HomeMy WebLinkAboutR-11102 adopting the Federal Emergency and Federal Grant Procurement ProceduresR 11102
RESOLUTION NO. 11102 (2020 SERIES)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN LUIS
OBISPO, CALIFORNIA, ADOPTING THE FEDERAL EMERGENCY AND
FEDERAL GRANT PROCUREMENT PROCEDURES
WHEREAS, the Office of Management and Budget (OMB) requires the non-Federal
entity to use procurement standards that conform to the procurement standards in the Uniform
Guidance, codified at 2 CFR Sections 200.317-200.326; and
WHEREAS, the City of San Luis Obispo (“City”) prepared and has conducted federally
funded procurements in accordance with the San Luis Obispo Federal Grant Procurement
Procedures (“Procedures”), attached hereto as Exhibit “A”, including for procurements conducted
as of February 1, 2019; and
WHEREAS, the City now desires to formalize use of the Procedures through adoption of
the Procedures.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Luis Obispo
that:
SECTION 1. The recitals set forth above are true and correct and are incorporated into
this resolution by this reference.
SECTION 2. The City hereby adopts the San Luis Obispo Federal Emergency and
Federal Grant Procurement Procedures, attached hereto as Exhibit “A”, effective as of February 1,
2019.
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SECTION 3. This resolution shall be effective as of the date of adoption. The City Clerk
shall certify the adoption of this resolution.
Upon motion of Council Member Pease, seconded by Vice Mayor Gomez, and on the
following roll call vote:
AYES: Council Member Christianson, Pease, Stewart, Vice Mayor Gomez and
Mayor Harmon
NOES: None
ABSENT: None
The foregoing resolution was adopted this 17th day of March 2020.
____________________________________
Mayor Heidi Harmon
ATTEST:
____________________________________
Teresa Purrington
City Clerk
APPROVED AS TO FORM:
_____________________________________
J. Christine Dietrick
City Attorney
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City
of San Luis Obispo, California, on ______________________.
____________________________________
Teresa Purrington
City Clerk
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CITY OF SAN LUIS OBISPO
FEDERAL EMERGENCY
AND FEDERAL GRANT
PROCUREMENT PROCEDURES
Effective as of February 1, 2019
990 Palm St.
San Luis Obispo, CA 93401
Exhibit A
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SAN LUIS OBISPO FEDERAL EMERGENCY AND FEDERAL GRANT
PROCUREMENT PROCEDURES
1. Purpose
The purpose of these City of San Luis Obispo (“City”) Federal Emergency and Federal Grant
Procurement Procedures is to define the practices and policies governing the procurement of public
works projects, contractual services, professional services or materials, supplies and equipment (i)
in preparation of, during, and after an emergency that may be subject to federal funding or
reimbursement; (ii) when using federal grant funds subject to the regulations set forth in the
following sentence. These Federal Emergency Procurement Procedures are compliant with Title 2
of the Code of Federal Regulations Part 200, Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for Federal Awards.
2. Emergency Authority
a. “Emergency” is defined under section 2.24.020 of the City’s Municipal Code (“City
Code”) as:
the actual or threatened existence of conditions of disaster or of extreme
peril to the safety of persons and property within the city caused by such
conditions as air pollution, fire, flood, storm, hazardous materials incident,
drought, sudden and severe energy shortage, plant or animal infestations or
disease, epidemic, riot, nuclear emergency, earthquake or other conditions,
including conditions resulting from war, terrorist acts or imminent threat of
war, which conditions are, or are likely to be, beyond the control of the
services, personnel, equipment and facilities of this city, requiring the
combined forces of other political subdivisions to combat. (Ord. 1560 § 1,
2011: prior code § 2430.1)
b. In the case of a declared emergency, section 2.24.060(A)(6)(b) of the City Code
allows for emergency contracting:
To obtain vital supplies, equipment and such other properties found lacking
and needed for the protection of life and property and to bind the city for
the fair value thereof and, if required immediately, to commandeer the same
for public use.
3. Federally Declared Emergencies and Federal Grants; Procurement and Contracting
Requirements
In the event of an emergency declared by the President of the United States, the City must comply
with Federal procurement standards as a condition of receiving public assistance funding from the
Exhibit A
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Federal Emergency Management Agency (FEMA) for contract costs for eligible work. FEMA
funding is governed by Title 2 of the Code of Federal Regulations (CFR) Part 200, Uniform
Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards
(“Uniform Guidance”).
