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Item M3BOARD OF COUNTY COMMISSIONERS C ounty of M onroe A(I Mayor George Neugent, District 2 T he Fl orida Keys 4� �� m Mayor Pro Tem David Rice, District 4 l Danny L. Kolhage, District I „ Y „; ° W Heather Carruthers, District 3 Sylvia J. Murphy, District 5 County Commission Meeting August 16, 2017 Agenda Item Number: M.3 Agenda Item Summary #3204 BULK ITEM: No DEPARTMENT: County Attorney's Office TIME APPROXIMATE: STAFF CONTACT: Chris Ambrosio (305) 292 -3470 N/A AGENDA ITEM WORDING: Approval to advertise a Public Hearing to consider adoption of an Ordinance amending MCC §2- 347(e)(2) and (h)(5); and replacing (1)(I)f. relating to competitive bidding procedures. ITEM BACKGROUND: Monroe County utilizes a competitive solicitation process for procurement of goods and services and award of contracts under the authority of the Florida Statutes, Monroe County Code of Ordinances ( "MCC ") §2 -347 "Competitive bidding procedures "; Monroe County Purchasing Policy Chapter 3 ( "County Policy "), and Administrative Instruction #4802.4. Over time, certain issues have repeatedly arisen which prompted the County Attorney's Office, working in conjunction with the Purchasing Director and other staff, to review the code to see if amendments are warranted and should be recommended. That effort resulted in this proposal to update three provisions of the Section 2 -347 of the County Code. MCC §2- 347(e)(2) currently requires the department to first contact other South Florida vendors for price quotes before any purchase is made through an existing competitively bid contract or cooperative purchasing venture. Vendors often will not provide written quotes or respond to the department's requests, the process is time consuming, contribute to job delays, and often results in no benefits to the County. The proposed revised ordinance provides that such price quotes must be obtained only when directed by the Purchasing Director or County Administrator, rather than as a mandatory prerequisite. MCC §2- 347(h)(5) currently requires automatic disqualification of a bidder /proposer that has misrepresented or omitted information in the proposal that is required by subsection (h). County staff suggests that the ordinance be amended to provide that the BOCC have the discretion to determine whether to disqualify a bidder /proposer in such circumstances. Contractors sometimes make simple mistakes or omissions in their proposals that can be cured or waived rather than result in automatic disqualification. The automatic disqualification may result in the County losing an opportunity to procure the most cost effective contract and services from the lowest responsive responsible bidder. MCC §2- 347(1)(I)a. -f. codifies certain serious misconduct, acts and omissions committed by persons that justify suspension of that person's eligibility to submit bids and proposals to County solicitations. In its current form §2- 347(I)(1)f. . does not sufficiently protect the County or account for breach of a person's legal obligations and duties to provide the County a defense and indemnification in lawsuits or claims brought against it based on the person's work and does not properly account for a person's violation of the contractual, bond and insurance coverage obligations and commitments owed to the County when it awards a contract. §2- 347(I)(1)f. needs to be rewritten to achieve a broader, comprehensive and categorical group of acts or omissions to justify suspension of a person's eligibility to submit bids and proposals to the County's solicitation for goods and services. The proposed ordinance and amendments to MCC §2- 347(e)(2); (h)(5); and (1)(1)f is attached with words stricken as deletions and words underlined as additions. §2- 347(1)(1)f is to be entirely replaced as underlined. PREVIOUS RELEVANT BOCC ACTION: N /A. CONTRACT /AGREEMENT CHANGES: N/A STAFF RECOMMENDATION: Approval to hold Public Hearing as requested. DOCUMENTATION: Draft Ordinance amending Sec. 2- 347(e)(2); (h)(5); and replacing (1)(1)f. MCC §2 -347 Competitive bidding procedures FINANCIAL IMPACT: Effective Date: N/A Expiration Date: Total Dollar Value of Contract: Total Cost to County: Current Year Portion: Budgeted: Source of Funds: CPI: Indirect Costs: Estimated Ongoing Costs Not Included in above dollar amounts: Revenue Producing: If yes, amount: Grant: County Match: Insurance Required: Additional Details: N/A REVIEWED BY: Chri s Ambrosi o Completed 07/28/201712 :01 PM Pedro Mercado Completed 07/31/2017 10:31 AM Christine Limbert Completed 07/31/2017 2:05 PM Bob Shillinger Completed 07/31/2017 2:07 PM Budget and Finance Completed 08/01/2017 11:49 AM Kathy Peters Completed 08/01/2017 3:52 PM Board of County Commissioners Pending 08/16/2017 9:00 AM ORDINANCE -2017 AN ORDINANCE OF THE MONROE COUNTY BOARD OF ` COUNTY COMMISSIONERS REVISING SECTION 2- 347(e)(2), 2 2- 347(h)(5) AND REWRITING SECTION 2- 347(1)(1)L OF THE MONROE COUNTY CODE RELATING TO COMPETITIVE BIDDING PROCEDURES; PROVIDING FOR PURCHASES THROUGH AN EXISTING COMPETIVIELY BID CONTRACT OR COOPERATIVE PURCHASING VENTURE AND SEEKING > PRICE QUOTES FROM OTHER VENDORS WHEN DIRECTED; PROVIDING DISCRETION TO THE BOARD WHETHER TO DISQUALIFY A BIDDER/PROPOSER WHEN INFORMATION > AS REQUIRED BY SUBSECTION (h) IS MISREPRESENTED OR OMITTED; PROVIDING ACTS OR OMISSIONS BY PERSONS < FOR THE COUNTY TO SUSPEND ELIGIBILITY TO BID FOR AWARD OF CONTRACTS IN COUNTY PROCUREMENT OF GOODS AND SERVICES; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEAL OF ALL ORDINANCES INCONSISTENT HEREWITH; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Monroe County utilizes