(A) General provisions.
(1) In general terms, a CONTRACT refers to all types of legally binding agreements, regardless of what they may be called, for the procurement or disposal of supplies, materials, equipment and services or construction.
(a) All contracts for the procurement of supplies, materials, equipment and services shall be subject to the availability and the annual appropriation of sufficient funds by the County Council.
(b) When funds are not appropriated or otherwise made available to support continuation of performance in a subsequent fiscal period, a contract may be considered canceled.
(2) (a) Subject to the limitations of this section, any type of contract appropriate to the procurement, and which will promote the best interest of the county, may be used; provided the use of a cost-plus-a-percentage-of-cost contract is prohibited.
(b) A cost reimbursement contract may be used only when a determination is made in writing that such contract is likely to be less costly to the county than any other type, or that it is impractical to obtain the supply, service, or construction item required except under such a contract.
(3) (a) All contracts will be drafted, negotiated or approved by the county attorney as to form, content and legality.
(b) Provisions that may appear within a contract with the county include, but are not limited to: assumption of risk by successful bidder, proposer or responder; indemnification by successful bidder, proposer or responder; non-assignment; provision requiring mandatory mediation prior to initiation of legal action; termination provision; and clause indicating contract to be governed by state laws.
(4) (a) All contracts whose total value is in excess of the mandatory bid limit will be signed by the chairman of the County Council, or in the appropriate case, the chairman's designee, and receive attestation by the county manager.
(b) The county manager or procurement director is authorized to approve and execute contracts whose total value does not exceed the mandatory bid amount. Contracts not involving bid amounts, or involving de-minimis amounts, such as non-reimbursable utility agreements, other county utility agreements, NPDES permits, encroachment permits, and permits to construct are expressly authorized to be executed by the county manager or his or her designee.
(B) Fixed-price or specified-period contracts.
(1) Fixed-price contracts.
(a) Fixed-price contracts shall ordinarily be used for those purchases of goods and services or sales and leases where the terms, conditions, specifications and other factors of the contract can be specified with a high degree of certainty, and where use of a fixed-price contract will result in substantial competition between bidders or offerors willing to compete for the contract.
(b) Escalation clauses or other economic adjustments may be included as appropriate to serve the best interests of the county in achieving the most economical contract performance.
(2) Specified-period contracts. Specified-period contracts may be used for the procurement of supplies or services, and may be entered into for a specific period of time that does not exceed a total of three years, with renewal options that may be requested for up to two additional years; provided the terms of the contract, and the conditions of renewal or extension, if any, were included during solicitation; and funds are available for the first fiscal period at the time of contracting.
(C) Multi-term contracts.
(1) A contract for supplies or services may be entered into for renewable periods of time, or until completion of the project(s) described in the original solicitation, whichever is later, not to exceed a total of three years, with renewal options that may be requested for up to two additional years; provided the terms of the contract, and the conditions of renewal or extension, if any, are included in the solicitation; and funds are available for the first fiscal period at the time of contracting.
(2) (a) Payment and performance obligations of the county for each succeeding fiscal period shall be subject to the availability and appropriation of funds therefor.
(b) All multi-term contracts shall contain a clause stating that, when funds are not appropriated or otherwise made available to support continuation of performance in a subsequent fiscal period, the contract shall be canceled.
(3) Prior to the utilization of a multi-term contract, it shall be determined in writing by the procurement director and/or the county manager that estimated requirements cover the period of the contract and are reasonably firm and continuing; and that such a contract will serve the best interests of the county by encouraging effective competition or otherwise promoting economies in county procurement.
(4) Certain bids may be solicited and contracts issued with renewal clauses to bind the contractor to a renewal period at the sole option of the county.
(a) In such cases, bidders will be asked to bid a firm price to be applicable during the renewal period.
(b) If the county chooses to renew, or in the alternative, to bid prices geared to pertinent commodity price indexes to be applicable in renewal periods, if the county chooses to renew.
(c) In all cases where the renewal option is involved, the bid information will state that the county reserves the right to renew the contract, if awarded, in accord with prices (firm or geared to pertinent price indexes) included in bids received, and that renewal on such terms is at its sole option.
(d) No contract may be issued for periods exceeding one year.
(e) However, the renewal option may be requested for up to two additional years.
(D) State contracts.
(1) The state has established a system of competitive procurement for a number of services, supplies, equipment and materials needed for the operation and maintenance of state government and the services it provides.
