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§ 24.106 NONCOMPETITIVE NEGOTIATIONS
   (A)   Noncompetitive negotiation may be used only when written determination is made that competition is not feasible and it is further determined in writing by the city that any of the following conditions exist:
      (1)   An emergency exists which will cause public harm as a result of the delay in competitive procedure.
      (2)   There is a single source within a reasonable geographical area of the product or service to be procured.
      (3)   The contract is for the services of a licensed professional, such as an attorney, physician, psychiatrist, psychologist, certified public accountant, registered nurse, or educational specialist; a technician such as a plumber, electrician, carpenter, or mechanic; or an artist such as a sculptor, aesthetic painter, or musician. However, this provision shall not apply to architects or engineers providing construction management services rather than professional architect or engineer services.
      (4)   The contract is for the purchase of perishable items purchased on a weekly or more frequent basis, such as fresh fruits, vegetables, fish, or meat.
      (5)   The contract is for replacement parts where the need cannot be reasonably anticipated and stockpiling is not feasible.
      (6)   The contract is for proprietary items for resale.
      (7)   In school districts the contract relates to an enterprise in which the buying or selling by students is a part of the educational experience.
      (8)   The contract or purchase is for expenditures made on authorized trips outside of the boundaries of the city.
      (9)   The contract is for the purchase of supplies which are sold at public auction or by receiving sealed bids.
      (10)   The contract is for group life insurance, group health and accident insurance, group professional liability insurance, worker's compensation, and unemployment insurance.
      (11)   The contract is for a sale of supplies at reduced prices that will afford a purchase at savings to the city.
      (12)   The contract is with a private real estate developer and contains a requirement:
         (a)   That the developer increase the size or otherwise improve the collection capacity of the sanitary sewer or storm water pipe serving the affected private real estate development; and
         (b)   That the city pay only the proportional cost of increasing the size, or otherwise improving the collection capacity of the sanitary sewer or storm water pipe over the original collection capacity.
   (B)   Noncompetitive bidding may also be used when the goods or services are in any of the following categories:
      (1)   Services or goods actually required during an emergency.
      (2)   Services provided by a public utility or pursuant to a franchise awarded according to law.
      (3)   Goods, services, equipment, publications, subscriptions, memberships, instructional materials, and works of art available from a single source.
      (4)   Special supplies or equipment required for laboratory or experimental studies.
      (5)   Services from non-profit agencies who provide the services for the benefit of the citizens of the city.
      (6)   Real property or interest in real property.
(1986 Code) (Am. Ord. 2019-11-21(A), passed 11-21-19)
                         
Statutory reference:
   Noncompetitive negotiations, see KRS 45A.380
§ 24.107 SMALL PURCHASE PROCEDURES
   (A)   The city shall determine the need for any item requested and whether or not the contract is for less than the amount in KRS 45A.385, in which case the city may use small purchase procedures and shall not be required to adhere to the purchasing requirements of this Chapter 24. Any city procurement which shall exceed that amount shall comply with the requirements of this Chapter 24. Procurement requirements shall not be parceled, split, divided, or purchased over a period of time in order to meet the dollar limitations for small purchases. The city shall maintain records of all small purchases.
   (B)   Small purchase procedures shall follow the outlined regulations as established by the city from time to time.
(1986 Code) (Am. Ord. 2006-08-10(A), passed 8-10-06)
                         
Statutory reference:
   Authority to institute small purchase procedures, see KRS 45A.385
§ 24.108 MULTIPLE AND PARTIAL CONTRACTS
   (A)   Multiple contracts. Multiple contracts may be awarded on the basis of a single invitation for bids or after competitive negotiations when it is determined in writing by the city, in advance of the invitation for bids or the advertisement and solicitation for proposals for competitive negotiations, that the award of multiple contracts is in the best interest of the city, provided its needs are met at a reasonable cost. A determination and notice to potential offerors that multiple contracts may be awarded for any procurement shall not preclude the award of a single contract for the procurement.
   (B)   Partial contracts. When it is determined after evaluation of competitive bids or the close of competitive negotiations, that acceptable bids or offers have been received for only parts of the requirements of the procurement, the following may occur:
      (1)   A contract may be awarded for the parts of the procurement for which acceptable bids or offers have been received.
      (2)   All bids or offers may be rejected and a new invitation for bids or request for proposals based on the same or revised terms, conditions, and specifications may be issued.
      (3)   All bids found unacceptable for parts of the procurement may be rejected and an invitation for bids or request for proposals, based on the same or revised terms, conditions, and specifications for the parts of the procurement for which no acceptable bids were received may be issued.
