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HomeMy WebLinkAbout09316 City Clerk’s Office Item # R-8 Background Paper for Proposed Ordinance COUNCIL MEETING DATE: July 9, 2018 TO: Christopher A. Nicoll and Members of City Council CC: Sam Azad, City Manager VIA: Brenda Armijo, Acting City Clerk FROM: Nancy Keller, Director of Wastewater Naomi Hedden, Director of Purchasing Daniel C. Kogovsek, City Attorney SUBJECT: AN ORDINANCE AMENDING THE CITY’S PURCHASING POLICIES AND PROCEDURES BY THE ADDITION OF A NEW ARTICLE 7 PERTAINING TO DEBARMENT OR SUSPENSION OF BIDDERS SUMMARY: Attached is an Ordinance which adds Article 7 to the City’s purchasing policies and procedures. This Ordinance provides guidelines and procedures for the Purchasing Agent to debar or suspend bidders. PREVIOUS COUNCIL ACTION: The City’s purchasing policies and procedures were adopted by the City Council on September 24, 2001 by Ordinance No. 6736. City Council amended the purchasing policies and procedures on February 24, 2003 by Ordinance No. 9791. BACKGROUND: This Ordinance provides the Purchasing Agent with guidelines and procedures for debarring or suspending bidders. FINANCIAL IMPLICATIONS: None. BOARD/COMMISSION RECOMMENDATION: Not applicable to this Ordinance. STAKEHOLDER PROCESS: Not applicable to this Ordinance. ALTERNATIVES: Failure to enact this Ordinance will hinder the Purchasing Agent’s ability to debar or suspend incompetent or irresponsible bidders. RECOMMENDATION: Approve the Ordinance. Attachments: Proposed Ordinance ORDINANCE NO. 9316 AN ORDINANCE AMENDING THE CITY’S PURCHASING POLICIES AND PROCEDURES BY THE ADDITION OF A NEW ARTICLE 7 PERTAINING TO DEBARMENT OR SUSPENSION OF BIDDERS BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: (brackets indicate matter being deleted, underscoring indicates new matter being added) SECTION 1. Subsection 3.3 of the City of Pueblo’s Purchasing Policies and Procedures is hereby amended to read as follows: 3.3 Determination of Non-responsibility of Bidder \[ A responsible bidder is a person who is qualified and financially able to timely furnish the equipment or supplies or to perform the work or services described in the solicitation for \] meets all qualification requirements set forth bids and who is not disqualified under in Subsection 1-10-2(3) of the Pueblo Municipal Code. A bidder may be disqualified for any of the reasons set forth in Subsection 1-10-4(d) of the Pueblo Municipal Code \[\] including any . The failure of a bidder to promptly supply information in connection \[ with an inquiry with respect to the bidder’s responsibility may be grounds for a \] determination of non-responsibility with respect to the bidder. If a bidder is determined not to be a responsible bidder, a written determination of non-responsibility setting forth the basis of the finding shall be prepared by the Purchasing Agent. A copy of the \[ by electronic mail determination shall be sent promptly to the bidder. Information furnished by a bidder determined to be a non-responsive bidder pursuant to this section shall not be disclosed to outside parties, except as required by law or pursuant to a \] subpoena, without prior written consent by the bidder. The bidder may appeal such determination by timely filing a written protest with the Purchasing Agent no later than five (5) business days after the date of the determination. The written protest must state the specific basis upon which the bidder maintains that the determination is in error and include all exhibits, evidence and documents supporting the protest. The written protest and the procurement file shall be submitted to the Committee of Awards. The Committee of Awards may utilize any means and methods appropriate to bring the matter to a resolution including the power to issue subpoenas and administer oaths. No right, however, is granted the bidder to a hearing as the awarding of contracts is and remains a legislative act. The decision of the Committee of Awards shall be final and not subject to further appeal. determination of the Purchasing Agent and, in the case of an appeal, the The final of the Committee of Awards determination shall be made part of the procurement files and submitted to City Council with the recommendation of the Committee of Awards . SECTION 2. The City of Pueblo’s Purchasing Policies and Procedures are hereby amended by the addition of a new Section 7 as follows: 7.0 Debarment or Suspension 7.1 Application. This Section applies to all debarments or suspensions of persons from consideration for award of contracts imposed by the Purchasing Agent. 7.2 Suspension. 7.2.1 Initiation. After consultation with the affected Using Agency, the City Attorney and, where practicable, the contractor or prospective contractor who is to be suspended, and upon written determination by the Purchasing Agent that probable cause exists for debarment as set forth in Section 1-10-7 (Authority to Debar or Suspend) of the City Municipal Code, a contractor or prospective contractor shall be suspended. A notice of suspension, including a copy of such determination, shall be sent to the suspended contractor or prospective contractor. Such notice shall state that: (a) the suspension is for the period it takes to complete an investigation into possible debarment including any appeals of a debarment decision but not for a period in excess of twelve (12) months; (b) bids or proposals will not be solicited from the suspended person, and, if they are received, they will not be considered during the period of suspension; and (c) if a hearing has not been held, the suspended person may request a hearing in accordance with Section 7.4 (Request for Hearing). 