HomeMy WebLinkAboutORDINANCE NO 17 03 303I
I
I
STATE OF GEORGIA
COUNTY OF FULTON
r
ORDINANCE NO. 17-03-303
AN ORDINANCE TO REVISE THE CITY'S PROCUREMENT POLICY WITH
RESPECT TO ENGINEERING AND DESIGN-RELATED SERVICES IN FEDERALLY-
FUNDED ROAD CONSTRUCTION PROJECTS; TO PROVIDE FOR THE REPEAL OF
CONFLICTING ORDINANCES; TO PROVIDE FOR AN EFFECTIVE DATE; AND
FOR OTHER LAWFUL PURPOSES.
The Council of the City of Milton hereby ordains, while in regularly called Council meeting on
the 6th day of March, 2017 at 6:00 p.m., as follows:
WHEREAS, pursuant to Section 6.31 of the City Charter of the City of Milton, and other powers
vested in the City, the City is authorized to prescribe procedures for a system of centralized
purchasing for the City; and,
WHEREAS, the City has adopted a formal Purchasing Policy, codified at Chapter 2, Article VI,
Division 11 ,of the City's Code of Ordinances; and,
WHEREAS, in accordance with 23 CFR § 1.11 and § 635.105, as well as its Stewardship and
Oversight Agreement dated May 29, 2015 with the Federal Highway Administration, the Georgia
Department of Transportation (GDOT) may delegate to local public agencies such as the City the
authority to self-administer projects eligible for Federal-aid Highway Program (FAHP) funding;
and
WHEREAS, as a condition of eligibility to self-administer FAHP projects, GDOT requires that
local public agencies adopt administrative policies and procedures for the procurement,
management, and administration of engineering and design-related consultant services to be
reimbursed in whole or in part with F AHP funding; and,
WHEREAS, the City desires to adopt such administrative policies and procedures as are necessary
to qualify for self-administration of FAHP projects, and desires that such policies and procedures
comply with applicable law, including 40 U.S.C. § 1101-1104, 23 C.F.R. Part 172, and 2 C.F.R.
Part 200;
NOW THEREFORE, THE COUNCIL OF THE CITY OF MILTON HEREBY ORDAINS
as follows:
SECTION 1. That Chapter 2, Article VI, Division 11 of The Code of the City of Milton,
Georgia, is hereby amended by removing the "reserved" designation for Section 2-628, and
adopting as the text for that section the language attached hereto and incorporated herein by
reference as Exhibit "A."
Page 1of11
I
I
I
ST A TE OF GEORGIA
COUNTY OF FULTON
ORDINANCE NO. 17-03-303
SECTION 2. That all Ordinances, parts of Ordinances, or regulations in conflict herewith
are hereby repealed.
SECTION 3. That this Ordinance shall become effective upon a majority vote by the City
Council as ratified by the Mayor of the City of Milton, Georgia.
SO ORDAINED this 6th day of March, 2017.
Approved:
Attest:
Page 2of11
I
I
I
STATE OF GEORGIA
COUNTY OF FULTON
ORDINANCE NO. 17-03-303
Exhibit A
Page 3 of 11
I
I
I
STATE OF GEORGIA
COUNTY OF FULTON
ORDINANCE NO. 17-03-303
SEC. 2-628 PROCUREMENT OF ENGINEERING AND DESIGN SERVICES FOR
PROJECTS USING FEDERAL AID HIGHWAY PROGRAM FUNDING
(a) Applicability
( 1) Section 2-628 applies only to the procurement of engineering and design related services
for projects involving Federal Aid Highway Program funds, where construction is to be
performed by the Georgia Department of Transportation or under its direct or indirect
supervision.
(2) For purposes of this section, "engineering and design related services" means professional
services of an architectural or engineering nature, or incidental services that members of
the architectural and engineering professions (and individuals in their employ) may
logically or justifiably perform, including program management, construction
management, feasibility studies, preliminary engineering, design engineering, surveying,
mapping, or architecture-related services. Excluded are services provided under any
contract for construction work, including design-build contracts.
(3) This section shall be interpreted to implement the federal procurement and contract
administration requirements set forth at 40 U.S.C. § 1101-1104, 23 C.F.R. Part 172, and 2
C.F.R. Part 200, as may be amended in the future.
(b) Competitive Negotiation/Qualifications-Based Selection
(l) Primary Procurement Method.
a. Except in the exceptional circumstances described in subsection (c), procurement
of contracts subject to this section shall follow the Competitive
Negotiation/Qualifications-Based Selection method set forth in this subsection.
