Transit Procurement Policies and Procedures

Transcription

1 Transit Procurement Policies and Procedures Effective 6 December 2011 Amended 7 February 2012 Amended 9 September 2014 Amended 7 March

2 TABLE OF CONTENTS PAGE SECTION 1. PURPOSE 4 SECTION 2. REFERENCES TO LAWS AND REGULATIONS 5 SECTION 3. ADMINISTRATIVE RESPONSIBILITY 5 AND AUTHORIZATIONS SECTION 4. FAIR AND OPEN COMPETITION 7 SECTION 5. PROCUREMENT STANDARDS 8 SECTION 6. ADDITIONAL PROCUREMENT REQUIREMENTS 8 WHEN FEDERAL FUNDS ARE USED SECTION 7. ETHICAL STANDARDS OF CONDUCT 10 SECTION 8. ORGANIZATIONAL CONFLICT OF INTEREST 12 SECTION 9. METHODS OF PROCUREMENT 12 SECTION 10. MICRO-PURCHASES (Less than $3,500) 13 SECTION 11. SMALL PURCHASES ($3,000 to $25,000) 13 SECTION 12. COMPETITIVE BID PROCEDURES 14 SECTION 13. COMPETITIVE PROPOSALS REQUEST FOR 17 PROPOSAL SECTION 14. ARCHITECTURAL, ENGINEERING, AND OTHER 18 RELATED SERVICES (A&E SERVICES) SECTION 15. DESIGN BID BUILD 20 2

3 SECTION 16. DESIGN BUILD 20 SECTION 17. EMERGENCY PROCUREMENT AND OTHER 21 THAN FULL AND OPEN COMPETITION SECTION 18. BID/PROPOSAL EVALUATION 22 SECTION 19. CONTRACT AWARD 23 SECTION 20. BID/PROPOSAL CORRECTION 25 SECTION 21. BID/PROPOSAL PROTEST PROCEDURES 26 SECTION 22. CONTRACT CHANGES AND MODIFICATIONS 27 SECTION 23. FEDERAL ASSISTANCE IN CONTRACT DISPUTES 28 SECTION 24. CLAIMS/LITIGATION INVOLVING FEDERALLY 28 FUNDED CONTRACTS SECTION 25. FTA PARTICIPATION IN SETTLEMENTS, 28 ARBITRATION AWARDS, AND COURT AWARDS SECTION 26. BONDING POLICY 29 SECTION 27. DISPOSITION OF SURPLUS LAND, FACILITIES, 29 EQUIPMENT, AND MATERIALS SECTION 28. PURCHASE RECORD MAINTENANCE 29 SECTION 29. STATE, FEDERAL, AND INTERGOVERNMENTAL 30 AGREEMENTS SECTION 30. CONTRACT PROVISIONS 30 SECTION 31. PAYMENT 30 3

4 SECTION 32. CONTRACT ADMINISTRATION FILES 33 SECTION 33. PROHIBITED OR RESTRICTIVE CONTRACT TYPES 33 SECTION 34. LIQUIDATED DAMAGES 33 SECTION 35. TERMINATION 34 APPENDIX A KOOTENAI COUNTY ADOPTION OF PROCUREMENT POLICY 4

5 Kootenai County Transit System Procurement Policies and Procedures Section 1. PURPOSE It is Kootenai County Transit s objective to prevent fraud, collusion, favoritism, and improvidence in the administration of public business, as well as to ensure that the County receives the best goods and services at the most reasonable price practicable. Many procurement actions are in conjunction with Federal and State grants and assistance programs, and Federal and State law both seek to ensure that Federal and State funds are expended according to sound procurement principles. It is necessary and desirable that the County maintains procedures for the accomplishment of its capital expenditures (facilities, vehicles, et al.) for the purchase of services, supplies and materials, and for the performance of necessary work and services. The policies and procedures herein contain provisions that, when followed properly, should assure the procuring of goods and services meet State and Federal procurement requirements and reflect best practices. It is the County's goal to provide fair and open participation in procurements by qualified and competent suppliers, contractors, and consultants, including state certified disadvantaged business enterprises, in accordance with State of Idaho and Federal requirements and with the highest integrity and transparency possible. 1.2 Recipient Procurement Policies. A recipient s procurement policies and procedures must adhere to applicable state and local laws. When there is a conflict between federal law, including the Uniform Guidance, and state and local law, the non-federal entity must follow the federal law and provisions found in the Uniform Guidance (2 CFR ) unless the state or local law is more restrictive and is not clearly pre-empted by federal law. A recipient should refer questions to legal counsel or to the awarding agency when conflict arises. 1.3 Recipient s Fiduciary Responsibilities. The procurement policies and procedures focus on mitigating risk, improving transparency and increasing accountability. As part of the due diligence to protect taxpayer funds and other revenue sources from waste, fraud and abuse, recipients are required to maintain written standards of conduct governing the performance of its employees engaged in the award and administration of a contract. See also Sections 7 and 8 of this Policy. 1.4 Oversight. The Grants Management/ Transit Office, on behalf of Kootenai County Board of County Commissioners, will oversee and monitor procurement activities in association with FTA 5

6 funds to ensure that funds are properly spent, that performance goals are met, and that subrecipients and contractors comply with all applicable law, regulations, and provisions of the award funds. Monitoring, review of documentation of compliance, oversight meetings, and additional requirements will occur on regular intervals as stipulated in the Agreement between the parties. Section 2. REFERENCES TO LAWS AND REGULATIONS 2.1 Uniform Guidance. All references to the Supercircular or Uniform Guide are to the Uniform Guidance: Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (2 CFR 200) published by the Office of Management and Budget (OMB) in the Federal Register on December 26, 2013, and effective beginning on or after December 26, FTA Circular. All references herein to the "FTA Circular" are to the FTA Circular C F, dated November 1, 2008, with subsequent revisions of April 14, 2009, July 1, 2010, February 15, 2011, and March 18, 2013, or as may be hereafter amended or superseded. 2.3 FTA Grant Master Agreement. All references herein to the "FTA Grant Master Agreement" are to the Federal Transit Administration Agreements authorized by 49 U.S.C. chapter 53, Title 23, United States Code (Highways), the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, as amended by the SAFETEA-LU Technical Corrections Act of 2008, the Transportation Equity Act for the 21 st Century, as amended, the American Recovery and Reinvestment Act of 2009, Pub. L , February 17, 2009, or other Federal laws that FTA administers, or as may be hereafter amended or superseded. 2.4 At a minimum, each recipient and subrecipient must comply with applicable Federal laws and regulations, including, but not limited to: Federal Transit Law at Title 49, United States Code, Chapter 53; FTA regulations contained in the Code of Federal Regulations at 49 C.F.R. Parts ; U.S. DOT regulations contained in the Code of Federal Regulations at 49 2 C.F.R. parts 1-99; and other Federal laws and regulations that contain requirements applicable to FTA recipients and FTA funded procurements. (FTA Best Practices and Lessoned Learn Manual dated October 2016.) 2.5 General Procurement Standards under a Federal Award. All non-federal entities, except states, must comply with the procurement policies and procedures established in 2 CFR Section 3. ADMINISTRATIVE RESPONSIBILITY AND AUTHORIZATIONS The Board of County Commissioners is the transit authority for all policy matters in the administration of FTA grants and for ensuring compliance with all Federal, State, and local procurement laws and regulations, in consultation with the Prosecuting Attorney or his/her designee. 6

