Milpitas Municipal Code Ch. 2 Purchasing

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Editor's note— Ord. No. 23.15, § 3, adopted January 5, 2021, amended the Code by amending ch. 2 in its entirety. Former ch. 2 pertained to similar subject matter, and derived from Ord. 23.10, adopted January 3, 2006; Ord. No. 23.12, adopted May 5, 2009; Ord. No. 23.13, adopted August 16, 2011; Ord. No. 23.14, adopted August 2, 2016; Ord. No. 289.1, adopted November 7, 2017; Ord. No. 289.2, adopted May 15, 2018; and Ord. No. 301, adopted August 20, 2019.

The purpose of this Purchasing Ordinance is to maximize the purchasing value of public funds in procurement, and to provide safeguards for maintaining a procurement system of quality and integrity.

(Ord. No. 23.15, § 3, 1/5/21)

Except as otherwise provided herein, this Chapter applies to contracts for the procurement of supplies and services entered into by the City. When the procurement involves the expenditure of federal assistance, contract, or grant funds, the procurement shall be conducted in accordance with mandatory applicable federal law and regulations. Nothing in this Chapter shall prevent the City and any City affiliated agency from complying with the terms and conditions of any grant, gift or bequest that is otherwise consistent with law.

(Ord. No. 23.15, § 3, 1/5/21)

The words defined in this section shall have the meanings set forth below whenever they appear in the Purchasing Ordinance, unless the context in which they are used clearly requires a different meaning; or, a different definition is prescribed for a particular section or provision.

1. BIDDER. Any person who submits a response to a competitive City solicitation.

2. BUSINESS. Any corporation, partnership, individual, sole proprietorship, joint stock company, joint venture, or any other private legal entity.

3. CITY. The City of Milpitas and City affiliated agency.

4. CONTRACT. All types of City contracts, agreements, or purchase orders with the exception of public works contracts, for the procurement of supplies and services or the disposal of surplus supplies.

5. CONTRACT MODIFICATION. Any written alteration in specifications, delivery point, rate of delivery, period of performance, price, quantity, or other provisions of any contract.

6. CONTRACTOR. Any person having a contract with the City.

7. DATA. Any recorded information, regardless of form or characteristic.

8. ELECTRONIC. Any electrical, digital, magnetic, optical, electromagnetic, or any other similar technology.

9. ELIGIBLE LOCAL PROVIDER. Any local provider who is an otherwise responsible bidder and otherwise responsive to a City's competitive solicitation.

10. ENVIRONMENTALLY PREFERABLE PRODUCTS OR MATERIALS. Any products or materials contained in the products that have a reduced negative effect on human health and the environment when compared with competing products that serve the same purpose. This comparison may consider raw materials' acquisition, production, manufacturing, packaging, distribution, reuse, operation, maintenance or disposal of the product.

11. GENERAL SERVICES. The furnishing of goods and services by a vendor that does not typically require a license, certification or other professional criteria to perform the work. This includes services such as equipment maintenance, janitorial, printing, landscaping and refuse disposal.

12. GRANT. Any furnishing of funds by an outside agency or other organization to support a program authorized by law.

13. LOCAL PROVIDER. A supplier or provider of equipment, materials, supplies or services which has an established place of business within the City of Milpitas, which has a City of Milpitas business license, which has paid all currently due business license fees and taxes, and which began doing business within the City of Milpitas at least one (1) year prior to the City's inviting bids or quotations for the respective purchase.

14. PERSON. Any business, individual, union, committee, club, other organization, or group of individuals.

15. POST-CONSUMER MATERIAL OR PRODUCT. Any material or finished product that has served its intended use and has been discarded for disposal or recovery, having completed its life as a consumer item, including any waste material and by-products which have been recovered or diverted from solid waste.

16. PROCUREMENT. The buying, purchasing, renting, leasing, or otherwise acquiring of any supplies or services. It also includes all functions that pertain to the obtaining of any supply or service, including description of requirements, selection, and solicitation of sources, preparation and award of contract and contract administration.

