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Agenda 12/10/2024 Item #11D (Authorize the County Attorney to advertise an ordinance repealing and replacing Procurement Ordinance No. 2013-69, as amended)12/10/2024 Item # 11.D ID# 2024-2181 Executive Summary Recommendation to authorize the County Attorney to advertise an ordinance repealing and replacing Procurement Ordinance No. 2013-69, as amended. OBJECTIVE: To authorize the County Attorney to advertise an ordinance repealing and replacing Ordinance No. 2013-69, as amended, commonly known as the Collier County Procurement Ordinance. CONSIDERATIONS: On December 10, 2013, the Board adopted Ordinance No. 2013-69, which was subsequently amended through the adoption of Ordinance No. 2015-37, Ordinance No. 2015-51, Ordinance No. 2016-11, Ordinance No. 2016-19, Ordinance No. 2017-08, Ordinance No. 2018-38 and Ordinance No. 2020-28. Staff is recommending that the Board authorize the County Attorney to advertise the attached proposed Procurement Ordinance, which would repeal and replace the existing Ordinance, to update the standard definitions of professional procurement terminology commonly used in County contracts and solicitations, to increase the informal and competitive procurement thresholds to conform more with other similarly sized jurisdictions, allow for the Procurement Director to interpret the Ordinance and Procurement manual in administering the County’s procurement program, empower the Procurement Division to establish processes to encourage cost savings programs and increase overall efficiency through data analysis, and provide training and counseling on proper contract administration methods. In addition, the proposed revisions enhance the ethical requirements of vendors and county employees with respect to the solicitation and competitive selection of vendors and clarify the permitted procurement methods and the authority to utilize those various methods based upon the first increase of the established competitive thresholds since June 23, 2015 (Ordinance No. 2015-37). The proposed Ordinance is also slightly reorganized in a more logical fashion to allow greater readability and application by staff. The proposed Ordinance has been presented to County staff for feedback on several occasions, along with review and input from outside legal counsel, Bryant Miller Olive, P.A., and the Office of the County Attorney. The proposed Ordinance has been presented to the Office of the Clerk of Court and Comptroller for review and feedback. The Clerk's Office is working cooperatively with County staff to resolve outstanding issues prior to final ordinance adoption. A summary of significant changes to the proposed Ordinance are listed below for reference: • Applicability and Approved Thresholds Section: The County Manager, or designee, authority increases from $50,000 to $250,000. • Thresholds Section: o Single Quote/Small Purchases Threshold section increases the threshold from $3,000 to $10,000. o Informal Competition Threshold section increases the threshold range from $3,000 - $50,000 to $10,000 - $250,000, with a requirement for quotes with a value of $50,000 - $250,000 to be obtained through the County’s bidding platform. o Formal Competition Threshold section increases the threshold range from $50,000 to $250,000 and requires approval by the Board. • Ethics Section: o A conflict-of-interest section is included to align with Florida Statute and includes application of a cone of silence during the competitive solicitation process. • Alternative Methods Section: o The Exemption of Competition section has been updated to include additional categories and Board approval is aligned with the formal competition threshold. o The Waiver of Competition section removes the sole source definition to align with Florida Statute and Board approval is aligned with the formal competition threshold. Page 3556 of 10663 12/10/2024 Item # 11.D ID# 2024-2181 o Emergency purchases are clarified and aligned with Florida Statute. • Formal Competitive Awards: o New section outlining the bidding process to align current and best practices, manuals, and procedures. • Purchasing Card Program Section: o The County Manager or designee shall be responsible for establishing the limits for single transactions and monthly spending limits as set forth in the Purchasing Card Manual. This section was updated to align with current and best practices, manuals, and procedures. • Contract Administration Section: o Change orders and amendments that increase the total contract by more than $250,000 from the original Board-approved amount will be presented to the Board for approval. All non-exempted under $250,000 will be presented for ratification through the Procurement Administrative Report. o The Procurement Services Director, or designee, will approve increases and decreases to Board-approved days. o Approval of contractual price adjustments align with underlying agreements and with the formal competition threshold. o Construction Agreements: o Retainage. In accordance with Section 218.735(8), Fla. Stat., the Board may reduce below 5% the amount of retainage withheld from each subsequent progress payment issued to a contractor where applicable. o Liquidated Damages. County Departments/Divisions shall obtain authority from the Board to waive the assessment of liquidated damages. o Consent to Assignments of Contracts. The County's authority for consent to assignment of a contract may be approved by the Procurement Services Director, or designee. • Unauthorized Purchases Section: o The Board shall approve After-the-Fact Procurement forms for transactions exceeding the formal competition threshold and those under $250,000 will be presented to the Board for ratification through the Procurement Administrative Report. Staff recommends that the Board authorize the County Attorney to advertise the attached proposed Ordinance to promote cost-savings in the procurement of materials for County projects and increase the efficiency and ease of administration in implementing such purchases. The Business Impact Estimate associated with the enactment of proposed ordinances is not required for this item because ordinances relating to procurement are exempt. (Florida Statutes, § 125.66(3)(c)(6)). FISCAL IMPACT: No fiscal impact. The County will advertise the Ordinance on the Clerk of Court's website at no charge. GROWTH MANAGEMENT IMPACT: There is no Growth Management Impact associated with this action. LEGAL CONSIDERATIONS: This item is approved as to form and legality and requires majority vote for Board approval. —SRT RECOMMENDATIONS: That the Board authorize the County Attorney to advertise an Ordinance repealing and replacing Ordinance No. 2013-69, as amended, commonly known as the Collier County Procurement Ordinance, and direct staff to bring the attached proposed ordinance back for the Board’s consideration at a future meeting. (See copy of proposed Ordinance, attached.) Page 3557 of 10663 12/10/2024 Item # 11.D ID# 2024-2181 PREPARED BY: Sandra Srnka, Director, Procurement Services Division ATTACHMENTS: 1. Ordinance 2. Ordinance Replacement Chart 3. Ordinance Tracked Changes Page 3558 of 10663 Page 3559 of 10663 Page 3560 of 10663 Page 3561 of 10663 Page 3562 of 10663 Page 3563 of 10663 Page 3564 of 10663 Page 3565 of 10663 Page 3566 of 10663 Page 3567 of 10663 Page 3568 of 10663 Page 3569 of 10663 Page 3570 of 10663 Page 3571 of 10663 Page 3572 of 10663 Page 3573 of 10663 Page 3574 of 10663 Page 3575 of 10663 Page 3576 of 10663 Page 3577 of 10663 Page 3578 of 10663 Page 3579 of 10663 Page 3580 of 10663 Page 3581 of 10663 Page 3582 of 10663 Page 3583 of 10663 Page 3584 of 10663 Page 3585 of 10663 Page 3586 of 10663 Page 3587 of 10663 Page 3588 of 10663 Page 3589 of 10663 Page 3590 of 10663 Page 3591 of 10663 Page 3592 of 10663 Page 3593 of 10663 Page 3594 of 10663 Page 3595 of 10663 Page 3596 of 10663 Page 3597 of 10663 Page 3598 of 10663 Page 3599 of 10663 Page 3600 of 10663 Page 3601 of 10663 Page 1 of 6 Ordinance Replacement Chart: Procurement Ordinance No. 17-08, as amended ORDINANCE REPLACEMENT CHART Old Ordinance Section Description New Ordinance Section Changes Section One Title and Citation Section One None Section Two Purpose Section Two None Section Three Applicability and Approved Thresholds Section Three Increase threshold from $50,000 to $250,000. Section Four Definitions Section Four The definition list has been expanded to align with the approved contract templates, best practices, manuals, and procedures. Section Five Establishment of Procurement Service Division and Procurement Services Division Director Section Five This section was updated to align with current and best practices, manuals, and procedures. Section Six Duties of Procurement Services Division Section Six This section was updated to align with current and best practices, manuals, and procedures. Section Seven Ethical Standards Section Seven This section was updated to align with current and best practices, manuals, and procedures. Section Eight Exemption from Competitive Process (moved to Section Twelve) Section Eight Small Purchases Threshold This section was updated to increase the single threshold from $3,000 to $10,000. Section Nine Small Purchases (moved to Section Eight) Section Nine Informal Competition Threshold This section was updated to increase the single threshold from $3,000 - $50,000 Page 3602 of 10663 Page 2 of 6 Ordinance Replacement Chart: Procurement Ordinance No. 17-08, as amended range to $10,000 - $250,000. A requirement for quotes with a value of $50,000 - $250,000 be obtained through the County’s bidding platform. Section Ten Informal Competition (moved to Section Nine) Section Ten Formal Competition Threshold This section was updated to increase the competitive threshold from $50,000 to $250,000. Section Eleven Procurement Methods Section Eleven This section was updated to align with current and best practices, manuals, and procedures. Section Twelve Reserved Rights (moved to Section Thirteen) Section Twelve Alternative Procurement Methods This section was updated to merge Section Eight Exemption from Competition Process, emergency process, Waiver of Competitive process, and cooperative purchasing and standardization. The exemption list has been updated to include additional categories. The emergency process is further defined. For the waiver of competition, the definition of sole source has been removed. Page 3603 of 10663 Page 3 of 6 Ordinance Replacement Chart: Procurement Ordinance No. 17-08, as amended Section Thirteen Unsolicited Proposals (moved to Section Fourteen) Section Thirteen Formal Competitive Awards This section is new and outlines the bidding process to align with current and best practices, manuals, and procedures. Section Fourteen Small and Disadvantaged Minority and Women Business Enterprises (moved to Section Fifteen) Section Fourteen Unsolicited Proposals. None Section Fifteen Procedure to Provide Preference to Local Business in County Contracts (moved to Section Sixteen) Section Fifteen Small and Disadvantaged Minority and Women Business Enterprises None Section Sixteen Payment of Invoices (moved to Section Nineteen) Section Sixteen Local Vendor Preference This section was updated to align with best practices. Section Seventeen Advance Payments for Goods and Services (moved to Section Eighteen) Section Seventeen Purchasing Card This section was updated to align with current and best practices, manuals, and procedures. The spending limits are established in Purchasing Card Manual. Section Eighteen Standardization, Cooperative Purchasing Agreements and Governmental Controls (moved to Section Twelve) Section Eighteen. Advanced Payments for Goods and Services This section was updated to align with best practices. Page 3604 of 10663 Page 4 of 6 Ordinance Replacement Chart: Procurement Ordinance No. 17-08, as amended Section Nineteen Contract Administration (moved to Section Twenty) Section Nineteen Payment of Invoices This section was updated to align with best practices. Section Twenty Performance and Payment Bonds (moved to Section Twenty-One) Section Twenty Contract Administration This section was updated to align with current and best practices, manuals, and procedures. The significate updates are: 1. Change Orders with a value of $250,000 or more will require BCC approval and increases or decreases to contract time will be approved by the Procurement Director; 2. Waiver of LDs and reduction of retainage will require BCC approval; 3. Assumption Agreements will be approved by Procurement Director; and 4. A price adjustment process has been established. Section Twenty-One Unauthorized Purchases (moved to Section Twenty-Two) Section Twenty-One Performance and Payment Bonds This section was updated to align with best practices. Section Twenty-Two Prohibition against Subdivision (moved to Section Twenty-Three) Section Twenty-Two Unauthorized Purchases This section was updated to align with best practices and included that after-the- facts with a value of $250,000 or more will require approval by the Board all others will be reported to the Board. Page 3605 of 10663 Page 5 of 6 Ordinance Replacement Chart: Procurement Ordinance No. 17-08, as amended Section Twenty- Three Protest of Bid or Proposal Award (moved to Section Twenty-Four) Section Twenty-Three Prohibition against Subdivision This section was updated to align with best practices. Section Twenty-Four Contract Claims (moved to Section Nineteen) Section Twenty-Four Protest of Bid or Proposal Award This section was updated to align with best practices. Section Twenty-Five Inspection and Testing (moved to Section Thirteen) Section Twenty-Five Conflict of Interest None Section Twenty-Six Purchasing Card (moved to Section Seventeen) Section Twenty-Six Debarment and Suspension This section was updated to align with best practices. Section Twenty- Seven Conflict of Interest (moved to Section Twenty-Five) Section Twenty-Seven Waiver of Ordinance None Section Twenty- Eight Debarment and Suspension (moved to Section Twenty-Six) Section Twenty-Eight Conflict and Severability None Section Twenty-Nine Waiver of Ordinance (moved to Section Twenty-Seven) Section Twenty-Nine Repeal of Ordinance No. 13-69, as amended None Section Thirty Conflict and Severability (moved to Section Twenty-Eight) Section Thirty Inclusion in the Code of Laws and Ordinances None Section Thirty-One Inclusion in the Code of Laws and Ordinances Section Thirty-One Effective Date None Page 3606 of 10663 Page 6 of 6 Ordinance Replacement Chart: Procurement Ordinance No. 17-08, as amended (moved to Section Thirty) Section Thirty-Two Effective Date (moved to Section Thirty- One) None None Page 3607 of 10663 1 Page 1 of 66 ORDINANCE NO. 20172024 - _____ AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, AMENDING ORDINANCE NO. 2013-69, AS AMENDED, KNOWN AS THE COLLIER COUNTY PROCUREMENT ORDINANCE, IN ORDER TO ADD PROCUREMENT METHODS, ESTABLISH EXEMPT PROCUREMENT CATEGORIES, AND TO UPDATE AND CLARIFY OTHER PROVISIONS OF THE ORDINANCE; PROVIDING FOR CONFLICT AND SEVERABILITY; PROVIDING FOR INCLUSION INTO THE CODE OF LAWS AND ORDINANCES; AND PROVIDING AN EFFECTIVE DATE. AN ORDINANCE REPEALING ORDINANCE NO. 2013-69, AS AMENDED, WHICH ORDINANCE ESTABLISHED THE COLLIER COUNTY PROCUREMENT SERVICES DIVISION AND ADOPTED A PROCUREMENT POLICY CONCERNING THE PROCUREMENT OF GOODS AND SERVICES, AND REPLACING IT WITH THIS SUPERSEDING ORDINANCE, TO BE KNOWN AS THE COLLIER COUNTY PROCUREMENT ORDINANCE, WHICH ORDINANCE SETS FORTH ITS PURPOSE, APPLICABILITY, AND APPROVED THRESHOLDS; PROVIDES FOR DEFINITIONS; ESTABLISHES AND SETS FORTH THE DUTIES OF THE PROCUREMENT SERVICES DIVISION AND PROCUREMENT SERVICES DIRECTOR; ESTABLISHES ETHICAL STANDARDS; PROVIDES FOR PROCEDURES FOR SMALL PURCHASES UNDER $10,000, FOR INFORMAL COMPETITION THRESHOLD FOR PURCHASES EXCEEDING $10,000 BUT UNDER $250,000, AND FOR A FORMAL COMPETITION THRESHOLD AND BIDDING PROCESS FOR PROCUREMENTS EXCEEDING $250,000; PROVIDES FOR PROCUREMENT METHODS FOR THE COMPETITIVE PROCESS, THE PROCUREMENT OF PROFESSIONAL SERVICES, AND COMPETITIVE PROPOSALS; ESTABLISHES ALTERNATIVE PROCUREMENT METHODS; PROVIDES FOR EMERGENCY PURCHASING, AN EXEMPTION AND WAIVER TO THE COMPETITIVE PROCESS, COOPERATIVE PURCHASING, AND STANDARDIZATION; PROVIDES FORMAL COMPETITIVE AWARDS PROCESS, RESERVED RIGHTS TO THE COUNTY, REJECTION AND CANCELLATIONS, NEGOTIATIONS, INSPECTING AND TESTING, AND AWARDS; ESTABLISHES A PROCEDURE FOR UNSOLICITED PROPOSALS; ESTABLISHES POLICIES FOR SMALL AND DISADVANTAGED MINORITY AND WOMEN BUSINESS ENTERPRISES; LOCAL VENDOR PREFERENCE; PROVIDES FOR A PURCHASING CARD PROGRAM; PROVIDES FOR Page 3608 of 10663 2 Page 2 of 66 ADVANCE PAYMENTS FOR GOODS AND SERVICES; PROVIDES FOR PAYMENT OF INVOICES; SETS FORTH A PROCEDURE FOR CONTRACT ADMINISTRATION AND FOR PERFORMANCE AND PAYMENT BONDS; PROHIBITS UNAUTHORIZED PURCHASES INCLUDING THE SUBDIVISION OF PURCHASES; SETS FORTH A PROCEDURE FOR BID AND PROPOSAL AWARD PROTESTS; PROHIBITS CONFLICT OF INTERESTS; SETS FORTH A PROCEDURE FOR THE DEBARMENT AND SUSPENSION OF VENDORS; AUTHORIZES THE BOARD TO WAIVE THESE PROVISIONS WHEN APPROPRIATE; PROVIDES FOR CONFLICT AND SEVERABILITY, REPEAL OF PRIOR ORDINANCES, INCLUSION INTO THE CODE OF LAWS AND ORDINANCES, AND AN EFFECTIVE DATE. WHEREAS, the Board of County Commissioners (the “Board)”) desires to seek the maximum value for the County by procuring the best value in obtaining commodities and contractual services; and WHEREAS, to better effectuate this desire, on December 10, 2013, the Board adopted Ordinance No. 2013-69, known as the Collier County Purchasing Ordinance; and WHEREAS, the Board subsequently amended Ordinance No. 2013-69 through its adoption of Ordinance No. 2015-37, Ordinance No. 2015-51, Ordinance No. 2016-11, and Ordinance No. 2016-19, Ordinance No. 2017-1808, Ordinance No. 2018-38;, and Ordinance No. 2020-28; and WHEREAS, the Board is repealing Ordinance No. 2013-69 as amended, and replacing it with this superseding Ordinance. NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that Ordinance No. 2013-69, as amended, is further amended as follows: SECTION ONE: Title and Citation. This Ordinance shall be known and may be cited as the "“Collier County Procurement Ordinance"” or “Procurement Ordinance.".” SECTION TWO: Purpose. The purpose of this Procurement Ordinance is to codify and formalize Collier County's Procurement Policypolicy, to provide for the fair and equitable treatment of all persons involved in public purchasing by the County, to maximize the purchasing value of public funds in procurement, and to provide safeguards for maintaining a procurement system of quality and Page 3609 of 10663 3 Page 3 of 66 integrity. Any provision of this Ordinance in conflict with statute is null and void as to the conflict. SECTION THREE: Applicability and Approved Thresholds. 1. This Procurement Ordinance applies to the procurement of goods and services by the County after the effective date of this Procurement Ordinance. This Procurement Ordinance shall apply to all expenditures of public funds by the Board of County Commissioners for public purchasing, irrespective of the source of the funds. Nothing in this section shall prevent the County from complying with the terms and conditions of any grant, gift or bequest that is otherwise consistent with law. 2. Nothing contained herein shall be construed as requiring Collier County's Constitutional Officers (Clerk of the Circuit Court, Property Appraiser, Sheriff, Supervisor of Elections, and Tax Collector), Court Administration, State Attorney, Public Defender or the Collier County Metropolitan Planning Organization non-county funds to be covered by the provisions of this Procurement Ordinance. However, the services of the Collier County Procurement Services Division Procurement Services Director may be made available for consultation. 3. The Board of County Commissioners shall execute formal contracts in excess of $50250,000 having a binding effect upon the County, to include revenue generating contracts, and hereby delegates to the County Manager or designees, the authority to approve contracts or agreements and amendments, extensions, and renewals of such contracts or agreements, including change orders, work orders and other ancillary documents, providing the total amount of County expenditure for any such contract or agreement does not exceed $50250,000 unless otherwise specified by action of the Board of County Commissioners. The $50250,000 limitation set forth above shall be determined by the following: a)a.the per fiscal year dollar total expenditure for term contracts, b)b.the per fiscal year dollar expenditure for fixed-fee agreements, c)c.the per fiscal year dollar expenditure for lease agreements, d)d.the total dollar expenditure included in the contract for lump- sum or specific project agreements. 4. Following formal action taken by the Board of County Commissioners onfor purchases greater than the formal competitivecompetition threshold, the Board delegates to the County Manager or designee the authority to carry out the administrative and ministerial actions necessary to effectuate the Board'sBoard’s action, including but not limited to the subsequent issuance of Work or Purchase Orders. , to the extent provided in the Procurement Ordinance. 