(2) Advertising of Solicitation.
a. Solicitation shall be by public announcement, public advertisement, or any other
public forum or method that assures qualified in-state and out-of-state contractors
are given a fair opportunity to be considered for award of the contract.
(3) Solicitation Process.
a. Procurement may involve any of the following solicitation processes:
I. Issuance of a request for proposals for a specific project.
2. Issuance of a project-specific request for statements or letters of interest or
qualifications, whereby responding contractors are ranked based on their
qualifications. A request for proposals is then provided to three or more of the
most highly qualified contractors.
3. Issuance of a generic request for statements or letters of interest or
qualifications on an annual basis, with responses kept for future use. As
projects are developed, a project-specific request for proposals is provided to
three or more of the most highly qualified contractors with qualifications on
file.
Page 4of11
I
I
I
ST ATE OF GEORGIA
COUNTY OF FULTON
ORDINANCE NO. 17-03-303
b. Regardless of the solicitation process used, a request for proposal specific to the
project, task, or service is required for evaluation of a contractor's specific technical
approach and qualifications.
(4) Contents of Request for Proposal (Rf P)
Every RFP shall contain:
a. A schedule of key dates for the procurement process and a submittal deadline for
responses to the RFP which provides sufficient time for interested contractors to
receive notice, prepare, and submit a proposal, which except in unusual
circumstances may be not fewer than 14 calendar days from the date of issuance of
the RFP.
b. All information necessary for interested contractors to provide a response to the
Rf P that is sufficiently specific and detailed that responses can be fairly judged
based on quality.
c. A clear, accurate, and detailed description of the scope of work, technical
requirements, and qualifications of contractors, necessary for the services to be
rendered. The scope of work shall detail the purpose and description of the project,
services to be performed, deliverables to be provided, estimated schedule for
performance of the work, and applicable standards, specifications, and policies.
d. Specification of the procedure the City will follow for holding additional
discussions with the most highly qualified contractors following submission and
initial evaluation of proposals.
e. Specification of the contract type and method(s) of payment to be utilized in
accordance with subsection (b)(S)(A) of this section.
f. Identification of any special provisions or contract requirements associated with the
solicited services.
g. A requirement that the contractor identify and state the experience and
qualifications of all key personnel who will work on the project.
h. Notification that contractor or subcontractor suspension or debarment from work
on federal contracts will disqualify a proposal. The RFP shall also contain a
requirement that the contractor provide sufficient information to verify suspension
and debarment status in accordance with 2 C.F.R. Part 1200 and 2 C.F.R. Part 180.
The contractor shall be informed that its signature on any proposal or statement of
qualifications constitutes an authorization to the City to ascertain the eligibility of
the contractor to enter into a federally-funded contract, including without limitation
confirmation of such eligibility on the federal government's Award Management
website (www.sam.gov). In addition, the contractor and any subcontractor shall be
required to certify as to their own current eligibility status, as well as that of their
principals. Failure to provide the certification will result in the disqualification of
the proposal.
1. If one has been assigned by the Georgia Department of Transportation,
identification of the Disadvantaged Business Enterprise (DBE) contract
participation goal for the project.
Page 5of11
I
I
I
STATE OF GEORGIA
COUNTY OF FULTON
ORDINANCE NO. 17-03-303
J.
k.
The requirement that submission of any requested cost proposals or elements of
cost be in a concealed format and separate from technical/qualifications proposals,
as cost shall not be considered in the evaluation, ranking, and selection phase.
Identification of all evaluation factors that will be used, including their relative
weight of importance. Evaluation factors shall comply with the following
minimum requirements:
I. While the contract will be with the prime contractor, proposal evaluations shall
consider the qualifications of the prime contractor and any subcontractors
identified within the proposal.
2. Criteria used for evaluation, ranking, and selection of contractors must assess
the demonstrated competence and qualifications for the type of professional
services solicited. These qualifications-based factors may include, but are not
limited to, pre-qualification in the appropriate technical areas by the Georgia
Department of Transportation, technical approach (e.g., project understanding,
suggestion of innovative concepts or alternatives, quality control procedures),
work experience, specialized expertise, professional licensure, staff
capabilities, workload capacity, and past performance.
3. Price shall not be used as a factor in the evaluation, ranking, and selection phase.
This includes all price or cost related items such as cost proposals, direct
salaries/wage rates, indirect cost rates, and other direct costs.
