A. Generally: This section provides guidance regarding subsections 3.24.070A through E of the City Code. Actions taken under those subsections or this section shall be taken or reviewed by a procurement official. The Procurement Code and Rules shall be construed broadly to allow the City and its procurement officials to take any procurement related action that complies with law and is in the City's interest.
B. Rejecting Party To An Adversarial Proceeding: It is normally not in the City's interest to enter into a contract involving a person who is in an adversarial legal position toward the City because adversarial positions usually impede communications, good will and the progress of the work. A Procurement Official may reject a bid, proposal or other submission that involves such a person when the official determines, in the official's sole discretion, that it is in the City's interest to do so. The procurement official will consider the following:
1. Process Or Proceeding: The procurement official shall determine whether there is a present, pending or threatened litigation, administrative hearing, dispute resolution process or other similar process or proceeding in which the person in question is adversarial toward the City. "Pending or threatened" means matters which the person in question has indicated will result in such a process or proceeding, or which a procurement official reasonably believes will result in such a process or proceeding.
2. Action: If a person is adversarial toward the City in a present, pending or threatened process or proceeding, the procurement official may reject that person's bid, proposal or other offer or submission. If the person in question is a subcontractor, supplier or other third party, the procurement official may reject the bid, proposal or other offer or submission involving that person, or may require that the bidder or offeror replace that person at no additional charge, or may take other appropriate action to protect the City's interest.
3. Decision: The procurement official has sole discretion to determine whether to accept, reject or impose special requirements on a bid, proposal or other offer or submission that involves a person who is adversarial toward the City. The official may consider any factors relevant to the decision, such as whether the adversarial process or proceeding is material to the procurement in question, whether the adversarial positions will impact any working relationships, or whether any legal conflicts can be waived. The official shall place the written determination and basis for decision in the procurement file.
C. Rejection As Nonresponsive Or Nonresponsible: The City shall reject a bid, proposal or other offer or submission that is nonresponsive, or where the bidder or offeror is nonresponsible. Determinations shall be made in accordance with subsections 53-1A-9C and D of this article, and subsection 3.24.110A3 of the City Code. A procurement official shall review such a determination. The written determination and basis for decision shall be placed in the procurement file.
D. Notification Of Potential Nonresponsibility: A procurement official may notify any person in advance of submitting a bid, proposal or other offer or submission of matters indicating potential nonresponsibility. The procurement official has sole discretion to determine whether to send such a notice, and has no obligation to do so. The lack of such a notice shall not in any way impact or impair a subsequent evaluation or determination relating to responsibility. If the procurement official sends such a notice, it shall be sent as follows:
1. Notice: The procurement official shall send the notice at least five (5) business days before the time for submitting bids, proposals or offers. The notice shall set forth matters which the procurement official reasonably believes to be accurate, and which, if accurate, could render a bidder or offeror nonresponsible under subsection 53-1A-9D of this article. The notice shall also summarize the recipient's responsibilities as set forth below.
2. Recipient's Responsibilities: Upon receipt of notice, the recipient must demonstrate to the City's satisfaction that the matters in the notice are not accurate, or would not result in a determination of nonresponsibility. Such demonstration must be made no later than two (2) business days before the time for submitting bids, proposals or offers. If a recipient fails to make a timely response, the City may reject any bid, proposal or offer from that person.
3. Determination: Upon considering a recipient's response, the procurement official may determine to reject any bid, proposal or offer, or may determine to postpone any further inquiry, action, or determination on responsibility until after the submission of bids, proposals or offers. Copies of the notice of potential nonresponsibility, the response, and any determination shall be placed in the procurement file.
E. Rejecting All Or Parts Of All Submissions: A procurement official may determine to reject all, or parts of all, bids, proposals or other offers or submissions. The written determination and basis for decision shall be placed in the procurement file. Without limitation, any of the following factors may constitute a basis for the decision:
1. All or parts of all submissions do not adequately address the City's specifications, performance requirements or other needs.
2. The City changes its plans and determines that all or parts of all submissions are no longer necessary.
3. The City determines that it may correct a deficiency in a procurement process by rejecting all or parts of all submissions.
4. The City determines that rejecting all or parts of all submissions is in the best interests of the City.
F. Waiving Or Modifying Solicitation Requirements: In appropriate circumstances, a procurement official may determine to waive or modify the solicitation requirements of a particular bid process, proposal process or other solicitation process. The written determination and basis for decision shall be placed in the procurement file. The procurement official shall, at a minimum, consider the following when making such a determination:
1. Whether making or failing to make the waiver or modification will give any person a material competitive advantage.
2. Whether making or failing to make a waiver or modification will lead to inequitable treatment.
3. How making or failing to make a waiver or modification will impact the City's interests.
4. Whether any waiver or modification is of a ministerial nature. Section 53-1A-9 of this article gives further guidance when making waivers or modifications of this nature.
5. Whether it is advisable to consult with the City Attorney's Office.
G. Fees And Deposits: Any procurement unit may impose reasonable fees or require forfeitable deposits to cover the costs of materials or services used in procurement processes. (2019 Compilation)