(A) Certificates of insurance.
(1) (a) A CERTIFICATE OF INSURANCE is a standard insurance industry document issued by an insurer, which demonstrates that an insurance policy exists and provides additional insurance information that is important in holding a vendor accountable.
(b) By obtaining an appropriate certificate of insurance form from the vendor, the county is able to verify that specific insurance coverages and protections are in place, and will legally transfer the risks associated with the business relationship with a vendor from the county to a third party insurer.
(2) Vendors shall provide proof of coverage on a prepared form that verifies that they are covered against loss or damages by a reputable insurance company authorized to do business in the state.
(3) The county's goal in requiring certificates of insurance is to protect the county from all loss or exposure resulting from negligence on the part of an uninsured or underinsured vendor that furnishes the county with materials, equipment, supplies or services.
(4) The procurement department is assigned responsibility for making sure all vendors doing business with the county provide adequate proof of their insurance coverages prior to any procurement activity. If a vendor cannot provide proof of insurance, the procurement department shall require the execution of an indemnity form from vendor prior to any procurement activity. Upon the procurement department obtaining proof of insurance or indemnity forms, the procurement department shall catalogue those filings in its software; and, thereafter, convey copies of the forms for retention and audit purposes.
(5) In cooperation with the county's risk management department and the county attorney, purchasing staff also continually review potential contracts for purchase or services to make sure appropriate coverages are in place.
(6) (a) As a general rule, for most contracts entered into by the county, vendors are required to furnish proof of workers compensation and employer's liability (statutory limits), general liability and automobile liability.
(b) For certain “high risk” contracts, where it could be assumed the county's exposure may exceed the minimum insurance limits, higher limits of coverage or additional specialized coverages (such as professional liability, medical liability or an umbrella liability policy) are required before the county can conduct business with that vendor.
(7) All vendors doing business with the county will be advised that their contract to do business with the county can be terminated if that vendor fails to maintain and keep in place any required insurance coverage(s).
(8) When practicable, all county contracts shall include hold harmless and indemnification language to protect the county from negligence or fault of the vendor or contractor.
(B) Inspection of plant and audit of records.
(1) Right to inspect plant. The county may, at reasonable times, inspect the part of the plant or place of business of a contractor or any subcontractor related to the performance of any contract awarded or to be awarded by the county.
(2) Right to audit records.
(a) The county may, at reasonable times and places, audit the books and records of any person who has submitted cost or pricing data to the extent that such books and records relate to such cost or pricing data.
(b) Any person who receives a contract, change order, or contract modification for which cost or pricing data is required, shall maintain such books and records that relate to such cost or pricing data for three years from the date of final payment under the contract, unless a shorter period is otherwise authorized in writing.
(C) Controversy arising from the bid process.
(1) Disclaimers.
(a) An Invitation for Bids, a Request for Proposals, or a Request for Qualifications does not bestow a property interest in, or beneficial right to, any dissatisfied respondent, bidder, offerer, contractor or subcontractor, or to any other business, contractor, subcontractor or entity proposed to be utilized by any respondent or dissatisfied respondent.
(b) The county does not recognize any such property interest in, beneficial right to, or entitlement to any prospective bid award in the county procurement process.
(c) Remedies available to any dissatisfied respondent are limited to the right to protest and remedies as expressed herein below.
(2) Right to protest; protest procedure; review and decision/resolution; appeal.
(a) Right to protest.
1. Any prospective bidder, offerer, contractor or subcontractor aggrieved in connection with the solicitation of a contract shall protest to the procurement director within seven days, but not thereafter, of the date of issuance of the invitation for bids, request for proposals or other solicitation documents, whichever is applicable, or any amendment thereto, if the amendment is at issue.
2. Any actual bidder, offerer, contractor or subcontractor aggrieved in connection with the intended award or award of a contract shall protest to the appropriate purchasing officer within seven days, but not thereafter, of the date notification of award is posted in accordance with this subchapter.
3. The rights and remedies granted in this subchapter to a disappointed respondent, bidder, offerer, contractor or subcontractor are the sole rights and remedies provided herein against the county for the loss or potential loss of an award of a contract under this subchapter.
(b) Protest procedure. A protest shall be in writing, submitted to the procurement director, and shall set forth the grounds of the protest and the relief requested with enough particularity to give notice of the issues to be decided, with the approval of the county manager.
(c) Duty and authority to attempt to settle protests.
1. Prior to commencement of an administrative review, the procurement director, or designees thereof, shall attempt to settle by mutual agreement a protest of an aggrieved bidder, offerer, contractor or subcontractor, actual or prospective, concerning the solicitation or award of the contract.
2. The procurement director, or designees thereof, shall have the authority to approve any settlement reached by mutual agreement, with approval of the county manager.
(d) Administrative review and decision.
1. If, in the opinion of the procurement director, after a reasonable attempt, a protest cannot be settled by mutual agreement, the procurement director shall promptly conduct an administrative review, and shall issue a decision in writing within ten days of completion of the review.
2. The decision shall state the reason for the action taken.
(e) Notice of decision.
1. A copy of the decision, along with a statement of appeal rights hereunder, shall be mailed or otherwise furnished immediately to the protestant and any other party that may intervene in the process.
2. The procurement director shall also post a copy of the decision at a date and place communicated to all parties participating in the administrative review, and such posted decision shall indicate its date of posting, and be accompanied by a statement of the right to appeal.