4. In-state presence shall not be used as a factor in the evaluation, ranking, and
selection phase. However, compliance with state licensing Jaws and
professional licensure within a jurisdiction may be established as a requirement.
5. The following non-qualifications based evaluation criteria are permitted,
provided the combined total of these criteria do not exceed ten percent of weight
given all evaluation criteria:
A. A local presence may be used as a nominal evaluation factor where
appropriate. This criterion shall not be based on political or jurisdictional
boundaries and may be applied on a project-by-project basis for contracts
where a need has been established for a contractor to provide a local
presence, a local presence will add value to the quality and efficiency of the
project, and application of this criteria leaves an appropriate number of
qualified contractors, given the nature and size of the project. [fa contractor
outside of the local area indicates as part of a proposal that it will satisfy the
criteria in some manner, such as establishing a local project office, that
commitment shall be considered to have satisfied the local presence
criterion.
B. The contractor's Disadvantaged Business Enterprise (DBE) policy and
practices, and the proposed participation of qualified and certified DBE
subcontractors, may be used as a nominal evaluation criterion where
appropriate in accordance with 49 C.F.R. Part 26. However, if a DBE goal
has been established for the contract, the contractor's DBE qualifications
cannot be used as a scoring criterion.
(5) Evaluation and egotiation Process
Page 6of11
I
I
I
ST A TE OF GEORGIA
COUNTY OF FULTON
ORDINANCE NO. 17-03-303
a. Evaluation and Ranking of Proposals
b.
1. Following submission, proposals shall be evaluated and initially ranked based
on the criteria established within the public solicitation.
2. Next, the City shall conduct interviews or other types of discussions with no
fewer than three of the most highly-ranked contractors to clarify as necessary
the technical approach, qualifications, and capabilities provided in response to
the RFP. (If only two or three qualified proposals are received, the City shall
interview all qualified contractors.) Discussions may be written, by telephone,
video conference, or by oral presentation/interview, or may be waived if
proposals contain sufficient information for evaluation of technical approach
and qualifications to perform the specific project, task, or service with respect
to established criteria. In instances where only two qualified contractors
respond to the solicitation, the City may proceed with evaluation and selection
if it is determined that the solicitation did not contain conditions or requirements
that arbitrarily limited competition. In instances where only one qualified
contractor responds to the solicitation, the City shall take reasonable steps to
obtain more submissions, including extending the submission deadline or
cancelling, modifying and re-advertising the procurement. If these steps remain
insufficient to obtain at least two qualified contractor responses, the City may
cancel the project or it may proceed with the evaluation/award process and, in
consultation with GDOT, prepare a request for non-competitive award
approval, which will be sent to FHWA.
3. From the proposal evaluation and any subsequent discussions that have been
conducted, the City of Milton shall establish a final ranking, in order of
preference, of at least three contractors determined most highly qualified to
perform the solicited services based on the established and published criteria.
4. Notification regarding selection of the three most highly-ranked contractor shall
be provided to all responding contractors.
5. The City shall then begin negotiations with the top-ranked contractor as set
forth below.
Procurement of Independent Price Estimate
1. Before negotiating with the top-ranked contractor over price, the City shall
prepare a detailed independent estimate with an appropriate breakdown of the
work or labor hours, types or classifications of labor required, other direct costs,
and a fixed fee for the defined scope of work. The independent estimate shall
serve as the basis for negotiation and ensuring the contractor services are
obtained at a fair and reasonable cost.
2. Elements of contract costs (e.g., indirect cost rates, direct salary or wage rates,
fixed fee, and other direct costs) shall be established separately in accordance
with 23 C.F.R. § 172.11 , and used to ensure the contractor services are obtained
at a fair and reasonable cost.
3. In determining fair and reasonable compensation, the City will consider the
scope, complexity, professional nature and estimated value of the serves to be
rendered.
Page 7of11
I
I
I
STATE OF GEORGIA
COUNTY OF FULTON
ORDINANCE NO. 17-03-303
c. Contract Provisions
d.
I. In negotiating a contract, the City shall select one of the approved contract types
specified at 23 C.F.R. § 172.9(a) and shall include in the contract all of the
appropriate provisions specified in 23 C.F.R. § I 72.9(a).
2. The contract shall state the method of payment that will be used. Permissible
methods of payment are specified in 23 C.F.R. I 72.9(b).
3. The contract may withhold retainage under the conditions specified in 23 C.F .R.
I 72.9(b)(6).
4. The contract shall require the contractor to be responsible for accounting for
costs appropriately and for maintaining records, including supporting
documentation, adequate to demonstrate that all costs claimed have been
incurred, are allocable to the contract, and comply with federal cost principles.