7 3.1 The Director of the Public (Transit) Transportation Office ( Director ) has the responsibility as identified in these procedures for the procurement of all transit related goods and services and to assure the Procurement Policy is amended, as needed to comply with FTA requirements. Administrative amendments that do not materially change the intent of this policy are authorized by the Board to be performed by the Director. Directives or initiatives by the Board shall be implemented through the Director. The approval of procurements shall be as follows: Transit Procurement Authorizations Procurement Type Dollar Amount Approval Authority Micro Purchases $3,500 (3,000 or less prior to October 1, 2015; $3,500 or less effective October 1, Director 2015) Small Purchases1 Idaho limits: $3,000 $25,000 Federal small purchases $3,000 - $100,000 Board of Commissioners Large Purchases 1 Informal bidding: Between $25,000 and $100,000 for public works construction; between $25,000 and $50,000 for other purchases Sealed bids: More than $100,000 for public Board of Commissioners works construction; more than $50,000 for other purchases Federal large purchases: $150,000 Architectural, Engineering, and Related Services (A&E) Any Amount Board of Commissioners Revenue Contracts Any Amount Board of Commissioners Service Contracts Any Amount Board of Commissioners Transit Facility Construction Any Amount Board of Commissioners Authority of the Director of the Public (Transit)Transportation Office Except as otherwise provided by the Board, for all contracts for which Board approval has been obtained (either on a project-wide or individual contract basis), the Director or his/her designee is authorized to take all steps necessary for completion of the work. This includes, but is not limited to the following: Publication of notice calling for bids or proposals Rejection of bids, proposals, or award of contract Canceling or delaying bid or proposal openings Evaluation and analysis of the proposal or bid including cost/price analysis, independent cost estimate, past performance of the contractors, assurance of the contractor performance relating to any past debarment or suspension for prior related work, and to 1 State requirement. 7

8 determine the responsiveness of the proposal or bid in meeting requested submittal requirements Administration of contracts, including execution of contract change orders and determination of retainage, bonds, and insurance; oversight of the contractor s performance to meet the terms, conditions, and specifications of the contracted goods or services Acceptance or rejection of work; termination of contract; contract close-out; and claims negotiations and settlements. All such actions shall be consistent with applicable State and Federal legal requirements and County policies. Section 4. FAIR AND OPEN COMPETITION Competition in procurement is defined as a condition where two or more sources are able to compete for a requirement in price and/or technical skills. Procurement procedures should not restrict or eliminate competition or support an exclusionary or discriminatory specification, including: 4.1 Placing unreasonable requirements on prospective contractors in order for them to qualify to do business. 4.2 Supporting or allowing noncompetitive pricing practices between contractors or affiliated companies. Questionable practices include, but are not limited to, submissions of identical bid prices for the same products by the same group of firms, or an unnatural pattern of awards that had the cumulative effect of apportioning work among a fixed group of bidders or offerors. 4.3 Requiring unnecessary or unreasonable experience and performance requirements. 4.4 Specifying only a "brand name" product without allowing offers of an equal or equivalent product, or allowing an equal or equivalent product without listing the salient characteristics that the "equal" or equivalent product must meet to be acceptable for award. 4.5 Requiring unreasonable, unduly restrictive or excessive bonding requirements. 4.6 Specifying in-state or local geographical preferences, or evaluating bids or proposals in light of in-state or local geographical preferences, even if those preferences are imposed by State or local laws or regulations, except that geographic location may be a selection criterion for architectural, engineering, and other related services (A&E services). 8

9 4.7 Supporting or allowing organizational conflicts of interest. 4.8 Any arbitrary and capricious action in the procurement process. Section 5. PROCUREMENT STANDARDS All procurements subject to this Policy, regardless of whether by written quote, by sealed bid, or by competitive negotiation, shall be conducted in a manner that provides, to the fullest extent possible, maximum full and open competition. The following standards shall be applicable to all County transit related procurements: 5.1 A review of all proposed procurements by the Director in consultation with the Prosecuting Attorney or his/her designee. 5.2 When contracting for professional services, the contract shall limit the total of the base and option time periods to not more than five years, unless approved by the Board. Prices for each base and option time period shall be firm and fixed wherever possible and shall be established in the initial contract bidding, negotiation, and execution. If it is not possible to establish firm, fixed prices, changes in the option period prices shall be tied to a well-known-, published pricing index, such as the Consumer Price Index. 5.3 The County shall administer contracts in a manner which ensures that contractors perform in accordance with the terms and conditions and specifications of their contracts. 5.4 The County must perform a cost or price analysis in connection with every procurement action, including contract modifications. The method and degree of analysis is dependent on the facts surrounding the particular procurement situation, but as a starting point, grantees must make an independent cost estimate (ICE) before receiving bids or proposals. Cost or price analysis (which logically begins with an in-house cost estimate) is a requirement for every contract. An inhouse cost estimate or price analysis should be developed for each procurement action, and the estimate or analysis must be documented in some form. Section 6. ADDITIONAL PROCUREMENT REQUIREMENTS WHEN FEDERAL FUNDS ARE USED The following additional requirements shall be applicable for each transit-related procurement for which Federal funds are used: 9

10 6.1 Solicitation and subsequent contract. The solicitation and the contract awarded thereunder must include a clear and accurate description of the technical requirements for the property or services to be acquired in a manner that provides for full and open competition. 6.2 Federal Clauses, Requirements, and Certifications. The solicitation and resulting contract must identify those Federal requirements set forth in current provisions and regulations, including Chapter IV, subsection 2.b of the FTA's latest Circular - C F and Master Agreement, or as those may be hereafter amended or superseded. Such requirements may include Buy America, Energy Conservation, Civil Rights, Davis-Bacon Act, Disadvantaged Business Enterprises, etc. Requirements vary by procurement type and scope. The solicitation and resulting contract must also identify those Federal requirements that a bidder or offeror must fulfill before and during contract performance as set forth in current provisions and regulations. Each third-party contractor must extend those provisions to its subcontractors to the extent required by applicable laws and regulations. 6.3 Quantities Limited to Actual Needs. Procurements shall be limited to the amount necessary to support the quantity of property or extent of services actually needed. Quantities or options may not be added to contracts solely to allow these quantities or options to be assigned at a later date. 6.4 Evaluation Factors. The solicitation must identify all factors to be used in evaluating bids or proposals. 6.5 Contract Type Specified. The specifications should state the type of contract that will be awarded, such as a firm fixed price contract or cost reimbursement contract, as defined in the FTA Circular. The reason for the selection of type of contract to be awarded will be documented in the procurement files. See Section 3.1, TYPES OF CONTRACTS, herein for more information. 6.6 Award to Other than the Low Bidder. If the right to award to other than the low bidder is to be reserved, that information shall be stated in the solicitation document. If the right to award to other than low the bidder is exercised, the reason and rationale for rejecting the low bidder must include sound business reasons, and must be documented and made available to the bidders and the overseeing agent. 6.7 Rejection of All Bids or Offers. If the right to reject all bids or offers is to be reserved, that information shall be stated in the solicitation document. If the right to reject all bids is exercised, the reasons and rationale for rejection must include sound business reasons, and must be documented and made available to the bidders and the overseeing agent. 10