7.2.2 Effect of Decision. A contractor or prospective contractor is suspended upon issuance of the notice of suspension. The suspension shall remain in effect during any appeals. The suspension may be ended by the Purchasing Agent who issued the notice of suspension, by a court, but otherwise shall only be ended when the suspension has been in effect for twelve (12) months or a debarment decision has taken effect. 7.3 Initiation of Debarment Action. Written notice of the proposed debarment action shall be sent by certified mail, return receipt requested, to the contractor or prospective contractor. This notice shall: (a) state that debarment is being considered; (b) set forth the reasons for the action; (c) state that if the contractor or prospective contractor so requests a hearing will be held, provided such request is received by the Purchasing Agent within fourteen (14) days after the contractor or prospective contractor receives notice of the proposed action; and (d) state that the contractor or prospective contractor may be represented by counsel. Such notice shall also be sent to the City Attorney and the affected Using Agency. The affected Using Agency is that agency that has used the supplies, services, or construction supplied by the contractor. If more than one affected Using Agency is involved, the Purchasing Agent may designate one or more representatives to be consulted with respect to this action. 7.4 Request for Hearing. A contractor or prospective contractor that has been notified of a proposed debarment action may request in writing that a hearing be held. Such request must be received by the Purchasing Agent within fourteen (14) days of receipt of notice of the proposed action under Section 7.3 (Initiation of Debarment Action). If no request is received within the fourteen (14) day period, a final determination may be made as set forth in Section 7.8 (Determination of Hearing Officer; Final Decision) after consulting with the City Attorney and the affected Using Agency. 7.5 Notice of Hearing. If a hearing is requested, the Purchasing Agent may appoint a hearing officer to conduct the hearing and recommend a final decision. Otherwise, the Mayor or Deputy Mayor shall act as the hearing officer. The hearing officer shall send a written notice of the time and place of the hearing. Such notice shall be sent by certified mail, return receipt requested, and shall state the nature and purpose of the proceedings. Copies shall be sent to the City Attorney and the Using Agency. 7.6 The hearing officer shall have all powers of an administrative body including the powers of the presiding officer as set forth in Chapter 7 of Title 1 of the Pueblo Municipal Code and shall conduct the hearing as a quasi-judicial hearing pursuant to provisions of said Chapter to the extent not in conflict with the provisions of this Section 7. 7.7 Determination of Hearing Officer; Final Decision. The hearing officer shall prepare a written determination recommending a course of action. Such determination shall be given to the Purchasing Agent. Copies shall also be sent to the contractor or prospective contractor, the City Attorney, and the affected Using Agency. The determination of the hearing officer shall constitute a final decision. The hearing officer's determination shall recite the evidence relied upon. When debarment is recommended or ordered, the length of the debarment (not to exceed three years), the reasons for such action, and to what extent affiliates are affected shall be set forth. In addition, the final determination shall inform the debarred person of its rights to judicial review. 7.8 Effect of Debarment Decision. A debarmentdecision will take effect upon issuance and receipt by the contractor or prospective contractor. After the debarment decision takes effect, the contractor shall remain debarred until a court orders otherwise or until the debarment period specified in the decision expires. 7.9 Maintenance of List of Debarred and Suspended Persons. The Purchasing Agent shall maintain and update a list of debarred and suspended persons. Such list shall be available to the public upon request. SECTION 3. The officers and staff of the City are authorized and directed to perform any and all acts consistent with this Ordinance which are necessary or desirable to implement the changes to the City’s purchasing policies and procedures. SECTION 4. This Ordinance shall become effective immediately thirty days after final passage and approval. INTRODUCED July 9, 2018 BY: Ed Brown MEMBER OF CITY COUNCIL APPROVED: PRESIDENT OF CITY COUNCIL ATTESTED BY: ACTING CITY CLERK PASSED AND APPROVED: July 23, 2018