or which have become obsolete, worn out or scrapped. A. Transfer. The Director shall have the authority to transfer surplus stock to other using agencies. D. Sale: The Director shall have authority to sell all commodities of a value less than the limits proscribed under Chapter 274 F.S., which have become unsuitable for County use. Sales under this section shall be made to the highest responsible bid and in conformance with Section, 274, F.S. The Director shall be authorized to 25 Packet Page -694- 12/13/2011 Item 10.13. approve all sales where the net revenue to the County does not exceed $50,000. All sales exceeding $50,000 in net revenue to the County will be approved by the Board prior to completing the sale or conducting the sales event. E. Trade In: The Director shall be authorized to approve purchases that include the "trade in" of existing items (including assets) pursuant to the purchase of new, replacement or upgraded items /services. Donation: Operating departments under the purview of the Board of County Commissioners shall be authorized to accept items donated to the County. The receipt of all items not considered to be assets as defined under Florida law is to be documented by a letter from the operating department director to the donating entity. Items considered to be assets are to be documented using the appropriate forms and forwarded to the Fixed Assets Section of the Clerk of Courts Finance Division. Documentation is to include, but not be limited to; the date the asset(s) was received; the estimated fair market value of the asset(s); a description of the asset(s); a serial number if applicable and the fund /cost center under which the asset(s) will be assigned. G. Disposition of Assets: The Director shall have the authority to determine whether previously - acquired items (including assets) that are no longer useful to the agency have commercial value and if not, to dispose of such items in an appropriate manner with or without offering such items for sale, trade or donation to other entities. The Fixed Assets Section of the Clerk of Courts' Finance Division will submitted a quarterly report that identifies any assets that are disposed of under the provisions of this subsection. XXIV. PURCHASING CARD PROGRAM The Director shall be responsible for the overall management and operation of the County's purchasing card program. For the purpose of this policy, apurchasing 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 Director shall be authorized to assign cards to employees for these purchases. The Director shall have the authority to establish the following dollar limits for each assigned card: A. Single Transaction Limit: Not to exceed $1,000 per card unless otherwise authorized by the Director. B. Monthly Spending Limit: Not to exceed $10,000 per card unless otherwise authorized by the Director. C. Strategic Purchases: The Director may utilize (or delegate the authority to other Purchasing Department 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: 1. Where the purchase is to address a valid public emergency; or 2. Where the County will earn revenue through card program rebates; or 3. Where a vendor is requiring the County to order by purchasing card. 26 Packet Page -695- 12/13/2011 Item 10.13. D. Sales Tax Compliance: Pursuant to Section 212.08(6), F.S., 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 refuses to grant the tax exemption when the card is presented, the cardholder is authorized to allow the tax to be charged to the card. 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 department director (or their designee) is responsible to ensure the tax is returned to the County for the purchase. E. Rebates: All purchasing cards rebates will be credited to the general fund unless otherwise specified by the Director. In all such instances, the 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 recorded and tracked through the Fixed Assets Section of the Clerk of Courts Finance Division. The language of this section is not intended to supersede the provisions of Collier County Resolution 2006 -49. XXV. SEVERABILITY If any one or more of the provisions of this Policy should be held contrary to any provision of law or contrary to express law, though not expressly prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then such provision(s) shall be null and void and shall be deemed severable from the remaining provisions of this Policy and in no way shall affect the validity of all other provisions of this Policy. XXVI, REPEAL PRIOR AND CONFLICTING All resolutions and policies or parts of resolutions and policies, in conflict herewith, are hereby repealed. XXVII. EFFECTIVE DATE An official copy of this Policy shall be filed in the office of the Clerk to the Board of County Commissioners immediately after enactment and this Policy shall take effect at that time. XXVIIi. CONFLICT OF INTEREST When procuring commodities or services using County funds, each entity and employee under the purview of the Board of County Commissioners shall comply with all applicable state and federal laws concerning conflict of interest. For state or federal Community Development Block Grant - funded projects, entities and employees shall comply with the requirements of Part 85, Section 36(b)(3) of the Housing and Urban Development Code. XXIX. DEBARMENT AND SUSPENSION The Board shall grant authority to County staff to suspend and /or debar vendors, contractors, consultants and other interested and affected persons from active participation in obtaining County contracts. The purpose of any such action shall be to protect the County's interests and the integrity of the County's contracting process. The 27 Packet Page -696- 12/13/2011 Item 10.13. 10—\ suspension and debarment processes shall be considered to be separate from and in n addition to the award evaluation and vendor performance evaluation processes authorized elsewhere in this policy. A. Definition of Terms: For the purposes of this section, the following terms have been defined as follows: 1. 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. 2. Civil Judgment refers to a judgment or finding of a civil offense by any court of competent jurisdiction. 3. Contractor means any individual or legal entity that: a. 