(A) General provisions.
(1) Generally, there are three methods of source selection for completing single purchase orders of $50,000.01 or more. These methods are:
(a) Invitation for Bid;
(b) Request for Proposals; and
(c) Request for Qualifications.
(2) All bid/proposal documents shall include, but not be limited to:
(a) Instructions to bidders and/or offerors;
(b) General conditions;
(c) Bid and/or proposal forms;
(d) Special and/or supplemental conditions;
(e) Affidavits or certificates required by statute;
(f) Language indicating specific state statutes that may be related to the procurement function; and
(g) Bonds and insurance requirements.
(3) Splitting prohibited. It is unlawful, for the purpose of evading the requirements of this subchapter, to split or separate into smaller units of purchase any purchase covered by this subchapter.
(B) Invitation for Bids.
(1) Definition. An INVITATION FOR BID is a formal procedure for obtaining supplies, materials, equipment and some services, in which sealed competitive bids are submitted in response to specifications provided by the county.
(a) This method is used when the using department or office is capable of specifically defining the scope of work for which a contractual or general service is required, or when the using department is capable of establishing precise specifications defining the actual commodity or group of commodities required.
(b) This method of procurement does not typically include negotiation with bidders after receipt and opening of bids.
(c) An Invitation for Bid shall include all relevant documents, whether attached or incorporated by reference, including specifications, contractual terms and conditions applicable to the procurement.
(2) Conditions for use.
(a) All purchases of the county equal to or over the mandatory bid amount shall be solicited by a formal, competitive, sealed bidding process, except as otherwise provided in this subchapter.
(b) 1. Specifications and bid requirements may be mutually developed by the using department and purchasing staff to assure accuracy and completeness.
2. All specifications shall be drafted so as to promote overall economy for the purpose intended, and to encourage maximum free and open competition in satisfying the county's needs, and shall not be unduly restrictive.
(c) Invitation for Bids documents shall be issued for each solicitation and shall include a detailed description of the item or items being bid, bid submission procedures and requirements, the county's process for bid evaluation, delivery requirements, performance expectations, specifications and any other terms and conditions and contract requirements applicable to the procurement.
(3) Public notice.
(a) Adequate public notice of the Invitation for Bids shall be given, not less than 15 calendar days prior to the date set forth for the opening of bids.
(b) Such notice shall include publication in a newspaper of general circulation within the county, South Carolina Business Opportunities (SCBO), or comparable agency.
(c) The public notice shall state the place, date and time of the bid opening.
(d) Notice of Invitation for Bids shall also be placed on the county's web site, and provided through any other means of making requirements known to a large number of potential vendors, at a reasonable time prior to bid opening.
(4) Bid terms and conditions. After consulting with the requesting department and the county attorney, the procurement director may establish standard bid terms and conditions and/or contract clauses to be included in any bid documents. Examples of some of these terms and conditions may include, but are not limited to, the following:
(a) The bid identification number and bidder's license number (if applicable) should be shown on the front of the sealed envelope.
(b) Unmarked envelopes sent as a bid response will not be opened.
(c) The county reserves the right to reject all bids and to waive any and all formalities.
(d) Unit prices provided in a bid response will always govern.
(e) The bidder shall pay all current and applicable city, county, state and federal taxes, licenses or assessments, including federal excise tax.
(f) In evaluating bids, the county will consider the bidder's qualifications, delivery, terms and conditions, bid compliance, and price.
(g) Alternate bids will not be considered unless specifically requested.
(h) All proposed materials and products must meet the requirements of the bid specifications.
(i) Unless otherwise indicated in the bid, specifications must be met and prices must be firm.
(j) The successful bidder shall indemnify and hold harmless the county and all county officials, agents and employees, from all suits or claims of any character brought by reason of infringing on any patent, trademark or copyright.
(k) Bids shall be made on the provided unaltered bid form.
1. Bids must be signed with the name printed below the signature.
2. Submitted bids should be either typewritten or handwritten in black ink only.
3. Facsimiles are not acceptable.
(l) If county offices are closed due to inclement weather on a scheduled day to open bids, the bids shall be opened at the same scheduled hour on the third working day (excluding county-observed holidays) after the scheduled bid opening date. In the event an act of God occurs, the county reserves the right to accept late bids or pre-bid attendance.
(m) Before a bid is awarded, the county reserves the right to conduct an investigation to establish the bidder's qualifications and work performance.
(n) Bids may not be modified after submittal.
(o) A bidder may provide the procurement director written notice that he or she intends to withdraw his or her bid if he or she is unable to honor the bid specifications.