17. PROFESSIONAL SERVICES. Services, generally of an intangible nature that typically require a license, certification, and/or other professional criteria to perform the work as defined by the laws of the State of California including, but not limited to, Architect, Engineer, Land Surveyor, Attorney, Public Accountant as well as information technology services such as installation and implementation of information technology projects, software licensing and maintenance, and Software as a Service (SaaS).

18. PROVIDER. The terms bidder, supplier, contractor, vendor or provider, may be used interchangeably and shall refer to the person, company, or corporation from whom the City of Milpitas purchases supplies or services or with whom the City enters into a contract.

19. PUBLIC AGENCY. A public agency is defined as any school district, City, state, federal agency, U.S. Communities program or other nonprofit association or group consisting of governmental entities.

20. PUBLIC NOTICE. The distribution or dissemination of information to interested parties using methods that are reasonably available. Such methods shall often include, but are not limited to, publication in newspapers of general circulation, posting in public places, electronic or paper notices to prospective bidders, and posting on web pages designated by the City for that purpose.

21. PUBLIC WORKS CONTRACT. Any City contract for the performance of a "public project" as defined in Public Contract Code section 22002, as it may be amended from time to time.

22. PURCHASING AGENT. The Purchasing Agent, the Director of Finance or his or her designee, or such position designated by the City Manager to administer this Chapter.

23. REQUESTING DEPARTMENT. Any organizational unit of the City of Milpitas that utilizes any supplies or services procured under this Ordinance.

24. RESPONSE. means a bid, proposal, quote, statement of qualification or other communication offered in response to a competitive City solicitation.

25. RESPONSIBLE BIDDER. A bidder who has demonstrated the attribute of trustworthiness, as well as quality, fitness, capacity, and experience to satisfactorily perform the work.

26. RESPONSIVE BIDDER. A bidder who has complied with the instructions and requirements established by the City and set forth in the City's solicitation documents.

27. SIGNATURE. Shall be defined as a manual signature affixed in ink or provided through other acceptable means established by law. A faxed or scanned signature is acceptable.

28. SPECIFICATION. Any description of the physical or functional characteristics or of the nature of a supply or service. It may include a description of any requirement for inspecting, testing, or preparing a supply or service for delivery.

29. SOLICITATION. An invitation for bids or request for proposals, qualifications, quotes, or other document including all documents, whether attached or incorporated by reference, utilized in furtherance of a City procurement of goods or services.

30. SUPPLIES. All property (including, but not limited to, equipment, goods and materials) except as otherwise provided herein.

31. SURPLUS SUPPLIES. Supplies which are worn out, obsolete or unsuitable for City use.

32. WRITING OR IN WRITING. The product of any method of forming characters on paper, or other materials, or viewable screens, which can be read, retrieved, and reproduced, including information that is electronically transmitted and stored.

(Ord. No. 23.15, § 3, 1/5/21)

There is hereby established for the City a Division of Purchasing, headed by a Purchasing Agent, who shall report to the Director of the Finance Department.

(Ord. No. 23.15, § 3, 1/5/21)

In accordance with this Chapter, the Purchasing Agent shall:

1. Procure or supervise the procurement of all supplies and services needed by the City, except as otherwise provided herein;

2. Award contracts for Fifty Thousand Dollars ($50,000) or less;

3. Amend contracts or purchase orders awarded for amounts of Fifty Thousand Dollars ($50,000) or less as necessary, as long as the total amount of the amended contract does not exceed Fifty Thousand Dollars ($50,000).

4. Sell, trade or otherwise dispose of surplus supplies belonging to the City;

5. Establish and maintain programs for specification development, contract administration and inspection and acceptance, in cooperation with the departments using the supplies and services;

6. Provide ongoing training and support to the City departments pertaining to procurement of supplies or services;

7. Administer contracts with vendors for the purchase of citywide services and supplies such as paper, office supplies, janitorial services and office equipment;

8. Establish and maintain a central vendor database categorized by goods and services;

9. Provide management of the Procurement Card and Single Merchant Credit Card Programs;

10. Adopt operational procedures relating to the execution of any of the above duties and responsibilities.

(Ord. No. 23.15, § 3, 1/5/21)

Each department has the authority to purchase supplies, materials, equipment and services not to exceed ten thousand dollars ($10,000).