5. The Board of County Commissioners encourages the implementation of cost savings measures, processes, and procedures as part of its various adopted procurement methods including but not limited to Direct Material Purchase (DMP), P-CardPurchases, purchasing card purchases, and bulk purchases as may be in the best interest of the County. In furtherance of implementing cost saving measures, such as Direct Material Purchases and the Board of County Commissioner’sBoard’s other adopted methods of procurement, the Board delegates to the County Page 3610 of 10663 4 Page 4 of 66 Manager or his designee, the authority to manage and administer the procedures, processes and measures necessary to maximize the purchasing value of public funds expended in the procurement of materials. SECTION FOUR: Definitions. Agency shall mean all departments, divisions, units and offices under the Board of County Commissioners, including the Collier County Redevelopment Agencies, the Collier County Airport Authority, Collier County Water -Sewer District and all departments under the auspices of the County Manager. Also included are those elected or appointed officials that agree to utilize procurement services provided by the Collier County Board of County CommissionersBoard. Amendment shall mean an agreed addition to, deletion from, correction, or modification of a document or contract. Blanket Purchase Order shall mean a contract document issued by the Procurement Services Division which encumbers appropriated funds issued and includes established prices for a defined period of time, although without specifying quantities. Change Order shall mean a written order by a project manager, approved by the Procurement Services Director andor the Board of County Commissioners,as required by the Ordinance directing the contractorContractor to change a contract's amount, requirements, or time. All changes must be within the original scope of the contract and in accordance with the Board approved contract's changes clause or, if no such clause is set forth within the agreement, in accordance with this Procurement Ordinance. Consultants’ Competitive Negotiation Act (CCNA) is Section 287.055, Fla. Stat., and governs the procurement of professional individuals/firms for architectural, engineering, landscape architecture, survey and mapping services. Construction Manager at Risk (CMR/CMAR) is a construction delivery method in which the Construction Manager acts as a consultant to the County in the development and design phases, but as the equivalent of a general contractor during the construction phase. The CMAR is contractually bound to deliver the project within a guaranteed maximum price (GMP).The Construction Manager at Risk is responsible and accepts risk for constructing the entire project for the GMP and the Contractor is responsible for assembling the team of suppliers and subcontractors. Consultant/Contractor/Supplier/Vendor shall mean a provider of goods or services to the County agencyAgency. These terms may be used interchangeably. Continuing Contract shall mean a fixed term contract for professional services as defined under Florida Statutein Section 287.055, Fla. Stat. County Manager shall mean the County Manager or County Administrator of Collier County, or designee, as defined in the County Administration Law of 1974, F.S. ch. 125, pt. III. Contract Direct Material Purchase is a cost savings measure to achieve sales tax savings through the County’s sales tax exemption by purchasing materials directly with a supplier or vendor. Other Page 3611 of 10663 5 Page 5 of 66 savings may be achieved in the Direct Materials Purchase process through the use of Purchasing Cards, rebates, discounts, and other cost savings measures. Extension shall mean an increase in the time allowed for action to change and extend a contract termination date pursuant to a provision in the original contract that increases the contract period due to circumstances which make performance impracticable or impossible, or which prevent a new contract from being executed.. An extension must be in writing, and may not change the contract's amount or requirements unless provided for in the original solicitation, contract, or as otherwise stated in this Ordinance. Contract Renewal shall mean a clause in the contract that allows the contract term or period to renew for an additional time period as defined in the current contract. 1. Cooperative Purchasing is where a government uses a nationally or state recognized cooperative purchasing program to procure the goods and services. County Manager shall mean the County Manager or County Administrator of Collier County or designee, as defined in the County Administration Law of 1974, Chapter 125, pt. III, Fla. Stat. Debar shall mean to bar a person or company from participating in a procurement action because of a previous illegal or irresponsible action; may be used as a noun, debarment. Design-Build Agreement is a delivery method for construction projects that combines the architectural, engineering, and construction services required for a project into a single contractual agreement. Direct Material Purchase is a costFixed -savings measure to achieve sales tax savings through the County’s sales tax exemption by purchasing materials directly from a supplier or vendor. Other savings may be achieved in the Direct Material Purchase process through purchasing cards, rebates, discounts, and other cost savings measures. Also known as Direct Purchase Order. Emergency shall mean any occurrence, or threat thereof, whether natural, technological, or manmade, in war or in peace, which results or may result in substantial injury or harm to any portion of the population or substantial damage to or loss of property; or those situations where the operation of an essential department would be seriously impaired if immediate action was not taken, as defined by Section 252.34, Fla. Stat. Emergency procurement shall mean an expeditious purchase of commodities, services or construction to address an emergency. Fixed-Fee Agreement/Contract shall mean a contract providing for a firm price, or a price that may be adjusted only in accordance with contract clauses providing for revisions of the contract price under stated circumstances. Page 3612 of 10663 6 Page 6 of 66 Fixed-Term Contract is a type of contract in which a source of supply is established for a specific period of time for specified services or supplies; usually characterized by an estimated or definite minimum quantity to furnish commodities or contractual services during a defined period, with the possibility of additional requirements beyond the minimum, all at a predetermined unit price. Fixed-Fee Agreement is a contract providing for a firm price, or a price that may be adjusted only in accordance with contract clauses providing for revisions of the contract price under stated circumstances. Lease Agreement is a contract outlining the terms in which one party agrees to rent property owned by another party, which may include real estate or personal property for a specified amount of time. Lump Sum or Specific Project Agreement is a contract where a firm fixed total price is offered by the vendor for the completion of a project; typically, this is done through a competitive process and where the final invoicing will require no cost breakdown. Minority business enterpriseBusiness Enterprise (MBE) or any other designation assigned by the Office of Supplier Diversity shall mean a firm or individual whomwho satisfies the registration requirements of that agency and/or satisfies the requirements outlined in Florida Statute ChapterSections 287.0943(2)(e), Chapterand 295.187, Fla. Stat., and Chapter 60A-9, Florida Administrative Code. 2. Piggybacking is when any government entity procures a contract under a similar solicitation process that meets or exceeds the requirements of the County's solicitation process and allows for piggybacking. Purchase Order shall mean a form of contract document issued by the Procurement Services Division which encumbers appropriated funds and which is directedused to a singlecontract with a vendor formalizing all terms and conditions of a proposed transaction to furnish or deliver commodities or services to the County. Purchasing Card (P-Card) shall mean a credit card officially assigned to specific employees underor individuals authorized by the purview of the Board of County CommissionersManager or designee for the purpose of transacting small and/or strategicmaking purchases for official Collier County business. Responsible Vendor/Bidder/Proposer shall mean a vendor who has the financial and technical capacity to perform the requirements of the solicitation and subsequent contract. Responsive Vendor/Bidder/Proposer shall mean a vendor who has submitted a bid or proposal that fully conforms in all material respects to the solicitation and all of its requirements, including form and substance. Single source refers to a procurement directed to one source because of standardization, warranty, or other factors, even though other competitive sources may be available. Page 3613 of 10663 7 Page 7 of 66 Sole source refers to a procurement where the selection of one particular supplier to the exclusion of all others may be based on a lack of competition, proprietary technology, copyright, warranty or a supplier’s unique capability. Revenue Generating Agreement shall mean a contract whose primary purpose is to generate revenue or to create a business opportunity for the County. Single Source procurements are defined as commodities or contractual services that are available only from a single source or the use of such source is both economically and operationally in the County’s best interest. Single source commodities or contractual services must be available only from contractors/vendors/consultants who are uniquely qualified. Work Order/Work Assignment is a contract instrument issued under the terms and conditions of an approved continuing or fixed fee agreementContinuing Contract or an Agreement, which authorizes a contractor or consultant to perform a specific task within the broader scope of the master agreement. Nothing in the work order shall conflict with the terms and conditions of the fixed fee contractContinuing Contract or Agreement, and all work done must fall within the scope and term of the underlying master agreement. SECTION FIVE: Establishment of Procurement Services Division and Procurement Services Division Director. 1. There is hereby established the Collier County Procurement Services Division, which shall be a distinct administrative departmentdivision under the direction of the County Manager. a) The Procurement Services Division Director of the Procurement Services Division shall have the authority to negotiate all purchases for all Agencies. Except, except as required by State, Federalfederal or Local Lawlocal law. In keeping with F.S. ch.Chapter 125, Fla. Stat., this Procurement Ordinance grants to the Procurement Services Division Director only those powers and duties which are administrative and ministerial in nature and does not delegate any governmental power imbued in the Board of County Commissioners as the governing body of theCollier County pursuant to Fla. Const. Art. VIII, § 1(e).), Florida Constitution. The Procurement Services Division Director may delegate to one or more Procurement Services Division employees any and all aspects of the authority vested in the Procurement Services Division Director by the County Manager. Except as otherwise specified by law, this ArticleOrdinance shall apply to every procurement under the authority of the Collier County Board of County Commissioners and to elected or appointed officials or contractual employees (Clerk of the Circuit Court, County Attorney, Property Appraiser, Sheriff, Supervisor of Elections, Tax Collector and Collier County M.P.O.)Metropolitan Planning Organization) who choose to utilize procurement services provided by the Collier County Board of County Commissioners. Page 3614 of 10663 8 Page 8 of 66 b)Notwithstanding any other provision of the Procurement Ordinance, the Procurement Services Division Director is authorized to issue purchase orders atPurchase Orders as authorized by the Board. b) c)The Procurement Services written request of electedDivision Director or appointed officialsdesignee shall have the authority to interpret the Procurement Ordinance and Procurement Manual(s) and may issue directives for that purpose. d) Authority Limitation and Delegation; Promulgation of Procedures. All authority to execute documents that is vested to the County Manager or designee is hereby delegated to the Procurement Services Division Director or designee and shall be subject to the limits of any applicable federal, state or other law. d)e)Nothing in this articlesection shall limit the Collier County Board of County Commissioners'Boards’ right to waive any provisions contained herein when the Collier County Board of County Commissioners shall deem it in the best interest of the County. SECTION SIX: Duties of the Procurement Services Division. Within the constructs of this Ordinance, the Procurement Services Division shall be responsible for: 1. Seeking Maximum Value: Acting to procure for the County the highest quality commodities and contractual services for the County at the least expense to the County. 2. Encouraging competitionCompetition: Endeavoring to obtain as full and open competition as possible on all purchases, services and sales. 3. Procurement Analysis: Keeping informed of currentStaying updated on the latest developments in the field of purchasing, pricespricing, market conditions, and new products, and securing for the County the benefits of. This includes leveraging research conducted in the field of purchasing by other governmental jurisdictionsgovernment agencies, national technical societies, recognized trade associations having national recognition, and by private business and organizations. to ensure the County benefits from advancements in the procurement field. 4. Procurement Manual: Preparing and recommending for adoption by the County Manager or designee, a Procurement Manual for the implementation of this Procurement Ordinance. The Procurement Manual shall be maintained and published on-lineonline for the benefit of the public. 5. Division Systems, Procedures and Standards: The adoption of systems, procedures, forms, standards, reporting and evaluation tools related to: (ia) the effective development, negotiation and administration of County contracts, and (iib) the evaluation of performance of contractors, suppliers and vendors doing business with Collier County. Page 3615 of 10663 9 Page 9 of 66 6. Non-Formal Contract Purchases: Reviewing non-contract purchases under $50not exceeding $250,000.00, as defined in SECTION THREESection Nine, to determine if an aggregated contract approach may provide value and offer pricing advantages to the County. 7.Sales Tax Exemption: Procuring items for the County to exercise its tax exemption status when eligible. a. 8.Establishing and administering a Direct MaterialsMaterial Purchasing Programprogram that includes processes and procedures to encourage the implementation of such savings programs and the application of such related cost savings measures where it is in the best interest of the County. Additionally, develop and implement other tax-saving and cost-saving strategies related to purchasing and procurement. b. Developing and implementing other tax saving and cost saving opportunities and means related to purchasing and procurement. 8 9. Evaluate purchasing activities to enhance sourcing, reduce costs, ensure supplier compliance, and increase overall efficiency. This involves analyzing data on supplier performance, pricing, contract terms, purchasing patterns, and market trends to drive better decision-making and strategic planning. This analysis provides opportunities for cost savings, risk mitigation, and added value in the procurement process. 10. Inquiry and Control: Full authority to: a.)Question the quality, quantity, and kinds of items requisitioned in order that the best interests of the County are served; . b.)Ensure the timely, proper and orderly acquisition of services to thefor various operating divisions; County Departments/Divisions. c.)Ensure purchases are consistent with the Procurement Ordinance; , local, state, and federal laws, and grants or other funding sources, if applicable. d.)Determine if the Board should approve specific purchases should be approved by the Board prior to the purchase. e.)Determine work assignment rotation schemes when multiple contracts are awarded for the same service. 9f) Question the effectiveness of contract administration being performed by the County Departments/Divisions and provide training and counseling on proper contract administration methods. g) Consolidate purchases of like or common commodities or services and enter into contracts to obtain maximum cost savings while preserving County Department/Division specification and needs. h) Review and approve or disapprove the composition of each evaluation committee. i) Verify funding sources and acquire an account number for each purchase before advertising a solicitation. Page 3616 of 10663 10 Page 10 of 66 11. Records of Procurement activity shall be maintained in compliance with Article I, Section 24, Fla. Const. theand Chapter 119, Fla. Stat., “the Florida Statutes, “Public Records Act.” 12. Administer the County’s Purchasing Card program. 13. Administer the County’s property disposal process through auction sales, and other means, and report that activity along with any proceeds to both the County Manager or designee, and the Board. 14. Advise the County Manager or designee of misuse, inappropriate use, or purchasing activities that are inconsistent with the purpose and intent of the Procurement Ordinance, Procurement Manual, or applicable local, state, or federal law. 15. Use of Past Performance Data: In order to promote the quality delivery of commodities and services, County Departments/Divisions shall record and consider the past performance of vendors in the awarding of contracts exceeding the formal competition threshold. This objective shall be accomplished as follows: a) The Procurement Services Division shall be responsible for each of the following: (i) Developing, implementing, and maintaining administrative procedures, instructions and technologies necessary to collect past vendor performance data. (ii) Ensuring that relevant past performance data is properly gathered and considered prior to award of subsequent contracts. b) County Departments/Divisions shall be responsible for each of the following: (i) Conducting periodic performance evaluations of vendors under contract with the County pursuant to the procedures established by the Procurement Services Division Director or designee. (ii) Considering the past performance of vendors during the evaluation of bids and proposals pursuant to the procedures established by the Procurement Services Division Director or designee. SECTION SEVEN: Ethical Standards. 1.1.Every employee, and elected or appointed official of Collier County has the responsibility to maintain the confidence of the citizens of Collier County by conducting the procurement process in an ethical, fair and transparent manner. Collier County employees shall act in good faith to discharge their duties and avoid either the intent or appearance of unethical practices in procurement relationships, actions and communications. Page 3617 of 10663 11 Page 11 of 66 2.2.Any attempt by Collier County employees, or elected or appointed officialofficials of Collier County to realize personal gain from the procurement process is a breach of public trust. All County employees shall govern themselves in accordance with the Standards of Conduct as set forth in applicable Collier County Government Regulations, to include the Collier County Ethics Ordinance No. 2003-53 as amended, County Manager Administrative Procedures (CMA) Code of Ethics, and F.S. ch. 112the Code of Ethics for Public Officers and Employees, Chapter 112, Part III, Fla. Stat. 3. Purchases shall not be artificially divided or split so as to qualify under the established competition thresholds of this Procurement Ordinance. 4. A consultant who participates in the drafting of a solicitation or scope or who develops a program for future implementation that gives rise to an actual conflict so as to unfairly benefit that consultant to the disadvantage of any other future firms that could competitively seek a County contract related to such program or project upon which the solicitation or scope is based, and which conflict is not otherwise curable, is not eligible to contract with the County for any other contracts dealing with that specific subject matter, and any firm in which such person has any interest is not eligible to receive such contract. However, this prohibition does not prevent a vendor who responds to a request for information from being eligible to contract with the County. 