(p) The county reserves the right to disqualify bids, before or after opening, upon evidence of collusion with intent to defraud or other illegal practice on the part of the bidder.
(q) No contract will be awarded to any contractor or subcontractor who has not been properly licensed by the South Carolina Licensing Board for Contractors.
(r) It is the bidder's responsibility to examine all bid documents and obtain firsthand knowledge of existing conditions where the work is to be performed.
(5) Bid bonds.
(a) Bid security in the amount of 5% of the total bid amount shall be required for all competitive sealed bidding for construction contracts when the total price is expected to be $50,000.01 or greater.
(b) The bid bond shall guarantee that the principal will not withdraw his or her bid during the period of 30 days following the opening of bids.
(c) Bid security shall be a bond provided by a surety company authorized to do business in the state, or otherwise supplied in a form satisfactory to the county.
(d) Nothing herein shall prevent the requirement of such bonds or other security, in addition to or in lieu of those bonds, on construction contracts under $50,000.01 or other contracts when the circumstances warrant.
(6) Payment and performance bonds.
(a) Before entering into a contract, the procurement director may require a faithful payment and performance bond, written by a corporate surety company holding a certificate of authority from the Secretary of the Treasury of the United States as acceptable sureties on federal bonds, and executed and issued by a resident agent licensed by and having an office in the state, representing such a corporate surety in such amount equal to the contract amount or an amount as is reasonably necessary to protect the best interests of the county.
(b) The payment provision shall assure that the contractor provides suitable evidence of his or her financial condition, to protect the interests of claimants supplying labor and/or materials to the contractor or his or her subcontractors.
(c) The performance provision shall assure that the contractor provides suitable evidence of his or her financial condition and his or her ability to complete the work without financial difficulty.
(d) 1. In place of a bond, cash or certified check in the amount of the contract may be deposited.
2. Such deposit will be filed with the executed contract documents and made a part thereof, all within 30 days from date of awarding a contract.
(e) Failure of the contractor to satisfactorily fulfill his or her obligations shall be cause for the forfeiture of his or her guaranty.
1. In such a case, the procurement director shall document the circumstances and file such document with the related contract documents.
2. This provision shall not apply to procurement involving completion of reports, studies, plans, and the like, such as the county audit.
(f) A performance bond shall always be required on construction projects that exceed $50,000.00.
(7) Liquidated damages. Liquidated damages may be provided in an amount specified under a contract, in a sum certain to be awarded to the county if a contractor fails to perform as agreed.
(8) Time of receipt.
(a) It is each bidder's responsibility to see that his or her bid is delivered at the time and place specified.
(b) 1. The procurement department must receive bids no later than the time and date identified in the Invitation for Bids.
2. Bids received after this date or time will not be considered and will be marked as a “Late Bid”.
(c) All bid responses received prior to the time of opening shall be date stamped by the purchasing staff and kept in a secure location.
(d) Unidentified bids may be opened solely for the purpose of identification, then properly marked, re-sealed and secured in the bid box.
(e) 1. Faxed, computer-generated, or electronically mailed bids are not acceptable.
2. Only original bids, signed by an officer of the bidding firm on an official bid submittal form provided by the county in the Invitation for Bids, will be accepted.
(9) Pre-bid conferences.
(a) 1. Some bids may require a pre-bid conference to be held with interested bidders.
2. These meetings may be held in order to clarify specifications, answer supplier questions regarding specific bid requirements, or to allow the bidder to perform an on-site review and inspection.
(b) Some pre-bid conferences may be mandatory (where all interested parties must send a representative in order to be considered responsive) and others may be voluntary.
(c) Any changes to the original solicitation documents will be made in writing in the form of addenda, and will be mailed, faxed or e-mailed to all bidders known to have originally received or requested the solicitation.
(d) In the event an act of God occurs, the county reserves the right to accept late or non-attendance at pre-bid conferences.
(10) Pre-qualification of suppliers, bidders, proposers.
(a) Prospective suppliers, bidders or proposers may be pre-qualified by the procurement director for particular types of supplies, equipment, services and construction.
(b) Solicitation mailing lists of potential vendors or contractors shall include, but shall not be limited to, such pre-qualified suppliers, bidders or proposers; unless it has been determined in writing that a specific project warrants limitation of offerers to the pre-qualified list, and public notice of the pre-qualification is given.
(c) Vendors may also be asked to respond to an Invitation or a Request and offer a “fixed price” or “fixed proposal” for a given product or service.
1. In that instance, the county may elect to pre-select a number of responding vendors to provide the specified product(s) or service(s) (e.g., property assessment services used when the county acquires rights-of-way).
