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Item Q6* 3:00 P.M. Public Hearing * BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: March 21, 2012 Division: County Attorney Bulk Item: Yes X No Staff Contact Person: Suzanne Hutton #3470 AGENDA ITEM WORDING: A public hearing to consider approval of an ordinance creating Section 2-346, and amending Section 2- 347, of the Monroe County Code to reflect the recently revised and improved Monroe County Purchasing Policy. ITEM BACKGROUND: The Monroe County Purchasing Policy has recently been revised and improved to provide clarification and simplicity for County employees to follow when purchasing goods and services for the County and addressing the increased cost of goods and services. This Ordinance revises the Monroe County Code to reflect the recent revisions to the Monroe County Purchasing Policy and provides definitions to further clarify the County's competitive bidding procedure. PREVIOUS RELEVANT BOCC ACTION: 2/15/12 BOCC approved Public Hearing for 3/21/12 @ 3:00 p.m. in Marathon, FL CONTRACT/AGREEMENT CHANGES: Increases purchasing authority limit; increases the amount for requiring County contracts to be bid STAFF RECOMMENDATIONS: Approval. TOTAL COST: N/A COST TO COUNTY: N/A BUDGETED: Yes No SOURCE OF FUNDS: N/A REVENUE PRODUCING: Yes _ No X AMOUNT PER MONTH Year APPROVED BY: County Atty OMB/Purchasing Risk Management DOCUMENTATION: Included X Not Required_ DISPOSITION: AGENDA ITEM # ORDINANCE NO. - 2012 AN ORDINANCE OF THE MONROE COUNTY BOARD OF COUNTY COMMISSIONERS CREATING SECTION 2-346 AND AMENDING SECTION 2-347 OF THE MONROE COUNTY CODE; PROVIDING FOR DEFINITIONS; PROVIDING FOR AN INCREASE IN PURCHASING AUTHORITY; PROVIDING FOR AN INCREASE TO THE AMOUNT OF CONTRACTS SUBJECT TO THE COMPETITIVE BIDDING PROCEDURE; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEAL OF ALL ORDINANCES INCONSISTENT HEREWITH; PROVIDING FOR INCORPORATION INTO THE MONROE COUNTY CODE OF ORDINANCES; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Monroe County Code should be revised to address statutory changes, purchasing issues which occurred under the current language, and to provide definitions to further clarify the competitive bidding procedure; and WHEREAS, the cost of goods and services has increased since the competitive bidding procedure was created and in consideration of these increased costs and to provide some economy of scale, the amount of county contracts required to be bid should be increased; NOW THEREFORE BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA: SECTION 1. Sec. 2-346 of Article VI. PURCHASING AND CONTRACTS shall be created to read as follows: Sec. 2-346 Definitions. Addendum. Additional directions or modifications during the county procurement process to a solicitation which is issued as a separate advisory document after issuance of such solicitation by the purchasing director or his designee. Competitive bidding. Two or more bids or proposals submitted for the same item or services by responsible bidders. Competitive solicitation. Request for bids (RFB) Request for proposals (RFP). Request for qualifications (RFO) Requests for applications (RFA) Request for information (RFI) or any other competitive solicitations authorized by general law to be exercised by non -charter counties DRAFT ORD Rev Purchasing Policy (KP) 2/8/12 Page 1 of 12 Consultant's Competitive Negotiation Act (CCNA). The official name for F.S. § 287.055, relating to the procurement of architectural engineering landscape architecture, and registered land surveying services. These services shall be procured by request for qualifications, and competitive selection and negotiation Contract. A written agreement between two or more competent parties to perform or not perform a specific act or acts. Any type of agreement regardless of what it is called for the procurement or disposal of supplies services or construction. Contractor. Any person or firm having a contract with the countx County. Monroe County, a political subdivision of the State of Florida or any of its authorized representatives pursuant to ordinance resolution or administrative code. Department head. The person responsible for the operations of the department and employees within that department. Evaluation or Selection committee. The committee approved to review offers and responses to requests for proposals (RFP) and requests for qualifications (RFO) in accordance with the policies and procedures of the purchasing department, and when required, in accordance with the State of Florida Competitive Consultants Negotiation Act (CCNA) OMB. The County's office of management and budget. Pre -bid conference (or pre proposal conference) A meeting held with prospective bidders prior to solicitation of or the date for receipt of bids or proposals, to recognize state of the art limits technical aspects specifications and standards relative to the subject and to elicit expertise and bidders' interest in submitting a bid or pursuing the task. Proposal. An executed formal document submitted to the county stating the goods and/or services offered to satisfy the need