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 b. Conducts business, or reasonably may be expected to conduct business, with the County as an agent, surety, representative or subcontractor of another contractor. c. For the purposes of this section, the terms "vendor" and "consultant" shall have the same meaning as "contractor" and the term "sub consultant' shall have the same meaning as the term "subcontractor". 4. 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 no to contendere. 5. 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. 6. 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, 7. 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. 8. Suspension refers to action taken by the Purchasing /General Services Director (hereinafter referred to as "the PGS Director") to temporarily disqualify a contractor from County contracting or County- approved subcontracting. B. Suspension: The Purchasing /General Services Director shall have the authority to suspend a contractor, subcontractor or person from consideration for award of new contracts; awards of new work orders and work previously authorized and commenced. if Reasons for suspensions may include, but not be limited to, one or more of the following: (a) defective or deficient work not timely remedied; (b) claims filed or reasonable evidence indicating probable filing of 28 Packet Page -697- 12/13/2011 Item 10.13. 12/13/2011 Item 10.13. such asserted in bad faith; (c) unsatisfactory prosecution of the work; or to comply with contractual requirements. If a suspension precedes a debarment, the suspension period shall be considered in determining the debarment period. The suspension period shall not exceed three months without the approval of the County Manager. A decision to suspend by the Purchasing /General Services Director shall be considered final and conclusive with no right of appeal. The Purchasing /General Services Director may also suspend a contract for convenience without prejudice against the contractor for reasons beyond the control of the contractor and in the best interest of the County. Under such suspensions, the contractor shall remain eligible to compete for awards and perform work under other contracts. 4-.1. Suspension Period: h- - - J Formatted: Indent: Left: 0.88" a. The Formatted: Bullets and Numbering PGS Director shall determine the period suspension. The suspension period shall be commensurate with the severity of the cause(s) and in no event shall the suspension period exceed one year without the approval of the Board. b• The PGS Director may reduce the suspension period upon a written request from the contractor to do so, based on one or more of the following reasons: 1. Newly discovered material evidence; or 26A settlement of a civil judgment, claim or other action upon which the suspension was-,-,- - Formatted: Indent: Left: 0.02' based;or Formatted: Bullets and Numbering 3.Bona fide change in ownership or management; or - - 2. 4.-Elimination of other causes for which the suspension was imposed;w; or &Other reasons that the PGS Director might deem appropriate. •,- _ _ The contractor's request shall be submitted to the PGS Director in writing and shall be based on one or more the aforementioned reasons. c. The decision of the PGS Director regarding a reduction of the suspension period shall be considered final and not subject to appeal. Effects of Suspension The Except as specifically provided in this Policy sSuspended contractors are excluded from receiving county contracts. Users shall not solicit offers from or award contracts to suspended contractors unless the County Manager or his designee determines that emergency or single source conditions exist and grants written approval for such actions. Suspended contractors are excluded from conducting business with the County as agents, 29 Packet Page -698- Formatted: Indent: Left: 1.38" Formatted: Bullets and Numbering Formatted: Indent: Left: 1.38" Formatted: Bullets and Numbering Formatted: Indent: Left: 1.38" Formatted: Bullets and Numbering representatives, subcontractors or partners of other contractors. Suspension of contractors shall also apply to any existing contracts, including work orders, with the County. 3. Continuation of Current Contracts Users may not renew er— Fenew -or otherwise extend the duration of current contracts and/or work orders with suspended contractors in place at the time of the suspensions unless the PGS Director or his designee 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. Restrictions on Subcontracting When a suspended contractor is proposed as a subcontractor for any contract subject to County approval, the department shall not consent to subcontracts with such contractors unless the PGS Director or his designee 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. 5. The Scope of Suspension Suspension applies to all officers, principals, partners, qualifiers, divisions or other organizational elements of the suspended contractor, unless the suspension decision is limited by its terms to specific divisions, organizational elements, commodities or services. The PGS Director's decision includes any existing affiliates of the contractor if they are specifically named and are given written notice of the proposed suspension and an opportunity to respond. future affiliates of the contractor are subject to the pre- existing terms of the PGS Director's decision. C. Debarment: 1. Causes for Debarment: The prospective causes for debarment include one or more of the following: 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 law 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 honesty which currently, seriously and directly affects responsibility as a contractor. c. Conviction under state or federal antitrust laws arising out of the submission of bids, proposals or other competitive offers. d. 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). e. Refusal to provide bonds, insurance or other required coverages and certifications thereof within a reasonable time period. 30 Packet Page -699- 12/13/2011 Item 10.13. f. 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. g. 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 years under the provisions of this section. h. Violation of the ethical standards set forth under applicable state or county laws. L Debarment of the contractor by another public agency. j. Any other cause deemed to be so serious and compelling as to materially affect the qualifications or integrity of the contractor. 