a competitive solicitation process for procurement of goods and services and award of contracts under the authority of the Florida Statutes, Monroe County Code of Ordinances ( "MCC ") §2 -347 "Competitive bidding procedures "; Monroe County Purchasing Policy Chapter 3 ( "County Policy "), and Administrative Instruction 44802.4; and WHEREAS, MCC Competitive bidding procedures and County Policy provide an exemption from the competitive solicitation process for purchases of goods or services of $50,000.00 or more when the goods or services are purchased through an existing competitively bid contract or cooperative purchasing venture; and WHEREAS, MCC Competitive bidding procedures §2- 347(e)(2) currently requires the department to first contact other South Florida vendors for price quotes before any purchase is made through an existing competitively bid contract or cooperative purchasing venture; where the proposed revised ordinance provides that such price quotes must be obtained only when directed by the Purchasing Director or County Administrator, rather than as a mandatory prerequisite; and WHEREAS, MCC Competitive bidding procedures §2- 347(h)(5) currently requires automatic disqualification of a bidder /proposer that has misrepresented or omitted information in the proposal that is required by subsection (h); however, County staff favors that the Board of County Commissioners have the discretion to determine whether to disqualify a bidder /proposer in such circumstances; and WHEREAS, MCC §2- 347(b) states that for purposes of §2 -347, the term "person" means individuals, firms, joint ventures, partnerships, corporations, and other entities authorized to do business in the state; and Page 1 of 5 WHEREAS, eligible persons are al lowed to submit bids and proposal s for award of contracts in response to County solicitations for goods and services, and WHEREAS, MCC §2- 347(1) (1)a. -f . codifies certain serious misconduct, acts and omissions committed by pergcng thot j uglify gugpengion of thot person's eligibility to gubmit bidg and prcpcgalg to County solicitations; and WHEREAS, to protect the County and public funds from potential persons that have committed serious misconduct, acts or omissions it is in the public's interest to have a comprehensive codified list of violations and offenses that warrant suspension of a person's eligibility to submit bids and proposals to County solicitations; and WHEREAS, MCC §2- 347(l)(1)f. in its current form does not sufficiently protect the County or account for breach of a person's legal obligations and duties to provide the County a defense and indemnification in lawsuits or claims brought against it based on the person's work; and WHEREAS, MCC §2- 347(l)(1)f. in its current form does not properly account for a person's violation of the contractual, bond and insurance coverage obligations and commitments owed to the County when it awards a contract; and WHEREAS, MCC §2- 347(l)(1)f. in its current form merely states that one of the justifications for suspension of eligibility to bid on County contracts is "[f]ailure to supply or furnish the county warranties required by a contract "; and WHEREAS, MCC §2- 347(l)(1)f. needs to be rewritten to achieve a broader, comprehensive and categorical group of acts or omissions to justify suspension of a person's eligibility to submit bids and proposals to the County's solicitation for goods and services; NOW THEREFORE BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA: SECTION 1: Section 2- 347(e)(2) shall be amended to read as follows: (2) When the goods or services sought are expected to cost $50,000.00 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, 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 if directed by the Purchasing Director or County Administrator, 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 Page 2 of 5 made through the existing contract if none of the other vendors contacted by the department head offered the goods or services at a 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. SECTION 2: Section 2- 347(h)(5) shall be amended to read as follows: (5) Answers to the following 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 L against the person, principal of the entity, or entity, or any entity previously owned, operated CL 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 years, D been a party to any lawsuit, 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 person, 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 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; 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; 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 i. Any financial information requested by the county department involved in the competitive solicitation, 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 responding is responsible. The department requesting competitive solicitations and the county attorney reviewing the competitive solicitations must make sure that all bid solicitations request the information required by subsection (h). Page 3 of 5 The department requesting the competitive solicitations must evaluate the information received, and then prepare a recommendation to the board of county commissioners as to whether the lowest bidder or the 0) highest ranked proposer is responsible in the view of the information received. In evaluating the information received, the requesting department is directed to give particular consideration in preparing their recommendation to the bidder's /proposer's responses to subsection (h)(5)a. -i. of this section. If the department or county attorney have a reasonable