(A) (1) Bid processes differ based on the type and the anticipated amount of the contract. Bidding promotes full, fair, and open competition. There are two types of bidding that the town regularly uses, formal and informal. The term "bid" usually implies a competitive situation to acquire commodities (goods, supplies, materials, equipment, etc.) where the award decision is primarily based on cost (procurement of "services" is covered in division (D)). A "bid" may also be known or identified as a:
(a) Request for bid (RFB);
(b) Invitation to bid (ITB); or
(c) Request for quote (RFQ).
(2) Request for information (RFI) documents are used as an information gathering process that may later serve as the basis for either an RFB or RFP process. RFIs do not, as a rule, result in an award to a vendor.
(3) Contracts shall not be divided for the purpose of evading competitive bidding requirements.
(B) Informal bidding (if pricing falls between divisions (B)(2)(a) through (B)(2)(d)).
(1) Definitions of lowest responsible, responsive bidder (LRRB).
RESPONSIBLE. The term "responsible" has been interpreted to imply skill, judgement, and integrity necessary to the faithful performance of the contract, as well as, sufficient financial resources, ability to be bonded, and ability to award the contract.
RESPONSIVE. The contract award takes into consideration previous quality, performance during a project/job, and time specified in the proposals for the performance of a contract.
(2) (a) Local policy - any purchase $5,000 and greater will need approval by the Town Manager.
(b) Materials, supplies, and equipment - informal bidding is required when the estimated cost is $0 - $89,999.
(c) Construction, renovation, and repair contracts not involving buildings - informal bidding is required when the estimated cost is $0 - $29,999.
(d) Construction, renovation, and repair contracts (G.S. § 143-131) - informal bidding is required when the estimated cost is $5,000 - $29,999.
(3) Wilkesboro Local Purchasing Policy and NC General Statutes requires the following for informal bids:
(a) Town Manager approval:
1. Local policy - any purchase, service $5,000 and over.
2. Local policy - any type of construction, renovations, or repairs.
(b) G.S. § 143-129, § 143-131 board approval:
1. Local policy - Town Manager will place purchasing items on the Town Council agenda for Town Board approval.
(c) G.S. § 143-132 minimum number of bids:
1. Local policy under $1,000 requires one bid minimum.
2. Local policy $1,000.01 and over requires three bid minimum.
(d) G.S. § 143-131 a record of all quotes/bids must be kept:
1. Local policy - must be turned into accounts payable.
(e) G.S. § 143-129, § 143-131 awarded to the lowest responsible, responsive bidder (LRRB).
(f) G.S. § 143-129(f1) dispute resolution:
1. Local policy - town uses the process adopted by the State Building Commission.
(g) G.S. § 143-129 no bid bond.
(h) G.S. § 44A-26, § 143-129 no payment and performance bonds.
(i) G.S. § 143-129 no advertisement is required.
(j) G.S. § 143-129, § 143-129.9, § 143-131 public bid opening is NOT required.
(k) G.S. § 143-128.2, § 143-131 no HUB is required.
(l) G.S. § 143-129, § 143-131 no sealed bids:
1. Local policy - Town Manager may request sealed bids on specific projects.
(m) G.S. § 132-1, § 132-6, § 143-131 public inspection of bids:
1. Local policy - public/vendors can be view bids after the contract is awarded.
(C) Formal bidding is required where the estimated cost items listed in division (C)(1)(a) through (C)(1)(c) in this section only.
(1) (a) Materials, supplies, and equipment - formal bidding is required when the estimated cost is $90,000 or greater.
(b) Construction, renovation, and repair contracts not involving buildings - formal bidding is required when the estimated cost is $30,000 or greater.
(c) Construction, renovation, and repair contracts (G.S. § 143-131) - formal bidding is required when the estimated cost is $30,000 or greater.
(2) (a) Wilkesboro Local Purchasing Policy and NC General Statutes requires the following for formal bids:
1. Written specifications must be reviewed by Town Manager and/or legal.
2. G.S. §§ 87-1, 87-1.1, 143-139.1 licensed contractor is required if part of a project worth more than $30,000.
3. G.S. § 143-128 separate specifications required for plumbing, electrical, HVAC and general contractor for contracts costing more than $300,000 or more (*see more information below).