2. The establishment of a source or sources to be used at a later lime for the fixed price can provide the county with cost and scheduling benefits.
3. Being placed on a pre-selection listing does not guarantee that a specific vendor will be used in the future.
(11) Bid opening procedure.
(a) Unless otherwise specified, bids are opened at the time and place specified in the Invitation for Bids.
(b) At the announced time of bid opening, the procurement director shall acknowledge the receipt of all bids and proclaim the bid opening closed to any other bids received.
(c) A bid tabulation identifying all bids submitted will be prepared after all bids are opened and received.
(d) Sealed bid responses must be submitted in writing and shall be randomly and publicly opened by the procurement director in the presence of one or more witnesses.
(e) The amount of each bid, the name of the vendor offering the bid, and any other relevant information determined to be appropriate by the procurement director will be read aloud.
(12) Postponement of bid opening. The procurement director may issue an announcement postponing a bid opening, when there is due cause beyond the county's control such as inclement weather, fire, power failure, county emergency, or other cause necessitating such a postponement.
(13) Bid acceptance, evaluation, and recommendation.
(a) Bids shall be unconditionally accepted without alteration or correction, except as authorized in this subchapter.
(b) 1. Bids shall be evaluated based upon the requirements set forth in the Invitation for Bids, which may include criteria to determine suitability for a particular purpose.
2. Those criteria that will affect the bid price and be considered in evaluation for award may include transportation costs, and total or life cycle costs.
(c) Alternative bids may be considered and accepted, provided they are specifically provided for in the Invitation for Bids and meet the evaluation criteria specified.
(d) All bids accepted will be evaluated using the criteria specified by the using department.
1. In cooperation with the department head or a representative of the using department and the procurement director, a written recommendation for making a bid award will be prepared, stating all reasons and justification for the award.
2. Additional written explanation and justification will be required if the low bidder is not recommended.
3. The procurement director will forward the department's recommendation, the bid tabulation and any other pertinent bid information to the county manager for review and future consideration and award by the County Council.
(e) Unless otherwise specified, the items offered must be new, unused and the latest model or manufacture.
(f) 1. Unless otherwise provided in the bid information, the price of each item offered must be kept firm for at least 90 days after the bid opening date.
2. A bidder may specify the price will remain firm for a longer period than required by the bid information or this rule.
(14) Waiver of technicality.
(a) A bid shall be considered responsive only if it substantially conforms to the requirements of the Invitation for Bids as it relates to pricing, performance, specifications, delivery requirements, and any other matter unequivocally stated therein as a determinant of responsiveness.
(b) 1. A minor or non-substantive lack of conformity on these matters may be considered a technicality or irregularity, which may be waived by the official(s) empowered to make an award.
2. A MINOR INFORMALITY or TECHNICAL IRREGULARITY is a variation from the bid or proposal that does not affect the price of the bid.
(15) Correction, cancellation or withdrawal of a bid.
(a) After bids are opened, they shall be irrevocable.
(b) If the bidder cannot, for whatever reason, honor his or her bid, then he or she shall request in writing that it be withdrawn.
(c) 1. After bid opening, no changes in bid prices or other provisions of bids prejudicial to the interest of the county or fair competition shall be permitted.
2. If a bidder cannot, for whatever reason, honor his or her bid, then he or she may request in writing to have it withdrawn.
(16) Bid award.
(a) 1. The procurement shall be awarded with reasonable promptness, by written notice to the lowest responsive and responsible bidder, whose bid meets the requirements and criteria set forth in the Invitations for Bids, or to that bidder who offers the bid considered most advantageous to the county.
2. Nothing contained in this subchapter shall be construed to require the procurement director, county manager or County Council to accept the apparent low bid, when it appears that the acceptance of some other bid shall be most advantageous to the county and in the best interest of county government.
(b) In determining the lowest responsive and responsible bidder most advantageous to the county, in addition to price, the following shall be considered:
1. The ability, capacity and skill of the bidder to perform the contract.
2. Whether the bidder can perform the contract within the time specified, without delay or interference.
3. The character, integrity, reputation, judgment, experience and efficiency of the bidder.
4. The quality of performance on previous contracts.
5. The previous and existing compliance by the bidder with laws and ordinances relating to the contract.
6. The sufficiency of the financial resources to perform the contract to provide the service.
7. The quality, availability and adaptability of the supplies or contractual services to the particular use required.
8. The ability of the bidder to provide future maintenance and service.
9. The discount terms and conditions of the bid.
10. Delivery time.
(c) When necessary for the best interest of the county, bid criteria to determine acceptability may include, but not limited to, inspection, testing, quality, workmanship, delivery and suitability for a particular purpose.