belief that any information furnished by a 0 bidder /proposer is false, misleading or omits relevant facts, the department is directed to investigate any 0) lawfully available information resource in order to be able to adequately advise the board as to whether a bidder /proposer is responsible. If after the responses to competitive solicitations are received it is > discovered that a bidder /proposer misrepresented or omitted information required by subsection (h), then < his bid /proposal may be .,,, *„w,atieally 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 CL CL 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. The foregoing must appear in all contracts covered by this article. D SECTION 3: Section 2- 347(1)(1)f. is hereby replaced in its entirety with the following: Failure of the person to comply with any obligation, term, or condition in an existing County contract or to provide a bond, warranty or insurance coverage as required by contract or law, including but not limited to failure of the person to provide the County a defense or indemnification in legal claims and actions pursued against it as required by contract or law. SECTION 4: 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 5: 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 6: 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 , 2017. Mayor George Neugent Mayor Pro Tern David Rice Commissioner Danny Kolhage Commissioner Heather Carruthers Commissioner Sylvia Murphy Page 4 of 5 (SEAL) Attest: KEVIN MADOK, Clerk Deputy Clerk BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA U-2 Mayor Page 5 of 5 Sec. 2 -347. - Competitive bidding procedures. (a) The purposes of this section, requiring that certain county contracts will be let only after competitive bidding, are to: (1) Secure economy in the construction of county public works and in the expenditure of county funds for services, materials, supplies and equipment needed by the county; (2) Protect the taxpayers from collusive contracts, favoritism, fraud, extravagance, and improvidence in the procurement of those things necessary for the operation of county government; and (3) To promote actual, honest and effective competition to the end that each proposal or bid received and considered for the construction of county improvements or the supplying of services, materials and equipment for public use is in competition with all other bids upon the same basis so that county contracts are secured at the lowest cost to the taxpayers. Therefore, this section is to be liberally construed in order to effectuate the ends described in this subsection. (b) For the purposes of this section, the term "person" means individuals, firms, joint ventures, partnerships, corporations, and other entities authorized to do business in the state. (c) If a contract is awarded in violation of this section, the contractor is not entitled to, and may not receive, any payment whether based on the contract price or based on quantum merit for work performed. (d) This section and any contract awarded by the county pursuant to competitive bidding, is subject to the terms and conditions of any state or federal grant that may fund a county contract, or the terms of any applicable federal or state statute or administrative rule. If there is a conflict between a requirement of this section and such grant, statute or rule, the grant, statute or rule is controlling. (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 $50,000.00 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 $50,000.00 comply with the terms of this section. (2) When the goods or services sought are expected to cost $50,000.00 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, 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 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 Page 1 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 offered the goods or services at a 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. (4) 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 or other governmental authority including but not limited to utility /local telephone services as defined in section 2 -346; 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, investigative services, interpreter services, court reporter services, and advertising services; e. Change orders authorized under a lawfully executed county /contractor contract; and f. All solid waste services including but not limited to collection franchise agreements and operations and maintenance agreements. g. All builder's risk insurance policies; or policies which due to the terms and conditions required by the county are exclusive in the market and thus not benefitted by the competitive bidding procedures. Page 2 (f) The competitive solicitations for contracts covered by this section must be made through published notice. (1) The published notice of competitive solicitations 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 notice must state that all responses to competitive solicitations 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 will be opened. (2) The competitive solicitations notices shall comply with any applicable statutes and the requirements of the Monroe County Purchasing Policies and Procedures. (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 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 director who shall be responsible for notifying prospective bidders /proposers of the amendments or addendum. (h) In order to determine if persons or entities submitting responses to competitive solicitations are responsible, all responses to competitive solicitations for contracts to be awarded under this