4. G.S. § 143-129 every effort will be made to obtain at least three bids.
5. G.S. § 143-129 newspaper advertising at least seven full days before bid opening. no local policy for using electronic bids only. This must be adopted by the Wilkesboro Town Council.
6. G.S. § 143-132 bids must be written and sealed.
7. G.S. §§ 143-129, 143-131 bids must be sealed for $500,000 or more.
8. G.S. §§ 143-129, 143-131 must keep a record of all bids; $30,000 or more.
9. G.S. §§ 143-129, 143-131 public bid opening required: $500,000 or more.
10. G.S. § 143-129 bid bond/ deposit 5% of bid amount is required.
11. G.S. §§ 44A-26, 143-129 performance and payment bonds are required (100% of bid amount) for contracts costing more than $50,000 that are part of a project cost more than $300,000.
12. G.S. §§ 143-128.3, 143-131 HUB participation goals are required if:
a. Document good faith efforts and report to HUB office for projects worth $30,000;
b. Part of a state funded project worth $100,000 or more;
c. Good faith efforts to reach goals, bidders must submit affidavits so local government (LG) can verify bidders' good faith efforts and LG to report to HUB efforts for $300,00 or greater.
13. G.S. §§ 143-129, 143-131 approval by the Town Council for $500,000 or more. Local policy - Town Manager approval for any purchase or service $5,000 and over.
14. Local policy - Town Manager approval for any type of construction, renovations, or repairs.
15. Local policy - Town Manager will place purchasing items on the Town Council agenda for Town Board approval.
16. G.S. §§ 143-129, 143-131 awarded to lowest responsive, responsible bidder (LRRB) while also considering quality, performance, and the time specified for performance.
17. G.S. § 143-128(f)(1) dispute resolution - local government must adopt own resolution process (including mediation) or process adopted by the State Building Commission, available to all parties, with amount in controversy not less than $15,000.
18. G.S. §§ 132-1, 132-6, 143-131 public inspection of bids - bids and the record of bids are not subject to public inspection until contract award for $500,000 or more.
19. Local policy - public/vendors can view any bid after the contract is awarded.
20. G.S. §§ 143-129, 143-131 public bid opening is required for $500,000 or greater all formal bids must be opened in public. Bids must be sealed and opening a bid or package with knowledge that it contained a bid or disclosing the contents without the permission of the bidder prior to the time set for opening constitutes a Class 1 misdemeanor G.S. § 143-129(b).
21. Wilkesboro Town Council will approve formal bid awards based on recommendation by the Town Manager.
22. Wilkesboro Town Council reserves the right to reject any and all bids.
(b) A bidder may request permission to withdraw their bid after the bids are opened, without forfeiting their bid deposit, if they can produce credible evidence that the bid was based on a mistake containing a substantial, unintentional arithmetic error or unintentional omission of work. Withdrawal is not allowed due to errors in judgment.
(c) The request to withdraw must be made no later than 72 hours (excluding weekends and holidays) after the bid opening. A bidder that requests that their bid be withdrawn cannot participate in the contract, even if the project is rebid. This withdrawn bid cannot count in the three bid minimum G.S. § 143-129.1.
(d) Awards are to be made to the "lowest responsible, responsive bidder or bidders (LRRB) taking into consideration quality, performance and the time specified in the proposals for the performance of the contract" G.S. § 143-129(b).
(e) In the event the lowest responsive, responsible bid exceeds the funds available for the project or purchase, negotiations may be held with the low bidder to make reasonable changes in the plans and specifications to bring the price within the funds available.
(f) *G.S. § 143-128 - building construction preparation of specifications - every officer, board, department, commission, or commissions charged with responsibility of preparation of specifications or awarding or entering into contracts for the erection, construction, alteration, or repair of any buildings for the state, or for any county, municipality, or other public body, shall have prepared separate specifications for each of the following subdivisions or branches of work to be performed:
1. Heating, ventilating, air conditioning (HVAC) and accessories (separately or combined into one conductive system), refrigeration for cold storage (where the cold storage cooling load is 15 tons or more of refrigeration), and all related work.