(1986 Code)
§ 24.109 SURETIES AND BONDS; SUBMISSION OF COST OR PRICING DATA; INSPECTION OF CONTRACTOR'S RECORDS AND PLACE OF BUSINESS
   (A)   Sureties and bonds.
      (1)   Bid bonds.
         (a)   Bidder security shall be required for all competitive sealed bidding for construction contracts when the price is estimated by the city to exceed $100,000. Bidder's security shall be a bond provided by a surety company authorized to do business in this state, or the equivalent in cash, in a form satisfactory to the city. Nothing herein prevents the requirement of such bonds on construction contracts under $100,000 when the circumstances warrant.
         (b)   Bidder's security shall be in an amount equal to at least five percent (5%) of the amount of the bid.
         (c)   When the invitation for bids requires that bidder security be provided, noncompliance requires that the bid be rejected. However, the city may set forth by regulation exceptions to this requirement in the event of substantial compliance.
         (d)   After the bids are opened, they shall be irrevocable for the period specified in the invitation for bids. However, if a bidder is permitted to withdraw his bid before award because of a mistake in the bid as allowed by § 24.104(E), no action shall be had against the bidder or the bidder's security.
(KRS 45A.430)
      (2)   Contract performance and payment bonds.
         (a)   When a construction contract is awarded in an amount in excess of $100,000, the following bonds shall be furnished to the city, and shall become binding on the parties upon the award of the contract:
            1.   A performance bond satisfactory to the city executed by a surety company authorized to do business in this state, or otherwise supplied, satisfactory to the city, in an amount equal to one hundred percent (100%) of the contract price as it may be increased; and
            2.   A payment bond satisfactory to the city, executed by a surety company authorized to do business in this state, or otherwise supplied, satisfactory to the city, for the protection of all persons supplying labor and material to the contractor or his subcontractors for the performance of the work provided for in the contract. The bond shall be in an amount equal to one hundred percent (100%) of the original contract price.
         (b)   Nothing in this division shall be construed to limit the authority of the city to require a performance bond or other security in addition to those bonds, or in circumstances other than as specified in division (2)(a) above, including, but not limited to bonds for the payment of taxes and unemployment insurance premiums.
(KRS 45A.435)
      (3)   Bond forms, filings, and copies.
         (a)   The city may promulgate by regulation the form of the bonds required by divisions (A)(1) and (2) above, or it may adopt the form established by the state under KRS 45A.175 to 45A.205.
         (b)   The city shall furnish a certified copy of a bond to any person who requests such and pays the reasonable fee for such copy. The copy shall be prima facie evidence of the contents, execution, and delivery of the original.
(KRS 45A.440)
   (B)   Cost or pricing data.
      (1)   A contractor shall submit cost or pricing data and shall certify that, to the best of his knowledge and belief, the cost or pricing data submitted was accurate, complete, and current as of a mutually determined specified date prior to the date of:
         (a)   Pricing of any negotiated contract where the total contract price is expected to exceed $50,000, or such lesser amount as may be prescribed by the city; or
         (b)   Pricing of any change order or contract modification which is expected to exceed $25,000, or such lesser amount as may be prescribed by the city.
      (2)   Any contract, change, or modification thereto under which a certificate is required shall contain a provision that the price to the city, including profit or fee, shall be adjusted to exclude any significant sums by which the city finds that such price was increased because the contractor-furnished cost or pricing data which, as of the date agreed upon between the parties, was inaccurate, incomplete, or not current.
      (3)   The requirement of this division need not be applied to contracts where the price negotiated is based on adequate price competition, established catalogue or market prices of commercial items sold in substantial quantities to the general public, prices set by law or regulation, or in exceptional cases where it is determined in writing that the requirements of this division may be waived, and the reasons for such waiver are enumerated in the determination.
(KRS 45A.405)
   (C)   Inspection of contractor's place of business; audit of records.
      (1)   The city may inspect the plant or place of business of a contractor or any subcontractor under any contract awarded or to be awarded by the city.
      (2)   The city may audit the books and records of any person who has submitted cost or pricing data under division (B) above, at any time until the period of record retention as set forth in division (3) below has expired. The right to audit hereunder shall only extend to those books and records reasonably connected with cost or pricing data submitted under § 24.117 and such books and records shall be maintained by the contractor or subcontractor for the period specified in division (3) below.
      (3)   The city shall be entitled to audit the books and records of a contractor or any subcontractor under any negotiated contract or subcontract other than a firm fixed-price type contract; however, this shall not limit the right to audit as set forth in division (C)(2) above. Such books and records shall be maintained by the contractor for a period of five (5) years from the date of final payment under the prime contract and by the subcontractor for a period of five (5) years from the date of final payment under the subcontract.
