Fremont Municipal Code Art. IV Formal Contract Procurement by Competitive Bidding

Each contract subject to formal bidding requirements, specifically excluding public project construction identified in Section 3.20.130, and excluding exceptions identified in Article VII of this chapter, shall comply with this article. (Ord. 2494 § 1, 12-3-02. 1990 Code § 2-9400.)

(a) The city shall issue a written notice inviting bids at least 10 calendar days before the bid deadline, by posting the notice on the designated public bulletin boards, and by mailing the notice to qualified potential contractors on the bidders list, and by such other means which, in the discretion of the city manager, provide notice to a reasonable number of potential contractors.

(b) The notice inviting bids shall, at a minimum, include:

(1) The bid deadline, including the date, time, and place of the bid submittal and bid opening.

(2) A general description of the requirements of the project for which the city is inviting bids.

(3) An identification of how to obtain a copy of the invitation for bids and more detailed information about the project. (Ord. 2494 § 1, 12-3-02. 1990 Code § 2-9401.)

The city shall prepare a written invitation for bids which shall, at a minimum, include:

(a) A copy of the notice inviting bids.

(b) A complete description of the project requirements (and request for bid amount) identifying, at a minimum, deliverables, quantities, and schedule, using one or both of: project specifications or performance criteria.

(c) An identification of the procedures required for submittal of bids to the city, including the bid deadline, the acceptable form of the bid documents, and ensuring the security of the bid.

(d) An identification of all documents which bidders are required to submit with each bid. The required bid documents shall include the bid form, and, at the discretion of the city manager, may include any or all of the following elements:

(1) Bid security (in the form of a surety bond or other form of security acceptable to the city and identified in the invitation) which is subject to forfeiture upon a failure of the lowest responsible bidder to execute the required contract documents.

(2) Documentation of bidder qualifications and responsibility to perform in accordance with the project requirements.

(e) The city may modify the invitation for bids, after the issuance of the notice inviting bids and prior to the bid deadline, only by written addendum provided to each contractor who received a copy of the invitation for bids.

(f) A complete package of contract documents which will be signed by the contractor and the city upon award of the contract to the lowest responsible bidder. This package shall include one or both of a contract document or purchase order form, and, at the discretion of the city manager, may include any or all of the following elements:

(1) Performance security (in the form of a surety bond or other form of security acceptable to the city and identified in the invitation) which is subject to forfeiture upon a breach of contract.

(2) Insurance.

(3) Warranty.

(4) Licenses (including the payment of city business tax and registration tax).

(g) The “firm offer period” shall be identified as the number of days after the bid deadline within which all bids shall be considered by the city to be firm offers, and within which no bids may be withdrawn by any bidder without the written consent of the city in accordance with Section 3.20.200. The firm offer period may be any number of days determined by the city manager to be reasonable for a particular project, and will typically be 60 days. The firm offer period identified in the invitation for bids may be modified only at the request of the city and the written approval of the affected bidders.

(h) A description of the process by which the city will compare bids to determine the lowest responsible bidder in accordance with Section 3.20.210, specifically including the objective criteria by which the city will calculate the bid amount to determine the lowest monetary bid. (Ord. 2494 § 1, 12-3-02. 1990 Code § 2-9402.)

(a) No bid shall be submitted which is collusive or sham, or the result of any collusion or conspiracy. No bid shall be submitted which is the result of any agreement or discussion with any other person to submit a collusive or sham bid, or to fix prices, or to refrain from bidding, or to secure any advantage against the city. Any bid which violates this subsection shall be rejected by the city.

(b) After a bid is received by the city, it may not be modified.

(c) After a bid is received by the city, it may be withdrawn only if the bidder submits a written request to withdraw, and the written request is received by the city prior to the bid deadline specified in the invitation for bids. The withdrawal of a bid shall not prejudice the right of a bidder to submit a new bid, provided the new bid is submitted in accordance with the requirements of this chapter and the requirements of the invitation for bids.

(d) After the bid deadline, no bidder shall withdraw a bid during the firm offer period identified in the invitation for bids, unless the bidder provides documentation to the satisfaction of the city of all of the following requirements:

(1) The bidder made a clerical error in filling out the bid, and the error was not due to an error in judgment or carelessness in determining the project requirements.

(2) The clerical error caused the bid to be materially different than the bidder intended the bid to be.

(3) The bidder provided the city written notice within five days after the bid deadline of the mistake, specifying in detail the nature of the mistake and how the mistake occurred. (Ord. 2494 § 1, 12-3-02. 1990 Code § 2-9403.)