(Ord. No. 23.16, § 2, 9/21/21; Ord. No. 23.15, § 3, 1/5/21)

The Purchasing Agent may delegate authority to purchase supplies, or services, and to dispose of surplus supplies, to other City officials, if such delegation is deemed necessary for the effective procurement or disposal of those items.

(Ord. No. 23.15, § 3, 1/5/21)

The City shall where practicable engage in competitive procurement. The Purchasing Agent shall use the following solicitation methods under the circumstances described below:

(a) Purchases which are estimated not to exceed ten thousand dollars may be made without a competitive procurement method.

(b) Request for quotes process shall be used for purchases with an estimated value of more than ten thousand dollars and no more than fifty thousand dollars.

(c) Request for proposals process shall be used for purchases of services with an estimated value of more than fifty thousand dollars and for supplies, materials and equipment when the Purchasing Agent determines that it is in the best interest of the City to do so.

(d) Request for qualifications process may only be used for purchases of professional services with an estimated value of more than fifty thousand dollars.

(e) Formal bidding process shall be used for purchases of supplies, materials and equipment with an estimated value of more than fifty thousand dollars or for services when the Purchasing Agent determines that it is in the best interest of the City to do so.

(Ord. No. 23.15, § 3, 1/5/21)

It is a violation of the Ordinance to divide the purchase of supplies or general services into smaller orders for the purpose of evading the competitive solicitation requirements of this Chapter.

(Ord. No. 23.15, § 3, 1/5/21)

The City is not required to engage in competitive procurement under the following circumstances:

(a) Emergency authority of Purchasing Agent pursuant to Section I-2-3.04.

(b) Public agency purchases pursuant to Section I-2-3.05.

(c) Sole source procurements pursuant to Section I-2-3.06.

(d) As authorized by the City Council to be in the best interest of the City.

(Ord. No. 23.15, § 3, 1/5/21)

3.04-1 Precluding action by the City Council, the Purchasing Agent may authorize emergency purchases without observing the bidding procedures set forth in this Chapter upon a finding that such purchases are required to prevent or mitigate the loss or impairment of life, health, property, or essential public services and that there is sudden, unexpected occurrence that poses a clear and imminent danger. The Purchasing Agent may purchase supplies or services, even though the amount thereof may exceed Fifty Thousand Dollars ($50,000), without competitive bids upon notice.

3.04-2 Not later than seven (7) days after the emergency action, or at the next succeeding City Council meeting if that meeting will occur not later than 14 days after the action, the Purchasing Agent shall submit to the City Council a written statement of the circumstances of such emergency purchase over Fifty Thousand Dollars ($50,000), a description of the supplies or services purchased, and the prices thereof.

3.04-3 The City Council shall continue to review the emergency action at every subsequent regularly scheduled meeting thereafter until the action is terminated, to determine, by a four-fifths vote, that there is a need to continue the action, unless the Purchasing Agent has terminated the action prior to the City Council reviewing the emergency action.

(Ord. No. 23.15, § 3, 1/5/21)

The Purchasing Agent may without observing the competitive procurement requirements prescribed by this Chapter:

(a) Purchase or acquire any supplies, materials or equipment or services from any public or governmental body or agency; or

(b) Joint purchasing agreements entered into by the City and one or more public agencies wherein the City is included as a potential purchaser under a competitive procurement process engaged in pursuant to the joint agreement; or

(c) The Purchasing Agent may arrange for the City to enter into purchase contracts with a supplier or contractor for the purchase of supplies or services, the pricing and terms of which have been previously established by another public agency or improved pricing and terms, provided that the Purchasing Agent determines that such purchase contracts are in the City's best interest; or

(d) The Purchasing Agent may purchase supplies and services without complying with the quotation or bidding requirements of this Chapter, if such purchases are based on an agreement or entered into by any public agency or cooperative purchasing program utilizing public agency procurements as the basis for contracts offered, regardless of whether the City is a named party to the agreement or an actual participant in such a program, provided that:

i. The underlying purchase was made using competitive negotiation or procurement procedures, and may include a nationally bid cooperative contract; and

ii. The public agency is a "public agency" as defined in Government Code section 6500.