3.5.Collier County requires each vendor who seeks to do business with Collier County to comply with the following ethical standards: a) No vendor shall discuss or consult with other vendors intending to compete for the same or similar contract for the purpose of bid rigging, collusion or other activities that are illegal, unethical or limiting competition. b) Each vendor must certify that, to the best of their knowledge or belief, no elected/appointed official or employee of Collier County, a spouse thereof or other person residing in the same household, is financially interested, directly or indirectly, in providing the goods or services specified in any submitted bid or proposal. A financial interest is defined as ownership of more than one percent (1%) of the total assets or capital stock or being an officer, director, manager, partner, proprietor, or agent of the business submitting the bid or proposal or of any subcontractor or supplier thereof providing goods or services in excess of one percent (1%) of the total bid or proposal amount. Additionally, the vendor, on company letterhead, must divulge at the time of the submittal of a bid or proposal, any relative, other than those already specified, of an elected or appointed official or employee of the County who has a financial interest, in providing the goods or services specified in the bid or proposal. The County, at its sole discretion, will determine whether a conflict exists and whether to accept or reject the bid or proposal. b)No vendor shall submit false information or intentionally submit misleading information to Collier County. Page 3618 of 10663 12 Page 12 of 66 c)After the issuanceadvertisement of any solicitation, a “cone of silence” is in effect such that no current or prospective vendor or any person acting on their behalf, shall lobby, contact, communicate with or discuss any matter relating to the solicitation with any Collier County employee, selection committee member, advisory board member, or elected or appointed official, other than the Procurement Services Division Director or his/her designees. This prohibition ends upon executionAny attempt by one of the final contract proposers to have direct or upon cancellationindirect communication with a selection committee member outside of a committee formal session must be avoided and reported to the Procurement Services Division. The cone of silence shall not apply to: (i) Communications at any public proceeding or meeting, including pre-bid conferences, evaluation committee presentations or pre- award meetings. (ii) Communications during contract negotiations between designated County employees and the intended vendor. (iii) Communication with a vendor by a Procurement Services Division employee following a competitive procurement opening to clarify the vendor's response. (iv) Communication following the filing of a protest to a competitive procurement between the protesting vendor or the selected vendor and the Procurement Services Division, County Manager's Office, and County Attorney's Office concerning the protest. (v) Purchases exempted and waived from competitive procurement pursuant to the Procurement Ordinance. c)d)Lobby shall mean influencing or attempting to influence action or non- action and attempting to obtain the goodwill of persons relating to the selection, ranking, or contract award in connection with any solicitation. through direct or indirect oral or written communication. Any current or prospective vendor that lobbies any Collier County employee or elected or appointed official while a solicitation is open or being recommended for award (i) may be deemed ineligible for award of that solicitation by the Procurement Services Division Director, and (ii) will be subject to Debarment Suspension and Debarment as outlined in SECTION TWENTY-EIGHT. Section Twenty-Six of this Procurement Ordinance. e) If a vendor becomes aware of a conflict of interest, unethical behavior, or illegal activity, they must promptly notify the Procurement Services Division. Failure to comply with this Sectionsection shall be deemed a violation of ethical standards subject to administrative actions and may be subject to civil, and/or criminal penalties for ethical violations as described below:. 4. Page 3619 of 10663 13 Page 13 of 66 a)f)Employees who violate the ethics standards described in this section shall be subject to administrative disciplinary action, following Collier County Government Human Resources procedures and guidelines, up to and including dismissal from Collier County Government employment. b)g)Vendors who violate the ethics standards described in this Sectionsection shall be subject to Suspensiondebarment and Debarmentsuspension as provided in SECTION TWENTY-EIGHTSection Twenty-Six of this ArticleProcurement Ordinance. h)Vendors doing business with Collier County shall comply with the provisions of Sections 287.133, 287.135, 287.138, 448.095, and 908.111, Fla. Stat. SECTION EIGHT: Small Purchases Threshold. 1. Small Purchases Threshold. $10,000 or less. 5.2. Single Quote. Unless otherwise provided by law, all small purchases will be obtained by a single quote, with documentation, and generally be processed using a purchase order, or a purchasing card in accordance with Section 287.133, Florida Statutes (“Public Entity Crimes Act”).Seventeen of this Procurement Ordinance. County Department/Division staff will procure the highest quality items or services at the least expense to the County. 3. County Department/Division staff should make all reasonable efforts to purchase goods and services under Board approved contracts. In the event a contract is not utilized, staff will procure the highest quality items or services at the least expense to the County. SECTION NINE: Informal Competition Threshold. 1. Informal Competition Threshold. Unless otherwise provided by law, purchases in excess of $10,000 but not greater than $250,000. 2. Request for Quotes (RFQ). County Department/Division staff or Procurement Services Division staff shall obtain at least three (3) documented competitive quotes from responsible and responsive bidders. a) Competitive quotes between $10,000 and $50,000 may be solicited in writing or through the County’s bidding platform. b) Competitive quotes between $50,000 and $250,000 shall be solicited through the County’s bidding platform, unless otherwise approved by the Procurement Director or designee. 3. Any resulting awards shall be to the responsible and responsive bidder submitting the lowest or best overall quote which meets all specifications. Page 3620 of 10663 14 Page 14 of 66 4. Final recommended award of any quote will be reviewed and approved by the Procurement Services Division Director or designee. 5. Only the Procurement Services Division staff may issue a qualification-based quote. 6. In the event the County has an approved contract available for utilization, County Departments/Divisions staff should make all reasonable efforts to purchase goods and services under the approved contract, unless staff demonstrates that the price under contract exceeds the price on a non-contract, staff will procure the highest quality items or services at the least expense to the County. SECTION TEN: Formal Competition Threshold. 1. Formal Competition Threshold. Unless otherwise provided by law, all purchases exceeding $250,000 will be competitively procured by Invitation to Bid (ITB), Invitation to Negotiate (ITN), Invitation for Qualifications (IFQ), Request for Professional Services (RPS) or Request for Proposals (RFP) issued by the Procurement Services Division Director or designee, and any subsequent award shall be approved by the Board. 2. Unless otherwise provided by law, the minimum advertising period for all formal competitive solicitation methods is thirty (30) calendar days. The advertising period may be modified by the Procurement Services Division Director or designee, should unusual circumstances require it. All advertising will take place on the County’s adopted bidding platform, and the County may use additional advertising platforms or publications as is deemed necessary by the Procurement Services Division Director or designee. SECTION ELEVEN: Procurement Methods. It is the intent of the Board that the threshold for formal competitive solicitations set forth in Section Ten include the methods below, as administered under the supervision of the Procurement Services Division Director or designee. The Board shall award any resulting agreements or contracts except where otherwise provided for in this Procurement Ordinance or unless the Board grants an exception. Collier County's procurement methods may include, but are not limited to, the following: 1. Invitations to Bid shall be issued by the Procurement Services Division Director or designee, with public announcement, and shall be awarded to the responsive and responsible bidder submitting the lowest or best overall bid which meets all specifications. A bid is the preferred method of solicitation when price is the principal consideration. Sealed bids will be publicly opened and announced. Any resulting contract shall be the prevailing basis of award. 6. 7.2. Invitation to Negotiate shall be issued by the Procurement Services Division Director or designee, with public announcement and competition. An ITN is used when it is determined beneficial to issue a written solicitation for competitive sealed replies to select one or more vendors with which to conduct negotiations. Page 3621 of 10663 15 Page 15 of 66 3. Invitation for Qualifications shall be issued by the Procurement Services Division Director or designee, when it is in Collier County's best interest to limit participation in the solicitation process to those bidders, proposers or offerors who demonstrate a capability to provide the goods and services required by Collier County or when qualifications are the only criteria. 4. Request for Professional Services shall be issued by the Procurement Services Division Director or designee, to procure the following: a) Professional architectural, engineering, landscape architectural, or surveying and mapping services in accordance with the Consultants' Competitive Negotiation Act (CCNA), Section 287.055, Fla. Stat. An RPS can be issued and awarded for either a continuing contract or for a single project contract as described in Section 287.055, Fla. Stat. b) An RPS may be used be in obtaining design contracts, design-build agreements, and construction manager at risk agreements pursuant to Section 255.103, Fla. Stat., as applicable. c) When selecting an auditor to conduct the annual financial audit, the County shall follow Section 218.391, Fla. Stat. 5. Request for Proposals shall be issued by the Procurement Services Division Director or designee with public announcement and competition. Any resulting contract shall be awarded to the responsive and responsible proposer submitting the best proposal according to the criteria set forth in the solicitation. An RFP is the preferred method of solicitation when multiple factors are considered for the basis of award, and price may or may not be the prevailing factor. 6. Collier County shall competitively award construction contracts pursuant to Section 255.20, Fla. Stat., when applicable, in addition to the procurement methods authorized elsewhere in this Procurement Ordinance and other applicable law. 7. Consolidated Joint Purchasing. The Procurement Services Division Director or designee shall have the authority to join with other government entities and consortiums in cooperative purchasing ventures when in the best interest of Collier County. Solicitations shall be issued by the Procurement Services Division Director or designee, with public announcement and competition. Any resulting contract shall be awarded to the responsive and responsible proposer submitting the best proposal according to the criteria set forth in the solicitation. 8. A summary of the procurement thresholds and the required approval authority are provided below: Page 3622 of 10663 16 Page 16 of 66 Unless otherwise provided by statutes, all County non-exempt procurements must be made in accordance with the chart above. Alternative Procurement Methods in Section Twelve may be used instead of the method identified above, when applicable. A purchase shall not be artificially divided or split so as to qualify under any other section of this Procurement Ordinance. SECTION TWELVE:EIGHT:Alternative Procurement Methods. 1. Emergency Procurements as defined in Section Three of the Procurement Ordinance may be used in the event of an unexpected and urgent need where health and safety or the conservation of public resources is at risk, or during Board absences (all efforts should be made to obtain Board approval prior to anticipated recesses), using such competition as is practical under the circumstances, as follows: a) Following a declaration of the existence of an emergency situation by the County, the Board or their designee may declare the existence of an Emergency Procurement condition and may suspend any or all of the provisions of this section and authorize an Emergency Procurement. b) The Collier County Manager or designee, on a case-by-case basis, may approve an Emergency Procurement based upon the Procurement Services Division Name of Competition Competition Threshold Minimum Procurement Method Type of Contract Issuing Party Approval Authority Small Purchases Single Quote $10,000 or less Single Quote Purchase Order or P-Card County Departments/ Divisions Procurement Division Director or designee Informal Competition Request for Quotes Exceeding $10,000 but not greater than $250,000 $10,000 - $50,000 Three written quotes either in writing or County’s bidding platform $50,000 - $250,000 Three quotes through County’s bidding platform P-Card, Purchase Order or Contract County Departments/ Divisions Procurement Division Director or designee Formal Competition Exceeding $250,000 ITB, RFP, RPS, ITN, and IFQ P-Card, Purchase Order or Contract Procurement Services Division Director or designee Board approval required for awards over $250,000 Page 3623 of 10663 17 Page 17 of 66 Director’s or designee’s good faith review of the available sources that may timely respond to the urgent need for goods and services and the documentation of the emergency conditions related to that purchase. The emergency purchase may be made upon written determination and approval of the Collier County Manager or designee. The Collier County Manager or designee will report all such Emergency Procurements to the Board at the next available Board meeting. c) This section in no way constrains the provisions of Collier County’s Civil Emergency powers and authority pursuant to Chapter 252, Fla. Stat., Emergency Management. 2. Exemptions to the Competitive Process. The following categories of procurements may be eligible for exemption tofrom the competitive process waivers of competition based upon the determination of the County Manager or designee Procurement Services Division Director thator designee and approval of such an exemption waiver is in the best interest of the County. The Board shall approve the expenditures for Exemptions of Competition with a value more than the Formal Competition Threshold. 1.a)Purchases from another government agency (including, but not limited to, registrations, permits, postage, goods, or services) or from a nonprofit organization authorized to do business in the State of Florida. b) Educational or academic programs, including educational or recreational field trip instructors, trainers, facilitators, professional advisors and speakers, and fees and costs of job-related seminars and training. 2.c)Dues and memberships in trade or professional organizations;, including registration fees for trade or career fairs; fees and costs of job-related seminars and training. 3.d)Subscriptions, for periodicals, newspapers, books, electronic information, media, maps, pamphlets and similar material in printed or electronic form. 4.e)Advertisements. f) Entertainment services for County-sponsored events, including artists, music ensembles (bands) and other entertainment providers. g) Works of art for public display. Page 3624 of 10663 18 Page 18 of 66 5.h) Products or services necessary to maintain existing warranties and licenses or to maintain compatibility with existing Collier County systems. i) Repairs based upon shop estimates for equipment that has been disassembled. 6.j)Utility Services: telecommunications, water, sewer, electricalelectric, gas, or other regulated utility, communications and data transmission services subject to government rate control. 7. 8. Personnel servicesEducational or academic programs; educational or recreational field trip instructors, trainers, facilitators, professional advisors and speakers. k) Legal services including retaining and recruitment services. l) Health and social services, including substance abuse and mental health treatment, medical examiner services, burials and indigent patient services, and medications for the treatment of humans or animals. m) Cybersecurity related items: 1. Insurance or other risk mitigation coverage acquired for the protection of information technology systems, operational technology systems, or data. 2. Critical infrastructure. 3. Cybersecurity incidents. 4. Network schematics, hardware and software configurations, or encryption information or information that identifies detection, investigation, or response practices for suspected or confirmed cybersecurity incidents, including suspected or confirmed breaches, if the disclosure of such purchase information would facilitate unauthorized access to or unauthorized modification, disclosure, or destruction of: data or information, whether physical or virtual; or information technology resources, which include an agency’s existing or proposed information technology systems. n) All purchases related to the sale, lease, or other use of real property, including appraisals and title insurance, except as required by other applicable law. o) Direct Purchase Orders issued when it is in the best interest of Collier County. Collier County may make direct purchases of goods and services when the County can procure these items at a lower cost and/or realize a tax or delivery savings. p) Lobbying services. 13. 9.q) Financial Instruments: professional services required for the issuance of Collier County debt, debt service and Collier County investments related thereto, including the selection of investment bankers for Collier County's Underwriting Pool and the selection of Collier County's Financial Advisor. 10. Page 3625 of 10663 19 Page 19 of 66 r) Services for management studies, executive analysis and related matters as directed by the Board. s) Goods or services purchased from grants, gifts, bequests or donations to the extent the application of this Ordinance would conflict with the requirements, conditions, or limitations attached to the grant, gift, bequest, or donation. t) Permits required by federal or State law. 11.u)Requests for outside legal services will be consistent with both this Ordinance and the County Attorney's Ordinance (Ord. No. 2013-34), as amended. The retention of legal 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 Ordinance and must first be approved by the Board. Legal services include but are not limited to retaining the services of law firms or other outside counsel for any reason, expert witnesses, court reporter services, appraisal services, trial consultants or similar persons or firms deemed by the Collier County Attorney as necessary to address the legal needs of Collier County, together with document management and production, legal research, and information technology products and services. 12. Goods or services purchased from grants, gifts, bequests or donations to the extent of the application of this Article would conflict with the requirements, conditions, or limitations attached to the grant, gift, bequest, or donation. 13.v) Products or services necessary to maintain existing warranties and licenses or to maintain compatibility with existing Collier County systems. 14. Repairs based upon shop estimates for equipment that has been disassembled. 15. Personnel services; recruitment services. 16. Works of Art for Public Display 14. Direct purchase orders issued when it is in the best interest of Collier County. Collier County may make direct purchases of goods and services when the County can procure these items at a lower cost and/or realize a tax or delivery savings. Direct Material Purchase Orders derived out of Direct Material Purchases and/or other cost savings measures may be administered through contracts procured through Requests for Quote (RFQ), Invitation to Bid (ITB), Construction Invitation to Bid (ITB), Request for Proposals (RFP), Invitation for Qualifications (IFQ), Construction Manager at Risk (CMAR), Design Build, Progressive Design Build, and Invitation to Negotiate (ITN) as may be applicable and or available. Page 3626 of 10663 20 Page 20 of 66 17.w) Financial Instruments: professional services required for the issuance of Collier County debt, debt service and Collier County investments related thereto, including the selection of investment bankers for Collier County's Underwriting Pool and the selection of Collier County's Financial Advisor. Entertainment services for County-sponsored events. 18. 19. Services for management studies, executive analysis and related matters as directed by the County Manager. 20.x)Where specified by general law, ordinance or Collier County Board of County Commissioners policies, any purchase governed by explicit provisions of general law or other Collier County ordinance or Collier County Board of County CommissionersBoard policies (resolution) unless the solicitation indicates the applicability of this ArticleOrdinance, and this ArticleOrdinance shall apply only to the extent set out in the solicitation. 