as requested in the request for proposal. Professional Services. An independent contractor in one of more of the following professional fields: appraisal services (as per F S 125 355)• audit and accounting services: consultants in planning_ management and technological or scientific advisors: fmancial services in rating and underwriting of bonds and investment services and medical services. DRAFT ORD Rev Purchasing Policy (KP) 2/8/12 Page 2 of 12 Purchase order. A document which authorizes the delivery of specific merchandise or the rendering of certain services and the making. of a charge for them. Purchasinie director. The person holding the position as head of the purchasing department. Request for applications (RFA). A solicitation for applications for funding which from time to time may be issued by the county or tourist development council for various programs. Request for bids (RFB). A solicitation of the responses for prices and terms for procurement of goods and/or services for which the scope of work specifications or contractual terms and conditions can be closely defined Evaluation of a bid is based upon price conformance with the specifications and deemed submitted by a responsible bidder. Request for information (RFI). A written or electronically posted request made by an agency to vendors for information concerning commodities or contractual services. Responses to these requests are not offers and may not be accepted by the agency to form a binding contract A letter of interest may or may not be required as part of the RFI process. Request for proposal (RFP). A solicitation of the responses for prices and terms for procurement of goods and/or services for which the scope of work specifications or contractual terms and conditions cannot reasonably be closely defined by the County. Evaluation of a proposal is based on prior established criteria which may include but may or may not be totally limited to price Request for qualifications (RFO). A solicitation of responses from vendors whereby vendors are invited to submit a summary of their particular qualifications and to state their interest in performing a specific job or service for the county. From such submissions, the county selection committee determines which of such vendors shall be short-listed, interviewed and recommended to the board of county commissioners for permission to negotiate for scope of work and fees Responsible bidder. An individual or business which has submitted a bid offer, proposal, quotation or response which as determined by the county has the capability in all respects to perform fully the contract requirements and the experience, integrity, reliability and capacity facilities equipment and credit which give reasonable assurance of good faith and performance The county may also consider and give weight to the bidder's previous conduct and performance under previous contracts with the county and other agencies (including but not limited to delinquency) and determine the quality of the bidder's previous work Responsive bidder. An individual or business which had submitted a bid offer, proposal, quotation or response which as determined by the county, conforms in all material respects to the solicitation which may include but is not limited to pricing, surety, insurance specifications of the goods or services DRAFT ORD Rev Purchasing Policy (KP) 2/8/12 Page 3 of 12 requested or any other matter unequivocally stated in the invitation for bids as a determinant of responsiveness. A lack of conformity in these matters which is nonsubstantive in nature may be considered a technicality or irre ug larity which may be waived by the county commission. Responsive bid. A bid or proposal which conforms in all material respects to the request to bid or request for proposals. Sole source. The only source of the item(s) which meets the needs of the using department as determined by the required process under the Monroe Count Purchasing Policies and Procedures. SECTION 2. Sec. 2-347(e) shall be amended to read as follows: (e) This section applies to all county contracts, except as otherwise stated in this article, for services , goods, and public works, that are, in accordance with generally accepted accounting principles, expected to cost $50,000 25,809 or more. A contract may not be split into multiple contracts for services, goods or public improvements for the purpose of evading the requirements of this section. (1) The county administrator may, in his discretion, require that contracts for services, goods or public works that are expected to cost less than $50,000 25,000 comply with the terms of this section. (2) When the goods or services sought are expected to cost $50,000 25,800-or more and are available to the county through an existing contract between a vendor and the state, the United States, or another county of the state, municipality,, eF special district, or other governmental entity or not for profit association's competitively awarded contract then compliance with the terms of this section is not required. However, before any purchase is made through an existing contract, the