(Ord. No. 23.15, § 3, 1/5/21)

A contract may be awarded without competition when the Purchasing Agent determines in writing, after conducting a good faith review of available sources, that only one viable source exists for the required supplies, material, equipment, or general service, or that there is a compelling reason for using only one source. The Purchasing Agent shall conduct negotiations, as appropriate, as to price, delivery and terms. A written statement of the basis for the sole source determination and the period of the sole source approval shall be placed in the contract file.

Not later than August 31 annually, the Purchasing Agent shall provide to the City Council a list of all sole source contracts entered into or renewed during the past fiscal year including the name of the department, description of the product or general service, vendor, and dollar amount.

(Ord. No. 23.15, § 3, 1/5/21)

(a) The Purchasing Agent shall issue a Request for Quotes indicating the basis of award through the City's e-procurement system and vendors known to be able to provide the supplies and services and base the award of the contract, whenever possible, on at least three (3) quotations.

(b) Responses must be in writing as instructed in the Request for Quotes.

(c) If no responsive quote is received after issuance of a Request for Quotes, the Purchasing Agent may proceed to purchase the supplies, hire or have services performed in the open market provided that negotiations are conducted as appropriate as to price, terms and conditions of contract award.

(Ord. No. 23.15, § 3, 1/5/21)

(a) A notice of invitation for bid shall include a general description of the supplies, equipment or services to be purchased, state where the bid forms and specifications may be secured and state the final deadline and method for submitting bids. Notice shall be given as provided in Section I-2-3.11.

(b) Bidders shall submit electronic bids through the City's eProcurement System per the instructions in the bid documents. Any bid may be withdrawn by a written request signed by the bidder and received by the Purchasing Agent prior to the final time and date for the receipt of bids.

(c) Bids shall be opened at the time and date indicated in the bid document. A tabulation of all bids received shall be delivered to all registered bidders via the eProcurement System within 72 business hours after the bid opening. A tabulation of all bids received shall be made available on the City's eProcurement System or website for a period of not less than 30 calendar days after the award of the bid.

(d) The Purchasing Agent or City Council shall have the discretion to reject any and all bids presented and re-advertise for bids.

(e) The bid shall be awarded to the lowest responsive and responsible bidder.

(f) If no responsive bid is received after soliciting bids under this section, the Purchasing Agent may proceed to purchase the supplies, hire, or have services performed in the open market provided that negotiations are conducted as appropriate as to price, terms and conditions of contract award.

(Ord. No. 23.15, § 3, 1/5/21)

3.09-1 The Purchasing Agent shall be authorized to utilize the request for proposal method for purchase of supplies or services upon a determination by the Purchasing Agent that the use of competitive bidding is not practical or advantageous to the City because of one (1) or more of the following considerations:

(a) Price is not a primary consideration;

(b) The ability of the bidder to perform the contract or provide the service promptly, or within the time specified, without delay or interference;

(c) The character, integrity, reputation, judgment, experience, and efficiency of the bidder;

(d) The quality of performance of previous contracts or services;

(e) Quality, availability, or capability is overriding in relation to price in procurement of research, development, technical supplies or services;

(f) Delivery and installation, post-sale service or maintenance, reliability, warranties or availability of replacements, are overriding in relation to price or need to be evaluated in relation to prices;

(g) The sufficiency of the financial resources and ability of the bidder to perform the contract or provide the service;

(h) The need to evaluate the utilization of a fixed-price or cost-type contract;

(i) The need to evaluate whether the marketplace will respond better to a solicitation permitting a range of alternative proposals or evaluation and discussions of them before entering the contract;

(j) The number and scope of conditions attached to the Solicitation.

3.09-2 Receipt of Proposals. No proposals shall be handled so as to permit disclosure of the contents of any proposal to competing bidders during the process of negotiation. A register of proposals shall be prepared containing the name of each bidder. The register of proposals shall be open for public inspection only after contract award.

3.09-3 Evaluation Factors. The request for proposals shall state evaluation factors, which shall be considered the primary basis for evaluating the proposals.