(a) If no bids are received by the city, the city may negotiate terms and enter into a contract without further complying with this chapter; provided, that the contract meets the purpose and goals set forth in Section 3.20.030.

(b) Bids which are received by the city in accordance with the invitation for bids on or before the bid deadline will be opened publicly, and the dollar amounts of each bid shall be read aloud.

(c) The city shall have the right to reject all bids, and either abandon the project or issue a new notice inviting bids and invitation for bids.

(d) Unless the city rejects all bids, the city shall review all bids in accordance with this section, and award the contract to the lowest responsible bidder.

(e) The term “lowest responsible bidder” shall mean the bidder who submits the “lowest monetary bid” which is also “responsive” to the requirements of the invitation for bids, and who is a “responsible” bidder.

(f) The “lowest monetary bid” shall be calculated by the city based on objective criteria for calculating the bid amount identified in the invitation for bids. For the purpose of comparing bid amounts:

(1) From May 7, 2009, until December 31, 2010, the city shall deduct five percent from the total bid amount of any local-owned business (as defined in Section 3.20.020), except that the amount of the local preference shall not exceed $10,000 for any single purchase order or contract.

(2) Beginning January 1, 2011, the city shall deduct two and one-half percent from the total bid amount of any local-owned business (as defined in Section 3.20.020), except that the amount of the local preference shall not exceed $5,000 for any single purchase order or contract.

The local preference shall not apply to bids that are intended to be in cooperation with other jurisdictions or when prohibited by the conditions of any federal, state, local agency or private grant. If two or more bids have the same bid amount, and are the lowest bid amount, the city shall have discretion to select any one of the lowest bids as the “lowest monetary bid.”

(g) A bid is “responsive” if the city finds that the bid is prepared and submitted by the bidder in accordance with the requirements of the invitation for bids and this chapter, such that the city’s acceptance of the bid legally binds the bidder to perform. The city shall have the right to waive minor irregularities in a bid, and find it to be responsive, only if the irregularities are nonmaterial and inconsequential. Irregularities which specifically may not be waived by the city, and which shall result in a determination of nonresponsiveness, include:

(1) A bid received by the city after the bid deadline.

(2) A bid which does not include bid security (if required by the invitation for bids).

(h) A bidder is “responsible” if the city finds that the bidder has demonstrated it is qualified to perform in accordance with the requirements identified in the invitation for bids, based on the bidder’s experience, capacity, and integrity. In determining a bidder’s responsibility, the city may consider information in the bid, and information received from references or other relevant sources, including the following types of information:

(1) Successful and timely completion of projects of similar scope, size, and quality.

(2) Any relevant licenses or certifications.

(3) Available resources to perform the project, including qualified personnel, property (such as buildings, plants, equipment, and materials), and finances.

(4) History of relevant claims or legal actions.

(i) If the city finds that the lowest monetary bidder submitted a responsive bid, and that the bidder is responsible, then that bidder shall be the “lowest responsible bidder.”

(j) If the city finds that the lowest monetary bidder’s bid is not responsive, or that the lowest monetary bidder is not responsible, then the city may review the responsiveness and responsibility of the next low monetary bidder. If the city finds that the next low monetary bidder is responsive and responsible, then that next low monetary bidder shall be the “lowest responsible bidder.” This process may continue until the city finds the lowest monetary bidder which is also responsive and responsible. In the event that one or more low monetary bidders are considered by the city to be potentially nonresponsive or nonresponsible, those bidders will be given notice and a reasonable opportunity to present additional relevant evidence to the city prior to the city’s determination to award the contract pursuant to Section 3.20.220. (Ord. 2494 § 1, 12-3-02; Ord. 30-2007 § 2, 11-27-07; Ord. 9-2009 § 2, 4-7-09. 1990 Code § 2-9404.)

(a) After the city makes a determination to award a contract to the lowest responsible bidder, the city shall issue a written notice of award of contract to the lowest responsible bidder. Within the time specified in the notice of award, the bidder shall submit to the city all of the documents required by the invitation for bids (if any are identified, such as signed contract documents, or performance security, or insurance). If no time is specified in the notice of award, the bidder shall submit all required documents within 10 calendar days after receipt of the notice of award.

(b) In the event that the lowest responsible bidder does not properly and timely execute and submit all of the documents required by the invitation for bids, the city may void the previous award of contract, and award the contract to the next lowest responsible bidder. This process may continue until the city awards the contract to the lowest responsible bidder who complies with this section. If the city exercises its rights under this subsection, the bid security shall be forfeited to the city to cover the city’s damages. (Ord. 2494 § 1, 12-3-02. 1990 Code § 2-9405.)