department head p eter- must first contact other South Florida vendors in order to determine if the goods or services sought are available at a lower price than the price of the existing contract. If the goods or services are available from another vendor at a lower price than the existing contract, then the contract for the goods or services must be awarded to that vendor., unless the price is only of minor concern compared to the qualitative considerations. The purchase of the goods or services sought may be made through the existing contract if none of the other vendors contacted by the department head p cue offered the goods or services at a DRAFT ORD Rev Purchasing Policy (KP) 2/8/12 Page 4 of 12 price lower than the price of the existing contract. The results of the requests from vendors shall be submitted to the purchasing director for verification before the contract is approved by the county (3) When the goods or services to be purchased are only available from a sole source, then the purchase may be exempt from this section However, the department head of the requesting department must provide written justification, as outlined in the Monroe County Purchasing Policies and Procedures, before approval of the contract or purchase is made. (3)(41 Persons who design county construction projects, or provide the specifications to the county for such projects or provide the specifications for any goods or services, are prohibited from bidding on the project construction work and are prohibited from bidding on the provision of the goods or services. This prohibition does not apply to design/build contracts and design/build/operate contracts, when authorized by general law and when the board of county commissioners has specifically elected to proceed under those provisions of general law. (5) The competitive bidding procedures are not required to apply to the following-, a. Professional service covered by the Consultants' Competitive Negotiation Act (F.S. §287.055) Other professional services may be exempted by the BOCC from the competitive bidding_ process when price is only a minor concern compared to qualitative considerations: b. All purchases of services controlled by the public service commission including but not limited to utility/local telephone services C. Cellular telephone services,• on -going._ payments and fees for maintenance and support of existing software technology which has been purchased in accordance with existing_ procurement requirements: software packages for personal computers approved by the county's Technical Services Department; d. Legal services, lobbying services interpreter services court reporter services, and advertising services,• and e. Change orders authorized under a lawfully executed county/contractor contract SECTION 3. Sec. 2-347(f) shall be amended to read as follows: M The competitive solicitations of bids, for contracts covered by this section must be made through notice. (1) The published notice of competitive solicitations F-eq-lest—ing-bidg must set forth a brief summation of the service, goods or public work desired together with a description of where and from whom a potential bidder or proposer may obtain more detailed information. The- published DRAFT ORD Rev Purchasing Policy (KP) 2/8/12 Page 5 of 12 must state that all responses to competitive solicitations bids submitted must be sealed and must be submitted to the purchasing department . The notice must state the date, time, and place where the responses to competitive solicitations bids will he (2) SECTION 4. Sec. 2-347(g) shall be amended as follows: (g) County departments must prepare the bid specifications in advance of the publication date. The specifications must include, where applicable, plans, descriptions of the service or description of the goods, the estimated quantities, the contract format, insurance and bonding requirements, all as appropriate to the services, goods, or public improvements desired. The specifications may not be drafted or structured in a way that only one person is capable of submitting a bid that meets such specifications. The specifications must be sufficiently detailed, definite, and precise upon all the essential elements that are to be a part of the contract so that a bid received will constitute a definite offer for the contract that may be accepted by the board of county commissioners without further negotiation. When the bid specifications are in final form, and before the publication date, the original specifications,_ including an electronic version must be delivered to the custody of the county purchasing A•AB director by the department that prepared them. The purchasing director will retain custody until after the bids are opened. The department may retain a copy of the specifications for its use but, if there is a conflict between the terms of the specifications in the director's custody and the department's, the specifications in the director's custody are controlling. Any amendments to the specifications or addendum must be made through the purchasing OMB director who shall be responsible for notifying prospective