11 6.8 Products and Services. Products and services that conserve natural resources, protect the environment, and are energy efficient are to be preferred, and products and services dimensioned in the standard system of measurement are to be accepted, to the extent practicable and economically feasible. 6.9 Rolling Stock. The contract period of performance for rolling stock and replacement parts shall not exceed five years inclusive of options without prior written FTA approval when FTA funds are involved. Procurements must otherwise comply with Federal laws and regulations, including those set forth in current provisions and regulations, including Chapter IV, subsection 2.b of the FTA's latest Circular - C F and Master Agreement, or as those may be hereafter amended or superseded, that impose cost rates and restrictions, civil rights and environmental protection requirements applicable to the procurement, and audit service and audit procurement requirements. The County must implement those requirements as necessary through its third party contracts. Section 7. ETHICAL STANDARDS OF CONDUCT 7.1 Conflicts of Interest. No employee, officer, or agent of County, shall participate in the selection, or in the award or administration of a contract, if a conflict of interest, real or apparent, direct or indirect, would be involved. Such a conflict would arise when: The employee, officer, agent or board member has a financial or other interest in the firm selected for contract award Any member of his/her immediate family has a financial or other interest in the firm selected for contract award His/her partner has a financial or other interest in the firm selected for contract award An organization that employs, or is about to employ, any of the above County's officers, employees, or agents shall neither solicit nor accept gratuities, gifts, favors, or anything of monetary value from contractors, potential contractors, or parties to sub-agreements. Only unsolicited items of nominal intrinsic value may be accepted from such parties, for example, an occasional business meal or advertising souvenirs County, its employees and directors, shall also comply in all respects with applicable laws, rules and regulations governing ethical standards of conduct. 11

12 7.2 Ethics Contractors are subject to statutory and regulatory provisions that guide their ethical conduct in the procurement process. Contractors are subject to debarment and suspension from government contracting for knowingly failing to disclose violations and overpayments on government contracts in a timely manner Public service is a public trust, requiring employees to place loyalty to the Constitution, the laws and ethical principles above private gain. 1. Employees shall not hold financial interests that conflict with the conscientious performance of duty. 2. Employees shall not engage in financial transactions using nonpublic Government information or allow the improper use of such information to further any private interest. 3. Employees shall not solicit or accept any gift or other item of monetary value from any person or entity seeking official action from, doing business with, or conducting activities regulated by the employee's agency, or whose interests may be substantially affected by the performance or nonperformance of the employee's duties, subject to very limited exceptions. 4. Employees shall put forth honest effort in the performance of their duties. 5. Employees shall not knowingly make unauthorized commitments or promises of any kind purporting to bind the County 6. Employees shall not use public office for private gain. 7. Employees shall act impartially and not give preferential treatment to any private organization or individual. 8. Employees shall protect and conserve County property and shall not use it for other than authorized activities. 9. Employees shall not engage in outside employment or activities, including seeking or negotiating for employment, that conflict with official County duties and responsibilities. 10. Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities. 11. Employees shall satisfy in good faith their obligations as citizens, including all just financial obligations, especially those such as Federal, State, or local taxes that are imposed by law. 12

13 12. Employees shall endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards set forth in this section. Whether particular circumstances create an appearance that the law or these standards have been violated shall be determined from the perspective of a reasonable person with knowledge of the relevant facts. Section 8. ORGANIZATIONAL CONFLICT OF INTEREST 8.1 Each planned acquisition must be analyzed in order to identify and evaluate potential organizational conflicts of interest as early in the acquisition process as possible, and avoid, neutralize, or mitigate potential conflicts before contract award. 8.2 Organizational conflicts of interest means that a relationship exists whereby a contractor or prospective contractor has present or planned interests related to the work to be performed under a County contract. An example would be when during the conduct of an earlier procurement, the contractor has established the ground rules for a future procurement by developing specifications, evaluation factors, or similar documents. Section 9. METHODS OF PROCUREMENT Procurement shall be achieved by one of the following methods as defined in the FTA Circular: 9.1 Micro-purchase (less than $3,500 (3,000 or less prior to October 1, 2015; $3,500 or less effective October 1, 2015)). 9.2 Small purchase (between $3,000 and $25,000 State of Idaho limit, which is more conservative than FTA limit of $100,000). 9.3 Competitive bidding: A sealed bid process must be used for public works construction in an amount greater than $100,000, and for all other purchases greater than $50,000 whenever bidding is required (State of Idaho limit, which is more conservative than FTA limit of $150,000) For public works construction between $25,000 and $100,000, and all other procurements between $25,000 and $50,000 whenever bidding is required, informal bidding procedures may be used in conformance with Idaho law These amounts reflect State of Idaho procurement limits, which are more conservative than the FTA limit of $100,

14 9.4 Competitive proposal (Request for Proposals - RFP) same standard as applies to competitive sealed bids. 9.5 Architectural, Engineering, and other related services (A&E services), in accordance with Idaho Code Design-bid-build. 9.7 Design-build, subject to the requirements of federal and state law. 9.8 Emergency and Sole Source procurement and other than full and open competition, when allowed under federal and state law. 9.9 For purposes of determining the appropriate procurement method, value of the procurement shall be determined without allowance for tax and/or freight. Where federal and state law prescribe different standards or requirements, the more restrictive provision shall take precedence except in instances where federal law clearly preempts (or has been found to preempt) inconsistent state law. Section 10. MICRO-PURCHASES (Less than $3,500) Micro-purchase procedures shall be used for purchases of materials, equipment, supplies, work and/or services for the County when the total price is less than the maximum micro-purchase amount set forth in Chapter VI, subsection 3.a of the FTA Circular (currently any price valued less than $3,500 (3,000 or less prior to October 1, 2015; $3,500 or less effective October 1, 2015)). These purchases are exempt from FTA's Buy America requirements. Davis-Bacon prevailing wage requirements will apply to construction purchases over $2,000 in accordance with federal and state law, however, even when micro-purchase procurement procedures are used The following procedures apply to micro-purchases: Micro-purchases should be distributed equitably among qualified suppliers. The size of the procurement may not be divided or reduced merely to come within the micro-purchase limit. Even if competition is not required, the determination that the price is fair and reasonable and a description of how that determination was made is required, and shall be documented. 14