3. Waiver to the Competitive Process. Single Source procurements may be eligible for the waiver to the competitive process based upon the determination of the Procurement Services Division Director or designee that approval of such a waiver is in the best interest of the County. Single Source procurements are defined as commodities or contractual services that are available only from a single source or the use of such source is both economically and operationally in the County’s best interest. The Board shall approve the expenditure for Waivers of Competition with a value more than the Formal Competition Threshold. 4. Cooperative Purchasing and Piggybacking. The Procurement Services Division Director or designee shall annually bring forward to the Board a list of recommended cooperatives for consideration. The Procurement Services Division Director or designee may approve purchases using these approved cooperative organizations, agreements, and contracts, with no further action required by the Board providing that funds have been budgeted for these specific purposes. The Procurement Services Division Director or designee may join other public agencies in Cooperative Purchasing organizations and/or agreements if is determined to be in the County's best interest, and if the consortium agreement has not had prior Board approval. The use of any new cooperative agreement must be approved by the Board prior to the use of the agreement. SECTION NINE: Small Purchases (Purchases $3,000 or less). A purchase shall not be artificially divided or split so as to qualify under this or any other section of this Procurement Ordinance. All small purchases will be obtained by a Single Quote, Page 3627 of 10663 21 Page 21 of 66 with documentation, and generally be processed using a regular purchase order, or a purchasing card in accordance with SECTION TWENTY-SEVEN 26 of this Procurement Ordinance. Operating Division staff should make all reasonable efforts to purchase goods and services under Board approved contracts. a) Cooperative Purchasing: The Procurement Services Division Director or designee shall have the authority to procure goods or services from the Board approved nationally or state recognized cooperative purchasing program. Piggybacking: The Procurement Services Division Director or designeeIn the event a contract is not utilized, staff will procure the highest quality items or services at the least expense to the County. Only the Board's Procurement Services staff may approve a qualification based Small Purchase. SECTION TEN: Informal Competition (Purchases Exceeding $3,000 but Not Greater Than $50,000). A purchase shall not be artificially divided or split so as to qualify under this or any other section of this Procurement Ordinance. Operating Division staff should make all reasonable efforts to purchase goods and services under Board approved contracts. In the event a contract is not available, or staff demonstrates that the price under contract exceeds the price on a non- contract, staff will procure the highest quality items or services at the least expense to the County by using the following informal competition process: 1. Purchases exceeding $3,000 but not greater than $50,000 may be solicited by quotation as follows: a. Minimum Number Quotes: Purchases in excess of $3,000 but not greater than $50,000 shall be based on a good faith effort by either Operating Division Staff or Procurement Staff to obtain at least three (3) documented competitive quotes. b. Solicitation of Quotes: Quotes may be solicited in writing or electronically. Only the Procurement Services staff may issue a qualification based solicitation. Final recommended award of any quote will be reviewed and approved by the Procurement Services Director. SECTION ELEVEN: Procurement Methods. Collier County's procurement methods may include, but are not limited to the following: Page 3628 of 10663 22 Page 22 of 66 21. Informal quotes may be solicited and awarded by designated Collier County employees as set forth in the Procurement Manual without public announcement and without formal competition. 22. Request for Quote (RFQ) may be issued by either the Operating Division Staff or by the Procurement Staff. Any resulting contract shall be awarded to the responsible and responsive vendor submitting the lowest or best overall quote which meets all specifications. 23. Invitations to Bid (ITB) shall be issued by the Procurement Services Director with public announcement and competition. Any resulting contract shall be awarded to the responsive and responsible bidder submitting the lowest or best overall bid which meets all specifications. 24.Cooperative Purchasing a)Piggybacking b)The Procurement Services Director shall have the authority to procure goods or services from vendors who have been selected, as a result of a competitive selection process for a federal, state or municipal government, or any other governmental agency, political subdivision, or government-related association, provided that the originating entity utilized a competitive process similar to Collier County's. The Procurement Services Director shall annually bring forward to the Board of County Commissioners a list of recommended cooperatives for Board consideration. b) Consolidated Joint Purchasing The Procurement Services Director shall have the authority to join with other government entities and consortiums in cooperative purchasing ventures when in the best interest of Collier County. 25.Request for Proposals (RFP) shall be issued by the Procurement Services Director with public announcement and competition. Any resulting contract shall be awarded to the responsive and responsible proposer submitting the best proposal according to the criteria set forth in the solicitation. 26. Request for Professional Services (RPS) shall be issued by the Procurement Services Director to procure professional engineering, architectural, landscape architectural or surveying and mapping services in accordance with the Consultants' Competitive Negotiation Act (CCNA), F.S. § 287.055. 27.6. Invitation to Negotiate (ITN) shall be issued by the Procurement Services Director with public announcement and competition. An ITN is used when it is determined beneficial to issue a written solicitation for competitive sealed replies to select one or more vendors with which to conduct negotiations. i. Emergency Procurements may The solicitation process must be substantially equivalent to the process used inby the event of an unexpectedCounty. ii. The contract must be active (not expired) and urgent need where health and safetypossible to be completed within the term of the underlying contract. Page 3629 of 10663 23 Page 23 of 66 iii. The products or the conservationservices needed must be specifically identified within the scope of the contract. iv. The vendor must agree to extend the contract terms and pricing to the County. v. Contracts for the professional services identified in Section 287.055, Fla. Stat., may not be piggybacked. 5. Standardization. Where standardization is determined to be desirable by the Board, the purchase of commodities may be negotiated directly with a particular vendor with the advance approval of such purchase by the Board. Standardization may be the result of a formal evaluation process facilitated by the Procurement Services Division or the recognition of the historical use of a product as determined by the Procurement Services Division. SECTION THIRTEEN: Formal Competitive Awards. 1. Competitive Procurement Bids/Proposals. a) Responses to all competitive procurements must be submitted to the Procurement Services Division through the prescribed bidding platform and as instructed in the solicitation document, no later than the date and time designated therein. b) All competitive procurement responses shall be opened in public resources is at risk,the time and place stated in the public notice with at least one witness present. c) The purpose of the opening is to record the responses received and to ensure that the responses are in compliance with the basic requirements of the competitive procurement. Responses are not analyzed for quality or substance at the opening. A recording of all responses received shall be available for public inspection in accordance with Florida law. 28. d) The Procurement Services Division Director or during Board absences (all efforts should be made to obtain Board approval prior to anticipated recesses), using such competition as is practical under the circumstances, as follows: a) Following a declaration of the existence of an emergency situation by the County, the Collier County Board of County Commissioners or their designee may declare the existence of an emergency procurement condition Page 3630 of 10663 24 Page 24 of 66 and may suspend any or all of the provisions of this article and authorize an emergency procurement. b) The Collier County Manager or his/her designee, on a case by case basis may approve an emergency purchase based upon the Procurement Services Director’s good faith shall have the authority to review of the available sources that may timely respond to the urgent need for goodsall submittals in response to a County solicitation and services to review these submittals for responsiveness, responsibility, price and the documentation of the emergency conditions related to that purchase. Upon written other factors in making a determination and approval of the Collier County Manager, the emergency purchase may be made. The Collier County Manager will report to the Collier County Board of County Commissioners all such emergency procurements at the next available Board meeting. c) This section in no way constrains the provisions of Collier County’s Civil Emergency powers and authority pursuant to F.S. ch. 252, Emergency Management. 29. Invitation for Qualifications (IFQ) shall be issued by the Procurement Services Director when it is in Collier County's best interest to limit participation in the solicitation process to those bidders, proposers or offerors who demonstrate a capability to provide the goods and services required by the Collier County or when qualifications are the only criteria. 30. Sole Source Procurement is a selection of one particular supplier to the exclusion of all others. This decision may be based on lack of competition, proprietary technology, copyright, warranty or a supplier’s unique capability. 31. Single Sourcing is a procurement decision whereby purchases are directed to one source because of standardization, warranty, or other factors, even though other competitive sources may be available. 32. Reverse Auctions shall be issued by the Procurement Services Director when it is deemed to be the most efficient means of obtaining the best price through open competition. Page 3631 of 10663 25 Page 25 of 66 33. Requests for Information (RFI) shall be issued by the Procurement Services Director when it is in Collier County’s best interest to request information from potential vendors prior to the issuance of a planned solicitation. 14. It is the intent of the Board of County Commissioners to establish an amount of fifty thousand dollars ($50,000.00) as the County's threshold for formal competitive solicitations to include IFB, RFP, RPS, ITN, IFQ, and Reverse Auctions administered under the supervision of the Procurement Services Director. Award of any resulting agreements or contracts shall be made by the Board except where otherwise provided for in this Procurement Ordinance or unless an exception is granted by the Board. 15.Use of Past Performance Data: In order to promote the quality delivery of commodities and services, County departments shall record and consider the past performance of vendors in the a recommendation of award of contracts exceeding the competitive threshold. This objective shall be accomplished as follows:. a. c) 2The Procurement Services Division shall be responsible for each of the following: (1) Developing, implementing and maintaining administrative procedures, instructions and technologies necessary to collect past vendor performance data. (2) Ensuring that relevant past performance data is properly gathered and considered prior to award of subsequent contracts. b. Operating departments shall be responsible for each of the following: (1) Conducting periodic performance evaluations of vendors under contract with the County pursuant to the procedures established in SECTION 11. (2) Considering the past performance of vendors during the evaluation of bids and proposals pursuant to the procedures established in SECTION 11, subsection 15.a.(2). SECTION TWELVE: RESERVED RIGHTS. 1. Reserved Rights:. Collier County reserves Page 3632 of 10663 26 Page 26 of 66 a) The Procurement Services Division Director or designee may, after opening, request additional information or clarification by the offeror. bright in any solicitation to ) The Procurement Services Division Director or designee may waive or accept or reject any or all bids, proposals or offers; to waive minor irregularities and technicalities; or , request additional information or clarifications in a response and allow correction thereof when such actions are deemed to be in the best interest of the County and do not conflict with the basic principles of fair and open competition. 3. Rejection and Cancellations. a) The Procurement Services Division Director or designee shall have the authority to reject any and all responses and cancel any solicitation, including recommendation of awards, at any time through the approval of the contract by the Board. b) The Board also retains the authority to request resubmission. Also, Colliermake a future finding, to reject any and all responses for any or no reason and waive or accept minor irregularities and technicalities, request additional information or clarifications, and allow correction thereof, when such actions are deemed to be in the best interest of the County reserves the right to accept all or any part of any bid, proposal, or offer, and to increase or decrease quantities to meet additional or reduced requirements of Collierand do not conflict with the basic principles of fair and open competition. c) The County. Notwithstanding any other provisions of this Article, if shall not be responsible for any costs incurred by offerors in the case of rejection or non-award. 4. Negotiations. a) If none or only one responsive and responsible bid or proposal is received following any solicitation, the County Manager,Procurement Services Division Director or designee, reserves the right to reject all bids, proposals or offers and to negotiate with any responsible providers to secure the best terms and conditions in the sole interest of the County unless otherwise provided by law. 2. Rejection of Bids and Negotiation: a. The Procurement Services Director shall have authority to review all submittals in response to a County solicitation and to review these submittals for responsiveness, responsibility, price and other factors in Page 3633 of 10663 27 Page 27 of 66 making a determination for Recommendation of Award. The Procurement Services Director may reject any submittal and cancel any solicitation at anytime prior to a contract being signed. The Board of County Commissioners shall have the authority to reject any and all bids at any time. b.)If the lowest, responsive bid exceeds the budgeted amount, and, if the purchase is not funded in whole or in part with interagency grant dollars, the Procurement Services Division Director or designee may negotiate changes with the apparent lowest responsible and responsive bidder that will bring prices into budgeted limits, subject to the final approval and acceptance of the Board. If the budgeted amount includes grant funds, the Procurement Services Division Director or designee shall be authorized to conduct such negotiations, provided said actions are not prohibited by law or the grant conditions. All Notices of Recommended Award will be generated 5. Inspection and posted by the Testing. The Procurement Services Division Director prior to presentation of any or designee 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 for signature. a) Inspection by County Departments/Divisions: The Procurement Services Division Director or designee shall authorize County Departments/Divisions to inspect, prior to use, all deliveries made to such County Departments/Divisions under rules and regulations which the Procurement Services Division Director or designee shall prescribe. b) Testing: The Procurement Services Division Director or designee 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 performing such tests, the Procurement Services Division Director or designee shall have the authority to use laboratory facilities of any Agency of the County or of any contracted outside laboratory. 6. Awards. a) Once a vendor has been selected in accordance with this Ordinance, the Procurement Services Division Director or designee shall prepare and post a notice of recommended award. b) The time period for a procurement protest, as outlined in Section Twenty- Four, shall begin upon posting of the notice of recommended award and is only applicable to solicitations resulting from Formal Competition. Page 3634 of 10663 28 Page 28 of 66 c) After the protest period in Section Twenty-Four has expired, the procurement shall be awarded with reasonable promptness. All procurements will be formalized by entering into either a contract with the awarded vendor or issuing a purchase order to the awarded vendor, unless otherwise authorized by the Board of County Commissioners.. SECTION THIRTEENFOURTEEN:Unsolicited Proposals. 1. The Board incorporates by reference F.S. §Section 255.065, Fla. Stat. as may be amended from time to time, which addresses the procurement of services for qualifying projects through public-private partnerships, including through an offer of an unsolicited proposal. 2. a. The Board shall by separate Resolution establish all Application Feesapplication fees referenced under F.S. §Section 255.065, Fla. Stat. that a private entity must pay concurrent with the submission of an unsolicited proposal. Payment shall be made by cash, cashier's check, or some other non-cancellable instrument. Personal checks shall not be accepted. b 3. To the extent that the cost to evaluate an unsolicited proposal costsis more than the Initial Application Feeinitial application fee adopted by Resolution, the County may request payment of any additional amounts required to conduct its review as provided in F.S. §Section 255.065. , Fla. Stat. 4. If the costs of processing, reviewing, and evaluating attorney fees, financial or technical adviser fees, or other consultant fees required to properly evaluate an unsolicited proposal exceed the base application fee, then the Procurement Services Division Director or designee is authorized to charge a supplemental fee as long as no such supplemental fee exceeds an additional $10,000 without further authorization from the Board. SECTION FOURTEENFIFTEEN:Small and Disadvantaged Minority and Women Business Enterprises. 1. Policy Statement: Collier County stands committed to providing equal opportunities to small businesses and disadvantaged business enterprises (DBEDBEs), minority business enterprises (MBEs)), and women business enterprises (WBEs)), as well as to all vendors, consultants, contractors and subcontractors who seek to do business with the County. Pursuant to this policy, Collier County encourages its vendors, consultants, contractors and subcontractors to provide qualified small businesses and DBE'sDBEs with an equal opportunity to participate in the formal competitivecompetition processes for the procurement of commodities and services by the County. The Policy This 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 Page 3635 of 10663 29 Page 29 of 66 subcontractor on the basis of gender, race or national origin, or other such factors, but rather to create an opportunity for small businesses and DBEs, MBEs, WBEs, and all qualified vendors, consultants, contractors and subcontractors to participate in the County's formal competitive processes. Nothing in this Policypolicy shall be construed to provide for or require any preference or set-aside based on gender, race, national origin, or any other such factor. 2. Implementing Measures: In an effort to implement this policy, the County may undertake the following measures: a.)Designate the Procurement Services Division Director or designee to administer this policy. b.)Utilize outreach programs to identify, register and educate small businesses and DBEs, MBEs and WBEs to participate in the procurement/contract process which may include: (1) i.Attending trade fairs which include representatives from these enterprises. (2) ii.Attending meetings and social events wherein these enterprises are present. (3) iii.Utilizing publications aimed at reaching these enterprises. (4) iv.Utilizing Purchasing Directoriespurchasing directories and other reference sources that list these enterprises. (5) v.Publicizing this Policypolicy to encourage these enterprises to participate in the County's procurement process. (6) vi.Other actions designed to identify opportunities for these enterprises who seek to provide commodities and services to the County. c.)Maintain a list of these enterprises. d.)Disseminate information regarding competitive opportunities with the County in order to allow qualified small businesses and DBEs, MBEs and WBEs to participate in the County's procurement process. 