In addition, most federal grant funding is also subject to the Uniform Guidance. Federal grant
compliance requires the grantee to conduct procurements in accordance with written procurement
policies and procedures that comply with the requirements set forth in the Uniform Guidance.
These procurement procedures shall be complied with in connection with utilization of federal
grant funding by the City, in addition to any other specific grant requirements.
These procedures are in addition to and are not intended to replace or supersede the City’s other
procurement requirements contained in the City Code and the City Purchasing Manual. In the case
of a conflict between these procedures, the City Code or the City’s Purchasing Manual, the more
stringent requirement shall govern, provided that the more stringent requirement would not violate
a federal procurement requirement. In such case, for federally funded contracts, the federal
requirement shall govern.
a. Conflicts of Interest
i. Standards of Conduct for Conflicts of Interest. No employee, officer or
agent of the City shall participate in selection, or in the award or
administration of a contract supported by federal funds if a conflict of
interest, real or apparent, would be involved. Such a conflict would arise
when: The employee, officer or agent; any member of his immediate family;
his or her partner; or an organization which employs, or is about to employ,
any of the above, has a financial or other interest in the firm selected for
award. The City’s officers, employees or agents will neither solicit nor
accept gratuities, favors or anything of monetary value from contractors,
potential contractors, or parties to subagreements. Such a conflict will not
arise where the financial interest is not substantial or the gift is an
unsolicited item of nominal intrinsic value. Employees must follow
applicable laws, rules, and regulations in regard to conflicts of interest
including, but not limited to, the Political Reform Act, the prohibition
against contractual conflicts of interest, and guidelines in the California
Code of Regulations regarding acceptance of gifts.
ii. Violations. Disciplinary actions to be applied for violations of the above
standards are as follows.
1. The violation of these Standards of Conduct by City employees will
subject the violator to any disciplinary proceedings or action
deemed appropriate by the City Manager. Employees may correct
a violation in any manner provided for under the Political Reform
Act, and its implementing regulations.
2. The violation of any of these Standards of Conduct by City officers
will require correction of the violation in any manner provided for
under the Political Reform Act, and its implementing regulations.
3. Contractors or subcontractors that violate these Standards of
Conduct as relates to an active federally-funded procurement may
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be prohibited from bidding on the procurement, or may be subject
to other action as deemed appropriate by the City Manager.
4. Agents of the City that violate these Standards of Conduct as relates
to federally-funded procurements may be prohibited from
participation on behalf of the City on federally funded projects, or
subject to other action as deemed appropriate by the City Manager.
b. Procurement Standards
i. Oversight. The City shall maintain administrative oversight of contractors
to ensure that contractors perform in accordance with the terms, conditions
and specifications of their contracts or purchase orders.
ii. Economical Approach. The City must avoid acquisition of unnecessary or
duplicative items. Consideration should be given to consolidating or
breaking out procurements to obtain a more economical purchase. Where
appropriate, an analysis will be made of lease versus purchase altern atives,
and any other appropriate analysis to determine the most economical
approach. The City will enter into state and local intergovernmental
agreements or inter-entity agreements where appropriate for procurement
or use of common or shared goods and services. If feasible and it reduces
project costs, the City will explore using federal excess and surplus property
in lieu of purchasing new equipment and property. When appropriate, the
City will investigate using value engineering clauses in contracts for
construction projects of sufficient size to offer reasonable opportunities for
cost reductions.
iii. Detailed Records. The City shall maintain records sufficient to detail the
history of each procurement. These records will include, but are not
necessarily limited to the following: rationale for the method of
procurement, selection of contract type, contractor selection or rejection,
and the basis for the contract price.
iv. Procurement Issues. The City alone shall be responsible, in accordance with
good administrative practice and sound business judgment, for the
settlement of all contractual and administrative issues arising out of
procurements. These issues include, but are not limited to, source
evaluation, protests, disputes and claims. Protest procedures or information
on obtaining the procedures shall be included in the procurement
documents.