15 Section 11. SMALL PURCHASES ($3,000 to $25,000 State of Idaho limit, which is more conservative than FTA limit of $100,000) Small purchase procedures shall be used for purchases of materials, equipment, supplies, work and/or services for the County when the total value is more than the micro-purchase threshold, but less than $25,000. These purchases are also exempt from FTA's Buy America requirements The following procedures apply to small purchases: Price or rate quotations must be obtained from at least three qualified sources. The Director, in consultation with Prosecuting Attorney or his/her designee shall be responsible for evaluating the adequacy of quotations for small purchases and advising the Board of Commissioners on the same The size of the procurement may not be divided or reduced merely to avoid additional procurement requirements applicable to larger acquisitions For procurements over $3,000, an independent cost estimate must be conducted and documented to determine an estimated cost of materials, equipment, supplies, work and/or services prior to receiving bids or proposals At least two price quotations for materials, equipment, and supplies shall be documented A cost or price analysis will be documented for every procurement, including contract modifications, change orders, and sole source, to determine whether competition and price were adequate. Section 12. COMPETITIVE BID PROCEDURES Except as otherwise authorized in this Policy, or as authorized or exempted by law, all procurements shall be made by competitive bid as set forth in this section Bidding is required for all non-exempt purchases of greater than $25, A sealed bid process must be used for public works construction in an amount greater than $100,000, and for all other purchases of greater than $50,000 when bidding is required. 15

16 For public works construction projects between $25,000 and $100,000, and for all other procurements between $25,000 and $50,000 when bidding is required, informal bidding procedures may be used in conformance with Idaho law These amounts are based on the limits set forth in Title 67, Chapter 28, Idaho Code, which are more conservative than the FTA limit of $100, An Invitation for Bids (IFB) shall be utilized in all cases where a sealed bid process is required by law, and in any other case where each of the following conditions is present: A complete, adequate, precise, and realistic specification or purchase description is available Two or more responsible bidders are expected to be willing and able to compete effectively for the business The procurement generally lends itself to a firm fixed price contract The successful bidder can be selected on the basis of price and the price related factors listed in the IFB including, but not limited to, transportation costs, life cycle costs, and discounts expected to be taken A pre-bid/proposal conference may be held in competitive bid situations, whether or not sealed bids are required, for the purpose of answering questions and clarifying the requirements and specifications relevant to the Invitation for Bids or Request for Proposals. Notice for such prebid/proposal conference shall be advertised and stated in the general requirements section of the IFB or RFP. A pre-bid conference cannot be made mandatory, however, whenever FTA funds are being used Procurement Procedures when Sealed Bids are Required. The following procedures apply to sealed bid procurements: The Board of Commissioners or its designee shall cause the IFB to be publicly advertised in an appropriate publication and web site posting(s) at least twice, and at least seven and 14 calendar days prior to the bid opening Bids must be solicited from an adequate number of qualified sources The IFB, including any specifications and pertinent attachments, must describe the property or services sought in sufficient detail that a prospective bidder will be able to submit a proper bid. 16

17 The IFB shall specify the scope of the County's right to award the contract to other than the low bidder, and its right to reject all bids or offers An independent cost estimate is required to determine the estimated cost of materials, equipment, supplies, work and/or services prior to receiving bids or proposals Price quotations (at least two but preferably three or more) for materials, equipment, and supplies shall be documented A cost analysis (i.e., evaluating the contractor s specific elements of estimated cost and profit) is required for contract modifications, change orders, and when contracting on a sole source basis. The cost analysis shall be documented and placed in the procurement file The solicitation and resulting contract must include corresponding Federal requirements set forth in FTA s BPPM Federally Required and Other Model Clauses Public Opening of Sealed Bids All bids shall be opened and read publicly at the time and place designated in the IFB notice The name and address of each bidder, the bid price, and any other relevant information as specified in the IFB shall be read aloud and recorded in the minutes of the bid opening It shall be also announced that the bid review will be completed by County staff and legal counsel, and the date and time of the meeting at which the Board of Commissioners would be expected to award the contract The contract shall be awarded to the lowest responsive bidder. If the apparent low bid is found to be non-responsive, the reasons for the determination shall be stated on the record All bidders will be notified of the contract award and any award postponement The purchase record, including each bid, shall be open to public inspection following contract award The Board of Commissioners may reject all bids if there is a sound, documented business or legal reason. Reason for rejection shall be documented. 17

18 12.6 Informal Bidding Procedures. The following procedures apply to procurements in which informal bidding is authorized: A request for bids shall be supplied to no fewer than three owner-designated prospective bidders in writing, which may be delivered via electronic or physical means The request for bids must describe the electronic or physical delivery method(s) authorized to submit a bid, the date and time by which a bid proposal must be received by the clerk, secretary or other authorized County official, and shall provide a reasonable time to respond to the solicitation, provided that except in the event of an emergency, such time shall not be less than three business days Written objections to bid specifications or procedures must be received by the clerk, secretary or other authorized official of the political subdivision at least one business day before the date and time upon which bids are scheduled to be received When written bids have been received, they must be submitted to the Board of Commissioners or its designee. The bids shall be reviewed by County staff and legal counsel, and the Board of Commissioners shall schedule a meeting at which time it would be expected to award the contract. The Board of Commissioners shall then approve the responsive bid proposing the lowest procurement price, or shall reject all bids and direct that the procurement be re-bid If the apparent low bid is found to be non-responsive, the reasons for the determination shall be stated on the record All bidders will be notified of the contract award or any award postponement The purchase record, including each bid, shall be open to public inspection following contract award The Board of Commissioners may reject all bids if there is a sound, documented business or legal reason. Reason for rejection shall be documented If fewer than three bids are received or considered, a description of the efforts undertaken to procure at least three bids shall be documented by the County. Such documentation shall be maintained for at least six months after the procurement decision is made. 18

19 Section 13. COMPETITIVE PROPOSAL REQUEST FOR PROPOSAL/REQUEST FOR QUALIFICATIONS An RFP/RFQ shall be utilized when the procurement lacks definite specifications, when proposals are sought for the purpose of establishing a bid specification, when the goods or services being procured involve creative design or professional administration, and/or when subjective criteria is considered in the contract award, which is made in the best interests of the County Procurement Procedures. The following procedures apply to procurements by competitive proposals: The Board of Commissioners or its designee shall cause the RFP/RFQ to be publicly advertised in an appropriate publication and web site posting(s) at least twice for 7 and 14 calendar days prior to the proposal opening The RFP/RFQ shall identify all significant evaluation factors and their relative weighted importance Proposals shall be solicited from an adequate number of qualified sources The RFP/RFQ shall specify the scope of the County's right to reject all bids or offers, and, with respect to procurements under $25,000 ($50,000 for public works construction) or which are exempt from bidding requirements under applicable state or federal law, its right to award the contract to other than the low bidder For procurements over $3,500, an independent cost estimate will be documented to determine an estimated cost of materials, equipment, supplies, work and/or services prior to receiving bids or proposals. Procurement actions below $3,500 require documentation that the price is fair and reasonable and a description of how that determination was made by the County Price quotations (at least 2) for materials, equipment, and supplies shall be documented A cost analysis (i.e., evaluating the contractor s specific elements of estimated cost and profit) is required for contract modifications, change orders, and when contracting on a sole source basis. The cost analysis shall be documented and placed in the procurement file The contract shall be awarded to the lowest responsive bidder if required by state or federal law. In such cases, if the apparent low bid is found to be non-responsive, the reasons for the determination shall be stated on the record 19