3. Conformity with Applicable Law: The provisions of this section shall be construed in conformity with applicable state and federal law. To the extent that state law conflicts with federal law, federal law shall supersede such state law. SECTION FIFTEEN: Procedure to Provide Preference to Local Businesses in County Contracts. Page 3636 of 10663 30 Page 30 of 66 SECTION SIXTEEN: Local Vendor Preference. Except where otherwise provided by federal or state law or other funding source restrictions or as otherwise set forth in this Procurement Ordinance, purchases of commodities and services shall give preference to local businesses in the following mannerand establishes this Local Vendor Preference policy for formal competitive procurements pursuant to this section as follows: 1. For purposes of this section, a local vendor must satisfy each of the following requirements: a) A physical business address in Collier County with a County business address as listed with the Florida Department of State, Division of Corporations 1. "Local Business" defined. Local business means the vendor has a current Business Tax Receipt issued by the Collier County Tax Collector prior to bid or proposal submission to do business within Collier County, and that identifies the business with a permanent physical business address located within the limits of Collier County from which the vendor's staff operates and performs business in an area zoned for the conduct of such business. A Post Office Boxpost office box or a facility that receives mail, or a non-permanent structure such as a construction trailer, storage shed, or other non-permanent structure shall not be used forto establish the purpose of establishing said physical address. In addition to the foregoing, a vendor shall not be considered a "local business" unless it contributes to the economic development and well- being of Collier County in a verifiable and measurable way. This may include, but not be limited to, the retention and expansion of employment opportunities, support and increase to the County's tax base, and residency of employees and principals of the business within Collier County. Vendors shall affirm in writing their compliance with the foregoing at the time of submitting 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. ; and 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. b) At least two full-time employees in Collier County; and c) A current local Business Tax Receipt (also known as an Occupational License) issued by the Collier County Tax Collector prior to bid or proposal submission. 2. A vendor must be able to demonstrate its qualification for the local preference at the time a bid or proposal is submitted, including any supporting documentation needed to verify the above requirements. Any bidder/proposer who fails to submit sufficient documentation with Page 3637 of 10663 31 Page 31 of 66 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 ( 3. Qualified local price match option). Each formal competitive bid solicitation shall clearly identify how the price order of the bids receivedvendors will be evaluated and determined. When awarded a preference as follows: a responsible and responsive,) For an Invitation to Bid, if an award would otherwise go to a non-local business submits the lowest price bid, and the bid submitted by one or more responsible and responsivebidder, but a qualified local businessesvendor is within ten (10) percent of the pricelowest non-local bid 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 price(s), less one (1) dollar, offered by the overall lowest, responsible and responsive bidder. b)In such instances, staff shall first verify if the lowest non-local bidder and the lowest local bidder are in fact responsible and responsive bidders. Next, the Procurement Services Division shall determine if the lowest local bidder meets the requirements of F.S. § 287.087 (Preferences to businesses with drug-free workplace programs). If the lowest local bidder meets the requirements of F.S. § 287.087, theSection 287.087, Fla. Stat. The Procurement Services Division shall invite the lowest local bidder to submit a matching offer, less one (1) dollar, within five (5) business days, excluding weekends and County holidays, thereafter. If the lowest local bidder submits an offer that fully matches the lowest bid, less one (1) dollar, from the lowest non-local bidder tendered previously, then award shall be made to the local bidder. If the lowest local bidder declines or is unable to match the lowest non-local bid price(s), then award will be made to the lowest overall responsible and responsive bidder. If the lowest local bidder does not meet the requirement of F.S. § 287.087, and the lowest non-local bidder does, award will be made to the bidder that meets the requirements of the reference state lawlowest local bidder. b. Request c) If the lowest local bidder declines, is unable to match the lowest non-local bid price(s), or does not meet the requirements of Section 287.087, Fla. Stat., then award will be made to the lowest overall responsible and responsive bidder. d) In request for proposals, qualifications or other submittals and competitive negotiation and selection. For all purchases of commodities and services procured through the Competitive Proposals or Competitive Selection and Negotiationnegotiation methods not otherwise exempt from this local preference section, the RFP solicitation shall include a weighted criterion for local preference that equals ten (10) percent of the total points in the evaluation criteria published in the solicitation. Purchases of professional services as defined and subject to F.S. § 287.055 and audit and accounting services subject to F.S. § 11.45shall not be subject to this local preference section. Page 3638 of 10663 32 Page 32 of 66 c. e)Should a tie bid occur between a non-local bidder and a local bidder, the County shall award the contract to the local bidder. Should a tie bid occur between two local bidders, the CountyProcurement Services Division Director or designee will "flip a coin" between the two lowest local bidders. or draw lots with a minimum of three witnesses when there is a tie among more than two local bidders. The coin toss winner will be awardedrecommended for award of the contract upon approval by the Board of County Commissioners. 3 4. The County's local vendor preference, as it relates to bidding preferences for local vendors, is not applicable to solicitations or contracts when commodities and/or services may be provided in the event of an emergency. 5. The County's local vendor preference shall not apply in any procurement if the terms of a grant or funding agreement or other prevailing law or policy prohibit the use of the local vendor preference. 6. The County's local vendor preference shall not be utilized with respect to any competitive solicitation for construction services in which fifty (50) percent or more of the cost will be paid from state-appropriated funds which have been appropriated at the time of the competitive solicitation, or where otherwise limited by law. 7. Purchases of professional services as defined and subject to Section 287.055, Fla. Stat. and audit and accounting services subject to Section 218.391, Fla. Stat. shall not be subject to this local preference section. 8. Waiver of the application of local preference. The application of Local Preference to a particular purchase or contract may be waived upon approval of the Board of County Commissioners, or as identified where exempt from the competitive process in SECTION EIGHT. 4 9. 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 CommissionBoard from giving any other preference permitted by law instead of the preferences granted herein. 5 10. Reciprocity. In the eventIf Lee County, or any other Florida county or municipality ("local government") deemedthat the Board finds appropriate by the Collier County Board of Commissioners, extendsgrants preferences to local businesses, Collier County may enter intoestablish an interlocal agreement with suchthat local government wherein. This agreement would allow the preferences ofoutlined in this section may be extended and made available to apply to vendors that havewho possess a valid occupationalbusiness tax license issued by that specific local government to do business in that local government that authorizes the vendor , permitting them to provideoffer the commodities and services to be purchased, and a being procured. Additionally, these vendors must have a physical business address locatedregistered with the Florida Department of State, Division of Corporations, within the limitsjurisdiction of that Page 3639 of 10663 33 Page 33 of 66 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 to other local government firms exceed the amount of preference that such local government extends to Collier County firms competing for its contracts. 6 11. Purview and administration of this Local Preference Policy. This policy shall apply to all departments and units under the direct purview of the Board of County Commissioners.County Departments/Divisions subject to this Ordinance. For purchases of $50,000.00 or less,under the informal competitive threshold the Procurement Services Division shall systematically encourage departmentsencourages County Departments/Divisions to include local vendors when soliciting quotations in accordance with this policy. section. SECTION SEVENTEEN: Purchasing Card Program. The Procurement Services 7. This PolicyDivision Director or designee shall not be utilizedresponsible for the overall management and operation of the County's Purchasing Card program in conformance with respect to any competitive solicitation for constructionthe P-Card Manual. 1. The purchasing card is an authorized method of payment for the purchase of goods and services in which 50 percent. For the purpose of this Procurement Ordinance, a purchasing card is a credit card officially assigned to specific employees or individuals authorized by the County Manager or designee. 2. The use of the purchasing card does not eliminate the obligation of the County Departments/Divisions to obtain quotes, consistent with thresholds established in this Ordinance or complying with other provisions of this Procurement Ordinance. 3. The Procurement Services Division Director or designee shall be authorized to assign cards to employees for these purchases. 4. The County Manager or designee shall be responsible for establishing the limits for single transactions and monthly spending limits as set forth in the Purchasing Card Manual. 5. The Procurement Services Division Director or designee may temporarily increase the limits per card. 6. Strategic Purchases: The Procurement Services Division Director or designee may utilize (or delegate the authority to other Agency staff to utilize) a Purchasing Card to place orders Page 3640 of 10663 34 Page 34 of 66 that exceed the limits by the County Manager or designee, in instances where one or more of the costfollowing is true: a) Where the purchase is to address a valid public emergency; or b) Where the County will earn revenue through card program rebates; or c) Where a vendor is requiring the County to order by purchasing card; or d) If beneficial to the County in accordance with the County's policies and procedures. 7. Sales Tax Compliance: Pursuant to Section 212.08(6), Fla. Stat., County purchases transacted with vendors within the State of Florida are exempt from the State sales and use tax. In such instances, it is the responsibility of the cardholder to provide the vendor with the appropriate tax exemption information when the card is presented to the vendor. In the event that the cardholder fails to provide the vendor with the appropriate tax exemption information when the card is presented, the cardholder may be responsible for payment of the tax. It is the position of the Board that it is not cost effective or in the public interest to require a cardholder to seek a credit for sales tax collected when the total sale does not exceed $300. If the total sale exceeds $300, the cardholder's Director is responsible for ensuring the tax is returned to the County for the purchase. 8. All fixed assets purchased using a purchasing card shall be properly reported to the Fixed Assets Section of the Clerk of the Circuit Court’s Finance Division so that it can be properly recorded. 9. In all such instances, the Procurement Services Division Director or designee shall ensure that the purchase has been approved subject to all other provisions of this Procurement Ordinance. SECTION EIGHTEEN:be paid from state-appropriatedAdvanced Payments for Goods and Services. 1.The procedures for the pre-payment of goods and services with County funds which have been appropriated at the time of the competitive solicitationincluding, but not limited to, dues and membership, insurance, maintenance agreements, subscriptions, travel arrangements, postage, and other purchases shall be as prescribed by the Department of Financial Services through its Administrative Rules as provided for in Section 28.235, Fla. Stat. The Clerk of the Circuit Court is authorized to make advanced payments on behalf of the County for goods and services based on those established procedures, unless otherwise authorized by law. 2. The Board may review and approve requests for advanced payment above the Formal Competition threshold. The criteria for approval may include: a) Advance payment will result in a savings to the County. Page 3641 of 10663 35 Page 35 of 66 b) The goods or services are only available if the advance payment is made. 3. Advanced payments may be made for other goods and services up to the Formal Competition threshold, if approved in advance by both the Procurement Services Division Director or designee and the Clerk of the Circuit Court Accounts Payable. SECTION SIXTEEN: NINETEEN: Payment of Invoices. 1. Agencies under the purview of the Board of County Commissioners shall be in compliance with F.S. §Section 218.70, Fla. Stat., otherwise known as the "Local Government Prompt Payment Act." Pursuant to this, the requirements of this section shall apply to the following transactions: a. a)The purchase of commodities and services;. b. b)The purchase or lease of personal property;. c. c)The lease of real property. d. d)Direct Material Purchases. e) Construction Services. f) On good cause shown, the Board shall have the authority to waive any and all irregularities with respect to the payment of invoices submitted in good faith for work ordered and performed for the County, where payment reflects the fair value of services performed or goods received. 2. The Board approves the County Manager shall establish and maintain procedures thator designee to authorize minor payment variances between the purchase orderPurchase Order and invoice where warranted. The authority to pay such variances shall not exceed 5% of the purchase orderPurchase Order amount or $500, whichever is less. 3. The County Manager or designee shall establish and maintain a process to address freight and delivery charges not in compliance with FOB destination terms contained in the County General Terms and Conditions. 4. It shall be the responsibility of the County Manager or designee, in consultation with the Clerk's Finance Director and operating County Departments/Divisions, to establish, procedures for the timely payment of all transactions as defined herein. Such procedures shall include, but are not limited to, the following: a.)Formally defining the County's requirements for the content and submission of a proper invoice, codifying the County's payment requirements and notifying each vendor of their availability. Page 3642 of 10663 36 Page 36 of 66 b.)Steps required for the receipt of all invoices and the prompt return of improper invoices. c.)Steps required for the resolution of payment disputes between the County and a vendor. 5. Vendor Payment Dispute Resolution Process. The purpose of this section is to establish a procedure whereby payment disputes with vendors who provide goods and services to the County are resolved in a timely manner and in keeping with the Local Government Prompt Payment Act. a.)Definitions. The definitions set forth in the Local Government Prompt Payment Act (F.S. §Section 218.72, 2016)Fla. Stat.) are hereby incorporated by reference. b.)If an improper payment request or invoice is submitted by a vendor, the County shall, within ten (10) calendar days after the improper payment request or invoice is received, notify the vendor, in writing, that the payment request or invoice is improper and indicate what corrective action on the part of the vendor is needed to make the payment request or invoice proper. The County shall make payments for the purchase of goods or services other than construction services within forty-five (45) calendar days after the date specified in Section 218.73, Fla. Stat., and for the purchase of construction services as specified in Section 218.735, Fla. Stat. c. ) Non-Construction Services Dispute Resolution Process. If the parties are unable to reach resolution on the payment dispute, the County Manager or designee, shall appoint a Hearing ExaminerOfficer, to whom the matter will be referred to. The Hearing ExaminerOfficer shall have the sole and full authority to thereafter resolve the dispute. The proceedings before the Hearing ExaminerOfficer to resolve the dispute shall commence within forty-five (45) calendar days after the date the payment request or improper invoice was received by the County and shall be concluded with final written decision by the Hearing ExaminerOfficer within sixty (60) calendar days after the date the payment request or improper invoice was received by the County. These proceedings are not subject to F.S. ch.Chapter 120, Fla. Stat., and do not constitute an administrative hearing. Rather, these proceedings are intended to be quasi- judicial, open to the public, with the written decision of the Hearing ExaminerOfficer being final, subject only to certiorari review. If the dispute is resolved in favor of the County, interest charges shall begin to accrue fifteen (15) calendar days after the Hearing Examiner'sOfficer's final decision. If the dispute is resolved in favor of the Vendorvendor, interest begins to accrue as of the original date the payment became due. d. i)If the County does not timely commence this dispute resolution process within the time required, a contractor may give written notice to the County of the failure to timely commence this dispute resolution procedure. Page 3643 of 10663 37 Page 37 of 66 If the County fails to commence this dispute resolution procedure within four (4) business days, excluding weekends and County holidays, after such notice, any amounts resolved in the contractor'svendor's favor shall bear mandatory interest, as set forth in F.S. ch. 218Chapter 218, Fla. Stat. from the date the payment request or invoice containing the disputed amounts was submitted to the County. If the dispute resolution procedure isdoes not commencedcommence within four (4) business days, excluding weekends and County holidays, after the notice, the objection to the payment request or invoice shall be deemed waived. The waiver of an objection pursuant to this paragraph does not relieve a contractorContractor of its contractual obligations. e. ii)In an action to recover amounts due under this part, the court shall award court costs and reasonable attorney's fees, including fees incurred through appeal, to the prevailing party. iii) When good cause is shown, the Board may waive any and all irregularities with respect to the payment of invoices submitted in good faith for work ordered by and performed for the County, and where payment reflects the fair value of services performed or goods received. d) Construction Services Disputes Resolution Process. The disputes must be resolved in accordance with the dispute resolution process prescribed in the construction contract. If no dispute resolution process is prescribed in the construction contract, then the above Non-Construction Dispute Resolution Process shall govern. 6. Contract Claims.f.The conduct of the Hearing Examiner proceedings, including notice, process, and criteria, shall be set forth in the Procurement Division's Policies and Procedures. All actual or prospective claims arising against the County from contractors, vendors, or any other party in direct privity with the County to provide goods or services shall first be directly addressed by the parties' administrative representatives in a manner consistent with the agreement between the parties and in accordance with the County's adopted procedures, and applicable State and federal law. For any prospective or actual claims or disputes arising under any contract entered into by the County, the Procurement Services Division Director or designee must determine the facts of the dispute. All contract claims should follow the County’s Vendor Payment Dispute Resolution Process outlined above. SECTION TWENTY SECTION SEVENTEEN: Advanced Payments for Goods and Services. Procedures for the pre-payment of goods and services with County funds including, but not limited to, dues and membership, insurance, maintenance agreements, subscriptions, travel arrangements, postage, and other purchases as prescribed by the Department of Financial Services through their Administrative Rules. As provided for in F.S. § 28.235, the Clerk of the Circuit Court is authorized to make advanced payments on behalf of the County for goods and services based on those established procedures. Page 3644 of 10663 38 Page 38 of 66 SECTION EIGHTEEN: Standardization, Cooperative Purchasing Agreements and Governmental Contracts. 