(d) The county manager or procurement director shall have the authority to make awards of bids that are less than the mandatory bid amount.
1. Upon presentation and recommendation by the county manager of a selected bid, the County Council shall authorize and approve, by a simple majority vote, the bid award in excess of the mandatory bid amount set forth in the RFP.
2. The contract file shall contain the basis on which the award is made.
(e) 1. Bid threshold amounts shall include the values associated with potential options of renewal, provided those options were both requested within the original solicitation and provided by the responder.
2. After review of past performance under contract, the procurement director, county manager or County Council may determine, at their discretion, to exercise the option of renewal if in the best interest of the county.
(17) Tie bids. The County Council may consider awarding a tie bid, based upon the following:
(a) The bidder who is the most capable in honoring the county's desired completion or delivery time.
(b) The bidder whose service availability, quality of service, managerial and organizational support appear to be the most advantageous to the county.
(c) The bidder who is in closest proximity and/or is the most convenient to the county.
(18) Single bid responses.
(a) Even though multiple sources have been solicited, there are occasions when only one bid response is received.
(b) When this happens, the procurement director may contact the non-responsive vendors to establish why there was a lack of response, and to determine whether to recommend an award or to reject the lone bid and re-bid.
(c) If only one bid has been submitted, the procurement director will determine whether to open the bid or return the bid to the bidder via certified mail and re-issue the bid notice or use a different method to make the procurement.
(19) Rejection of bids.
(a) Every effort will be made to anticipate changes in requirements prior to the date of opening, and to notify all prospective bidders of any resulting modifications through an addendum.
(b) If for some reason it is found that the specifications have been misconstrued, misleading or ambiguous, and have caused confusion in bidder pricing, the procurement director may ask the County Council to reject all bids, then revise the specifications, publicly advertise and re-bid.
(c) If the low bid is under $50.000.01, the procurement director or county manager shall have the authority to reject all bids without seeking the County Council's approval.
(20) Unsigned bids.
(a) In most cases, an authorized vendor representative is required to sign his or her name in ink on the provided space of the bid document.
(b) It shall be the procurement director's responsibility to determine if an unsigned bid was an oversight, and to take appropriate measures to validate or reject the bid response.
(C) Request for Proposals.
(1) Definition.
(a) REQUEST FOR PROPOSALS (RFP) refers to all documents, whether attached or incorporated by reference, utilized for soliciting competitive sealed proposals for goods and/or services.
(b) Evaluation of a proposal response is based on prior established criteria, wherein the RFP shall state the relative importance of price and other evaluation factors.
(2) Conditions for use.
(a) Competitive sealed proposals furnished as a result of a Request for Proposals shall be used in those circumstances in which it is both practicable and advantageous for the county to consider a range of competing plans, specifications, standards, terms and conditions or solutions to problems or needs, so that adequate competition will result and award will be made not principally on the basis of price, but to the respondent whose proposal contains the most advantageous combinations of price, quality or other features.
(b) When the complex nature of technical details of a particular procurement make the use of competitive sealed bidding either not practicable or reasonable, or not advantageous to the county, or when qualifications and the quality of the service to be delivered can be considered more important than price, a Request for Proposals may be used.
(3) Public notice. Public notice of the Request for Proposals shall be given in the same manner as an Invitation for Bid.
(4) Pre-proposal conferences.
(a) As with Invitations for Bids, some Requests for Proposals may require a pre-proposal meeting to be held with interested responders.
(b) These meetings may be held in order to explain the requirements of the proposed procurement, clarify specifications, answer supplier questions regarding specific bid requirements, or to allow the vendor to perform an on-site review and inspection.
(c) Some pre-proposal conferences may be mandatory (where all interested parties must send a representative in order to be considered responsive) and others may be voluntary. In the event an act of God occurs, the county reserves the right to accept late or non-attendance at a pre-proposal conference.
(d) Any changes to the original solicitation documents will be made in writing in the form of addenda, and will be mailed, faxed or e-mailed to all proposers known to have originally received or requested the solicitation.
(5) Proposal acceptance, opening, evaluation and recommendation.
(a) Proposal responses shall be publicly opened.
1. Only the names of the offerors will be disclosed at the proposal opening.
2. Late proposals shall neither be opened nor considered for award.
3. Proposal responses shall be unconditionally accepted without alteration or correction, except as authorized in this subchapter.
(b) 1. Contents of competing offerors shall not be disclosed during the process of review and discussions.
2. Responses shall be evaluated based upon the requirements set forth in the Request for Proposals, which may include criteria to determine suitability for a particular purpose.