(f) Finality of decision and appeal.
1. A decision shall be final and conclusive, unless fraudulent, or unless any person adversely affected by the decision requests a further administrative review by the County Council within ten days of posting of the decision.
2. The request for review shall be directed to the county manager, who shall forward the request for placement on the Council agenda.
3. The request shall be in writing, setting forth the reasons why the person disagrees with the decision of the procurement director, or his or her designee.
(g) No automatic stay of procurement during protests. In the event of a timely protest under divisions (C)(2)(a)1. and 2. above, the county shall not automatically stay the solicitation or award of the contract under this subchapter; provided, however, that solicitation or award of a protested contract may be stayed if the procurement director, after consultation with the head of the using agency and/or county manager, makes a written determination that the solicitation or award of the contract should be stayed in order to protect the best interest of the county.
(3) Remedies.
(a) Remedies prior to an award. In the case of a protest under division (C)(2) above, if prior to award of a contract, it is determined that the solicitation or award is in violation of law, then the solicitation or proposed award may be:
1. Canceled;
2. Stayed pending review;
3. Revised to comply with the law and re-bid; or
4. Awarded in a manner that complies with the provisions of this subchapter.
(b) Remedies after an award. In the case of a protest under division (C)(2), if after an award it is determined that a solicitation or award of a contract is in violation of law, then:
1. If the person awarded the contract has not acted fraudulently or in bad faith, the contract may be ratified and affirmed; provided it is determined that doing so is in the best interest of the county.
2. If the person awarded the contract has not acted fraudulently or in bad faith, the contract may be terminated and the person awarded the contract may be compensated for actual expenses reasonably incurred under the contract prior to termination.
3. If the person awarded the contract has acted fraudulently or in bad faith, then the contract may be declared null and void.
4. If the person awarded the contract has acted fraudulently or in bad faith, the contract may be ratified; if such action is in the best interest of the county, without prejudice to the county's right to such damages as may be appropriate.
(4) Frivolous protests.
(a) Signature on protest constitutes certificate. The signature of an attorney or party on a protest or other document for appeal and/or review constitutes a certificate by the signer that the signer has read such document, that to the best of the signer's knowledge, information and belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law, or a good faith argument for the protest or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass, limit competition, or to cause unnecessary delay or needless increase in the cost of the procurement that is the subject of the litigation.
(b) Sanctions for violations. If a protest or other document for appeal and/or review is signed, or found to be signed, in violation of this division, the procurement director, county manager or County Council are hereby authorized, upon their own initiative or upon a motion of an intervening party, to impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include debarment and/or an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the protest, pleading, motion or other paper, including a reasonable attorney's fee.
(D) Debarment.
(1) Authority. The procurement director is authorized to take actions to provide for the “debarment” of a vendor, person, contractor or business from participating in any future procurement with the county.
(2) Procedure.
(a) After reasonable notice to the person involved and reasonable opportunity for that person to be heard, the procurement director, after consultation with the county manager, the using agency and the county attorney, shall have authority to debar a person for cause from consideration for award of contracts.
(b) The debarment shall not be for a period of more than three years.
(c) After consultation with the county manager, the using agency and the county attorney, the same director shall have authority to suspend a person from consideration for award of contracts if there is probable cause for debarment.
(d) The suspension shall not be for a period exceeding three months.
(e) The authority to debar or suspend shall be exercised in accordance with these regulations.
(3) Causes for debarment or suspension. The causes for debarment or suspension include the following:
(a) Conviction for commission of a criminal offense as an incident to obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract;
(b) Conviction under state or federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, or any other offense indicating a lack of business integrity or business honesty, which currently, seriously and directly affects responsibility as a county contractor;
(c) Conviction under state or federal antitrust statutes arising out of the submission of bids or proposals;
(d) Violation of contract provisions, as set forth below, of a character so serious as to justify debarment action:
1. Deliberate failure, without good cause, to perform in accordance with the specifications or within the time limit provided in a contract; or
2. A recent record of failure to perform or of unsatisfactory performance in accordance with the terms of one or more contracts; provided that failure to perform or unsatisfactory performance caused by acts beyond the control of the contractor shall not be considered to be a basis for debarment;
(e) Any other cause determined to be as serious and compelling as to affect responsibility as a county contractor, including debarment by another governmental entity for any cause;
(f) Financial infirmity;
(g) The initiation of a frivolous protest under this subchapter; and
(h) For violation of the ethical standards set forth in applicable state or federal law or this subchapter.
(4) Decision.
(a) The procurement director shall issue a written decision to debar or suspend.
(b) The decision shall:
1. State the reasons for the action taken; and
2. Inform the debarred or suspended person involved of its rights to judicial review as provided in this subchapter.
(c) A copy of the decision shall be mailed or otherwise furnished immediately to the debarred or suspended person and any other party intervening.
(5) Finality of decision and appeal.
(a) A decision under division (D)(4) above shall be final and conclusive, unless fraudulent, or unless the debarred or suspended person, contractor, vendor or business appeals administratively within 14 days, but not thereafter, to the county manager, setting forth with particularity why the decision to debar or suspend is in error.
(b) An appeal to the county manager does not stay the effect of the debarment or suspension decision appealed.
(c) The county manager shall rule upon the appeal within 14 days of its receipt.
(Ord. 1006, passed 4-17-06; Am. Ord. 2014, passed 6-2-14; Am. Ord. 6023, passed 11-20-23)