c. Competition
i. Full and Open Competition. In order to ensure objective contractor
performance and eliminate unfair competitive advantage, contractors that
develop or draft specifications, requirements, statements of work, or
invitations for bids or requests for proposals must be excluded from
competing for such procurements. Some of the situations considered to be
restrictive of competition include but are not limited to:
1. Placing unreasonable requirements on firms in order for them to
qualify to do business;
Exhibit A
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2. Requiring unnecessary experience and excessive bonding;
3. Noncompetitive pricing practices between firms or between
affiliated companies;
4. Noncompetitive contracts to consultants that are on retainer
contracts;
5. Organizational conflicts of interest, as further detailed herein;
6. Specifying only a “brand name” product instead of allowing “an
equal” product to be offered and describing the performance or other
relevant requirements of the procurement; and
7. Any arbitrary action in the procurement process.
ii. Organizational Conflicts of Interest. An unfair competitive advantage could
result if a contractor were allowed to submit a bid or proposal for work
described in a specification or statement of work that the contractor itself
developed. For the purpose of eliminating a potential unfair competitive
advantage, and in compliance with applicable state and federal laws and
regulations, a contractor that develops or assists in developing
specifications, requirements, statements of work, invitation for bids, and/or
request for proposals for a City procurement is excluded from competing
for the resultant procurement, unless an appropriate waiver is issued by the
City. All waivers will be assessed by the City on a case-by-case basis.
iii. Geographical Preference. The City shall conduct procurements in a manner
that prohibits the use of statutorily or administratively imposed in-state or
local geographical preferences in the evaluation of bids or proposals, except
in those cases where applicable federal statutes expressly mandate or
encourage geographic preference. When contracting for architectural and
engineering (A/E) services, geographic location may be a selection criteria
provided its application leaves an appropriate number of qualified firms,
given the nature and size of the project, to compete for the contract.
iv. Procurement Transactions. The City shall require the following information
for procurement transactions:
1. A clear and accurate description of the technical requirements for
the material, product or service to be procured. Such description
shall not, in competitive procurements, contain features which
unduly restrict competition. The description may include a
statement of the qualitative nature of the material, product or service
to be procured, and when necessary, shall set forth those minimum
essential characteristics and standards to which it must conform if it
is to satisfy its intended use. Detailed product specifications should
be avoided if at all possible. When it is impractical or uneconomical
to make a clear and accurate description of the technical
requirements, a brand name or equal description may be used as a
means to define the performance or other salient requirements of
procurement. The specific features of the named brand which must
be met by offerors shall be clearly stated; and
Exhibit A
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2. All requirements which the offerors must fulfill and all other factors
to be used in evaluating bids or proposals.
v. Prequalification Lists. The City shall ensure that all prequalified lists, if
used, of persons, firms or products which are used in acquiring goods and
services are current and include enough qualified sources to ensure
maximum open and free competition. The City shall not preclude potential
bidders from qualifying during the solicitation period.
d. Procurement Procedures
The thresholds below are federal thresholds. If City thresholds are lower, the more
restrictive requirement shall govern, notwithstanding the provisions herein.
i. Micro-Purchases. Purchases within the micro-purchase threshold (e.g.,
currently set at purchases of $10,000 or less but periodically adjusted for
inflation) may be awarded without soliciting competitive quotations if the
City considers the price to be reasonable. To the extent practicable, the City
must distribute micro-purchases equitably among qualified suppliers.
ii. Small Purchases. Purchases within the simplified acquisition threshold
(e.g., currently set at purchases of $250,000 or less) shall not be required to
be formally bid. Price quotations must be received from no less than three
(3) sources.
iii. Formal, Sealed Bidding.
1. Bids are publicly solicited and a firm-fixed-price contract (lump
sum or unit price) is awarded to the responsible bidder whose bid,
conforming to all the material terms and conditions of the invitation
for bids, is the lowest in price. Formal, sealed bidding is required
for purchases greater than the simplified acquisition threshold,
which is currently set at $250,000, or as may be adjusted by the
Federal Acquisition Regulation, pursuant to 48 CFR § 2.101.
2. This is the preferred method for procuring construction, if a
complete, adequate, and realistic specification or purchase
description is available; two or more responsible bidders are willing
and able to compete effectively and for the business; and the
procurement lends itself to a firm-fixed-price contract and the
selection of the successful bidder can be made principally on the
basis of price.
3. The City must publicly advertise the Invitation for Bids and publicly
open all bids at the time and place prescribed in the invitation.
4. Any contracts awarded pursuant to this procedure shall be to the
lowest responsible bidder submitting a responsive bid and shall be
for a firm fixed price. Any or all bids may be rejected if there is a
sound documented reason.
iv. Competitive Proposals.