(c) In the event only one proposal response is received, the county may elect to continue with the evaluation of that response, or recommend that the County Council reject all proposals, whichever is in the best interests of the county.
(d) Price, experience, professionalism, business qualifications, completion time and expertise are all pertinent evaluation factors that may weighed by a staff preselected evaluation team.
1. Proposals may be sought on a PERFORMANCE SPECIFICATION BASIS, where a respondent is offering to provide a service or solve a problem, and where the specification sets forth a predefined criteria or objective to be met.
2. An evaluation of competitive proposal responses of this type will typically be based upon the “best value” or return as opposed to total cost or price.
(e) Alternative proposal options may be considered and accepted, provided they are specifically provided for in the RFP and meet the evaluation criteria specified.
(f) 1. As provided for in the Request for Proposals, discussions may be conducted with responsible offerors who submit proposals for the purpose of clarification, to assure full understanding of, and responsiveness to, the solicitation requirements.
2. Offerors shall be accorded fair and equal treatment with respect to any opportunity for submissions.
(g) All RFP responses accepted will be evaluated using the criteria the using department specified in the solicitation document.
1. Upon review of each proposal response, the evaluation team made up of county staff may eliminate non-qualified proposers and develop a short list to interview (usually two to four proposers), determined by analyzing their qualifications.
2. In cooperation with the department head or a representative of the using department and the procurement director, a written recommendation for making a proposal award will be prepared, stating all reasons and justification for the award.
3. The procurement director will forward the department's recommendation, the RFP tabulation and any other pertinent information to the county manager for review and future consideration and award by the County Council.
(6) Award.
(a) An award shall be made to the responsive and responsible offeror whose proposal is determined to be most advantageous to the county, taking into consideration the evaluation factors set forth in the Request for Proposals.
(b) Upon presentation and recommendation by the county manager of a selected proposal, the County Council shall authorize and approve, by a simple majority vote, the proposal award in excess of the mandatory bid amount set forth in the RFP.
1. The contract file shall contain the basis on which the award is made.
2. The procurement director or county manager may approve awards whose total value is less than the mandatory bid limit.
(c) The County Council has the option of accepting the staff recommendation and authorizing contract negotiations, making an award to another firm offering a proposal response and authorizing contract negotiation, or rejecting all proposals and requesting that the proposal specifications be re-developed and a new RFP be prepared for solicitation.
(d) Prior to being executed, all contract documents will be reviewed and approved by the county attorney as to form, content and legality.
1. Contracts awarded by the County Council will be executed and signed, on behalf of the County Council, by its chairperson or acting chairperson.
2. The county manager shall attest to the signature of the chairperson or acting chairperson on all contracts approved by the Council.
(e) 1. RFP proposal threshold amounts shall include the values associated with potential options of renewal, provided those options were both requested within the original solicitation and provided by the RFP responder.
2. After review of past performance under contract, the procurement director, county manager or County Council may determine, at their discretion, whether the exercise of an option of renewal is in the best interest of the county.
(D) Competitive sealed proposals.
(1) Conditions for use. If the procurement director determines that the use of competitive sealed bidding is either not practicable or not advantageous to the county, a contract may be entered into by competitive sealed proposals. Contracts for the design-build entity must be entered into by competitive sealed proposals.
(2) Public notice. Adequate public notice of the request for proposals must be given.
(3) Receipt of proposals. Proposals must be opened publicly. A tabulation of proposals must be prepared and must be open for public inspection after contract award.
(E) Request for Qualifications.
(1) Definition. REQUEST FOR QUALIFICATIONS (RFQ) refers to a solicitation of responses from interested and prospective proposers/consultants, in which factors other than price,
including but not limited to, professional qualifications and related experiences, financial capability, reputation and professional competencies, are considered and evaluated in order to develop a list of qualified respondents.
(2) Conditions for use.
(a) Competitive sealed proposals furnished as a result of a Request for Qualifications shall be used in those circumstances in which:
1. It is both practicable and advantageous for the county to procure the professional services of an outside firm; and
2. An award will be made not principally on the basis of price, but to the respondent whose professional or technical knowledge, skills, abilities or experiences are determined best suited to accomplish a proposed scope of work.
(b) Professional services may include, but are not limited to, architects, project managers, engineers, land surveying, and auditing services.
(c) When the complex nature of technical details of a particular procurement make the use of competitive sealed bidding either not practicable or reasonable, or not advantageous to the county, or when qualifications and the quality of the service to be delivered can be considered more important than price, a Request for Qualifications may be used.