2. Plumbing and gas fittings and accessories, and all related work.
3. Electrical wiring and installations, and all related work.
4. General work not included in division (C)(2)(f)1., 2. and 3. relating to the erection, construction, alteration, or repair of any building.
(g) Construction methods: On local public construction projects, contracts are put out for bid and awarded under one of the following methods: (1) multi-prime; (2) single- prime; (3) dual bidding-accepting both multi-prime and single-prime bids; (4) construction management at risk; (5) design-build; (6) design-build bridging; and (7) public-private partnership.
(h) Specifications for contracts that will be bid under the separate-prime system or dual bidding system shall be drawn as to permit separate and independent bidding upon each of the subdivisions of work enumerated in this division. The above enumeration of subdivisions or branches of work shall not be construed to prevent any officer, board, department, commission, or commissions from preparing additional separate specifications for any other category of work.
(D) Services.
(1) The procurement of professional services performed by architects, engineers, surveyors, construction manager-at-risk, design-build services, and public-private partnership construction services is governed by G.S. § 143-64.31, and is sometimes referred to as the "Mini-Brooks Act," and are distinguished by the provision of personal performance rather than the delivery of a tangible item.
(2) Local policy - town departments should competitively solicit bids or proposals when there is a competitive market for the service and when it is in the best interest of the town. It is the policy of the town to attempt to obtain at least three competitive quotes before a service contract is awarded.
(3) The competition process may be informal or formal. It may be an RFP, simple written quotes, or other methods that accurately reflect the competition process. Award should be based on the best overall, justifiable solution, which may include cost and other factors.
(4) For contracts estimated to be $5,000 or more, the Town Manager should be contacted prior to initiation of the competition process to provide guidance for the process.
(a) Departments are responsible for documenting the competition process for contracts.
(b) A bid summary should be included with the contract when submitted to finance for contract control.
(c) After award of contract - quotes/bids are to be filed in accounts payable.
(d) Service contracts with a contract term longer than one-year period must have express written consent of the Town Manager.
(e) Contracts for services should be subjected to competition every three to five years unless a business case justifies otherwise.
(f) Verbal quotes will not be accepted as meeting the competition requirement.
(E) Design/consultant selection.
(1) In certain cases, the town employs the services of an architect, engineer, surveyor, construction manager-at-risk, design-build, and public-private construction services to provide services on certain projects. Firms and/or individuals are to be selected based on "best qualified" criteria.
(2) The procurement of these services is defined by G.S. § 143-64.31. Projects in which the estimated fees are less than $50,000, or other projects on a case-by-case basis, may be exempt from this requirement by approval from the Town Board (see G.S. § 143-64.32).
(3) Services from:
(a) G.S. Chapter 143, Article 3D: architects, engineers, surveyors.
(b) G.S. § 143-128.1: construction manager-at-risk.
(c) G.S. § 143-128.1A: design-build services.
(d) G.S. § 143-128.1B: design-build bridging contracts.
(e) G.S. § 143-128.1C: public-private partnership construction services.
(4) Select firm qualified from proposals:
(a) Initial proposals: to provide such services on the basis of demonstrated competence and qualification for the type of professional services required without regard to fees other than unit price information.
(b) After initial bidding/proposals - negotiate a contract for those services at a fair and reasonable fee with the best qualified firm.
(c) If a contract cannot be negotiated with the best qualified firm, only then can negotiations with that firm shall be terminated and initiated with the next best qualified firm.
(d) Any firm selected shall include the use of good faith efforts by the public entity to notify minority firms of the opportunity to submit qualifications for consideration by the public entity.
(e) No work product or design may be solicited, submitted, or considered as part of the selection process under this subchapter; and no costs or fees, other than unit price information, may be solicited, submitted, or considered as part of the selection process under this subchapter. Examples of prior completed work may be solicited, submitted, and considered when determining demonstrated competence and qualification of professional services; and discussion of concepts or approaches to the project, including impact on project schedules, is encouraged.
(F) Request for proposals (RFP).