20 Section 14. ARCHITECTURAL, ENGINEERING, AND OTHER RELATED SERVICES (A&E SERVICES) The use of qualifications-based procurement procedures based on the "Brooks Act," 40 U.S.C , and Idaho Code , shall be used when County seeks to acquire architectural and engineering services, such as program management, construction management, feasibility studies, preliminary and final engineering and design, architectural, engineering, surveying, mapping, and other related services set forth in 49 U.S.C. 5325(b) (collectively referred to in this Policy as "A&E Services") Qualifications-Based Procurement Procedures. Currently, the applicable procedures are as follows: The Board of Commissioners or its designee shall cause to be distributed a concise announcement of the general scope and nature of the project or work for which the services are required, and the address of a County representative who can provide further details. Said distribution shall be in conformance with Idaho Code , and shall be published in the appropriate local newspaper at least 7 and 14 days prior to the bid opening The most qualified offeror may be selected subject to negotiation of a fair and reasonable compensation. Price shall not be considered as an evaluation factor in determining the most qualified offeror Negotiations shall first be conducted only with the most qualified offeror. Only after failing to agree on a fair and reasonable price shall negotiations be conducted with the next most qualified offeror until a contract award can be made to the offeror whose price is determined to be fair and reasonable The RFP/RFQ shall identify all significant evaluation factors and their relative weighted importance Proposals shall be solicited from an adequate number of qualified sources The RFP/RFQ shall specify the scope of the County's right to award the contract to other than the low bidder and its right to reject all bids or offers For procurements over $3,500, an independent cost estimate must be conducted to determine the estimated cost of materials, equipment, supplies, work and/or services prior to receiving bids or proposals. 20

21 At least two price quotations for materials, equipment, and supplies shall be documented A cost analysis (i.e., evaluating the contractor s specific elements of estimated cost and profit) is required for contract modifications, change orders, and when contracting on a sole source basis. The cost analysis shall be documented and placed in the procurement file A cost analysis for all awards for which competitive cost/price proposals are not obtained. This would always include A&E (Brooks Act) contracts, including small purchases. The County is required to obtain a cost breakdown from the A&E contractor and evaluate the direct and indirect costs and proposed profit. The independent cost estimate (ICE) must be structured on a cost element, not lump sum, basis since the FTA policy requires a detailed cost proposal and the ICE's usefulness as a cost analysis tool can only be realized if the ICE enables an evaluation of the cost elements in the proposal. As for negotiating a price that exceeds the ICE, the County must explain (1) how the various costs and profit were evaluated, (2) how contract price was negotiated, and (3) to make an affirmative written determination that the price agreed upon is fair and reasonable. Section 15. DESIGN BID BUILD Design-bid-build procedures may be used for contracts for design services and for construction of transportation facilities. If the County elects this method, relevant provisions of the Idaho Code and other applicable state requirements will be used to establish the minimum procedures For design services, qualifications-based procurement procedures must be used in compliance with the FTA Circular and applicable Federal, State and local law and regulations. See Section 14 of this Policy For services related to the actual construction, alteration or repair of real property, competitive bidding shall be used in compliance with the latest FTA Circular and applicable Federal and State laws and regulations. See Section 12 of this Policy. Section 16. DESIGN BUILD Design-build procedures may be used when the County contracts for design and construction simultaneously with a contract award to a single contractor, consortium, joint venture, team, or partnership that will be responsible for both the project's design and construction The various contract activities to be undertaken shall be classified as design or construction and the estimated total value of each shall be calculated. 21

22 16.2 When estimated construction costs exceed $50,000, qualifications-based procurement procedures may not be used to acquire A&E and other services to which Section 14 of this Policy is applicable, unless FTA determines otherwise in writing or unless required by State law When A&E services are predominant and the estimated construction cost is under $50,000, qualifications-based procurement procedures based on the Brooks Act shall be used. See Section 14 of this Policy. Section 17. EMERGENCY PROCUREMENT AND OTHER THAN FULL AND OPEN COMPETITION Noncompetitive procurement processes may be used only when allowed by law and the procurement is inappropriate for small purchase procedures, sealed bids, or competitive proposals, and at least one of the following circumstances is present: 17.1 Competition Adequacy. The County determines that competition is adequate after soliciting from several sources, and after determining that its specifications are not unduly restrictive and changes cannot be made to encourage greater competition. A cost analysis must be performed in lieu of a price analysis when this situation occurs and all best practices observed Sole Source. A sole source award may be made where at least one of the following circumstances is present: The supplies or services are available only from a single source (as defined in Chapter VI, subsection 3.i of the latest FTA Circular and Idaho Code ) and no other supplies or services will satisfy the County's requirement Upon receiving a single bid or proposal in response to a solicitation, the County determines that competition was adequate An emergency, as defined in Idaho Code , exists requiring the procurement of property or services and the County would be seriously injured unless it was permitted to limit the solicitation or a sufficient emergency exists for the requirement that will not permit the delay of competitive solicitation. The Board of Commissioners declares and authorizes an emergency procurement. The Board at its next regular meeting shall ratify emergency procurements FTA has authorized noncompetitive proposals, including the authorizations set forth in Chapter VI, subsection 3.i (l)(e) of the latest FTA Circular. FTA does not; however, authorize noncompetitive proposals that are justified on the basis of failure to plan. 22

23 17.4 Procurement Procedures. The following procurement procedures apply when less than full and open competition is available: Offers shall be solicited from as many potential sources as is practicable under the circumstances If an offer is solicited from only one source, that decision must be adequately justified in writing based on the standards set forth in the latest FTA Circular and Idaho Code A cost analysis verifying the proposed cost data, the projections of the data, and the evaluation of the costs and profits shall be prepared For procurements over $3,500, an independent cost estimate will be conducted to determine the estimated cost of materials, equipment, supplies, work and/or services prior to receiving bids or proposals At least two price quotations for materials, equipment, and supplies shall be documented When applicable, and if FTA so requests, the proposed procurement shall be submitted to FTA for pre-award review. Section 18. BID/PROPOSAL EVALUATION Proposals or bids shall be unconditionally accepted without alteration or correction, except as authorized in this policy. Submissions shall be evaluated based on the requirements set forth in the RFP/RFQ or IFB, which may include criteria to determine acceptability such as inspection, testing, quality, workmanship, delivery, suitability for a particular purpose, and pre-award survey of the bidder's/proposer's facilities. Those criteria that will affect the price and will be considered in evaluation for award as determined by County shall be objectively measurable, including, but not limited to discounts, sales tax, transportation costs, installation costs, and total project or life cycle costs. The County may not modify its evaluation factors after proposals are received. At the County s discretion, incomplete or nonresponsive proposals may be returned to the offeror Opening and Evaluation of Bids. Bids shall be evaluated on the basis of bid price and responsiveness. The evaluation of responsiveness shall include compliance with all applicable federal and state laws, as well as all bid specifications and instructions Opening and Evaluation of Responses to RFPs or RFQs. Except where prohibited by state law, proposals shall be reviewed by an evaluation committee regarding all evaluative factors 23