3.09-4 Discussion with Responsible Bidders and Revisions to Proposals. Discussions may be conducted with responsible bidders who submit proposals determined to be reasonably possible of being selected for award, for the purpose of clarification to assure full understanding of, and conformance to, the solicitation requirements. All bidders shall be accorded equal treatment. Revisions may be permitted after submissions and prior to award for the purpose of obtaining best and final offers. In conducting discussions, there shall be no disclosure of the identity of the bidder or any information contained in competing offers.

3.09-5 Award. Award shall be made to the responsible bidder whose proposal is determined in writing to be the most advantageous to the City, taking into consideration, price, value and the evaluation factors set forth in the request for proposals.

3.09-6 Rejection. Without limitation to the applicability of any other provisions of this Chapter, the Purchasing Agent or City Council may reject any and all proposals.

(Ord. No. 23.15, § 3, 1/5/21)

3.10-1 The Purchasing Agent shall be authorized to utilize the request for qualification method for purchase of professional services upon a determination by the Purchasing Agent that the use of competitive bidding is not practical or advantageous to the City because of one (1) or more of the following considerations:

(a) Price is not part of the scoring criteria;

(b) For establishing a pool of qualified bidders;

(c) The ability of the bidder to provide the service promptly, or within the time specified, without delay or interference;

(d) The character, integrity, reputation, judgment, experience, and efficiency of the bidder;

(e) The quality of performance of previous services;

(f) Quality, availability, or capability is overriding in relation to price in procurement of research, development, technical services;

(g) The sufficiency of the financial resources and ability of the bidder to provide the service;

(h) The need to evaluate whether the marketplace will respond better to a solicitation permitting a range of alternative proposals or evaluation and discussions of them before entering the contract;

(i) The number and scope of conditions attached to the Solicitation.

3.10-2 Receipt of Statements of Qualifications. No statements of qualifications ("SOQs") shall be handled so as to permit disclosure of the contents of any SOQs to competing bidders during the process of negotiation. A register of SOQs shall be prepared containing the name of each bidder. The register of SOQs shall be open for public inspection only after contract award.

3.10-3 Evaluation Factors. The request for qualifications shall state evaluation factors, which shall be considered the primary basis for evaluating the SOQs.

3.10-4 Discussion with Responsible Bidders and Revisions to SOQs. Discussions may be conducted with responsible bidders who submit SOQs determined to be reasonably possible of being selected for award, for the purpose of cost, clarification to assure full understanding of, and conformance to, the solicitation requirements. All bidders shall be accorded equal treatment. Revisions may be permitted after submissions and prior to award for the purpose of obtaining best and final offers. In conducting discussions, there shall be no disclosure of the identity of the bidder or any information contained in competing offers.

3.10-5 Award. Award shall be made to the responsible bidder whose SOQ is determined in writing to be the most advantageous to the City, taking into consideration value and the evaluation factors set forth in the request for qualifications.

3.10-6 Rejection. Without limitation to the applicability of any other provisions of this Chapter, the Purchasing Agent or City Council may reject any and all SOQs.

(Ord. No. 23.15, § 3, 1/5/21)

For purchases with an estimated value of more than $50,000, where notice is required, notice shall be given by one or more of the following methods:

(1) Publishing notice in a newspaper of general circulation within the City on at least one occasion at least five days prior to the date set for the final receipt of bids. Provided, that publication may be made in any newspaper of general circulation in Santa Clara County which the Purchasing Agent shall select if the publication schedule of all newspapers of general circulation in the City are such that notice by publication cannot be given in time.

(2) Posting on the City of Milpitas website at least five days prior to the date set for the final receipt of bids.

(3) Through direct electronic notification via the City's eProcurement System.

(4) Any other manner of notice required by law for the particular goods or services to be purchased.

Nothing in this section shall prohibit the City from notifying prospective firms of solicitations by electronic means, and nothing in this section shall prohibit the City from notifying prospective firms who are not in the City's Vendor Database.

The notice shall include a general description of the goods or services to be purchased or City property to be disposed; date, time and place of bid opening; and whether bonds will be required. The notice shall also include such information as to the proposed purchase or disposal as the Purchasing Agent deems sufficient to comply with relevant State law, regulation or City ordinance.