1. Where standardization is determined to be desirable by the Board of County Commissioners or included in the Procurement Manual, the purchase of commodities may be made by negotiation with the approval of the purchase by the Board i if under the Formal Competitive Threshold, with approval of the purchase by the Procurement Services Director. 2. Annually, the Board of County Commissioners will approve a list of authorized purchasing cooperative organizations and governmental schedules and contracts. The Procurement Services Director may approve purchases using these approved cooperative organizations, agreements and contracts with no further action required by the Board providing that funds have been budgeted for these specific purposes. Additionally, the Procurement Services Director may join other public agencies in cooperative purchasing organizations and/or agreements if is determined to be in the County's best interest, and if the consortium agreement has not had prior Board approval. The use of any new cooperative agreement must be approved by the Board prior to the use of the agreement. SECTION NINETEEN:Contract Administration. 1. Contract Document:. Every procurement of contractual services or commodities shall be evidenced by a written document containing all provisions and conditions of the procurement. SaidThe document shall include, but not be limited to: a) Payments to contractors, vendors, consultants: Prior to the execution of a. formal contract subject to this Procurement Ordinance, a formal payment schedule and payment terms shall be established within the agreement. Such terms and conditions shall be consistent with the requirements of all applicable laws and the formal solicitation documents. b)A listing of the scope of services to be performed or commodities to be purchased. b. A provision specifying the criteria and the final date, or number of days, by which such criteria must be met for completion of the work. c. c)A provision specifying the terms of cancellationtermination by the County and where applicable, a provision specifying the terms of renewal. , which may include price adjustments. Page 3645 of 10663 39 Page 39 of 66 d. d)Where applicable, a provision establishing the appropriate types and levels of insurance to be carried out by the vendor. SaidThe provision shall be employed in a manner consistent with minimum insurance standards approved by the Board of County Commissioners. e. A provision requiring the contractor/vendor to inform the County if he/she has been convicted of a public entity crime subsequent to July 1, 1989. e) A provision regarding indemnification of the County. f) A provision requiring compliance with all applicable federal laws and Florida Statutes, including but not limited to Sections 287.133, 287.135, 287.138, 448.095, and 908.111, Fla. Stat. A purchase order that embodies these provisions shall be sufficient documentation of the procurement. Except as otherwise provided in this Procurement Ordinance, the Procurement Services Division Director or designee shall determine the circumstances under which a Board approved purchase order (and all documents included by reference) shall serve as the contract document. 2. Contract Approval. a) All contracts for commodities and services exceeding Section Ten, Formal Competition Threshold, shall be authorized by the Board. Once approved, subsequent purchase orders referencing those Board approved contracts may be issued by the Procurement Services Division Director or designee. b) Contracts below Section Ten, Formal Competition Threshold, shall be subject to the review and approval by the Procurement Services Division Director or designee. Once approved, subsequent purchase orders may be issued by the Procurement Services Division Director or designee. 3. All contracts, including terms and conditions, shall be subject to the review and approval by the County Attorney’s Office. 4. Contract Administrative Agent/Project Manager: Every procurement of services shall be administered by the requesting Agency/Department. Departments/Divisions. 3. Contracts: Notices that terminate in its entirety a Board-approved purchase or contract must be approved by the Board of County Commissioners prior to its termination. a. Modifications to Work Orders, 5.Change Orders, and Amendments issued under a purchase order or contract that exceed ten percent (10%) of the current: a)Change orders and amendments that increase the total contract amount by $250,000 or more above the original Board approved aggregate amount, or twenty percent (20%) of the current Board -approved number of Page 3646 of 10663 40 Page 40 of 66 daysamount must be approved by the Board. Any subsequent price increases, regardless of the amount, will also require Board approval. b. Modifications b) Any allowance amount approved by the Board for a particular project shall not be included in the calculation of the value of changes for the purpose of determining the applicable approval threshold. Alternatively, the Board may authorize an allowance amount for the County Manager or designee approval. 6. The Procurement Services Division Director or designee shall have the authority to Work Orders, approve the following, without further Board approval: a)Change Orders,orders and Amendments issued under a purchase order or amendments that increase the total contract that do not exceed ten percent (10%) of the current Board approved aggregate amount, or twenty percent (20%) of the current Board amount by less than $250,000 from the original Board-approved number of daysamount will be reported on the Procurement Services Administrative Ratification Report and presented to the Board for approval. ratification through the Procurement Administrative Report. c. Modifications b) All change orders and amendments for contracts that were originally executed by the Procurement Services Division Director or designee, so long as the total contract amount, including increases, does not exceed $250,000. c) Zero cost changes or changes that result in a lower contract amount. d) Increases or decreases to Board -approved purchases or contracts by the issuances of the following, but not limited to, directdays. e) Direct material purchases, notices. f) Notices to proceed or noncompliance, and start and stop work notices, authorization. g) Authorization for the use of approved allowances and reallocation. h)Reallocation of approved funds between line items, supplemental agreements, and changes by letter may be authorized and executed by the Procurement Services Director without further approval by the Board. . i) Work order(s), if the work order is equal to or below such Board approval parameters for work orders as set forth in the Board approved Continuing Contract or Agreement for services under which the work order is generated. Work orders must be in sufficient detail to audit according to the approved contract. Page 3647 of 10663 41 Page 41 of 66 d 7. Subsection 5 and 6, shall not be applicable to continuing contracts, fixed term contracts, fixed-fee contracts, or blanket purchase orders. Such purchases shall be subject to all other provisions of this Procurement Ordinance. 8. All material changes in the scope of contracts must be approved by the Board in advance. e. Sections 3.a through 3.b shall not be applicable to term contracts, fixed-fee contracts, or blanket purchase orders where the County desires to procure commodities and/or services on an as needed basis without having to obligate itself to a total contract amount. Rather, such purchases shall be based on fixed unit prices or other predetermined pricing methods and shall be limited in quantity by the amount of funds appropriated in the budget of the operating Division(s). Such purchases shall be subject to all other provisions of this Procurement Ordinance. 9.The Board shall havehas broad authority, within the limits of the law, to evaluate and approve any recommended contract modificationamendment without requiring further competition. 10. Price Adjustments: The Procurement Services Division Director or designee shall have the authority to approve upward or downward price adjustments, subject to the following conditions: a) That the Procurement Services Division Director or designee has received a request from the Contract Administrative Agent/Project Manager supporting the request, verifying contractor's satisfactory performance, and availability of funds for the applicable fiscal year. b) That the price adjustment is identified in the solicitation document and/or resultant contract. Price adjustments that exceed the formal competition threshold per fiscal year dollar total expenditure, unless otherwise provided, and/or price adjustments that fail to meet one or more of the conditions set forth herein will require the approval by the Board. 11. Contract Renewals: The Procurement Services Division Director or designee shall authorize and execute renewals of contracts for commodities and/or services subject to the following conditions: a) That the contractor has performed in a satisfactory manner, and that the Procurement Services Division Director or designee has received a request to Page 3648 of 10663 42 Page 42 of 66 renew from the contractor or Contract Administrative Agent/Project Manager verifying the contractor's satisfactory performance. b) That the Board-approved contract provided for a renewal and is renewed subject to the terms and conditions set forth in the contract. Cost and term modifications are addressed in the original solicitation document and/or resultant contract. 4 c) That the renewal is done for a set period of time identified in the solicitation document and/or resultant contract, commencing at the end of the initial contract term. Proposed contract renewals that fail to meet one or more of the conditions set forth herein will require the approval of the Board. 12. Contract Extension: Extension(s) of a Board-approved contract for commodities or non-construction services may be requested by the contract managerContract Administrative Agent/Project Manager to the Procurement Services Division Director or designee, in writing, for a period not to exceed six (6) months (cumulatively) and shall be subject to the same terms and conditions set forth in the contract, if the extension period is provided for in the Board approved contract.. The Procurement Services Division Director or designee shall have the authority to authorize and execute all such extensions, which must be issued prior to the expiration of the contract. Any extension(s) that exceed six (6) months (cumulatively) shall be approvedrequire approval by the Board of County Commissioners. 5. Contract Renewal: The Procurement Services Director shall authorize and execute renewals of contracts for commodities and/or services subject to the following conditions: a. That the Contractor has performed in a satisfactory manner and that the Procurement Services Director has received a request to renew from the Contractor or Project Manager verifying the Contractor's satisfactory performance. d) b. That the Board-approved contract pursuant to SECTION ELEVEN Paragraph 14 provided for a renewal and is renewed subject to the terms and conditions set forth in the initial contract. Cost and term modifications are addressed in the original solicitation document and/or resultant contract. c. That the renewal is done for a set period of time identified in the solicitation document and/or contract, commencing at the end of the contract period. d. That a contract under the formal competitive threshold with multiple renewal year option terms may be approved annually by the Procurement Services Director. Page 3649 of 10663 43 Page 43 of 66 Proposed renewals that fail to meet one or more of the conditions set forth herein will require the approval of the Board of County Commissioners. 6. Contract Approval: All contracts for commodities and services exceeding SECTION ELEVEN Paragraph 14, Formal Competitive Threshold, shall be authorized by the Board of County Commissioners. Once approved, subsequent purchase orders referencing those Board approved contracts may be issued by the Procurement Services Director. Contracts below SECTION ELEVEN Paragraph 14, Formal Competitive Threshold, shall be subject to the review and approval by the County Attorney staff and signed by the Procurement Services Director. Purchase orders may be issued by the Procurement Services Director. 7. Work Orders: The Procurement Services Director may execute any work order if the work order is equal to or below such Board approval parameters for work orders as are set forth in the Board approved term contract for services under which the work order is generated. 13. Construction Agreements. j) Retainage. Work orders must be in sufficient detail to audit according to the approved contract. 8. Consent to Assignments of Contract: For all Board approved contracts, the Board of County Commissioners shall approve all assignments of contracts requested by the predecessor contracting party. 9. Authority Limitation and Delegation; Promulgation of Procedures: The Procurement Services Director may delegate to one or more Procurement Services Division employees any or all aspects of the authority vested in the Procurement Services Director. All authority to execute documents that is vested in the Procurement Services Director or any other person shall be subject to the limits of any applicable federal, state or other law. 10. Payments to Contractors, Vendors and Consultants: Prior to the execution of a formal contract subject to this Procurement Ordinance, the Procurement Services Director shall establish a formal payment schedule and payment terms Page 3650 of 10663 44 Page 44 of 66 within the agreement. Such terms and conditions shall be consistent with the requirements of all applicable laws and the formal solicitation documents. a)In accordance with F.S. §Section 218.735(8), the Procurement Services Director may establish, subject to Board approval, procedures to Fla. Stat., the Board may reduce tobelow 5% the amount of retainage withheld from each subsequent progress payment issued to a contractor where applicable. The Procurement Services Director may establish, in writing, a schedule(s) to further reduce the percentage of cumulative retainage held throughout the course of the project schedule where warranted and according to law. Recommendation to reduce the percentage of cumulative retainage shall be subject to the following: a. That the term "cumulative retainage" is defined to mean "the dollar total of the funds retained from all payments issued under the contract divided by the gross dollar total of all monthly pay requests (or the total of all payment amounts deemed allowable by the project manager, whichever is less)". b. That any decision to reduce retainage shall be formally communicated in a letter to the Contractor's representative and that the letter affirmatively states that the Contractor has performed the contract work in a satisfactory manner. c. That the cumulative retainage not be adjusted until at least 50% of the work has been completed and payment has been issued. d. That the Procurement Services Director's letter expressly sets forth the percentage of cumulative retainage to be held for the remaining pay requests. 11. The Procurement Services Director may authorize the partial release or payment of contract retainage to the contractor prior to final completion of all project work provided that: a. The contractor has performed in a satisfactory manner to date as verified in writing by the Project Manager. b. The total aggregate work under the agreement is at least 50% completed and accepted (i.e.; payments equaling at least 50% of the contract amount less retainage have been issued). Page 3651 of 10663 45 Page 45 of 66 c. The retainage dollar amount to be released is based upon and consistent with the prevailing percentage of cumulative retainage being held at the time that the retainage is released. b) Liquidated Damages. County Departments/Divisions shall obtain authority from the Board to waive the assessment of liquidated damages. 14. Consent to Assignments of Contracts: The County's authority for consent to assignment of a contract may be approved by the Procurement Services Division Director or designee. 15. Contract Terminations: Notices that terminate in its entirety a Board-approved purchase or contract must be approved by the Board prior to its termination, unless otherwise provided in the contract. SECTION TWENTY-ONE: Performance and Payment Bonds. A contractor or vendor shall provide a surety bond from a surety company to guarantee full and faithful performance of a contract obligation and the payment of labor and material expended pursuant to a contract whenever, and in such amounts, as required by statute or otherwise as deemed necessary by the Procurement Services Division Director. or designee. 1. The Procurement Services Division Director or designee shall determine if a bid bond shall be required for any competitive procurement. If required, the bid bond will be five (5) percent of the amount of the bid or proposal. Unsuccessful vendors are entitled to full return of their bid bond. Upon determination by the Board, the successful vendor shall forfeit this bid bond, or a portion thereof, upon failure to enter into a contract or act on the purchase order issued within ten (10) business days, excluding weekends and County holidays, of presentation of a contract or purchase order by the County. 2. The Procurement Services Division Director or designee shall determine if payment bonds, and performance bonds are required. All contracts for construction or repairs of public buildings and public works projects shall require payment and performance bonds in accordance with Section 255.05, Fla. Stat. 3. Payment and performance bonds shall be at least 100 percent of the contract amount, including allowance. 4. All required bonds shall be from a surety company authorized to do business in the State of Florida to guarantee the full and faithful performance of the contractual obligations and the payment of labor and material expended pursuant to the contract whenever and in such amounts as is deemed necessary by the Procurement Services Division. The surety shall meet the requirements of the Department of the Treasury Fiscal Service, “Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsurance Companies.” An irrevocable letter of credit from a financial institution operating within the State of Florida (or Page 3652 of 10663 46 Page 46 of 66 other alternative forms of surety as permitted under Florida law) may be sufficient in place of the performance bond if so provided for in the bid and contract documents. All such bonds or letters of credit shall be approved as to form by the County Attorney, and held by the Clerk's Board Minutes and Records Department. 5. The vendor is required to record the payment and performance bonds and riders with the Collier County Clerk of the Circuit Court and pay all associated costs. 6. All such bonds or letters of credit shall be approved as to form by the County Attorney and held by the Clerk's Board Minutes and Records Department. SECTION TWENTY ONE-TWO: Unauthorized Purchases. All purchases made shall be consistent and in compliance with the Procurement Ordinance. Violations shall be handled in the manner provided by Statute or applicable Collier County Procurement Manuals. Any purchase or contract made contrary to the provisions hereofthereof and contrary to Florida law shall not be approved and the County shall not be bound thereby., unless and until the following actions occur: 1. If County staff authorizes work or purchases that are not in conformance with the Procurement Ordinance, Procurement Manuals, or contracts, the County Departments/Divisions must first complete an After-the-Fact Procurement form. 2. The Board shall approve After-the-Fact Procurement forms for transactions exceeding the formal competition threshold. 3. The Procurement Services Division Director or designee shall approve After-the- Fact Procurement forms for transactions below the formal competition threshold and will report those to the Board through the Procurement Administration Report. SECTION TWENTY-TWOTHREE: Prohibition against Subdivision. No contract or purchase shall be subdivided to avoid the requirements of this Procurement Ordinance or of State law. SECTION TWENTY-THREEFOUR: Protest of Bid or Proposal Award. The purpose of this section is to accommodate legitimate protests concerning formal competitive solicitations and recommended contract awards prior to award of a contract by the Board of County Commissioners. 