(1) The town uses request for proposals (RFP) as a competitive process or as an alternative to the standard bidding process. Typically, RFPs are used in situations where:
(a) Detailed specifications cannot be or are difficult to develop; or
(b) When obtaining a goal or providing a solution to a problem/issue is the main objective. G.S. § 143-129.8 provides authority to use the RFP process as opposed to standard bidding for information technology goods and services.
(2) RFPs can be used in either a formal or informal process. RFPs are advertised in the same manner as standard bids and the award approval is the same as standard bids, with the exception of RFPs for G.S. Chapter 143, Article 3D architects, engineers, surveyors, G.S. § 143-128.1 construction manager-at-risk, G.S. § 143-128.1A design-build services, G.S. § 143-128.1B design-build bridging contracts, and G.S. § 143-128.1C public-private partnership construction services. These require additional advertisement, MWBE, and approval requirements.
(G) Exceptions to the bidding requirements.
(1) There are exceptions to the bidding requirements that apply to contracts. Contact the Town Manager to determine whether or not your situation is applicable. The following are considered exceptions:
(a) G.S. § 143-129(e)(1) - purchases from other governmental agencies within the U.S.
(b) G.S. § 143-129(e)(2) - special emergency cases that involve public health and safety of people or their property- used in rare cases.
(c) G.S. § 143-129(e)(3) - competitively bid group purchasing program.
(d) G.S. § 143-129(e)(4) - change order work during the progress of a project that was initially bid - only for construction or repair contracts.
(e) G.S. § 143-129(e)(5) - gasoline, diesel fuel, alcohol fuel, motor oil, fuel oil or natural gas - informal bids are required.
(f) G.S. § 143-129(e)(6) - sole source; requires Town Council approval and specific criteria must be met.
(g) G.S. § 143-129(e)(7) or G.S. § 143-129.8 - information technology goods and services purchased through the state Office of Information Technology or using RFPs.
(h) G.S. § 143-129 (e)(8) - vendor makes improvements to a public facility that will generate savings in energy costs sufficient over other term of contract to pay for the cost of the improvements.
(i) G.S. § 143-129(e)(9) - purchase from competitively bid NC State contracts.
(j) G.S. § 143-129(e)(9a) - purchase from competitively bid federal contracts.
(k) G.S. § 143-129(e)(10) - used apparatus, supplies, materials, or equipment; does not apply to remanufactured, prefabricated or demo items.
(l) G.S. § 143-129(e)(11) - construction manager-at-risk (CM@R) other provisions set forth in G.S. §§ 143-128.1, 143-64.31, 143-129.
(m) G.S. § 143-129(g) - piggybacking is contracts that were previous competitively bid contracts (similar to contracts under G.S. § 143-129), within the last 12 months, must be same exact product, if the vendor is willing to extend the same or better prices, terms, and conditions, advertise ten-day prior notice, and Wilkesboro Town Council must approve contract at regularly scheduled meeting.
(n) G.S. § 143-129(h) - Transportation Authority purchases - requires Wilkesboro Town Council to approve before using RFP process (must use RFP process), Wilkesboro Town Council certify the RFP process has been followed, and Wilkesboro Town Council must approve contract at regularly scheduled meeting.
(o) G.S. § 143-129.2 - solid waste management facilities.
(p) G.S. § 143-129.5 - purchases from nonprofit work center for the blind and severely disabled.
(q) G.S. § 143-129.8 - information technology goods and services combinations as defined under G.S. § 147-33.81(2).
(r) G.S. § 143-135 - use of unit's own forces (force work account) - construction or repair contracts in G.S. § 143-129(b). However, the unit must still comply with the competitive bidding laws for any equipment, supplies, or materials that it purchases for this project. Labor and materials must be within the statutory dollar limits and must be conducted entirely with the unit's own forces. No dividing any part of the project in order to evade the limitations.
(s) G.S. § 115C-264 - Supplies and food for school food services - applies to local school units only.
(2) Exceptions to bidding requirements shall be specifically documented by NC General Statute as noted above either on the purchase order or contract documents.
(Res. 2020-16, passed 8-3-2020)