bidders/proposers of the amendments or addendum. SECTION 5. Sec. 2-347(h) shall be amended as follows: (h) In order to determine if persons or entities submitting responses to competitive solicitations bis are responsible, all responses to competitive solicitations bids, for contracts to be awarded under this section must contain, at a minimum, the following information: DRAFT ORD Rev Purchasing Policy (KP) 2/8/12 Page 6 of 12 (1) A list of the person's or entity's shareholders with five (5) percent or more of the stock or, if a general partnership, a list of the general partners; or, if a limited liability company, a list of its members; or, if a solely owned proprietorship, names(s) of owner(s); (2) A list of the officers and directors of the entity persee ; (3) The number of years the person or entity has been operating and, if different, the number of years it has been providing the services, goods, or construction services called for in the bid specifications (include a list of similar projects); (4) The number of years the person or entity has operated under its present name and any prior names; (5) Answers to Tthe following, ineluding answers te questions regarding claims and suits: a. Has the person, principals, entity, or any entity previously owned operated or directed by any of its officers major shareholders or directors, ever failed to complete work or provide the goods for which it has contracted? If yes, provide details; b. Are there any judgments, claims, arbitration proceeding or suits pending or outstanding against the person, principal of the entity. or entity, or any entity previously owned, operated or directed by any of its officers, directors, or general partners? If yes, provide details; C. Has the person, principal of the entity, entity, or any entity previously owned, operated or directed by any of its officers major shareholders or directors, within the last five M years, been a party to any lawsuit, or —arbitration, or mediation with regard to a contract for services, goods or construction services similar to those requested in the specifications with private or public entities? If yes, provide details; d. Has the persona principal of the entity, or any entity_ previously owned, operated or directed by any of its officers owners partners, major shareholders or directors ever initiated litigation against the county or been sued by the county in connection with a contract to provide services, goods or construction services? If yes, provide details; e. Whether, within the last five M years, the owner, an officer, general partner, principal, controlling shareholder or major creditor of the person or entity was an officer, director, general partner, principal, controlling shareholder or major creditor of any other entity that failed to perform services or furnish goods similar to those sought in the request for competitive solicitation bids; f. Customer references (minimum of three), including name current address and current telephone number, g. Credit References (minimum of three), including name current address and current telephone number; ad DRAFT ORD Rev Purchasing Policy (KP) 2/8/12 Page 7 of 12 h. Financial statements for the prior three years for the responding entity or for any entity that is a subsidiary to the responding entity and h-. i. Any financial information requested by the county department involved in the competitive solicitationLselieking the bids, related to the financial qualifications, technical competence, the ability to satisfactorily perform within the contract time constraints, or other information the department deems necessary to enable the department and board of county commissioners to determine if the person responding43iddieg is responsible. The department requesting competitive solicitations and the county attorney reviewing the competitive solicitations OMB teeter- must make sure that all bid solicitations request the information required by this, subsection (h). The department requesting the competitive solicitations bids , o-• the ^MB a=---1--, must evaluate the information received, and then prepare a recommendation to the board of county commissioners as to whether the lowest ea& bidder or the highest ranked proposer is responsible in the view of the information received. In evaluating the information received, the requesting department and QMB direeter- afe is directed to give particular consideration in preparing their recommendation to the bidder's/proposer's responses to subsection (h)(5)a-A.. a.-i. of this section. eo�r, iQ dirP.atr d tn, inxr +' --+.+.