1. Any respondentbidder to an IFBITB, ITN, RFP, IFQ or RPS who alleges to be aggrieved in connection with the solicitation or recommended award of a contract, (hereafter referred to as "the protesting party") may protest to the Procurement Services Division Director or designee, who shall serve as the sole recipient of any and all notices of intent to protest and all formal protests. Page 3653 of 10663 47 Page 47 of 66 2. With respect to a protest of the terms, conditions and specifications contained in a solicitation, including any provisions governing the methods for evaluation of bids, proposals or replies, awarding contracts, reserving rights for further negotiation or modifying or amending any contract, the protesting party shall file a notice of intent to protest with the Procurement Services Division Director or designee within three (3) business days, by 5:00 p.m., excluding weekends and County holidays, after the first publication, whether by posting or formal advertisement of the solicitation. Failure to file a notice of intent to protest within the time and manner prescribed by this policy shall constitute a waiver of the respondent’s right to protest the solicitation. The formal written protest shall be filed within five (5) business days by 5:00 p.m. of the date the notice of intent is filed, excluding weekends and County holidays. Formal protests of the terms, conditions and specifications shall contain all of the information required for the Procurement Services Division Director or designee, to render a decision on the formal protest and determine whether postponement of the bid opening or proposal/response closing time is appropriate. The Procurement Services Director'sDivision Director’s or designee’s decision shall be considered final and conclusive unless the protesting party files an appeal of the Procurement Services Director's decision. Division Director or designee’s decision to the County Manager. The appeal process to the County Manager will follow the same appeal process used for a formal protest of a contract award as stated below 3. Any actual bidder or respondent to who desires to protest a recommended contract award shall submit a notice of intent to protest to the Procurement Services Division Director or designee within three (3) calendarbusiness days, excluding weekends and County holidays, from the date of the initial posting of the recommended award. Failure to file a notice of intent to protest within the time and manner prescribed by this policy shall constitute a waiver of the respondent’s right to protest the recommended award. The notice of intent to protest shall contain at a minimum: a) Name of the protestor; b) Protestor's address; c) E-mail address and telephone number; d) Name of the protestor's representative to whom notices may be sent; e) Project name and number of the competitive procurement; and f) A brief factual summary of the basis of the intended protest. 4. All formal protests with respect to a recommended contract award shall be submitted in writing to the Procurement Services Division Director or designee for a decision. SaidAll formal protests shall be submitted within five (5) calendarbusiness days, by 5:00 p.m., excluding weekends and County holidays, from the date that the notice of intent to protest is received by the Procurement Services Division Director, and accompanied by the fee, as set forth below or designee. 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: Page 3654 of 10663 48 Page 48 of 66 a. a)Name and address of County Agency affected and the solicitation number and title. b. b)The name and address of the protesting party. c. c)A statement of disputed issues of material fact. If there are no disputed material facts, the written letter must so indicatestate that. d. d)A concise statement of the ultimate facts alleged and of any relevant rules, regulations, statutes, and constitutional provisions entitling the protesting party to relief. e. e)The protesting party's entitled demand for the relief. f. f)Such other information as the protesting party deems to be material to the issue. g) As a condition of filing a formal protest to the Procurement Services Division Director or designee, the protesting party shall submit a non-refundable filing fee for the purpose of defraying the costs of administering the protest. The filing fee shall be submitted with the formal protest. Failure to pay the filing fee shall result in the denial of the protest. The filing fee may be in the form of a certified check, cashier's check, or money order made payable to Collier County, Florida or the Collier County Board of County Commissioners in an amount equal to five (5) percent of the protestor's bid or $10,000.00, whichever is less; provided, however, if no value is attached then the bond will be $10,000.00. The formal protest shall contain all arguments, facts or data supporting and advancing the protestor's position. Under no circumstances shall the protestor have the right to amend, supplement or modify its formal protest after the filing thereof. Nothing herein shall preclude the County's authority to request additional information from the protesting party or other bidders or proposers in conjunction with the review and rendering of decisions on the protest, including any subsequent appeal. 5. In the event of a timely protest of contract award consistent with the requirements of this section, the Procurement Services Division Director or designee 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. Nothing herein prevents the Procurement Services Division Director or designee from rejecting all submissions to the solicitation any time prior to award. During this process, the protesting party shall limit their and the Procurement Services Division Director or designee communications with the County to the Office of the County Attorney, and neither the protesting party, their agents or their representatives shall have any private contact or discussions with individual County Commissioners, the County Manager, other County employees, or any independent hearing officer (where applicable) regarding the protest except such communications Page 3655 of 10663 49 Page 49 of 66 as may be required or permitted during a hearing, if applicable, or a meeting of the County Commission wherein the solicitation or award is to be considered. 6. The Procurement Services Division Director or designee shall review the merits of each timely protest and in consultation with the Contract Manager and other appropriate County staff, issue a decision stating the reasons for the decision and the protesting party's rights of appeal under this section. SaidThe decision shall be in writing and mailed or otherwise furnished to the protesting party. The decision of the Procurement Services Division Director or designee shall be final and conclusive unless the protesting party delivers a subsequent written notice of appeal to the County Manager within three (3) calendarbusiness days, by 5:00 p.m., excluding weekends and County holidays from the date of receipt of the decision. In filing a written objection to the Procurement Services Director'sDivision Director’s or designee’s decision, the protestor shall not introduce new arguments or alter in any other way their protest submission. An appeal of the Procurement Services Director'sDivision Director’s or designee’s decision shall be limited to a review of the grounds set forth in the formal protest, and no new grounds or arguments will be introduced or considered. 7. The protester may appeal the decision of the Procurement Services Division Director or designee to the County Manager by filing a written appeal with the County Manager's Office within three (3) business days, by 5:00 p.m., excluding weekends and County holidays from the date of receipt of the decision. The appeal must be in writing and must include a full explanation of the basis of disagreement with the decision rendered by the Procurement Services Division Director or designee as well as the relief sought. The 7. In the event of a subsequent appeal pursuant to subsection F, the County Manager shall determine whether to appoint an independent Hearing Officer to review the formal protest and the Procurement Services Director's or designee’s decision. TheIf the County Manager appoints a Hearing Officer, the Hearing Officer's review shall be limited to the grounds set forth in the formal protest. The protesting party shall have the burden of proof. The Hearing Officer shall consider the formal protest, the Procurement Services Director's or designee’s decision, and supporting documents and evidence presented at the hearing. In any hearing, irrelevant, immaterial or unduly repetitious evidence shall be excluded. All other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible whether or not such evidence would be admissible in a trial in the courts of Florida. The Hearing Officer may grant the motion of any person having standing under Florida law to intervene in the proceedings. Persons or parties shall have the right to be represented by counsel in the proceedings, to call witnesses, and present evidence; provided, however, that the Hearing Officer shall not have the right to compel attendance of witnesses or to permit or compel any discovery. The Hearing Officer will have a maximum of sixty (60) calendar days to schedule and conduct a hearing into the matter and issue a recommended finding of fact and an opinion in writing to the County Manager or designee for submission to the Board of County Commissioners.. Should the Hearing Officer find in favor of the County, the protesting party shall pay, in full, the costs of the Hearing Officer. If the Hearing Officer's recommended decision is in favor of the protesting party, then the County will assume this cost. The County Manager's discretion as to whether to appoint a Hearing Officer shall in no way afford the protestor the right to demand such an appointment or hearing. The decision of a Page 3656 of 10663 50 Page 50 of 66 Hearing Officer on a protesting party's appeal shall be submitted to the Board for its consideration as part of a final award decision. Nothing herein shall be construed as creating a right of judicial review of the Hearing Officer's decision, nor shall such decision be binding upon the Board. Additionally, nothing herein shall be construed as limiting the Board's right to reject any and all bids or proposals. 8. Decisions of the Procurement Services Director or designee and Hearing Officer (where applicable) will be provided to the protestor prior to the award recommendation being presented to the Board of County Commissioners.. Neither the County Manager's decision nor the Hearing Officer's recommended decision shall be construed as an award recommendation triggering additional rights of protest pursuant to this policy. Notwithstanding anything set forth herein to the contrary, the Board of County Commissioners shall retain the authority to make the final award decision. The County Manager shall issue his/her decision on the appeal within thirty (30) calendar days of receipt of the appeal or receipt of an appointed Hearing Officer’s recommended findings, whichever is later. 8. The decision of the County Manager may be appealed to the Board of County Commissioners by the filing of a written appeal with the Board Chair within three (3) calendar days of issuance of the County Manager's decision. The Board shall overturn the selection if the protester proves by clear and convincing evidence that the selection did not comply in material respects with the requirements contained in the competitive procurement documents, with this Section, or with applicable law. 9. Failure to file a formal by a protestor to comply with the timelines and requirements set forth herein shall result in an immediate invalidation and termination of the protest within the time and manner prescribed by this policy shall constitute and a waiver of the right to protest by any protesting party as defined by subsection "A" of this policy. 10. As a condition of filing seek further redress or to appeal the alleged adverse action in a formal protest to the Procurement Services Director the protesting party shall submit a non- refundable filing fee for the purpose of defraying the costs of administering the protest. The filing fee shall be submitted with the formal protest. Failure to pay the filing fee shall result in the denial of the protest. The amount of the filing fee shall be as follows: Estimated Contract Amount Filing Fee $250,000.00 or less $500.00 $250,000.01 to $500,000.00 $1,000.00 $500,000.01 to $5 million $3,000.00 Page 3657 of 10663 51 Page 51 of 66 $5 million or more $5,000.00 This fee may be modified by Resolutioncourt of the Board of County Commissionerslaw. SECTION TWENTY-FOUR: 10. Nothing herein relinquishes the County's rights to waive minor irregularities. Further, nothing herein shall grant any rights to the unsuccessful protestor. 11. Notwithstanding anything set forth herein to the contrary, the Board shall retain the authority to make the final award decision. Contract Claims. All actual or prospective claims arising against the County from contractors, vendors or any other party in direct privity with the County to provide goods or services shall first be directly addressed by the parties' administrative representatives in a manner consistent with the agreement between the parties and in accordance with the County's procedures Manual. For any prospective or actual claims or disputes arising under any contract entered into by the County, the Procurement Services Director must determine the facts of the dispute. All contract claims should follow the County’s Vendor Payment Dispute Resolution Process outlined in SECTION SIXTEEN. SECTION TWENTY-FIVE:Inspection and Testing. The Procurement Services Director shall inspect, or supervise the inspection of, or cause to be inspected, all deliveries of commodities or services to determine their conformance with the specifications set forth in an order or contract. 1. Inspection by Operating Department: The Procurement Services Director shall authorize operating departments to inspect, prior to use, all deliveries made to such operating departments under rules and regulations which the Procurement Services Director shall prescribe. 2. Testing: The Procurement Services Director shall have the authority to require chemical and physical tests of samples submitted with bids and samples of deliveries which are necessary to determine their quality and conformance with specifications. In the performance of Page 3658 of 10663 52 Page 52 of 66 such tests, the Procurement Services Director shall have the authority to make use of laboratory facilities of any Agency of the County or of any contracted outside laboratory. SECTION TWENTY-SIX: Purchasing Card Program. The Procurement Services Director shall be responsible for the overall management and operation of the County's purchasing card program in conformance with the Collier County Administrative Practices and Procedures Manual. For the purpose of this Procurement Ordinance, a purchasing card is a credit card officially assigned to specific employees under the purview of the Board of County Commissioners' agency for the purpose of transacting small and/or strategic purchases. The Procurement Services Director shall be authorized to assign cards to employees for these purchases. The Procurement Services Director shall be responsible for establishing the following dollar limits for each assigned card: 1. Single Transaction Limit: Not to exceed $1,000.00 per card unless otherwise authorized by the Procurement Services Director. 2. Monthly Spending Limit: Not to exceed $10,000.00 per card unless otherwise authorized by the Procurement Services Director. 3. Strategic Purchases: The Procurement Services Director may utilize (or delegate the authority to other Agency staff to utilize) a purchasing card to place orders that exceed the limits set forth under this section in instances where one or more of the following is true: a. Where the purchase is to address a valid public emergency; or b. Where the County will earn revenue through card program rebates; or c. Where a vendor is requiring the County to order by purchasing card. 4. Sales Tax Compliance: Pursuant to F.S. § 212.08(6), County purchases transacted with vendors within the State of Florida are exempt from the State sales and use tax. In such instances, it is the responsibility of the cardholder to provide the vendor with the appropriate tax exemption information when the card is presented to the vendor. In the event that the cardholder fails to provide the vendor with the appropriate tax exemption information when the card is presented the cardholder may be responsible for payment of the tax. It is the position of the Board that it is not cost effective or in the public interest to require a cardholder to seek a credit for sales tax collected when the total sale does not exceed $300. In Page 3659 of 10663 53 Page 53 of 66 the event that the total sale exceeds $300, the cardholder's Director is responsible to ensure the tax is returned to the County for the purchase. In all such instances, the Procurement Services Director shall ensure that the purchase has been approved subject to all other provisions of this policy. All fixed assets purchased using a purchasing card shall be properly reported to the Fixed Assets Section of the Clerk of Courts Finance Division so that it can be properly recorded. SECTION TWENTY-SEVEN:Conflict of Interest. The procurement of goods and services shall comply with all applicable state, local and federal laws concerning ethics and conflict of interest. SECTION TWENTY-EIGHTSIX:Debarment and Suspension. The County Manager may suspend and/or debar vendors, contractors, consultants and other interested and affected persons from active participation in obtaining County contracts upon approval of the Board. The purpose of any such action shall be to protect the County'sCounty’s interests and maintain the integrity of the County'spublic contracting and purchasing process. Selecting highly qualified contractors that engage in ethical and responsible business practices protects the public and supports the procurement process. The debarment and suspension and debarment processes shall be considered to be separate from and in addition to the award evaluation and vendor performance evaluation processes authorized elsewhere in this Procurement Ordinance. The debarment and appeals process shall not stay Collier County's solicitation, negotiation, or contract award processes. 1. Definition of Terms: For the purposes of this section, the following terms have been defined as follows: a. Affiliate refers to associated business entities or individuals that control or could control the contractor or are controlled by the contractor or could be controlled by the contractor. b. Civil Judgment refers to a judgment or finding of a civil offense by any court of competent jurisdiction. c. Contractor means any individual or legal entity that: (1) Directly or indirectly (e.g.; through an affiliate), submits offers for or is awarded, or reasonably may be expected to submit offers for or Page 3660 of 10663 54 Page 54 of 66 be awarded, a County contract for construction or for procurement of commodities and services, including professional services; or (2) Conducts business, or reasonably may be expected to conduct business, with the County as an agent, surety, representative or subcontractor of another contractor. d. Conviction means a judgment or conviction of a criminal offense, felony or misdemeanor, by any court of competent jurisdiction, whether entered upon a verdict or a plea, and includes a conviction entered upon a plea of nolo contendere. e. Debarment means action taken by the County to exclude a contractor from County contracting and County-approved subcontracting for a reasonable, specified period as provided herein. f. Preponderance of the Evidence means proof by information that, compared with that opposing it, leads to the conclusion that the fact at issue is more probably true than not. g. Subcontractor: Any individual or legal entity that offers or agrees to provide commodities or services to a party deemed to be a contractor under this section. h. Suspension refers 1. Suspension. Refers to action taken by the County Manager to temporarily disqualify a contractor from County contracting or County- approved subcontracting pending action of the Board. 