§ 37.044  SEALED BIDS.
   (A)   Advertising.
      (1)   All sealed bids shall be advertised not less than seven (7), nor more than twenty-one (21) days prior to the date set for the opening of bids.
      (2)   The date the advertisement appears shall not be counted as advertising time.
      (3)    Advertisements shall be entered in the legal notices section of the newspaper with the largest circulation within the jurisdiction area of the city or published/posted on the city’s website.
      (4)   The advertisement for bids may be placed in other publications when, in the judgment of the City Manager, such advertisement would best secure the interests of the city.
      (5)   Federal requirements are that proposals are solicited from an adequate number of qualified sources and RFPs are publicized.
      (6)   If it is determined during the advertising period that additional time should be allowed for the preparation of bids, the bid opening date may be extended by:
         (a)   Placing a legal notice, specifying the revised bid date in the local newspaper with the largest circulation.  The revised bid opening date shall be not less than seven nor more than twenty-one (21) days after the appearance of the legal notice; or
         (b)   Issuing an addendum to the invitation for bids.  Such an addendum shall be in writing, must be mailed or delivered to all holders of the invitation for bids, and must be acknowledged on the form of proposal by each bidder submitting a bid.
      (7)   Extensions of bid opening date may be permitted when:
         (a)   Changes are made in specifications after advertisement;
         (b)   One or more bidders notify the City Manager of discrepancies, errors, or areas requiring clarification in the specifications;
         (c)   Specifications require design work on the part of the bidders, and when unforeseen conditions make completion of bid preparation prior to the bid deadline impossible;
         (d)   Strikes, disasters, or other uncontrollable factors prevent bidders from acquiring information necessary for bid preparation; or
         (e)   Other reasons as may be determined by the City Manager.
      (8)   An invitation for bids may be rescinded when:
         (a)   Conditions leading to issuance of an invitation for bids change sufficiently to make the proposed purchase unnecessary;
         (b)   Funds for the proposed purchase become unavailable; or
         (c)   It becomes apparent that no bids will be received because:
            1.   The item or service requested is currently unavailable;
            2.   The bid price will apparently exceed available funds; or
            3.   Major revisions in the specifications are necessary to ensure that responsive and responsible bids are received.
   (B)   Specifications, standard specifications, and maximum practicable competition.
      (1)    All specifications used in the procurement process shall be designed to provide the maximum practicable competition consistent with the level of quality required.  All specifications shall be in a standard format established by the City Manager. Specifications shall be as open and accurate as conditions permit.  Any restrictive element shall require written justification by the using agency.  The appropriate type of specification, as described below, shall be used for each purchase.
         (a)   Design specifications prescribe how an item is to be manufactured or built.  This type of specification is particularly suitable for construction projects.
         (b)   Performance specifications describe the capabilities of the item to be purchased.  Criteria are developed to measure the ability of the item to be purchased to perform or last.
         (c)   A combination of design and performance specifications may be used when appropriate.
         (d)   Brand name or equivalent specifications may be used only when other types of specifications are inappropriate or unavailable.  If brand name or equivalent specifications are used, the specification must specify more than one brand name if possible; specifically state that an equivalent product may be supplied, with the burden of proof of equivalency being on the proposing vendor; and must set forth all salient criteria to be met by all products proposed.
      (2)   The City Manager may, when appropriate for the anticipated procurement, establish a qualified products list and may use this list in place of detailed specifications.
         (a)   The City Manager shall establish the criteria to be met by any product proposed for inclusion on a qualified products list and shall make those criteria available to the public and to interested vendors.
         (b)   A bidder may, in response to an invitation for bids issued on the basis of a qualified products  list,  propose  to  furnish  a  product  not included on the qualified products list if he demonstrates, prior to the award of the contract and to the satisfaction of the City Manager, that the product proposed meets all criteria established for inclusion on the qualified products list.