(2) Provision has been made within the state's procurement system rules and procedures for units of local government to also procure certain services, supplies, equipment and materials acquired through competitive contracts, which have been negotiated and established by the state.
(3) County procurement from contracts negotiated and established by the state may be determined to be in the best interest of the county and therefore use of the state contract by the county will be authorized; however, such authorization does not otherwise relieve county officials from any of the other procedures or policies contained in this subchapter.
(E) Construction contracts.
(1) (a) Construction contracts provide an agreement for the building, repair, alteration, improvement, installation, or demolition of any public improvement of any kind on public real property.
(b) Construction contracts provide a means for documenting the terms and conditions for construction activity to take place within the following agreed-upon areas: scope of work, schedule of activities, and amount of compensation.
(2) All contracts for construction shall be awarded based upon competitive sealed bidding described elsewhere in this subchapter.
(a) Amendments or change orders to construction contracts, which do not alter the original scope or intent of the project, and which do not exceed the previously approved project budget, may be approved by the county manager, or by the employee designated in the construction contract with authority to approve such amendments or change orders.
(b) Every contract modification, change order, or contract price adjustment under a construction contract with the county of $50,000.01 or greater, shall be subject to prior approval by the County Council.
(c) Written justification shall be prepared and added to the project file for all change orders in excess of 2% of the total original bid or contract price.
(d) The county manager, procurement director or designated employee assigned to represent the county in the construction project may approve such modifications, change orders, or adjustments less than $50,000.01; provided the additional cost has been included in the overall budget for the project that was approved by the County Council.
(F) Renewal and cancellation of contracts.
(1) The procurement director shall have the authority to cancel contracts under $50,000.01, when the vendor is found to have violated, or attempted to violate, the provisions of this subchapter.
(2) The procurement director shall also have the authority to cancel contracts under $50,000.01 in any of the following instances:
(a) If the vendor fails to make delivery within the specified time.
(b) If the vendor fails to provide service when service is part of the contract.
(c) If the supplies, materials or equipment are inferior to the specifications.
(d) If the vendor agrees to cancel.
(e) If the contract is fraudulent, and conspiracy or conflict of interest is detected.
(f) If the vendor is not properly licensed.
(3) In each of the foregoing instances, the procurement director shall award the contract to the next responsive bidder.
(G) Leases.
(1) Prior to execution, all leases resulting from actions of the procurement department to procure supplies, materials, equipment and services shall be reviewed and approved for form and content by the county attorney.
(a) Procurement decisions resulting in leasing arrangements must follow the specific procedures established in this subchapter for competitive solicitation based upon the total amount of the lease cost.
(b) The procurement director shall be authorized to approve leases involving procured services, supplies, materials and equipment for which the total cost of the lease is less than the mandatory bid amount.
(c) Upon recommendation by the procurement director or department head, the County Council must approve all leasing arrangements in excess of the mandatory bid amount.
(d) Threshold amounts referenced herein shall include the values associated with potential options of renewal; provided those options were both requested and part of the original solicitation; and provided, after review of past performance under contract, the procurement director, county manager or County Council may determine, at their discretion, that exercise of the option of renewal is in the best interest of the county.
(2) A lease may be entered into; provided all conditions for renewal and costs of termination are set forth in the lease, and the lease is not used to circumvent normal procurement procedures.
(3) A purchase option in a lease may be exercised only if the lease containing the purchase option was awarded under competitive sealed bidding, or competitive sealed proposal, or the leased supply or equipment is the only supply or equipment that can meet the county's requirements, as determined, in writing, by the department head of the requesting department and the procurement director.
(4) (a) When a contract is to contain an option for renewal, extension or purchase, notice of such provision shall be included in the solicitation.
(b) Exercise of such an option is always at the county's discretion only, and not subject to agreement or acceptance by the contractor.
(5) Terms and conditions.
(a) The procurement director shall not allow any contract for the rental or lease of personal property, or for the acquisition of services by an independent contractor, to exceed a term of three years, with the option to renew for an additional two years.
(b) Contracts for leasing shall not exceed three years, unless the procurement director finds that a term longer than three years is required in order to promote efficiency and economy, or for other reasons that a three-year term is otherwise impractical.
(Ord. 1006, passed 4-17-06; Am. Ord. 2014, passed 6-2-14; Am. Ord. 4316, passed 9-19-16; Am. Ord. 3817, passed 7-17-17; Am. Ord. 6023, passed 11-20-23)