(KRS 45A.410) (Am. Ord. 2019-11-21(A), passed 11-21-19)
§ 24.110 CONTRACT AWARDS NOT TO EXCEED APPROPRIATIONS
   (A)   No contract shall be awarded for an amount which exceeds the sum budgeted and appropriated for the procurement by the legislative body of the city. The city shall not award a contract for any procurement when the contract price would exceed the funds appropriated for the procurement by the legislative body.
   (B)   If all bids received in response to an invitation for bids exceed the amount appropriated for the procurement and sufficient additional funds are not authorized to permit an award to the lowest responsive and responsible bidder, the city shall proceed with competitive negotiations in accordance with KRS 45A.375.
(1986 Code)
§ 24.111 FINAL PROCUREMENT DECISIONS TO BE IN WRITING
   As required by KRS 45A.355, every determination by an employee or official of the city engaged in or responsible for the performance of any procurement activity or function and constituting a final procurement action, or which is required by KRS Chapter 45A or the provisions of this chapter, shall be made in writing. Each determination shall be based on written findings that support the determination and shall be signed by the employee making the determination.
(1986 Code)
§ 24.112 CONTRACT MODIFICATION, TERMINATION
   (A)   The city shall be authorized to provide, by appropriate clauses to contracts for supplies or services of all types, for changes and modifications to the contracts and providing for the method or methods of calculating the costs of any decrease, increase, or other change in the contract price resulting from the changes or modifications. The following provisions shall apply to any changes:
      (1)   In contracts for the purchase of fixed amounts of commodities, supplies, and equipment, increases in quantities in excess of ten percent (10%) of the original quantity fixed by contract shall not be permitted unless the invitation for bids or requests for proposals for competitive negotiation informed prospective bidders or offerors that an increase in quantities might be forthcoming.
      (2)   Increases in unit price shall not be permitted in contracts for increased quantities, except as provided by a price escalation formula authorized by the invitation for bids or requests for proposals for competitive negotiations.
      (3)   All changes or modifications to contracts for the purchase of commodities, supplies, equipment, and construction services shall be effected by an advice of change order to the contract which shall be supported by a written determination documenting the reason and basis for the change or modification to the contract.
      (4)   A copy of the advice of change in order and the supporting documentation relative to any change or modification to a contract shall be filed and maintained in the contract file.
   (B)   Every contractor to whom a contract containing clauses authorizing changes or modifications to the contract shall be deemed by acceptance of the contract to have agreed to the changes or modifications of the contract as provided herein.
   (C)   Any contractor who is determined in writing by the city to be in breach of any of the terms and conditions of a contract may, in the discretion of the city, be declared in default and the contract may be terminated for any of the following reasons:
      (1)   Failure to perform the contract according to its terms, conditions, and specifications.
      (2)   Failure to make delivery within the time specified or according to a delivery schedule fixed by the contract.
      (3)   Late payment or nonpayment of bills for labor, materials, supplies, or equipment furnished in connection with a contract for construction services as evidenced by a mechanic's lien filed pursuant to the provisions of KRS Chapter 376, or letter of indebtedness received from creditors.
      (4)   Failure to diligently prosecute the work under a contract for construction service.
   (D)   The city shall not be liable for any further payment to a contractor under a contract terminated for the contractor's default after the date of the default, except for commodities, supplies, equipment, or services delivered and accepted on or before the date of default and for which payment had not been made as of that date. The contractor or his surety, if a performance bond or payment bond has been required under the contract, shall be jointly and severally liable to the city for all loss, cost, or damage sustained as a result of the contractor's default. A contractor's surety's liability shall not exceed the final sum specified in the contractor's bond.
   (E)   The city shall be authorized to terminate for its own convenience all contracts for the procurement of supplies and services when the city determines in writing that termination will be in the best interest of the government, and according to the following provisions:
      (1)   When it has been determined that a contract should be terminated for the convenience of the city, the city is authorized to negotiate a settlement with the contractor according to terms deemed just and equitable.
      (2)   Compensation to a contractor for lost profits on a contract terminated for convenience of the city shall not exceed an amount proportionate to the sum that the contractor's total expected margin of profit on the contract bore to the contract price, based on the total out-of-pocket expense incurred by the contractor as of the date of termination of the contract. The contractor shall have the burden of establishing the amount of compensation to which he believes himself to be entitled by the submission of complete and accurate cost date employed in submitting his bid or proposal for the contract, and evidence of expenses paid or incurred in performance of the contract from the date of award through the date of termination.
(1986 Code)
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