-- -- � - - /—_ --_ �� �-�•• ••��••�••��, va�vw� vV M1,l Y11V 1 . If the department, "B ^Ba:feete-, or county attorney have a reasonable belief that any information furnished by a bidder/proposer is false, misleading or omits relevant facts, the epartment is directed to investigate any lawfully available information resource in order to be able to adequately advise the board as to whether a bidderdEg oser is responsible. If after the responses to competitive solicitations bids are received, it is discovered that a bidder/ ro oser misrepresented or omitted information required by his subsection (h), then his bid/ ro osal shall wiR be automatically disqualified. If the misrepresentation or omission is discovered after the contract is awarded, the board of county commissioners may, in its discretion, terminate the contract with no liability to the county other than to pay the contract price or unit price for work that is satisfactorily completed and useful to the county up to the date of the meeting of the board of county commissioners terminating the contract. fie iA ee�gz The A llvrl foregoing must appear in all seheitatiens fnr bids d a pmvisiell simijaF to iwmediatel pr-eeeding sentenee must be added " contracts covered by this article. SECTION 6. Sec. 2-347(i) shall be amended as follows: (i) Each bid for construction projects estimated to exceed $200,000 $150,000 must be accompanied by a bid security in an amount equal to five percent of the bid price either in the form of a certified check made payable to the county or in a bond from a surety company authorized to do business in .the state. A project may not be divided into DRAFT ORD Rev Purchasing Policy (KP) 2/8/12 Page 8 of 12 subparts to avoid the requirement for the bid security. The County, in its discretion, may require a bid security for construction projects estimated to be less than $200 000. The bid securities will remain in the custody of the OMB director until forfeited or released as provided elsewhere in this subsection. If, after the board accepts the bid the bidder refuses to execute the contract or commence the work or provide the goods called for, then the bid security will be forfeited to, and become the property of, the county as liquidated damages for the county's loss of bargain. If the successful bidder executes the contract and commences performance, then the bid security will be returned. The bid securities of unsuccessful bidders and bid securities in the county's possession for more than 90 days from the date of bid opening must also be returned. The following shall also apply: (1) All bids are irrevocable for 90 days from the bid opening If a bidder discovers an error in his bid, he may withdraw the bid and request a refund of the bid security if the bid has not yet been accepted by the board of county commissioners. The security be returned only if the bidder can show, to the satisfaction of the county OMB director, the following equitable factors: a. The bidder acted in good faith in submitting the bid; b. In preparing the bid there was an error of such magnitude that enforcement of the bid would work a severe hardship upon the bidder-, and c. The error was not a result of gross negligence or willful inattention. dir-eeter- before the time dese6bed in the published fiefiee for- the bid opening. Aay bid submiaed after- that time may net be eensidered. (2) All bids must be sealed and submitted to the purchasing director before the time described in the published notice for the bid opening. All bids must be opened at the time and place described in the published notice. Any bid submitted after that time shall not be considered. a. The bidder- aeted ift geed faith in submiffing the ; r ef&mefaeat of the bid wvuausevefe he&dship upon the bidder-, c• ' attention. DRAFT' ORD Rev Purchasing Policy (KP) 2/8/12 Page 9 of 12 (3) AR bids must be epened at the time and plaee deser-ibed in the published eefic. In order for a bid to be accepted by the board of county commissioners and a contract awarded, the bid must be the lowest in price, must conform to the specifications, and have been submitted by a responsible bidder. For the purposes of this section, the following terms have the following meanings: a. The term "lowest in price" means the lowest total economic cost to the county including, but not limited to, the contract price and demands upon county equipment and county staff time. b. The term "conform to the specifications" means that there is no substantial variation between the bid submitted and the county specifications. Slight or immaterial variations from the specifications do not create a nonconforming bid. However, any variation that destroys the competitive character of the bidding process, causes or confers a material change more favorable to one bidder than the others, or furnishes one bidder an advantage or benefit not enjoyed by the other bidders is a substantial variation and results in a nonconforming bid. ; Possesses the skills needed to provide high WeAt, geeds, or- 3. Has demenstmfing a Wster-y of hefiesty and integrity in his tmder- pFieF ems. (4) Once the board of county commissioners has determined which bid conforms with subsection (i)(3) above, the board may vote to accept that bid and authorize the mayor to execute a written contract, reviewed and approved by the county attorney's office, on behalf of the county. If the initially successful bidder refuses to execute the contract or, if after the execution, refuses to commence performance, then the board may vote to accept the bid of the next lowest conforming responsible bidder and so on. However, the board of county commissioners at all times reserves the right