24 maintained throughout the review process. The evaluation committee will grade all factors, with their consensus recorded on the proposal tabulation worksheet Verbal interviews with any offeror who has submitted a proposal may be made at the discretion of the County to determine such offeror's qualifications for further consideration A committee may be selected to conduct the technical evaluation of the proposals received and shall make a recommendation for contract award to the Board of Commissioners based upon each of the evaluation elements in accordance with the weighted importance of each criteria and other elements having a bearing on the decision to award the contract as stated in the RFP/RFQ or IFB. The relative positions and evaluation points are totaled for each evaluation criteria or element, and the proposer with the highest overall total of evaluation points shall be recommended for contract award If the County contracts for evaluation services or includes non-county personnel in the evaluation process, the procurement standards of this Policy will apply to those contractors or Evaluation Committee members selected to perform evaluation functions on behalf of County The County may reject any or all bids or proposals, including the bid or proposal of an offeror whose performance under a previous contract, even though finally accepted by County or another public agency, imposed additional costs and burdens upon the public in obtaining satisfactory performance Options. In awarding any contract that will include options, the following standards apply: The County may make the award based on the price of the base bid or the base bid plus options. The basis for the award determination will be identified in the RFP For options to be awarded, FTA requires that they be examined at the time of the award and a basis for price be established or the exercise of future options. Option prices cannot be negotiated at the time of exercise of the option Exercising options not evaluated as part of the original contract award must be treated as a sole source award. Section 19. CONTRACT AWARD Except as provided in subsection 19.1 of this Section, the contract award shall be made to the lowest responsive bidder or offeror. 24

25 19.1 Award to Other than Lowest Bidder or Offeror. If authorized in federal and state law, a contract may be awarded to other than the lowest bidder when either of the following circumstances exist: The award furthers an objective consistent with the purposes of 49 U.S.C. Chapter 53, including improved long-term operating efficiency and lower long-term costs, or When the County states in the evaluation factors of its RFP/RFQ or IFB that it may award the contract to other than the offeror whose proposal is lowest. In both cases, the right to award the contract to other than the low bidder or offeror must be stated in the RFP/RFQ or IFB Award Only to a Responsible Contractor. Contract awards may only be made to "responsible" contractors under the standards of 49 U.S.C. 5325, possessing the ability, willingness and integrity to perform successfully under the terms and conditions of the contract. The prospective contractor must at a minimum satisfy the following criteria to demonstrate its qualifications as a "responsible" contractor: Integrity and Ethics. Has a satisfactory record of integrity and business ethics, in compliance with 49 U.S.C. 5325(g)(2)(A) Debarment and Suspension. Is neither debarred nor suspended from Federal programs under U.S. Department of Transportation (DOT) regulations, "Nonprocurement Suspension and Debarment," 2 CFR Parts 180 and 1200, or under the Federal Aviation Regulations (FAR) at 48 CFR Chapter I, Part Affirmative Action and DBE. Is in compliance with the Common Grant Rules' affirmative action and FTA's Disadvantaged Business Enterprise requirements Public Policy. Is in compliance with the public policies of the Federal Government, as required by 49 U.S.C. 5325(j)(2)(B) Administrative and Technical capacity. Has the necessary organization, experience, accounting and operational controls, and technical skills, or the ability to obtain them, in compliance with 49 U.S.C. 5325(j)(2)(D) Licensing and Taxes. Is in compliance with applicable licensing and tax laws and regulations. For public works construction projects, the bidder and all named 25

26 subcontractors shall have a valid Idaho public works contractor license commensurate with the value of the work to be performed unless such requirement is prohibited by Federal law Financial Resources. Has, or can obtain, sufficient financial resources to perform the contract, as required by 49 U.S.C. Section 5325(j)(2)(D) Production and Capability. Has, or can obtain, the necessary production, construction and technical equipment and facilities Timeliness. Is able to comply with the required delivery or performance schedule, taking into consideration all existing commercial and governmental business commitments Performance Record. The contractor is able to provide: a. Satisfactory current performance record, and b. Satisfactory past performance record in view of its records of long-term performance or performance with a predecessor entity, including: 1. Key personnel with adequate experience and a parent firm with adequate experience and past performance. 2. Past experience in carrying out similar work with particular attention to management approach, staffing, timeliness, technical success, budgetary controls, and other specialized considerations as described in the recipient's solicitation. 3. A prospective contractor that is or recently has been seriously deficient in contract performance is presumed to be non-responsible, unless it is determined that the circumstances were properly beyond the prospective contractor's control. 4. Such other information as may be secured having a bearing on the decision to award the contract If awards are made to sole sources, or otherwise made without negotiations, the file shall be documented that all costs and profits have been analyzed and determined to be fair and reasonable The contract award will be made by the Board of Commissioners. 26

27 Section 20. BID/PROPOSAL CORRECTION No changes in price or other provisions of proposals or bids after opening shall be permitted unless an error is obvious. An obvious error is one that can be clearly established from mathematical extension or tabulation shown in the bid documents submitted with the bid. An error in a mathematical extension, reported by a bidder but not shown in the bid documents, does not constitute an obvious error. Bidders are presumed to submit correct tabulations and specifications Minor informalities and irregularities in a bid or proposal may be waived by County unless otherwise noted in writing in the RFP/RFQ. Section 21. BID/PROPOSAL PROTEST PROCEDURES Bidders or offerors wishing to protest the legitimacy of any type of procurement action must submit their pre-award Notice of Protest in writing no less than eight (8) calendar days before the bid opening/proposal due date. Persons wishing to protest a contract award must submit their Notice of Protest in writing no less than seven (7) calendar days after the Award of Contract When Federal funds are involved, the FTA must be notified when the County receives a third party contract protest, and the County must keep FTA informed about the status of the protest The Notice of Protest will be handled as follows: The Notice of Protest shall be mailed, sent electronically, sent via facsimile, or delivered to the Board of Commissioners and shall state all issues and facts applicable to the protest. Issues and facts not stated in the Notice of Protest will not be considered A meeting(s) may be called following receipt of the protest that will include representatives from the County and the protestor to discuss the issue related to the protest. The meeting may be conducted by telephone conference, and must comply with the open public meeting laws The Board of Commissioners will make their decision according to the following time schedule and the County will notify the protester of the decision in writing by regular mail, electronically, or by facsimile transmission. a. Pre-award protests will be decided at least seven (7) days before the bid opening/proposal due date. b. Contract award protests will be decided within seven (7) days following receipt of the protest. 27