(Ord. No. 23.15, § 3, 1/5/21)

(a) Any reference to a specific brand name followed by the term "or equal" in specifications is illustrative only. A reference to a brand name or equal describes a component best meeting the specific operational, design, performance, maintenance, quality, and reliability requirements of the City.

(b) A bidder may offer an equivalent ("or equal") in response to a brand name or equal reference. When an "or equal" is offered, the City may test and evaluate the product prior to award of the contract and the City determines if "an equal" offered meets the specification.

(c) At bidder's expense, bidder bears sole responsibility for providing any information, test data or document required by the City to fully evaluate the acceptability of the "or equal" at bidder's expense, this full evaluation may require independent testing, including destructive testing, at qualified test facilities.

(d) If the City rejects a response or part of a response containing any "or equal," the Purchasing Agent shall determine the decision in writing.

(Ord. No. 23.15, § 3, 1/5/21)

3.13-1 Consultants are required for professional or technical expertise and for matters requiring specialized abilities or a high degree of skill. Their numbers (in relation to a particular skill or expertise required) are comparatively limited. Where consultants are involved, the bidding process is not likely to result in a lower price to the City or eliminate unnecessary expense or delay. However, the request for proposals (RFP) process established in Section I-2-3.09, the request for qualifications (RFQa) process established in Section I-2-3.10, or a similar process based on evaluating consultant qualifications, is better suited.

3.13-2 The requesting department shall be empowered to engage a consultant (including, but not limited to, material testing services and construction inspection services) without the necessity of competitive procurement or notice thereof:

a. Without City Council approval if the consultant's total fee for materials and services under the contract by which the consultant is engaged does not exceed $100,000.00.

b. With City Council approval if the consultant's total fee for materials and services under the contract by which the consultant is engaged exceeds $100,000.00.

3.13-3 Architects, Engineers and Land Surveyors. In addition to the provisions of paragraph 3.13-1 and 3.13-2 of this section, the following requirements shall be applicable to the selection of architects, engineers and land surveyors.

(a) The requesting department or division head shall negotiate a contract with the firm that possesses the demonstrated competence and professional qualifications for the required architectural, engineering and land-surveying services.

(b) Should the requesting department or division head be unable to negotiate a satisfactory contract with the firm considered to be competent and qualified, at a price determined to be fair and reasonable, negotiations with that firm shall be formally terminated. The requesting department or division head shall then undertake negotiations with the second most qualified firm. Failing accord with the second most qualified firm, the requesting department or division head shall formally terminate negotiations. The requesting department or division head shall then undertake negotiations with the third most qualified firm.

(c) Should the requesting department or division head be unable to negotiate a satisfactory contract with any of the selected firms, the requesting department or division head shall select additional firms in order of their competence and qualifications and continue negotiation until an agreement is reached.

(Ord. No. 309, § 2, 1/19/21; Ord. No. 23.15, § 3, 1/5/21)

3.14-1 Where the Purchasing Agent has determined that it is required for the health, safety or welfare of the people or employees of the City, or that cost savings have been demonstrated, standardization of supplies, materials or equipment, including information and communication technology products and services, for purchase or to be used in a public works project, shall be considered. The specifications may stipulate a single brand or trade name. Among the factors that may be considered in determining to standardize on a single brand or trade name are that:

(a) In order to acquire a specific product(s) for the purpose of conducting a field test or experiment to determine the product's suitability for use by the City.

(b) When it is required for proper operation or function to match other products with respect to the repair or expansion or completion of a system or program already in use by the City, including, but not limited to, technology purchases required to achieve interoperability with existing hardware, software, systems or programs.

(c) In order to achieve significant cost savings based upon consideration of the following cost factors:

1. Timeliness and quality of installation, repair and maintenance;

2. Quality of user training;

3. Supplies and replacement parts;

4. Modification of existing equipment, materials or systems;

5. Future upgrades and updates;

6. Estimated amount and cost of reasonably foreseeable future purchases of equipment that would be required to be compatible or functional with the product which is the subject of the standardization determination.