section must contain, at a minimum, the following information: (1) A list of the person's or entity's shareholders with five 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; (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 the following questions regarding claims and suits: Page 3 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 years, been a party to any lawsuit, 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 person, 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 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; 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; 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 Any financial information requested by the county department involved in the competitive solicitation, 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 responding is responsible. The department requesting competitive solicitations and the county attorney reviewing the competitive solicitations must make sure that all bid solicitations request the information required by subsection (h). The department requesting the competitive solicitations must evaluate the information received, and then prepare a recommendation to the board of county commissioners as to whether the lowest bidder or the highest ranked proposer is responsible in the view of the information received. In evaluating the information received, the requesting department is directed to give particular consideration in preparing their recommendation to the Page 4 bidder's /proposer's responses to subsection (h)(5)a. -i. of this section. If the department or county attorney have a reasonable belief that any information furnished by a bidder /proposer is false, misleading or omits relevant facts, the department is directed to investigate any lawfully available information resource in order to be able to adequately advise the board as to whether a bidder /proposer is responsible. If after the responses to competitive solicitations are received, it is discovered that a bidder /proposer misrepresented or omitted information required by subsection (h), then his bid /proposal shall 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. The foregoing must appear in all contracts covered by this article. (i) Each bid to a competitive solicitation for a construction project estimated to be $200,000.00 or more must be accompanied by a good faith bid security in an amount equal to five percent of the bid price by way of a bid bond from a surety insurer authorized to do business in Florida as a surety or any method permitted in F. S. § 255.051, and as amended, pursuant to Monroe County Code section 2- 347(i). If the security is in the form of a check or draft, it shall be made payable to Monroe County BOCC. The county administrator or his designee shall have discretion to require a good faith bid security for construction projects estimated to be less than $200,000.00. A construction project may not be divided into subparts to avoid the requirement of the bid security. Each bid to a competitive solicitation for construction of water system improvements or sewer improvements shall comply with F.S. § 153.10(3) and (4), and as amended. Bid securities may remain in the custody of the county OMB for up to 90 days from the bid opening date or until forfeited or released. The bid security of the successful bidder shall be returned to the bidder after (a) the bidder executes the contract (b) delivers a good and sufficient performance bond, payment bond and required proof of insurance as may be required in the contract documents and (c) commences performance of the contract. If after the board of county commissioners accepts the bid to a competitive solicitation the successful bidder refuses or is unable to execute the contract, to provide the required contract bonds or proof of insurance, or commence performance, then the bid security will be forfeited to, and become the property of, the county as liquated damages for the county's loss of bargain. The bid security of unsuccessful bidders may be returned to the bidder when the award of bid is made and the successful bidder executes the contract, or if all bids have been rejected. Bid securities in the county's possession for more than 90 days from the bid opening date shall be returned to unsuccessful bidders. Bidders may withdraw their bid and request, in writing, an earlier return of their bid security under the conditions set forth below in subpart (1); however, this action removes the bidder from further consideration should the lower bidders decline the award or withdraw their bids. Page 5 (1) A I I bids are irrevocable for 90 days from the bid opening date. If a bidder discovers an error i n hi s bi d, he may wi thdraw the bi d and request a ref and of the bi d securi ty i f the bid has not yet been accepted by the board of county commissioners. The security may be returned only if the bidder can show, to the satisfaction of the county OM B director, the folIowing equitablefactors 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 bi d woul d cause a severe hardshi p upon the bi dder; and c. The error was not a resul t of gross negl i gence or wi I I f ul i nattenti on. (2) All bids must be sealed and submitted to the purchasing director before the time descri bed i n the publ i shed noti ce f or the bi d openi ng. A I I bi ds must be opened at the ti me and pl ace descri bed i n the publ i shed noti ce. A ny bi d subm i tted after that ti me shad I not be consi dered i n the competi ti ve sel ecti on process. (3) 1 n 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 fol l owing meaning: 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 