The contract shall provide that if a contractor charges unallowable costs, the
City may pursue all available administrative, contractual, or legal remedies and
impose such sanctions and penalties as may be appropriate.
5. Each contract shall also contain all of the provisions specified in 23 C.F.R.
l 72.9(c). For this purpose, the City may incorporate (and modify as necessary)
acceptable provisions developed by the Georgia Department of Transportation,
including those provisions set forth at Section 7.18 of the GDOT Transportation
Services Procurement Manual.
egotiation
I. Negotiations shall proceed in order of ranking. After obtaining an independent
price estimate, the City shall negotiate the terms of the contract, including price,
with the top-ranked proposer. lf the City is unable to negotiate a satisfactory
contract, it shall formally terminate negotiations and then undertake
negotiations with the next highest ranked proposer, and so on, continuing the
process until an agreement is reached. If the City is unable to negotiate a
satisfactory contract with any of the most qualified proposers, it shall select
additional proposers in order of their competence and qualification and continue
negotiations in accordance with this section until a satisfactory contract is
achieved.
2. The negotiated contract shall allow only costs or prices that are allowable in
accordance with federal cost principles. The City shall comply with the
requirements of23U.S.C.§l12(b)(2) and 23 C.F.R. § 172.1 l(b) in calculating
and negotiating contract costs or prices.
3. To the extent the City uses an accepted cost rate or is involved in reviewing a
cost rate proposal, it shall comply with the requirements of23 C.F.R. 172.11 (c)
and (d).
4. If concealed cost proposals were submitted in conjunction with
technical/qualifications proposals, on ly the cost proposal of the contractor with
which negotiations are initiated may be considered (cost proposals of multiple
proposers may not be compared). Concealed cost proposals of contractors with
which negotiations are not initiated should be returned to the respective
Page 8 of11
I
I
I
ST ATE OF GEORGIA
COUNTY OF FULTON
ORDINANCE NO. 17-03-303
contractor due to the confidential nature of this information (as specified in 23
U .S.C. § I 12(b )(2)(E)).
(c) Alternatives to Competitive Negotiation/Qualifications-Based Selection Requirement
(I) Alternative Procurement Methods.
a. When appropriate, the "Small Purchase" method or the "Noncompetitive" method
of procurement may be used instead of the Competitive
Negotiations/Qualifications-Based Selection method. The City shall document the
reasoning for selecting an alternative procurement method in the procurement file.
(2) Small Purchase/Simplified Acquisition Method.
a. Applicability
I. The Sm al 1 Purchase method may be used in the procurement of engineering and
design related services where the total contract costs do not exceed the lesser of
(a) the federal simplified acquisition threshold, which is $150,000 (subject to
updating at 2 C.F.R. § 200.88); or (b) the state simplified acquisition threshold,
which is $75,000 (subject to updating at O.C.G.A. § 50-22-7(d)).
2. Contracts procured under the Small Purchase method may not subsequently be
modified or amended such that the total contract amount exceeds the threshold
amount stated above.
3. The scope of work, project phases, and contract requirements shall not be
broken down into smaller components merely to permit the use of Small
Purchase procedures.
b. Method of Procurement
I. For Small Purchase procurement, the City shall follow its standard procurement
methods, subject to the following requirements:
A. The City shall review submissions from a minimum of three contractors. In
instances where only two qualified contractors respond to the solicitation,
the City may proceed with evaluation and selection if it is determined that
the solicitation did not contain conditions or requirements that arbitrarily
limited competition.
B. The allowability of costs shall be determined in accordance with federal
cost principles.
(3) Noncompetitive Method.
a. Applicability
I. The Noncompetitive method shall be used only upon the joint recommendation
of the Public Works Director and the Procurement Manager, based upon one of
the following justifications:
A. The service is available only from a single source;
B. There is an emergency which will not permit the time necessary to conduct
competitive negotiations; or
C. After solicitation of a number of sources, competition is determined to be
inadequate.
Page 9of11
I
I
I
ST A TE OF GEORGIA
COUNTY OF FULTON
ORDINANCE NO. 17-03-303
2. The City must submit justification to the Federal Highway Administration
(FHW A) and receive approval before using this method of contracting. The
only exception to this is in the event of an emergency purchase where it is not
feasible to obtain approval prior to performing work. In this event, the City
shall proceed with the work and gather the information necessitating the
emergency purchase and submit to FHW A as soon as practical.
b. Method of Procurement
1. The City shall use its standard noncompetitive procurement procedures,
provided that the allowability of costs shall be determined in accordance with
federal cost principles.