7. Administrative costs.

3.14-2 The Purchasing Agent's written decision shall state the facts reviewed in arriving at the decision, the reasons for the decision, the period of time for which it is valid for making purchases and under what conditions it must be reviewed for possible revision. A copy of the Purchasing Agent's decision shall be attached to any report to the City council seeking approval of a purchase under this section.

3.14-3 Available Competition. When there is more than one (1) source for the standardized supply or service, competitive procurement in accordance with Sections I-2-3.07, I-2-3.08 and I-2-3.09 is required.

3.14-4 Annual Report. Not later than August 31 annually, the Purchasing Agent shall provide to the City Council a list of all standardizations approved during the past fiscal year including the product, manufacturer, and reasons for the standardization as authorized in this section.

(Ord. No. 23.15, § 3, 1/5/21)

3.15-1 Application of Local Preference. The provisions of this section and the local preference established pursuant to this section shall be applicable to the following types of purchases or contracts executed in excess of Ten Thousand Dollars ($10,000) and pursuant to either a formal or an informal bid:

(a) Purchases or contracts for the purchase of supplies, materials and equipment; and

(b) Purchases or contracts for services that are not otherwise of the kind contemplated by Section I-2-3.13.

3.15-2 Exceptions to the Application of Local Preference. The provisions of this section and the local preference established pursuant to this section shall not be applicable to the following types of purchases or contracts:

(a) Purchases or contracts for professional services of the kind contemplated by Section I-2-3.13;

(b) Public works contracts;

(c) Emergency purchases made pursuant to Section I-2-3.04;

(d) Sole source purchases made by the Purchasing Agent pursuant to Section I-2-3.06;

(e) Public Agency purchases made by the Purchasing Agent pursuant to Section I-2-3.05;

(f) Purchases or contracts where legal constraints on the expenditure of funds prohibit the application of the local preference or those contracts funded by the federal or state government, including federal or state grant funding, when such funding would be jeopardized by application of the local preference.

3.15-3 Reduction of Bid by Eligible Local Provider; Procedure for Applying the Local Preference. In contracting for, supplies or services as specifically set forth in this section, the City shall grant preference to a local provider who submits a bid within ten percent (10%) of the lowest responsible bidder and who is otherwise responsive and responsible to the invitation for bids, which preference shall allow the local provider the opportunity to reduce its bid to an amount equal to the amount of the lowest responsible bid, if the lowest responsible bid is submitted by other than an Eligible Local Provider. In the event an Eligible Local Provider reduces its bid to the amount of the lowest responsible bid, the Eligible Local Provider shall be deemed to have provided the lowest responsible bid and shall be awarded the contract.

(a) The preference and opportunity to reduce the amount of the bid shall be provided first to the lowest Eligible Local Provider and, if not accepted by such Eligible Local Provider within five (5) business days of the opening of the bids, then to each successive Eligible Local Provider who is within ten percent (10%) of the lowest responsible bid, in ascending order of the amount of the bids.

(b) The local provider shall certify under penalty of perjury, as a part of its bid and in a form and manner as required by the City, that the bidder qualifies as a local provider. The preference established in this section shall be waived if the certification does not appear on the respective bid.

3.15-4 No Exemption from Local Sales Tax. The application of a local preference as set forth in this section shall not exempt any Eligible Local Provider to which a contract is executed or awarded from having to pay all applicable federal, state or local sales tax.

(Ord. No. 23.15, § 3, 1/5/21)

3.16-1 The City of Milpitas is committed to the conservation and protection of state and local resources; therefore, bidders able to supply recycled products and products containing recycled and environmentally preferable materials that meet performance requirements are encouraged to offer them in bids and proposals. The Purchasing Agent shall purchase recycled products whenever they are available at the same total cost and the fitness and quality are equal to or better than that of non-recycled products.

(a) The City shall require contractors and consultants to use environmentally preferable products, and use products manufactured with the maximum practicable amount of post-consumer material, whenever cost effective and to the extent practicable.

(b) The City shall ensure that they and their contractors use both sides of paper sheets whenever practicable.