   (C)   Use of forms.  All bids shall be submitted on forms provided by the city.  Bids submitted on other forms may be rejected as nonresponsive.  Bid forms shall not be altered in any manner.  If there are acceptable exceptions, they shall be listed and noted on a separate sheet and shall be attached to the bid form.  Each exception noted shall state the increase or decrease in the total cost of the commodity or service to be furnished.
   (D)   Use of bid price or evaluated bid price.  A bid shall be awarded to the responsible bidder who submits the responsive bid for the lowest bid price or lowest evaluated bid price.
      (1)   If the bid is to be awarded on the basis of lowest bid price, the method of award shall be clearly stated in the invitation for bids.
      (2)   If the bid is to be awarded on the basis of lowest evaluated bid price, the evaluation criteria to be used, along with applicable formulas or computation methods, shall be clearly stated in the invitation for bids.
   (E)   Withdrawal of bids. No bid, once submitted, may be withdrawn before the time allowed for acceptance stated in the invitation for bids has elapsed unless the following circumstances occur.  Any bid withdrawal, except under the following circumstances, shall require forfeiture of bid security.
      (1)   Bids have not been opened and a written request is received from a bidder for withdrawal of his bid more than twenty-four (24) hours before the date and time set for opening.
      (2)   An error has been made that is obvious on the face of the bid (for example, an error in extensions, arithmetical errors and the like).
      (3)   The    bidder  can  demonstrate  from worksheets or other documents that an error has been made in preparation of the bid documents.
      (4)   Request for withdrawal of a bid is made in writing to the City Manager clearly stating the reason for the request for withdrawal.
   (F)   Waiver of requirements.  The City Manager may waive any informalities and may establish conditions under which any incomplete bids may be considered if it is determined that the waiver is in the best interests of the city.
   (G)   Opening time for bids.
      (1)   An opening time for each bid shall be stated in the advertisement and invitations for bids.
      (2)   The time set for receipt of bids shall be established by a clock in the office of the City Clerk.  It shall be the bidder's responsibility to assure that his bid is in the office before the time set for receipt of bids.
      (3)   The City Manager shall, at the time set for opening bids, publicly open all bids submitted.  If the structure of the invitation for bids permits, all bids submitted shall be read aloud.
      (4)   Bids shall not be examined, inspected or reviewed by persons present at the opening until all bids have been opened.
      (5)   The City Manager shall, with reasonable promptness, prepare a tabulation of all bids received in response to an invitation for bids.  The tabulation shall be made available to the public upon reasonable request.
   (H)   Evaluation and awards.
      (1)   After the bids are opened, the City Manager shall review all bids for compliance with specifications, terms and conditions.
      (2)   The City Manager shall forward copies of all bids received to the head of the using department.  The head of the using department shall submit  his  recommendation for acceptance of a bid or bids to the City Manager.
      (3)   Every bidder, when requested by the City Manager, shall clarify or explain in writing any matter contained in his bid which the City Manager determines needs clarification or explanation.  The bid of any bidder who fails to provide this written clarification or explanation of his bid when the clarification or explanation is requested shall not be considered for award.  The written clarification or explanation of a bid shall be incorporated in and become part of any contract awarded on the basis of that bid.
      (4)   Alternate bids will be considered for award only if the invitation of bids specifically requests that alternates be submitted and establishes conditions under which alternate bids will be considered for award.
      (5)   After a reasonable evaluation, a contract shall be awarded to the responsive and responsible bidder whose bid (or alternate bid, if alternates are requested in the invitation for bids) is either the lowest bid price or the lowest evaluated bid price, as designated in the invitation for bids as the basis for award of the contract.
      (6)   If the City Manager determines, in writing, that no satisfactory bid has been received, all bids may be rejected and new bids may be invited on the basis of the same or revised specifications, or competitive negotiations may be undertaken for the procurement.  The basis for rejection of all bids and subsequent action taken with respect to the invitation for bids shall be recorded in writing and filed in the bid file relating to the particular procurement.  The city reserves the right to hold all bids for a period of thirty (30) days.