2. Debarment Procedure: a. The county department requesting the debarment action shall submit to the PGS Director a written complaint setting forth the reason(s) for seeking debarment and shall identify a recommended debarment period. b. The PGS Director shall review the complaint, verify whether it is compliant with the provision of this policy, direct any appropriate changes and forward the complaint to the contractor. c. 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 PGS Director within 10 (ten) business days of receipt of the allegations submittal. 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 debarment decision without further appeal. d. In the event that the contractor files a timely and complete response to the complaint and the debarment action is based upon a conviction, judgment or other event(s) where there is no significant dispute over material facts, the PGS 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 PGS Director's decision, the Contractor shall have a maximum of three business days to file an appeal of the debarment decision with the PGS Director. The appeal will be forwarded to and considered by the County Manager (or his designee), who will review the debarment record compiled by the initiating department and the contractor. Should the County Manager overturn the PGS Director's decision; the County Manager shall formally cite the reasons for doing so. e. In the event that the contractor files a timely and complete reply to the complaint and where the facts are in dispute, the Purchasing Department will convene a debarment 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 or his designee 31 Packet Page -700- 12/13/2011 Item 10. B. 10—\ rolkill 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 hearing. 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 the PGS Director, or his designee, 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. The PGS Director, or his designee, shall chair the committee and serve as the Purchasing Department's representative to the committee. The Purchasing representative 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 in the debarment process. All voting committee members are prohibited from having any communication regarding the debarment issue outside the committee deliberations with any of the parties involved in the specific 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 Section 286.011 F.S. g. 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 debarment hearing, the contractor shall be presumed to be unqualified and or non - responsive and shall be subject to 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 n committee decides to impose debarment, the debarment decision will formally include, but not be strictly limited to the following information: 1) The specific reasons for the debarment; 2) The scope of the debarment; and 3) 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. The PGS 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 business days to file an appeal of the debarment decision with the PGS Director. The appeal will be forwarded to and considered by the County Manager (or his designee), who will review the debarment 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. 3. Debarment Period: 32 Packet Page -701- 12/13/2011 Item 10.13. a. At its sole discretion, the committee shall determine the period of debarment. The debarment period shall be commensurate with the severity of the cause(s) and in no event shall be the debarment period exceed five years without the approval of the Board. b. At its sole discretion, the committee (having the same or different composition) may reduce the debarment period upon a written request from the contractor to do so, based on one or more of the following reasons: 1. Newly discovered material evidence; 2. A reversal of the conviction, civil judgment or other action upon which the debarment was based; 3. Bona fide change in ownership or management; 4. Elimination of other causes for which the debarment was imposed; or 5. Other reasons that the committee might deem appropriate. The contractor's request shall be submitted to the PGS Director in writing and shall be based on one or more of the aforementioned reasons. c. The decision of the committee regarding a reduction of the debarment period is final and not subject to appeal. 4. The Effects of Debarment: a. Debarred contractors are excluded from receiving County contracts. Departments shall not solicit offers from, award contracts to, or consent to subcontractors with debarred contractors, unless the County Manager or his designee determines that emergency or single source conditions exist and grants written approval for such actions. Debarred contractors are excluded from conducting business with the County as agents, representatives, subcontractors or partners of other contractors. b. The Purchasing Department shall notify all Board departments of the final debarment decision and the effects of that decision with regard to conducting business with the debarred entity(ies) during the debarment period. 5. Continuation of Current Contracts: a. Departments may not renew or otherwise extend the duration of current contracts with debarred contractors in place at the time of the debarment unless the PGS Director or his designee 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. b. Debarment shall constitute grounds for terminating an open agreement with a contractor. However, the contract manager may 33 Packet Page -702- 12/13/2011 Item 10.13. "-**.N 11-1 permit completion of an open contract(s) provided that the debarred contractor has performed in a satisfactory manner to date under the open contract(s) unless otherwise directed by the PGS Director. 6. Restrictions on Subcontracting: a. 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 unless the County Manager or his designee determines that emergency or single source conditions exist, thus justifying such consent and approves such decision. b. 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 pursuant to subsection 6.a provided that the subcontractor was debarred prior to the submission of the applicable bid or proposal offer. 7. The Scope of Debarment: Debarment applies to all officers, principals, 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 opportunity to respond. Future affiliates of the contractor are subject to the pre - existing terms of the committee's decision. 214 0109 10/2211,0 31211/11 3!22/11 ACTIVE: 3352949_1 34 Packet Page -703- 12/13/2011 Item 10.B.