(3) Public notice. Public notice of the Request for Qualifications shall be given in the same manner as an Invitation for Bid.
(4) Pre-proposal conferences.
(a) As with Invitations for Bids and Requests for Proposals, some Requests for Qualifications may require a pre-proposal meeting to be held with interested responders.
(b) These meetings may be held in order to explain the requirements of the proposed procurement, clarify specifications, answer supplier questions regarding specific bid requirements, or to allow the vendor to perform an on-site review and inspection. In the event an act of God occurs, the county reserves the right to accept late or non-attendance at a pre-proposal conference.
(c) Some pre-proposal conferences may be mandatory (where all interested parties must send a representative in order to be considered responsive) and others may be voluntary.
(d) Any changes to the original solicitation documents will be made in writing in the form of addenda, and will be mailed, faxed or e-mailed to all proposers known to have originally received or have requested the solicitation.
(5) Proposal acceptance, opening, evaluation and recommendation.
(a) Proposal responses shall be publicly opened.
1. Only the names of the offerors will be disclosed at the proposal opening.
2. Late proposals shall neither be opened nor considered for award.
3. Proposal responses shall be unconditionally accepted without alteration or correction, except as authorized in this subchapter.
(b) Contents of competing offerors shall not be disclosed during the process of review and discussions.
1. Responses shall be evaluated based upon the requirements set forth in the Request for Qualifications, which may include criteria to determine suitability for a particular purpose.
2. Proprietary or confidential information marked as such in each proposal response shall not be disclosed without written consent of the offeror.
(c) The department head or staff selection committee may conduct interviews with some or all of the respondents to the RFQ.
1. Upon completion of personal interviews, the committee may negotiate with the finalist and select the firm deemed the most qualified, based upon references, qualifications, experience, location and price.
2. Upon completion of the negotiations, a letter of recommendation and the offer's contract shall be forwarded through the procurement director to the county manager for presentation to the County Council and county attorney for their review and approval.
(6) Award.
(a) An award shall be made to the responsive and responsible offeror whose RFQ response is determined to be most advantageous to the county, taking into consideration the evaluation factors set forth in the Request for Qualifications.
(b) Upon presentation and recommendation by the county manager of a selected RFQ response, the County Council shall authorize and approve, by a simple majority vote, the award in excess of the mandatory bid amount set forth in the RFQ.
1. The contract file shall contain the basis on which the award is made.
2. The procurement director or county manager may approve an award whose total value is less than the mandatory bid limit.
(c) The County Council has the option of accepting the staff recommendation and authorizing contract negotiations, making an award to another firm offering a RFQ response and authorizing contract negotiation, or rejecting all proposals and requesting that the proposal specifications be re-developed and a new RFQ be prepared for solicitation.
(d) Prior to being executed, all contract documents will be reviewed and approved by the county attorney as to form, content and legality.
1. Contracts awarded by the County Council will be executed and signed, on behalf of the County Council, by its chairperson or acting chairperson.
2. The county manager shall attest to the signature of the chairperson or acting chairperson on all contracts approved by the Council.
(e) 1. RFQ proposal threshold amounts shall include the values associated with potential options of renewal, provided those options were both requested within the original solicitation and provided by the RFQ responder.
2. After review of past performance under contract, the procurement director, county manager or County Council may determine, at their discretion, whether the exercise of the option of renewal is in the best interest of the county.
(F) Approved contracting relationship formats.
(1) The procurement director, with approval of the county manager, shall have the discretion to use construction management services, design-build services, or design-bid-build services as alternatives for construction contracting administration. In exercising such discretion, the county manager shall consider the method that, at the procurement director's discretion, is the most advantageous to the county and will result in the most timely, economical, and successful completion of the construction project. The determination of the method of source selection utilized shall be stated in writing and included as part of the solicitation file. However, nothing ultimately prohibits York County from rejecting all responses to a solicitation for services.
(2) The following relationship formats may be used in any contract or agreement for construction projects or tasks.
(a) DESIGN-BID-BUILD. A project delivery method that includes three linear phases for completing a construction project - engineering and/or architectural design, bidding, and construction. As part of the DESIGN-BID-BUILD project delivery method, the county awards two separate contracts
- the first for architectural and or engineering design and bid phase services, and the second for construction according to the design. Under this project delivery approach, the architect/engineer is selected through a qualification-based or competitive best value bidding approach, and the contractor is selected through competitive sealed bidding. This type of construction contract relationship format is one in which one contractor contracts with York County to accomplish an entire construction project or task pursuant to specifications or designs provided by the county, pursuant to the specifications or designs produced for the county by an architectural firm under contract with the county.