1. When the nature of a procurement does not lend itself to formal,
sealed bidding, the City may solicit competitive proposals. The
Exhibit A
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technique of competitive proposals is normally conducted with more
than one source submitting an offer, and either a fixed-price or cost-
reimbursement type contract is awarded.
2. A request for proposals (RFP) must be publicly advertised, and the
City must solicit proposals from an adequate number of sources.
The RFP must identify all evaluation factors and their relative
importance; however, the numerical or percentage ratings or
weights need not be disclosed.
3. Evaluation factors that will be considered in evaluating proposals
shall be tailored to each procurement and shall include only those
factors that will have an impact on the selection decision.
a. The City’s procurement officer shall establish a formal
evaluation committee, of at least two persons. The size of
an evaluation committee should be based on the size and
complexity of the goods or services being procured and well
balanced and represented by individuals involved with the
procurement and/or affected by the goods or services being
procured.
b. The evaluation committee will be charged with
responsibility for evaluating proposals in accordance with
the evaluation criteria in the solicitation, short listing firms,
establishing a competitive range, and/or recommending a
firm or firms for contract award.
4. Any contract awarded based on the competitive proposal
procurement process cannot be based exclusively on price or price-
related factors.
5. If a contract is awarded, it shall be to the responsible firm whose
proposal is most advantageous to the City (“best value”), with price
and other factors considered.
v. Competitive Proposals for A&E Services. The competitive proposal
procedures above may be used for procurement of architect and engineering
(A&E) services, provided that proposers must be evaluated based on
competence and qualifications, without regard to price. For A&E
procurements, price will not be used as a selection factor. The Ci ty will
rank proposers based on qualifications only, and attempt to negotiate fair
and reasonable compensation with the highest ranked proposer. If
negotiations with the highest ranked proposer are unsuccessful, such
negotiations will be terminated and the City will commence negotiations
with the next highest ranked proposer. This process shall be continued with
successive qualified proposers until agreement is reached that is determined
to be fair and reasonable.
vi. Noncompetitive Procurements.
1. Contracts may be procured through a noncompetitive proposal only
when:
Exhibit A
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a. The item is only available from a single source;
b. The public exigency or emergency for the requirement will
not permit a delay resulting from competitive solicitation;
c. The Federal awarding agency or pass-through entity
expressly authorizes noncompetitive proposals in response
to a written request from the City; or
d. Competition is deemed inadequate after the solicitation of a
number of sources.
vii. Public Projects. Public projects shall be procured by the formal contract bid
procedure as set forth Chapter 3.24, Article III, Formal Contract Procedure
of the City’s Municipal Code, Section 203 of the City Purchasing Manual,
and the formal, sealed bidding in this section. If there is conflict between
the foregoing, the more restrictive requirements shall apply.
viii. Award.
1. Responsible Contractor. The City shall award contracts only to
responsible contractors possessing the ability to perform
successfully under the terms and conditions of a proposed
procurement. Consideration will be given to such matters as
contractor integrity, compliance with public policy, record of past
performance, and financial and technical resources.
2. Debarment and Suspension. In accordance with 2 CFR 200.213, in
connection with the responsibility determination, a check of
debarment and suspension using the System for Award Management
(SAM), www.sam.gov, must be performed and documented in the
procurement records prior to award.
e. Contracting with Small and Minority Firms, Women’s Business Enterprises,
and Labor Area Surplus Firms
i. The City must take all necessary affirmative steps to ensure the use of
minority businesses, women’s business enterprises, and labor surplus area
firms when possible, as set forth at 2 CFR § 200.321 and detailed below.
The City shall:
1. Place qualified small and minority businesses and women's business
enterprises on solicitation lists;
2. Assure that small and minority businesses, and women's business
enterprises are solicited whenever they are potential sources;
3. Divide total requirements, when economically feasible, into smaller
tasks or quantities to permit maximum participation by small and
minority businesses, and women's business enterprises;
4. Establish delivery schedules, where the requirement permits, which
encourage participation by small and minority businesses, and
women's business enterprises;
5. Use the services and assistance, as appropriate, of such
organizations as the Small Business Administration and the
Minority Business Development Agency of the Department of
Commerce; and
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6. Require the prime contractor, if subcontracts are to be let, to take the
affirmative steps listed in paragraphs (1) through (5) of this section.