( d) Additional Requirements for Contract Procurement and Administration
( 1) Conflicts of Interest.
a. o employee, officer, or agent of the City may participate in the selection or in the
award or administration of a contract if a conflict of interest, real or apparent, would
be involved. Such a conflict arises when there is a financial or other interest in the
contractor selected for award by:
1. The employee, officer, or agent;
2. Any member of his or her immediate family;
3. His or her partner; or
4. An organization that employs or is about to employ any of the above.
b. The City's officers, employees, and agents shall neither solicit nor accept gratuities,
favors, or anything of monetary value (other than de minimis items such as a pad
of paper or bottle of water) from current or potential contractors or subcontractors.
c. The City shall promptly disclose in writing any potential conflict of interest to the
Georgia Department of Transportation and the Federal Highway Administration.
d. The City's officers, employees, and agents shall comply with the additional ethical
requirements set forth in Section 2-622 of the City of Milton Ordinances, the City
of Milton Ethics Code, and the ethics regulations set forth at 23 C.F.R. § 1.33 and
2 C.F.R. § 200.112.
(2) Contractor Services in Management Support Roles.
a. Before procuring a contract for management support services under this section,
the City shall receive approval from the Federal Highway Administration. The City
shall also comply with all provisions of 23 C.F .R. § 172. 7(b )(5).
(3) Confirming Contractor Eligibility.
a. Before entering into any contract procured under this section, the City shall verify
that the contractor (and subcontractors, if applicable) is not subject to suspension
and debarment actions, as specified in 2 C.F.R. Part 1200 and 2 C.F.R. Part 180.
( 4) Contract Modifications.
a. In any situation where contracts procured under this section are modified,
modification shall comply with all provisions of 23 C.F.R. § 172.9(e).
(5) Disadvantaged Business Enterprise Provisions
Page 10of11
I
I
I
ST ATE OF GEORGIA
COUNTY OF FULTON
ORDINANCE NO. 17-03-303
a. In procurement and contracting, the use of quotas or exclusive set-asides for DBE
contractors is prohibited.
(6) Appointment of Responsible Contract Manager.
a. For each contract procured under this section, the City shall appoint a qualified,
full-time, public employee of the City to ensure that the work delivered under
contract is complete, accurate, and consistent with the terms, conditions, and
specifications of the contract. While an independent contractor may be procured to
serve in a program or project management support role, or to provide technical
assistance in review and acceptance of engineering and design related services
performed and products developed by other contractors, the City shall designate a
public employee as being in responsible charge of the contract. A public employee
may serve in responsible charge of multiple projects and the City may use multiple
public employees to fulfill monitoring responsibilities. The duties of the
responsible public employee shall be as set forth at 23 C.F.R. § I 72.9(d)(l).
(7) Performance Evaluation.
a. At the appropriate time, the City shall prepare an evaluation summarizing the
contractor's performance on any contract procured under this section. The contents
and handling of the evaluation shal l be as set forth at 23 C.F.R. § I 72.9(d)(2). The
evaluation shall be stored to allow the contractor's performance data to be used in
the City's future evaluation and ranking of the contractor's ability to provide similar
services.
(8) Auditing of Contract Costs.
a. In coordination with the Georgia Department of Transportation, the City shall
ensure that any contract or subcontract awarded in accordance with this section
shall be performed and audited as necessary to comply with 23 C.F.R. § 172.11 .
(9) Record Retention.
a. In addition to any requirements imposed by Georgia law, and subject to the specific
provisions of 2 C.F.R. § 200.333, the City shall retain documentation of the
solicitation, proposal, evaluation, and ranking of the successful contractor, as well
as negotiation activities and resources used in the analysis of costs to establish
elements of the contract, for three years from the date that the City issues a final
acceptance to the contractor of the construction project or the design consultant's
work is complete as defined in the contract, whichever is later. This documentation
shall include the contractor cost certification and documentation supporting the
acceptance of any indirect cost rate to be applied to the contract.
(I 0) Monitoring, Enforcing, and Contract Close-Out.
a. The City shall follow its standard procedures, in coordination with the Georgia
Department of Transportation, for monitoring the contractor's work and compliance
with the terms, conditions, and specifications of the contract; determining whether
the contractor has complied with the terms of the contract and pursuing appropriate
legal remedies; and closing out a contract.
Page 11 of 11