(b) DESIGN-BUILD. The DESIGN-BUILD type of construction contract relationship format is one in which one contractor supplies all of the work involved in the project, including the design. York County provides the performance specifications and the contractor designs and constructs the project consistent with those performance specifications. In a DESIGN-BUILD type of contract relationship format, the contractor may even provide the site as part of the construction contract.
(c) CONSTRUCTION MANAGER. Under a CONSTRUCTION MANAGER type of construction contract relationship format, York County contracts with an individual or entity to serve as its agent in managing the construction process on behalf of its interests throughout the construction project. There are two types of relationship formats - one is a pure agency relationship, and the other is a relationship in which the construction manager is “at risk.”
1. Types of construction manager relationships.
a. PURE AGENCY. Under a PURE AGENCY arrangement, the construction manager acts only as the agent of the owner. In this arrangement, the only contractual relationship the construction manager has is with York County. While the pure agency construction manager administers the construction project throughout the planning, design, and actual construction phases of the project, the construction manager is not responsible for the means and methods of the project and does not guarantee that the project will meet the expectations of the county in terms of cost, timeliness, and quality.
b. AT RISK. Under an AT RISK relationship, the construction manager provides advice and leadership on a project during the planning and design phases of the project and has control, under the direction of the county, during the construction phase. While the county will generally contract separately for the design portion of the project, the at risk construction manager will contract with the construction trade contractors. Because the at risk construction manager has control over the means and methods of construction portion of the project, the at risk manager will be responsible for the completion of the project consistent with the expectations of the county in terms of cost, timeliness, and quality.
2. Duties of construction managers.
a. Procurement process. Whether the relationship formed with the construction manager is pure agency or at risk, the construction manager should play a role in the procurement process used to contract with the contractors that will have contractual relationships with York County during the project. During the procurement process, the construction manager should assist York County with tasks, including but not limited to:
i. The Request for Qualification process (if pre-qualification is used).
ii. The Request for Proposals.
iii. Creation and completion of sealed bidding or negotiated procurement packages.
iv. Review of bids or offers.
v. Shaping and honing the scope or scopes of work.
vi. Assisting in the evaluation and award decisions.
b. Construction process.
i. Pure agency.
A. Act on York County's behalf in overseeing the design and construction phases of a construction project.
B. Transact any other such business on behalf of and as directed by York County during the construction project.
ii. At risk.
A. Act on York County's behalf during the design phase of a construction project.
B. Assume total responsibility for the construction phase of the project.
(G) Procurement exceptions.
(1) Non-negotiable purchases. The following non-negotiable purchases may be considered exceptions to the purchasing procedures described in this subchapter; however, the procurement director or county manager can limit or withdraw the exception as necessary.
(a) Works of art for museum and public display;
(b) Published books, library books, maps, periodicals and pamphlets;
(c) Copyrighted educational films, videos, slides or transparencies;
(d) Postage stamps and postal fees;
(e) Professional dues, membership fees and seminar registration fees;
(f) Utilities, including gas, electricity, water and sewer, and telephone utilities;
(g) Advertisements in professional publications and newspapers;
(h) Credit cards;
(i) Travel;
(j) Bank payments;
(k) Legal services;
(l) Special fund purchases;
(m) Maintenance on purchased equipment that must be provided by the original equipment manufacturer or authorized dealer;
(n) License agreement for computer software;
(o) All insurance premiums;
(p) All contractual consultant services necessary to provide professional instruction for seminars, put on by and/or for department/agencies and/or their personnel;
(q) Computer programmers and software analysts engaged to modify county data processing system software, or to develop new software for the county's computer system;
(r) Medicine and drugs;
(s) Conference facilities;
(t) Professional training;
(u) Purchases utilizing gifts, grants, or certain special funds that may be the result of designated appropriations of the County Council (e.g., operating funds for the county's library system or Culture and Heritage Commission) or unique funds entirely controlled by an elected official (e.g., Sheriff's Drug Funds). Purchases utilizing such funds will not be based upon the procedures and policies contained within this subchapter, when there are other organizational controls (or officials) in place for the management and expenditure of these special funds;
(v) Certain funds received from the United States Department of Homeland Security, which may be designated to be utilized in a specific capacity;
(w) Purchases for information technology equipment in cases where additional software modules are required and the county has made an investment in the company or technology (e.g., purchase of additional modules for the county's public safety software or additional modules are available for City Works, the county's work order software utilized by multiple York County departments). Also in cases where specific technology hardware has been purchased, the county has made a substantial investment, and additional hardware components are required (e.g., additional storage for the county's storage area network, or additional/replacement batteries for the existing uninterrupted power supply in the data center). In case of extreme emergency, purchases for information technology equipment where such delays may seriously affect the health, welfare, safety of the citizens of the county and/or potentially halt county services, an authorized purchase where funding has been appropriated must be approved by the county manager, procurement director and the Chairman of the County Council;
(x) Financial advisors and services;
(y) Mental health wellness services, including but not limited to medically related services and counseling.