automatically create a nonconforming bid. However, any variation that destroys the competitive character of the bi ddi ng process, causes or confers a mated a1 change more favorabl a to one bi dder than the others, or f urni shes one bi dder an advantage or benef i t not enj oyed by the other bidders is a substantial variation and results in a nonconforming bid. (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, 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. Page 6 (j) 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. (1) 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. (2) Once the board of county commissioners has determined which response shall be awarded the contract, the board may vote to accept that 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 proposer 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 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, re- advertise for competitive solicitations, or to abandon any project, purchase of goods, or request for competitive solicitations. A contract is not entered into until the board of county commissioners votes to accept a proposal 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 a prospective contractor, the county is not liable or obligated to pay the prospective contractor any money until the proposal has been accepted by the board of county commissioners. (k) The board of county commissioners may dispense with the bidding provisions of this section and contract directly for services, goods or public works in the case of an emergency. (1) For the purposes of this section, the term "emergency" means: a. An immediate danger to the public health or safety; b. A danger of loss of public or private property that requires immediate government action; c. An interruption in the delivery of an essential governmental service; or d. A substantial risk that a funding source of a contract will be diminished or lost because the time required to competitively award bids after the funds become available exceeds the time within which the funding source must be spent. (2) The mayor, or in his absence, the mayor pro tem, may waive the provisions of this section in an emergency following a natural or manmade disaster. Such a waiver continues until the first meeting of the board of county commissioners following the Page 7 disaster. At that meeting the board may elect to extend the waiver if the emergency so requires. (3) Nothing in this section may be construed to prohibit the mayor, mayor pro tem or other county officer from directly contracting for goods and services on behalf of the county during an emergency following a natural or manmade disaster when permitted by statute or the terms of a state or local emergency declaration. (1) The procedures provided for in this subsection are cumulative to those set forth in subsections (a)—(k) of this section and the county purchasing policies. They do not supersede the authority or ability of the county to determine the qualifications and bid responsiveness of any prospective contractor on a bid -by -bid or contract -by- contract basis. (1) The eligibility of persons to bid for the award of county contracts may be suspended on account of any of the following acts or omissions by the person, an executive officer of the person, or a principal or director of the person: a. Conviction for commission of a criminal offense as an incident to obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract; b. Conviction, under any state or federal statute, of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, or any other offense indicating a lack of business integrity or business honesty that currently, seriously, and directly affects the person's responsibility as a county contractor; c. Conviction under any state or federal antitrust statute arising out of the submission of a bid or proposal; d. Violation of contract, as set forth below, of a character that is regarded by the administrative officer to be so serious as to justify suspension: 1. Failure without good cause to perform in accordance with the specifications or within the time limit provided in the contract; or 2. A record of failure to perform or of unsatisfactory performance in accordance with the terms of one or more contacts; provided that failure to perform or unsatisfactory performance caused by acts beyond the control of the contractor is not a basis for suspension; e. A history of producing work that is shoddy or otherwise contains substandard workmanship; f. Failure to supply or furnish the county warranties required by a contract; and g. Any other cause determined to be so serious and compelling as to affect responsibility as a county contractor, including a suspension by another governmental entity for any cause similar to those listed in subsections (1)(1)a.f. of this section or a history of defaulting on payments to suppliers or subcontractors. (2) The county OMB director or, in the case of building contractors, the county engineer (collectively the administrative officer), may suspend a person's eligibility to be Page 8 awarded a county contract after determi ni ng that one or more of the acts or omi ssi ons listed i n subsections (1)(1)a.g. of this section occurred. (3) If the administrative officer decides to suspend a person's e l i g i b i l i t y for the award of county contracts, the officer must reduce his decision to writing, state in detail the reason for the suspension, and furnish a copy of his decision to the person affected, either by hand delivery, special delivery return receipt requested, or by a private delivery service. The suspension is effective when received by