ii. The City shall document the steps above, and any relevant findings
applicable to any of the steps above in its procurement file.
f. Cost and Price
i. Cost or Price Analysis. The City shall perform a cost or price analysis in
connection with every procurement action, including contract
modifications, in excess of the simplified acquisition threshold. While the
method and degree of analysis depend on the facts surrounding the
particular procurement situation, the City must, at a minimum, make
independent estimates before receiving bids or proposals.
ii. Profit. The City shall negotiate profit as a separate element of the price for
each contract in which there is no price competition and in all cases where
a cost analysis is performed as required by 2 CFR § 200.323(b).
iii. Estimated Costs. Costs or prices based on estimated costs for contracts are
allowable only to the extent that costs incurred or cost estimates included in
negotiated prices would be allowable for the City under 2 CFR 200.400 et
seq.
g. Payment Procedures
i. Method of Contracting. Contracts entered into pursuant to these procedures
shall utilize only fixed-price, cost-reimbursement, or, to a limited extent,
time and materials payment methods.
ii. Prohibited Methods of Contracting. The City shall not use the cost plus a
percentage of cost or percentage of construction cost methods of contracting
for any work for which federal reimbursement will be sought.
iii. Time and Materials (“T&M”) Contracts
1. T&M contracts should be used rarely, and the use of T&M contracts
should be limited to a reasonable time period (e.g., no more than 70
hours) based on circumstances during which the City cannot define
a clear scope of work.
2. The City shall only enter into a time and materials contract if all of
the following apply:
a. The City has determined and documented in the project file
that no other contract is suitable;
b. The contract has a guaranteed maximum price that the
contractor exceeds at its own risk; and
c. The City provides a high degree of oversight to obtain
reasonable assurance that the contractor is using efficient
methods and effective cost controls.
3. The City must define the scope of work as soon as possible to enable
procurement of a more acceptable type of contract (i.e., non-T&M).
iv. Separate Invoicing
1. All purchases made during a proclaimed emergency shall require
separate invoicing from routine (i.e., non-emergency related)
Exhibit A
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purchases. All invoices shall state the goods, services, or equipment
provided and shall specify where the goods or services were
delivered. All invoices shall specify the location(s) where the goods
or services were used, if possible. Any invoice which fails to
properly identify the emergency nature of the purchase and provide
details as to the date(s) and location(s), as appropriate, shall not be
paid until such errors are corrected by the vendor and re-submitted
in correct form.
v. Auditing of Invoices for Debris Removal. All invoices for debris clearance
and removal shall be audited prior to payment to the contractor. Contractors
shall be notified of this requirement prior to the award of any contract for
debris clearance and/or removal. Audits shall be in accordance with
procedures for debris removal monitoring specified in FEMA’s Publication
325, Debris Management Guide.
h. Bonding Requirements
i. Bonding. For construction or facility improvement contracts or
subcontracts exceeding the simplified acquisition threshold (See 2 CFR
200.88), the City shall require at a minimum:
1. A bid guarantee from each bidder equivalent to five percent of the
bid price.
2. A performance bond on the part of the contractor for 100 percent of
the contract price.
3. A payment bond on the part of the contractor for 100 percent of the
contract price.
i. Procurement of Recovered Materials
i. For procurements covered under these procedures, the City and its
contractors must comply with section 6002 of the Solid Waste Disposal Act,
as amended by the Resource Conservation and Recovery Act. In
accordance with these requirements, the City shall only procure items
designated in the guidelines of the Environmental Protection Agency (EPA)
at 40 CFR part 247 that contain the highest percentage of recovered
materials practicable, consistent with maintaining a satisfactory level of
competition; procuring solid waste management services in a manner that
maximizes energy and resource recovery; and establishing an affirmative
procurement program for procurement of recovered materials identified in
the EPA guidelines.
ii. This requirement applies to purchases of items when the purchase price of
the item exceeds $10,000, or the value of the quantity acquired during the
preceding fiscal year exceeded $10,000.
j. Contract Provisions
i. Contract Provisions. The City’s contracts shall contain the applicable
provisions described in Appendix II to Part 200 – Contract Provisions for
Non-Federal Entity Contracts Under Federal Awards.
k. Pre-Event Contracts
Exhibit A
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i. The City may choose to solicit bids and proposals and award contracts in
non-disaster times. This may include, but is not limited to, debris removal
contracts and debris monitoring contracts.
Exhibit A