(2) Purchases unsuitable for competitive bidding. Some purchases, by their very nature, are not suitable or practicable for seeking competitive pricing, such as acquisition of real property, certain emergency purchases or repairs, unique or one-of-a-kind items only available from a single source, purchases for repair or additions to existing equipment or systems already in service, and certain products offered by vendors protected by established industry distribution rights or territory rights.
(3) Emergency purchases.
(a) Notwithstanding any other provisions of this subchapter, the county manager or the procurement director may make or authorize, subject in certain circumstances to the approval of the County Council, emergency procurements of supplies, services or construction items, when there exists a threat to the functioning of county government; such as the need to meet certain deadlines established by courts or other parties outside the control of the county; the preservation or protection of property; or the health, welfare or safety of any person; provided such emergency procurements shall be made with such competition as soon as is practicable under these circumstances.
(b) A written determination of the basis for the emergency and for the selection of the particular contractor shall be made, and shall set forth the contractor's name, amount, and a listing of the item(s) procured under the contract.
(c) In case of an emergency, the county manager or procurement director shall have the authority to waive the competitive procurement process, and authorize the purchase of supplies and services up to $50,000.00 in value, to prevent significant delays in the work of any using department, where such delays may seriously affect the health, welfare or safety of the citizens of the county.
1. Emergency purchases of greater value shall require the prior approval of the County Council.
2. Only in cases of an emergency shall an exception to the purchasing policy be made, with the understanding that the person authorized to obtain the emergency purchase will personally assume the responsibility of immediately following up the verbal order with proper justification in written form, and the proper requisition to the procurement director.
3. In cases of emergency, the requestor shall, when possible, contact the procurement director prior to placement of the order with the vendor.
(4) Sole source, brand name, patented, and other non-competitive procurement.
(a) A contract to purchase may be awarded without competition with the approval of County Council, when it is determined, after conducting a good faith effort by reviewing available sources, that the purchase, by its very nature, is not suitable to seeking competitive bids or proposals, or affords the county some unique beneficial or economically advantageous service, commodity, and/or property to the county or its economic development pursuits.
(b) When county officials determine that an award of contract for purchasing should be made by non-competitive means, they should submit copies of the determining factors in writing to the procurement director.
(c) Examples of contracts, which may not be suitable for competitive bids or proposals, may include the following:
1. The product has patented or proprietary rights that provide superior capabilities unobtainable from similar products, and is not marketed through other wholesalers, jobbers or distributors whose competition could be encouraged.
2. When the county requires supplies, materials or equipment produced by only one manufacturer, the procurement director shall specify such manufacturer's make or brand in the Invitations to Bid, and shall obtain competitive bids from authorized dealers or distributors of such manufacturer.
3. If such manufacturer is the sole bidder and/or the sole source of supply, the procurement director is authorized to negotiate an open market order or contract with the manufacturer, for pricing and terms that are the most advantageous to the county.
4. When the county requires supplies, materials or equipment that are patented or proprietary, but are obtainable from two or more equally satisfactory and/or competitive makes, brands or types, the acceptable and competitive makes, brands or types shall be noted in the bid invitation.
5. Specifications may refer to one or more brand name products followed by the words “or equal.”
a. The burden of proof that the product is equal for the intended use is on the bidder.
b. When any bidder offers an alternate item for consideration, the bidder will complete specifications, name the brand and demonstrate that the alternate is equal.
c. It shall be incumbent on each bidder to prove to the satisfaction of the county that the alternate is equal, in quality or performance, to the commodities listed in the Invitation For Bids.
6. There is a lack of competition for a product or service.
7. It is a unique, one-of-a-kind service offer, or a unique offer that supports a beneficial or economically advantageous service, commodity, and/or property to the county and/or its economic development pursuits.
8. Where the items are needed for trial use or testing.
(Ord. 1006, passed 4-17-06; Am. Ord. 6408, passed 10-20-08; Am. Ord. 3411, passed 10-17-11; Am. Ord. 613, passed 3-18-13; Am. Ord. 2014, passed 6-2-14; Am. Ord. 3817, passed 7-17-17; Am. Ord. 3521, passed 9-7-21; Am. Ord. 6023, passed 11-20-23)