      (7)   Federal regulations state that unreasonable experience requirements are found to be restrictive of competition.
      (8)   Federal regulations require that:
         (a)   All evaluation factors are identified along with their relative importance.
         (b)   Grantees have a method in place for conducting technical evaluations of the proposals received.
      (9)   Federal regulations indicate that adequate competition exists when two or more responsible bidders are willing and able to compete effectively for the business.
      (10)   Federal regulations indicate that the procurement lends itself to a firm fixed price contract and the selection of a successful bidder can be made principally on the basis of price.
      (11)   Federal regulations require that the option quantities or periods contained in the
contractor’s bid or offer are evaluated to determine contract award. When options have not been evaluated as part of the award, the exercise of such options will be considered a sole source procurement.
      (12)   Federal regulations require that the awards be made to the firm whose proposal is most advantageous to the grantee’s program with price and other factors considered-Grantees may award to the proposer whose proposals offer the greatest business value to the Agency based upon an analysis of a tradeoff of qualitative technical factors and price / cost to derive which proposal represents the “best value”. “Best value’ language must be in the solicitation.
      (13)   Federal procurement indicates that  the sealed bid method of procurement is appropriate when no discussion with bidders is needed.
   (I)   Rejection of bids.  The City Manager reserves the right to reject any and all bids and to waive informalities and minor irregularities in the bids.  Grounds for rejection include, but shall not be limited to the following:
      (1)   Failure of a bid to conform to the essential requirements of an invitation for bids.
      (2)   Failure to conform to specifications contained in or referred to in any invitation for bids unless the invitation authorized submission of alternate bids and the alternate proposal meets the requirements specified in the invitation for bids.
      (3)   Failure to conform to a delivery schedule established in the invitation for bids.
      (4)   Imposition of conditions which would modify the terms and conditions of the invitation for bids, or which would limit the bidder's liability to the city under terms of the contract awarded on the basis of the invitation for bids.
      (5)   Failure of a bid to be reasonable in price.
      (6)   Failure of a bid to be responsible.
      (7)   Failure to furnish a bid guarantee when the guarantee is required by an invitation for bids.
   (J)   Bid conditions.
      (1)   The City Manager shall adopt and revise general conditions for bidding.  The general conditions for bidding shall be applicable to, included in or incorporated by reference in all invitations for bids issued by the city.
      (2)   The City Manager may, as required by a particular procurement, develop and adopt special bid conditions supplemental to the general bid conditions.
      (3)   Any bidder who submits a bid in response to an invitation for bids shall be deemed to have agreed to comply with all terms, conditions and specifications of the invitation for bids.
      (4)   Where, after invitation for bids has been made in accordance with KRS 45A.365 and no bids have been received from responsive and responsible bidders, the city may proceed to acquire the supplies, services or construction by noncom-petitive negotiation in accordance with KRS 45A.380.
   (K)   Contract pricing.  The following matters shall be applicable to all invitations for bids issued, bids submitted and contracts awarded for the purchase of commodities, supplies and equipment pursuant to KRS 45A.365 and this regulation.
      (1)   Discounts shall not be considered unless stated in the invitation for bids.
      (2)   In case of discrepancy in the extension of a price, the unit price shall govern over the total price for all items.
      (3)   An award may be made to the lowest responsible aggregate bidder for all items, groups of items or on an individual item basis, whichever is deemed to be in the best interest of the city.  The methods and basis of evaluation of bids and award of contracts shall be stated in the invitation for bids.
(‘83 Code, § 36.49)  (Ord. 52-1979, passed 12-6-79; Am. Ord. 104-1980, passed 10-16-80; Am. Ord. 101-1982, passed 10-21-82; Am. Ord. 61-2019, passed 4-25-19; Am. Ord. 8-2019, passed 6-13-19)
Statutory reference:
   Competitive sealed bidding, see KRS 45A.365