2. Suspension: The Procurement Services Division Director or designee shall recommend to the County Manager the suspension of a contractor, subcontractor or person from consideration for award of contracts if there appears to be a reasonable basis for debarment as set forth herein. If a suspension precedes a debarment, the suspension period shall be considered in determining the debarment period. The suspension period shall not exceed three six (6) months or until the conditions have been rectified or resolved to the County’s satisfaction, without the approval of the Board. The prospective causes for suspension include one or more of County Commissioners. the following: 3. Page 3661 of 10663 55 Page 55 of 66 a) Failure to fully comply with the condition, specifications, or terms of a bid, proposal or contract with the County. b) The Procurement Services Division has formally disqualified or declared a contractor’s bid, quotation, or proposal non-responsive, based on the Contractor’s fraud or misrepresentation. c) The Contractor is charged by a court of competent jurisdiction with the commission of a criminal offense as an incident to obtaining or attempting to obtain a public or private contract, subcontract, or in the performance of such contract or subcontract. If charges are dismissed or the contractor is found not guilty, the suspension shall be lifted automatically upon proof of final court disposition by the contractor to County. d) The contractor becomes insolvent, has proceedings in bankruptcy instituted against it, or has a receiver or trustee appointed over its property. e) The contractor is charged by a court of competent jurisdiction with the following: 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 County government contractor. If charges are dismissed or the contractor is found not guilty, the suspension shall be lifted automatically upon proof of final court disposition provided by the contractor to County. f) Contractor violates the ethical standards set forth in local, state or federal law. g) Contractor commission of any act or omission to perform any act which is grounds for debarment. h) Any other cause the Procurement Services Division Director or designee determines to be serious and compelling as to materially and adversely affect responsibility of a business as a County government contractor, including but not limited to suspension by another governmental entity for substantial cause. 2. Debarment: a. Causes for 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. The prospective causes for debarment include one or more of the following: (1) 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. (2) b)Conviction under state or federal law of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, or any other Page 3662 of 10663 56 Page 56 of 66 offense indicating a lack of business integrity or business honesty which currently, seriously and directly affects responsibility as a contractor. (3) c)Conviction under state or federal antitrust laws arising out of the submission of bids, proposals or other competitive offers. (4) 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). (5) e)Refusal to provide bonds, insurance or other required coverage and certifications thereof within a reasonable time period. (6) 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. (7) 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 (3) years under the provisions of this section. (8) h)Violation of the ethical standards set forth under applicable state or county laws. (9) i)Debarment of the contractor by another public agency. (10) j)Submitting false invoices or invoices that mislead, misrepresent the true costs incurred or falsely identify either a source of material or a provider of a service. (11) k)Any other cause deemed to be so serious and compelling as to materially affect the qualifications or integrity of the contractor. b. Procedure: (1) The county department requesting the suspension or debarment action shall submit to the Procurement Services Director a written complaint setting forth the reason(s) for seeking debarment. (2) The Procurement Services Director shall review the complaint, verify whether it is compliant with the provision of this Procurement Ordinance, direct any appropriate changes and forward the complaint to the contractor. Page 3663 of 10663 57 Page 57 of 66 (3) The contractor shall review the complaint and shall provide a written response (with supporting documentation) to each allegation. The response shall be provided to the Procurement Services Director within ten (10) business days of receipt of the notice of allegations. In the event that the contractor fails to respond to the complaint within the prescribed time period, the complaint, as forwarded to the contractor, shall become an effective suspension or debarment decision without further appeal. (4) In the event that the contractor files a timely and complete response to the complaint and the suspension or debarment action is based upon a conviction, judgment or other event(s) where there is no significant dispute over material facts, the Procurement Services Director shall determine the period of debarment on the basis of the undisputed material information set forth or referenced in the complaint, the contractor's reply and the parameters set forth in this section. In the event that the Contractor objects to the Procurement Services Director's recommendation, the Contractor shall have a maximum of three (3) business days to file an appeal of the debarment decision with the Procurement Services Director. The appeal will be forwarded to and considered by the County Manager, who will review the record compiled by the initiating department and the contractor. Should the County Manager overturn the Procurement Services Director's decision; the County Manager shall formally cite the reasons for doing so. (5) In the event that the contractor files a timely and complete reply to the complaint and where the facts are in dispute, the Procurement Services Director will convene a committee (hereinafter referred to as "the committee") consisting of at least three individuals who will review the complaint and the contractor's reply. The County Page 3664 of 10663 58 Page 58 of 66 Manager shall formally appoint the committee, which will generally consist of county employees, none of whom shall be a member of the department initiating the complaint. At the discretion of the County Manager, a member from private industry with a particular area of relevant expertise may be appointed to the committee, provided that this member is not a direct or indirect competitor of the firm in question. The Office of the County Attorney shall appoint a representative to attend the committee’s review of the findings. The representative shall not be considered a voting member of the committee, but shall be available to provide legal counsel to the committee as necessary. All members appointed to serve on the debarment committee shall disclose, to the Procurement Services Director any actual or prospective conflicts of interest at the time of appointment or at the time in which the member becomes aware of the actual or prospective conflict. (6) The Procurement Services Director shall chair the committee and serve as the Procurement Department's representative to the committee. The Procurement Services Director shall preside over and facilitate the deliberations of the committee as a non-voting member and serve as the County's liaison to the Contractor. All voting committee members are prohibited from having any communication regarding the issue outside the committee deliberations with any of the parties involved in the specific suspension or debarment or their representatives until after the committee decision has been issued or, in the event of an appeal of that decision by the contractor, until the conclusion of the appeal process. All committee deliberations are subject to F.S. § 286.011. (7) Where the material facts are in dispute, the committee shall evaluate the evidence, judge the credibility of witnesses and base its decision Page 3665 of 10663 59 Page 59 of 66 upon the preponderance of the evidence. Should the contractor fail to appear at the hearing, the contractor shall be presumed to be unresponsible and or non-responsive and shall be subject to suspension or debarment. The committee decision shall be by a majority vote of those voting members in attendance. The committee shall be the sole trier of fact. In the event that the committee decides to impose a debarment, the decision will formally include, but not be strictly limited to the following information: (i) The specific reasons for the action; (ii) The scope of the debarment; and (iii) The period of debarment, including the effective and expiration dates. The committee's decision shall be issued in writing within 20 business days of the conclusion of the hearing unless the committee extends this period for good cause. (8) The Procurement Services Director shall forward the committee's decision to the contractor and affiliates involved. Should the contractor object to the committee's decision, the contractor shall have a maximum of three (3) business days to file an appeal of the decision with the Procurement Services Director. The appeal will be forwarded to and considered by the County Manager, who will review the record compiled by the initiating department, the contractor and the committee. Should the County Manager overturn the committee's decision; the County Manager shall formally cite the reasons for doing so. Page 3666 of 10663 60 Page 60 of 66 Final recommendation for debarment shall be approved by the Board. c. Debarment Period: (1) The committee shall recommend the period of debarment. The debarment period shall be commensurate with the severity of the cause(s) and approved by the Board. (2) The committee (having the same or different composition) may recommend to the Board a reduction in the debarment period upon a written request from the contractor to do so, based on one or more of the following reasons: (i) Newly discovered material evidence; (ii) A reversal 3. Scope of suspension or debarment. The following shall be the conviction, civil judgmentscope of suspension or debarment under this section: a)The fraudulent, criminal, or other action upon which the debarment was based; seriously improper conduct of any officer, director, shareholder, partner, agent, employee, or other individual associated with a contractor may be imputed to the contractor when the conduct occurred in connection with the individual's performance of duties for or on behalf of the contractor, or with the contractor's knowledge, approval, or acquiescence. The contractor's acceptance of the benefits derived from the conduct may be evidence of such knowledge, approval, or acquiescence. (iii) Bona fide change in ownership or management; (iv) Elimination of other causes for which the debarment was imposed; or (v) Other reasons that the committee might deem appropriate. Page 3667 of 10663 61 Page 61 of 66 The contractor's request shall be submitted to the Procurement Services Director in writing and shall be based on one or more of the aforementioned reasons. 3. The decision of the Board regarding a reduction of the debarment period is final and not subject to appeal. d. The b) The fraudulent, criminal, or other seriously improper conduct of a contractor may be imputed to any officer, director, shareholder, partner, employee, or other individual associated with the contractor who participated in, knew of, or had reason to know of the contractor's conduct. c) The fraudulent, criminal, or other seriously improper conduct of any subcontractor associated with a contractor may be imputed to the contractor when the conduct occurred in connection with the subcontractor's performance of duties for or on behalf of the contractor, and the contractor has knowledge of, approved of, or acquiesced in this conduct. The contractor's acceptance of benefits derived from the conduct shall be evidence of such knowledge, approval, or acquiescence. d) The fraudulent, criminal, or other seriously improper conduct of one contractor participating in a joint venture or similar arrangement may be imputed to other participating contractors if the conduct occurred for or on behalf of the joint venture or similar arrangement, or with the knowledge, approval, or acquiescence of these contractors. Acceptance of the benefits derived from the conduct may be evidence of such knowledge, approval, or acquiescence. 4.Effects of Debarment: (1) Debarredsuspension and debarment. Suspended or debarred contractors are excluded from receiving County contracts., and County Departments/Divisions shall not solicit offers from, award contracts to, or consent to subcontractorssubcontract with debarred contractors. Debarredthe vendor. Such contractors are also excluded from conducting business with the County as agents, representatives, subcontractors, or partners of other contractors. vendors. n (2) 5. Suspension or debarment procedures. The following procedures shall be used for the suspension or debarment of a contractor: a) The County Department/Division shall promptly investigate and prepare a written report concerning a contractor’s proposed suspension or debarment, which shall be forwarded to the Procurement Services Division shall maintain a list of firms places under a Suspended or Debared category and Director or designee. Page 3668 of 10663 62 Page 62 of 66 b)Within a reasonable amount of time of the Department’s/Division’s request, the Procurement Services Division Director or designee, after examining such reports, shall make that list knowna determination as a public record.to whether there is sufficient cause to suspend or debar the contractor. If the Procurement Services Division Director or designee finds sufficient cause, he/she shall issue a preliminary notice of suspension of debarment for a maximum period of up to six (6) months. The Procurement Services Division Director or designee shall notify the subject contractor by certified mail, return receipt requested, or personal service that: (3) Divisions may not renew i. Suspension or otherwise extenddebarment has been imposed effective upon the durationreceipt of current contracts with debarred contractors notice; ii. This notice contains the reasons and causes for the suspension or debarment in placeterms which are sufficient to put the contractor on notice of the conduct upon which it is based; iii. If requested by the contractor within twenty-one (21) calendar days after the date of receipt of such notification by the contractor, the Procurement Services Division Director or designee shall refer the matter to the Hearing Officer, and a hearing to contest the suspension or debarment will be conducted before the Hearing Officer at thea date and time of the debarment not more than ten (10) calendar days after the receipt of such a request. The notice shall advise the contractor that it may be represented by an attorney, may present evidence, verbal testimony, and may cross examine testimony; and iv. Such suspension or debarment action may only be stayed after petition by the vendor to the Board. c) The preliminary suspension or debarment notice shall become final and conclusive unless the Board determines that it is suspended or debarred vendor timely requests a hearing before the Hearing Officer. If a hearing is not requested, the Procurement Services Division Director or designee decision shall then be presented for action at the next Board meeting with a recommendation relating to the period of suspension or debarment imposed upon the contractor. d) The Hearing Officer shall be the sole trier of fact and shall ensure that the proceeding affords due process and fairness to the contractor. In actions based upon a conviction of judgment, or in the best interests of the which there is not genuine dispute over material facts, the Hearing Officer shall make a decision on the basis of all the undisputed, material information in the administrative record, including any undisputed, material submission by the contractor. Where actions are disputed evidence, the Hearing Officer shall decide what weight to attach to the evidence of the record, judge the credibility of witnesses, and base his/her Page 3669 of 10663 63 Page 63 of 66 decision on the preponderance of the evidence. The Hearing Officer’s decision shall be made and shall be provided upon conclusion of the parties’ arguments and evidence. e) Hearsay evidence shall be admissible at the hearing but shall not be the sole basis for initiating a suspension or debarment procedure nor the sole basis of any determination by the Hearing Officer of the suspension or debarment by contractor. The hearing shall be audio recorded. f) A written decision and recommendation thereafter shall be filed within five (5) business days, excluding weekends and County to allow the contractor to continue or finish the work within an holidays, with the County Manager which shall include the Hearing Officer’s factual findings, conclusions of law, and shall include either a recommended specific term of suspension or debarment to be imposed by the Board or a recommended dismissal of the preliminary notice of suspension of debarment. g)The County Manager shall present the Hearing Officer’s decision to the Board at the next Board meeting. The matter shall be resolved by the Board on the basis of the record before the Hearing Officer and no evidence or issue which was not presented or raised at such hearing shall be considered. Presentations to the Board by parties shall be limited to thirty (30) minutes per side. The foregoing limitation shall be inclusive of all speakers addressing the Board on behalf of each side. At the conclusion of the testimony, the Board shall by majority vote accept or reject the decision and recommendation of the Hearing Officer. The Board may also, in its discretion, refer the matter back to the Hearing Officer for additional, limited period of time proceedings. An appeal of the decision of the Board, which is filed within thirty (30) business days, excluding weekends and County holidays, of its receipt by the contractor, shall be subject to review by the appellate division of the circuit court. A suspended or debarred contractor also may seek a stay of the Board’s decision in circuit court. h) The period of suspension or debarment imposed upon a contractor shall be within the sole discretion of the Board. Suspension or debarment shall be for a period commensurate with the seriousness of the cause, and where applicable, within the guidelines at a minimum of six (6) months and not to exceed a period of five (5) years taking into consideration any mitigating or aggravating circumstances. 6. After imposition of such suspension or debarment, the Board, in its discretion, may reduce or may vacate such suspension or debarment, upon the contractor's written request, for reasons such as: a) Newly discovered material evidence; b) Reversal of the conviction or civil judgment upon which the debarment was based; Page 3670 of 10663 64 Page 64 of 66 Bona fide change in ownership or management; (4) When a debarred contractor is proposed as a subcontractor for any subcontract subject to County approval, the department shall not consent to subcontracts with such contractors. (5) The County shall not be responsible for any increases in contract costs or other expenses incurred by a contractor as a result of rejection of proposed subcontractors, provided that the subcontractor was debarred prior to the submission of the applicable bid or proposal offer. e. The Scope of Debarment: Debarment applies to all officers, Directors, Managers, principals, Procurement Services Directors, partners, qualifiers, divisions or other organizational elements of the debarred contractor, unless the debarment decision is limited by its terms to specific divisions, organizational elements or commodity/services. The committee's decision includes any existing affiliates of the contractor if they are specifically named and are given written notice of the proposed debarment and an opportunity to respond. Future affiliates of the contractor are subject to the pre-existing terms of the committee's decision. c) d) Elimination of other causes for which the suspension or debarment was imposed; or e) Other reasons the Board deems appropriate. The contractor's written request shall contain the reasons for requesting a reduction in the suspension or debarment period. The Procurement Services Division Director or designee with the assistance of the affected department, shall have thirty (30) business days, excluding weekends and County holidays, from receipt of such request to submit a written response thereto. The decision of the Board regarding a request made under this subsection is final and not appealable. SECTION TWENTY-NINE:SEVEN:Waiver of Ordinance. Page 3671 of 10663 65 Page 65 of 66 The Board of County Commissioners shall have the authority to waive any and all Procurement Ordinance provisions within lawful guidelines and upon formal Board action. SECTION THIRTYTWENTY-EIGHT:Conflict and Severability. In the event this Ordinance conflicts with any other ordinance of Collier County or other applicable law, the more restrictive shall apply. If any phrase or portion of the Ordinance is held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion. SECTION TWENTY-NINE: Repeal of Ordinance No. 13-69, as amended. Ordinance Nos. 13-69, 15-37, 15-51, 16-11, 16-19, 17-08, 18-38, 20-28, and all amendments thereto, are hereby repealed in their entirety and superseded by this Ordinance. SECTION THIRTY-ONE:Inclusion in the Code of Laws and Ordinances. The provisions of this Ordinance shall become and be made a part of the Code of Laws and OrdinanceOrdinances of Collier County, Florida. The sections of the Ordinance may be renumbered or reletteredre-lettered to accomplish such, and the word “ordinance” may be changed to “section,” “article,” or any other appropriate word. SECTION THIRTY-TWOONE:Effective Date. This Ordinance shall be effective upon filing with the Department of State. Page 3672 of 10663 66 Page 66 of 66 PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier County, Florida, this _______ day of _____________________, 20172024. ATTEST: BOARD OF COUNTY COMMISSIONERS DWIGHT E. BROCKCrystal K. Kinzel, Clerk of Courts COLLIER COUNTY, FLORIDA & Comptroller By:_____________________________ By:_____________________________ , Deputy Clerk , CHAIRMAN Approved as to form and legality: ___________________________ Scott R. Teach Deputy County Attorney Page 3673 of 10663