28 The Board of Commissioners may, at their sole discretion, extend the limits of time outlined above The decision of the Board of Commissioners shall be final. For FTA funded procurements, any appeal of the Board of Commissioners' decision will be governed by FTA Circular C4220.1F or its successors. Judicial review of the Board of Commissioners' decision shall be governed by Rule 84 of the Idaho Rules of Civil Procedure, or successor thereto Failure of the protestor to specify their objections in writing and in accordance with the specified time deadlines shall constitute a waiver of all right to protest This protest procedure shall be made known to all prospective bidders or proposers by being included or referenced in the requirements section of all solicitation documents All communications with the parties involved, including County staff or Board members concerning a protest, shall be in writing, and will be open for public inspection. The County shall be responsible for compiling and maintaining the written protest record FTA may entertain a protest that alleges the County has failed to have or follow written protest procedures, or a protest involving issues important to FTA's overall public transportation program. Such protest must be filed with FTA not later than five (5) working days after the Board of Commissioners have rendered their final decision or five (5) working days after the protestor knows or has reason to know that the Board of Commissioners have failed to render their final decision. Such protest to FTA must be filed in accordance with Chapter VII(l)(b) of the FTA Circular or its successors When a protest has been timely filed with the County before award, the County shall not make an award for seven (7) days after the resolution of the protest, or if a protest has been filed with FTA during the pendency of that protest, unless the County determines that: The goods or services to be procured are urgently required; Delivery or performance will be unduly delayed by failure to make the award promptly; or Failure to make prompt award will otherwise cause undue harm to the County In the event that the County determines that the award is to be made during the seven-day period following the local protest decision or the pendency of a protest, County shall notify FTA 28

29 prior to making such award. FTA will not review the sufficiency of County's determination to award during the pendency of a protest prior to FTA's bid protest decision. FTA reserves the right not to participate in the funding of any contract awarded during the pendency of a protest. Section 22. CONTRACT CHANGES AND MODIFICATIONS 22.1 Approval Requirements. The County must have cost justifications supporting each change order it may issue Cost Restrictions. The cost of any change, modification, change order, or constructive change to a current contract must be allowable, allocable, within the scope of any applicable FTA grant or cooperative agreement, and reasonable for the completion of the project scope The Board of Commissioners approval shall be required for all amendments to contracts that change the existing contractual amount over the approved project scope. Section 23. FEDERAL ASSISTANCE IN CONTRACT DISPUTES If the County intends to request FTA's permission to use Federal assistance to support payments to a third party contractor to settle a dispute, or intends to request increased Federal assistance for that purpose, the County must comply with the requirements pertaining to notification of FTA, documentation, audit and other requirements set forth in Chapter VII(3) of the FTA Circular. Section 24. CLAIMS AND LITIGATION INVOLVING FEDERALLY-FUNDED CONTRACTS The County shall comply with the requirements set forth in Chapter VII(4) of the FTA C F pertaining to claims and litigation involving Federally funded third party contracts that: 24.1 Have a value exceeding $100,000; 24.2 Involve a controversial matter, irrespective of amount; or 24.3 Involve a highly publicized matter, irrespective of amount. Section 25. FTA PARTICIPATION IN SETTLEMENTS, ARBITRATION AWARDS, AND COURT AWARDS When the County incurs costs due to binding arbitration or court decision, the County must secure FTA review and written concurrence in a proposed final settlement involving a dispute, claim, or litigation, and comply with the other requirements of Chapter VIl(5) of the FTA Circular before using Federal assistance to support its costs, if one of the following circumstances is present: 29

30 25.1 When the settlement exceeds $100, When the approved project lacks sufficient funds to cover the County's settlement costs When a special Federal interest or Federal concern is declared due to program management concerns, possible mismanagement, impropriety, waste or fraud. Section 26. BONDING POLICY Unless FTA determines that other arrangements adequately protect the Federal interest for all public works construction contracts, the following minimum bonding requirements shall be met for procurement thereof: 26.1 Each bidder must provide a bid guarantee equivalent to five (5) percent of its bid price and must consist of a firm commitment such as a bid bond, certified check, or other negotiable instrument accompanying a bid to ensure that the bidder will honor its bid upon acceptance A performance bond which complies with Idaho Code in the amount of 100 percent of the total contract price shall be received from the successful contractor prior to contract award A payment bond on the part of the contractor which complies with Idaho Code in the amount of 100 percent of the total contract price shall be received from the successful contractor prior to contract award The requirements for performance and payment bonds set forth in Idaho Code are adequate to meet the FTA minimums stipulated in FTA C F,IV, 2.h.(1)(c). Section 27. DISPOSITION OF SURPLUS LAND, FACILITIES, EQUIPMENT, AND MATERIALS The Director will be responsible for the disposition of all surplus facilities, equipment and properties and shall make recommendations to the Board as to the facilities, equipment or properties to be disposed and the best method of disposal that will yield the highest net return and comply with state and federal requirements The disposal of items with a fair market value of $5,000 or more will require reimbursement to FTA of the Federal interest in accordance with applicable federal regulations for the disposal of Federally funded equipment, facilities, and properties. 30

31 Section 28. PURCHASE RECORD MAINTENANCE The Transit Department and the Auditor s Office shall maintain records sufficient to detail project performance and financial records for five years after the County has made final payment and all other pending matters are closed. The County must also maintain records sufficient to detail the significant history of a procurement, including but not limited to the following: 28.1 The rationale for the method of procurement The selection of contract type and evaluation criteria Contractor selection or rejection, and rationale The basis for the contract price The bid tabulation or proposal evaluation worksheet. Section 29. STATE, FEDERAL, AND INTERGOVERNMENTAL AGREEMENTS The Board of County Commissioners is authorized to enter into intergovernmental purchase agreements between the County and the state and other political subdivisions, or public or nonprofit organizations whose membership consists of such entities. Such purchase agreements shall comprise a valid method of transacting procurements only if all aforementioned procurement standards and requirements are adhered to. Public notice advertising requirements shall be deemed met by the advertising of the state or other political subdivision. Section 30. CONTRACT PROVISIONS Third-party contracts shall contain provisions required by the FTA C F and applicable State, Federal and local laws. Each third-party contractor must extend those provisions to its subcontractors to the extent required by applicable laws and regulations. In all cases, the Director of the Transit Office will ensure to provide Kootenai County s legal counsel all solicitation provisions and contract clauses current with respect to FTA and Idaho State requirements. FTA requirements are set forth in the current FTA Master Agreement, which is published on the FTA web page as of October 1 of each year. The FTA Procurement Circular F. The FTA Best Practices Procurement Manual, (BPPM) Appendix A.1, contains instructions for the contract clauses required by FTA as shown in FTA Circular F. For each purchase order or contract, the Transit Office will incorporate the clauses required by the circular F. 31