the person affected and will remain in effect until vacated or modified by the vendor committee or a court of competent jurisdiction. However, the filing of a request for hearing de novo under subsection (1)(4) of this section will stay the suspension until the vendor committee affirms or modifies the administrative officer's decision. (4) The person suspended by the administrative officer may request a hearing de novo by filing a request for a hearing with the county administrator's office within ten days after his receipt of the administrative officer's suspension. The county administrator must schedule a hearing before the vendor committee within 21 days of the county administrator's receipt of the request. The vendor committee consists of. the county administrator, a county commissioner appointed by the board of county commissioners; the county attorney; another employee selected by the county administrator whose department has infrequent or no business dealings with the suspended person; and, if the person was suspended by the OMB director, the county engineer; if the person was suspended by the county engineer, the OMB director. All vendor committee hearings are public hearings (meetings) under F.S. § 286.011. Published notice of a vendor committee hearing must be five days or more in advance of such hearing, excluding the date of publication and the date of the hearing. The hearing must be informally conducted. At the hearing, the suspended person and the administrative officer may offer such evidence as each deems necessary to support each party's respective position, although the vendor committee may exclude immaterial, irrelevant or repetitious evidence. All other evidence of a type commonly relied on by reasonably prudent persons in the conduct of their affairs may be entertained. The vendor committee must, in writing, affirm, vacate, or modify the administrative officer's suspension within ten days after the conclusion of the hearing. The vendor committee's decision is the final administrative action of the county. (5) Suspensions ordered under this section must be for a minimum of six months, but shall not exceed three years. The length of the suspension should be determined based on the number of acts or omissions detailed in subsections (1)(1)a.g. of this section that were found to be committed by the person suspended as well as the severity of those acts or omissions. (6) When the person suspended is a business entity other than an individual, a suspension will apply to a successor entity in the same or similar business. For the purposes of this subsection, the term "successor entity" means any business entity that: a. Purchases the stock of a suspended corporation or entity; b. Has stock that was exchanged for the debt of the suspended entity; Page 9 c. Has substantially the same principals, members, shareholders, officers or directors as the suspended entity; or d. Has substantially the same individuals who were the principals, members, shareholders, officers or directors of the suspended entity as creditors. (7) When the suspended person is a business entity or partnership that, in order to lawfully conduct business, must be qualified by a state certified or registered contractor, or by an individual holding a professional license issued by the state department of business regulation, and the qualifier is also a shareholder, officer, director, partner or creditor of the suspended entity or partnership, then any suspension extends to a subsequent entity or partnership with the same individual as the qualifier, if that individual is a principal, member, shareholder, officer, director, partner, or creditor of the subsequent entity or partnership. (8) When any corporation, partnership, or sole proprietorship is suspended due to operations or activities of an officer, director, partner or employee who qualifies the business through the issuance of a state or county certificate of competency for contractors, or the issuance of a professional license by the state department of business professional regulation, the suspension will extend to any other business of which the same individual is the sole qualifier. (9) A person suspended under this section may not be a sub - subcontractor or subcontractor on any county project. The county OMB director must maintain a list of suspended persons and make that list available to all prospective bidders in order to ensure that a suspended person is not employed as a subcontractor or sub - subcontractor on a county project. A bid is automatically nonconforming if it lists a suspended person as a subcontractor or sub - subcontractor. After the contract is awarded, the employment of a suspended person is a material breach of the county /contractor contract and entities the county, in its discretion, to terminate the contract with no further liability to the contractor beyond payment of the portion of the contract price that may be due for work satisfactorily completed up to the date of termination. A sentence similar to the preceding must appear in all county contracts where the use of subcontractors or sub - subcontractors is contemplated, expected or authorized. (m) The county administrator is authorized to prescribe administrative instructions to implement this section but no such instruction may contradict a substantive or procedural provision. (Code 1979, § 2 -541; Ord. No. 32 -1998, §§ 114; Ord. No. 19 -1999, §§ 13; Ord. No. 31- 2000, §§ 1, 2; Ord. No. 012 -2004, § l; Ord. No. 006 -2012, �§ 2-7 ; Ord. No. 035 -2013, § 1 ; Ord. No. 015 -2015 , § l; Ord. No. 025 -2015 , § 3; Ord. No. 020 -2015 , § l; Ord. No. 001 -2017 , § 2) Page 10