to waive variations from the specification that do not render a bid nonconforming to reject all bids, re -advertise for bids, or to abandon any project, purchase of goods, or request for bids. A contract is not entered into until the board of county commissioners votes to accept a bid and directs the mayor to execute a contract on behalf of the county. Regardless of any representations made by any county officer, employee or county contractor or consultant, and regardless of any funds expended or work performed by the bidder or a prospective contractor, the county is not liable or obligated to pay the bidder/prospective contractor any money until the bid has been accepted by the board of county commissioners. DRAFT ORD Rev Purchasing Policy (KP) 2/8/12 Page 10 of 12 , - W ---------------- isv3 -------_____....... f ........... u.., set ,.bsee4ie., this see4ion, as + Whether- a bid is th. slight u uau .,te a b �• .�uu.t t' 1 a t 1 ux f a whether- bidder- is responsible, i with the b a and' final. SECTION 7. Sec. 2-3470) shall be amended to read as follows: 0) All responses must be sealed and submitted to the office of the county purchasing department before the time described in the published notice for the bid opening Any responses submitted after that time shall not be considered. All of the responses must be opened at the time and place described in the published notice All responses are irrevocable for 90 days from the bid opening date However, if the proposer discovers an error in his response, he may withdraw his response in good faith in The board of county commissioners' determination as to the following is discretionary with the board and is final: whether a bid is the lowest in price, based upon the same criteria set forth in subsection (i)(3)• whether a proposal is the highest ranked with price as a consideration when applicable: whether a bid variation from the county's specification is slight and immaterial or substantial and material,• whether a response is submitted by a responsive bidder and responsible bidder, as defined in this chapter. 6I21 Once the board of county commissioners has determined which response shall be awarded the contract hire is the lowest eenfemiiag bid b y a r-espeasthle bidder-, the board may vote to accept that bid/proposal and authorize the mayor to execute a written contract, reviewed and approved by the county attorney's office on behalf of the county. If the initially successful bidd Eproposer refuses to execute the contract or, if after the execution, refuses to commence performance, then the board may vote to accept the next highest ranked responsive bid of the next le...est. egg responsible bidder and so on. However, the board of county commissioners at all times reserves the right to waive variations from the specifications that do not render a bid nonconforming, to reject all competitive solicitations ems, re -advertise for competitive solicitations hills, or to abandon any project, purchase of goods, or request for competitive solicitations bps. A contract is not entered into until the board of county commissioners votes to accept a proposal bid and directs the mayor to execute a contract on behalf of the county. Regardless of any representations made by any county officer, employee or county contractor or consultant, and regardless of any funds expended or work performed by the bidder- er a prospective contractor, the county is not liable or obligated to pay the biddeElprospective contractor any money until the proposal bd has been accepted by the board of county commissioners. DRAFT ORD Rev Purchasing Policy (KP) 2/8/12 Page 11 of 12 SECTION 8. SEVERABILITY. If any portion of this ordinance is for any reason held invalid or declared to be unconstitutional, inoperative or void, such holding shall not affect the remaining portions of this ordinance. If this ordinance or any provision thereof shall be held to be inapplicable to any person, property or circumstances, such holding shall not affect its applicability to any other person, property or circumstances. SECTION 9. CONFLICT WITH OTHER ORDINANCES. All ordinances or parts of ordinances in conflict with this ordinance are hereby repealed to the extent of said conflict. SECTION 10. INCLUSION IN CODE OF ORDINANCES. The provisions of this ordinance shall be included and incorporated in the Code of Ordinances of the County of Monroe, Florida, as an addition or amendment thereto, and shall be appropriately renumbered to conform to the uniform numbering system of the Code. SECTION 11. TRANSMITTAL AND EFFECTIVE DATE. This Ordinance shall be filed with the Department of state and shall be effective as provided in section 125.66(2), Florida Statutes. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a regular meeting of said Board held on the day of .2012. Mayor David Rice Mayor Pro Tem Kim Wigington Commissioner Heather Carruthers Commissioner George Neugent Commissioner Sylvia Murphy (SEAL) BOARD OF COUNTY COMMISSIONERS Attest: DANNY L. KOLHAGE, Clerk OF MONROE COUNTY, FLORIDA By Deputy Clerk By DRAFT ORD Rev Purchasing Policy (KP) 2/8/12 Page 12 of 12 Mayor/Chairperson