32 Section 31. PAYMENT The County payment policy is generally reimbursement-only. In specific circumstances, the County may make advance payments, which will not use FTA or federal funds Advance Payments. The FTA C F requires FTA approval before grantees may use this form of financing on third-party contracts. Grantees may use local funds to finance their contractors in this manner if they deem it appropriate, without requiring FTA approval. If local funds are used for an advanced payment before a grant has been awarded or a letter of no prejudice issued, FTA will not reimburse such payments unless prior written concurrence is obtained Progress Payments Based on Percentage of Completion. The Federal Government authorizes progress payments on its contracts based on a percentage or stage of completion of the work. This type of progress payment is standard for construction contracts for all Federal agencies. 49 CFR Part 18.21(d) allows grantees and sub-grantees to use the percentage of completion method to pay their construction contractors, which is consistent with the regulations for Federal contracts. However, grantees may not use the percentage of completion method for non-construction contracts. For those contracts, progress payments based on costs incurred must be used Contract Clause. Managers should refer to the FAR clause at FAR for guidance on the specific issues that need to be addressed in the progress payments clause and ensure that the County s clause adequately covers the important issues, including: Computation of amounts percentage of total costs, definition of costs to be included in the calculation (i.e., only those actually paid by the contractor, incurred but not paid, etc.) Liquidation the method of linking value received to payments made. Reduction or suspension of payments the circumstances under which the grantee may reduce or suspend progress payments. Title this provision should define the property considered allocable to the contract (parts, materials, special tooling, special test equipment, drawings and technical data, etc.) and the party that retains title to the property/work-in-process for which the progress payments are made. Risk of loss the contract should be clear as to which party assumes the risk of loss to contract property and work-in-progress before final acceptance of the units. In the Federal clause, the contractor assumes the risk of loss even though title to all property acquired under the contract vests in the Government. 32

33 Progress payments to subcontractors this provision needs to define the circumstances under which the prime contractor must make progress payments to fixed-price subcontractors, and the subcontract terms to be included (covering the same issues as the prime contract s progress payment clause). Adequate accounting system/reports the contract must require an adequate joborder accounting system to be maintained that properly accounts for the costs of the job even though the contract is fixed-price. This provision should also give the grantee the right to require certain reports or other data in support of the contractor s invoices. Access to records this provision must give the grantee the right to conduct audits of costs claimed in progress payment invoices. Section 32. CONTRACT ADMINISTRATION FILE CONTENTS For all contracts above the micro-purchase level, the Transit Office will ensure that the contract administration file includes the following: The executed contract and notice of award; Performance and payment bonds, bond-related documentation, and correspondence with any sureties; Contractrequired insurance documentation; Post-award (pre-performance) correspondence from or to the contractor or other Governmental agencies; Notice to proceed; Approvals or disapprovals of contract submittals required by the contract and requests for waivers or deviations from contractual requirements; Modifications/changes to the contract including the rationale for the change, change orders issued, and documentation reflecting any time and or increases to or decreases from the contract price as a result of those modifications; Documentation regarding settlement of claims and disputes including, as appropriate, results of audit and legal reviews of the claims and approval by the proper authority (i.e., FTA, board of directors, executive director) of the settlement amount; Documentation regarding stop work and suspension of work orders and termination actions (convenience as well as default); and Documentation relating to contract close-out. Section 33. PROHIBITED OR RESTRICTIVE CONTRACT TYPES 33.1 Cost Plus a Percentage of Cost contracts are prohibited Percentage of Construction Cost contracts are prohibited Time and Material contracts. To be used only after a documented determination that no other type of contract is suitable. Such contracts will specify a ceiling price (a limitation of funding) that the contractor shall not exceed except at its own risk. Prior to the use of a Time and Material contract, the Transit Office shall make a determination that the contactor s accounting system is adequate to properly segregate and bill costs. 33

34 Section 34. LIQUIDATED DAMAGES 34.1 Risk Management. Kootenai County shall determine whether to use or not to use a liquidated damages provision for a specific procurement, as part of an overall risk management program Calculation. The amount of liquidated damages must be reasonably calculated to represent estimated actual damages Kootenai County might suffer as the result of an inadequacy or delay in contract performance, and such damages would be difficult or impossible to determine with certainty Measurement. Liquidated damages may be imposed for an entire contract or for a readily identifiable milestone or deliverable, and the measurement period may be other than a day, where appropriate Solicitation Requirements. If it is determined that a liquidated damages provision will be included, the solicitation shall identify with specificity the circumstances in which the liquidated damages will be imposed and the rate to be charged. The file shall document the derivation of the rate of assessment and ensure it is reasonable, proper and not arbitrary or punitive Recovery Credited to Project All liquidated damages recovered under an FTA funded contract will be credited to the project unless FTA agrees otherwise in writing. Section 35. TERMINATION All contracts in excess of the simplified acquisition threshold as defined herein shall include contractual provisions that allow for administrative or legal remedies in instances where contractors violate or breach the contract terms. The following clauses will be inserted in all contracts: Termination Termination for Convenience Kootenai County may terminate the contract, in whole or in part, at any time by written notice to the Contractor when it is in Kootenai County s best interest. The Contractor shall be paid its costs, including contract close-out costs, and on work performed up to the time of termination. The Contractor shall promptly submit its termination claim to Kootenai County to be paid. If the Contractor has any property in its possession belonging to Kootenai County, the Contractor will account for the same, and dispose of it as directed by Kootenai County. Kootenai County, by written notice, may also terminate this contract, in whole or in part, when it is in the Federal Government s interest. If the contract is terminated, Kootenai County shall be liable only for payment under the payment provisions of this contract for services rendered before the effective date of termination. 34

35 Termination for Default, Breach or Cause If the Contractor fails to perform the services within the time specified in this contract or any extension thereof, or if the Contractor fails to comply with any other provision of this contract, Kootenai County may terminate the contract for default. Termination shall be effected by serving a Notice of Termination to the Contractor setting forth the nature of the default. The Contractor will only be paid the contract price for services performed in accordance with the manner of performance set forth in the contract. If the contract is terminated while the Contractor has possession of Kootenai County goods, the Contractor shall, upon direction of Kootenai County, protect and preserve the goods until surrendered to Kootenai County or its agent. The Contractor and Kootenai County shall agree on payment for the preservation and protection of goods. Failure to agree on an amount will be resolved under the Dispute clause. If it is later determined by Kootenai County that the Contractor had an excusable reason for not performing, such as events which were not the fault of or were beyond the control of the Contractor, Kootenai County, after setting up a new delivery of performance schedule, may allow the Contractor to continue work, or treat the termination as a termination for convenience. Opportunity to Cure Kootenai County, in its sole discretion, may, in the case of a termination for default, allow Contractor at least ten (10) days in which to cure the defect. In such case, the notice of termination will state the time period in which cure is permitted and other appropriate conditions. If Contractor fails to remedy the default to Kootenai County s satisfaction within ten (10) days after receipt of Notice of Termination by Contractor, Kootenai County shall have the right to terminate the contract without any further obligation to Contractor. Any such termination for default shall not in any way operate to preclude Kootenai County from also pursuing all available remedies against Contractor and its sureties for such default. Waiver of Remedies for Default or Breach In the event that Kootenai County elects to waive its remedies for any default by contractor of any covenant, term or condition of the contract, such waiver by Kootenai County shall not limit Kootenai County s remedies for any succeeding default of that or of any other term, covenant, or condition of the contract. 35

36 Kootenai County Transit Procurement Policy Appendix Effective 6 December 2011 Amended 7 February 2012 Amended 9 September 2014 Amended 7 March 2017 APPENDIX A KOOTENAI COUNTY ADOPTION OF PROCUREMENT POLICY 36

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