(c) To the extent possible, the recycled product preference cost shall apply to the bids where the City has made multiple awards, so as to maximize the dollar participation of firms offering recycled products.

(d) To the extent possible, all printing contracts made by the City shall specify that the paper used shall meet the recycled content requirement of thirty percent (30%) postconsumer fiber.

(e) The City may specify recycled content at levels higher than the minimum content standards.

3.16-2 Where the use of recycled products is designated, the Purchasing Agent shall:

(a) Maintain a list of designated recycled products that contain a practicable amount of recovered material and are consistent with State and Federal guidelines and coordinate with all departments to purchase environmentally preferable products whenever practicable.

(b) Where the contract is competitively solicited, grant the supplier of recycled products with a minimum of 10% recycled content in its product(s) a preference of ten percent (10%) based on the bid or price quoted by supplier of recycled products when determining the lowest responsive and responsible or highest ranked bidder depending upon procurement process used.

(c) Inform Departments of processes and procedures that are environmentally preferable in order to facilitate their evaluation and use by the Departments whenever practicable.

(d) Monitor contracting procedures to ensure that they do not discriminate against recycled products without justification, and that they maximize the specification of designated recycled products whenever practicable.

(Ord. No. 23.15, § 3, 1/5/21)

3.16-1 The Purchasing Agent may require vendors to provide samples to be tested and inspected as part of the applicable procurement process. The Purchasing Agent shall have the authority to require chemical, physical, or other tests of samples submitted with bids which are necessary to determine quality and conformance to the specifications. In the performance of such tests, the Purchasing Agent shall have the authority to make use of laboratory facilities of any department of the City or any outside laboratory at the bidder's expense.

(Ord. No. 23.15, § 3, 1/5/21)

Where the Purchasing Agent or City Council are required to make purchases upon competitive solicitations, said Purchasing Agent or City Council may waive any informalities or minor irregularities related to the procurement process, solicitation documents or responses or may reject any and all responses (anything herein contained to the contrary notwithstanding) if said Purchasing Agent or City Council deems said rejection to be in the best interests of the City. Said rejection shall be at the sole discretion of the Purchasing Agent or City Council, as the case may be. Upon rejection of responses, the Purchasing Agent or the City Council, as the case may be, may:

(1) Give subsequent notice for a new competitive solicitation;

(2) Postpone said purchase or disposal definitely or indefinitely; or

(3) Elect to make the purchase without competitive solicitation, upon notice (and as if a competitive solicitation, upon notice, had not been required in the first instance) in accordance with the authority granted by the various subsections of this section.

(Ord. No. 23.15, § 3, 1/5/21)

(a) The Purchasing Agent is authorized to require vendors to provide insurance and surety bonds for contracts. Where required, the bidder shall submit insurance or surety bonds, or both, acceptable to the City.

(b) Where required by the Purchasing Agent, all responses to solicitations shall include such bidders' security as is required by the solicitation documents and shall be presented under sealed cover. If the successful bidder fails to execute the contract within the time specified in the notice inviting bids or in the specifications referred to therein, the bidders' security may be declared forfeited by the Purchasing Agent to the City, and any bonds so forfeited may be prosecuted and collected and the amount of the security paid into the general fund. Unsuccessful bidders shall be entitled to return of their bidders' security. The form and amount of such security shall be described in the notice inviting responses or in the specifications referred to therein.

(c) To secure faithful performance of the contract, the Purchasing Agent is authorized to require security in the form of cash, cashier's check, certified checks, or corporate faithful performance bonds, in such amount as the Purchasing Agent shall deem reasonably necessary to protect the best interests of the City. If the Purchasing Agent requires such security, the form and amount thereof shall be described in the notice inviting responses or in the specifications referred to therein. Unless otherwise required by law or the funding source, the Purchasing Agent need not require such security if the Purchasing Agent does not deem such to be reasonably necessary to protect the best interest of the City, or if the Purchasing Agent believes the interests of the City are best served by not requiring the same.

(Ord. No. 23.15, § 3, 1/5/21)

3.19-1 Any interested party may file a protest to a proposed award of a contract in an amount over Ten Thousand Dollars ($10,000). The protest shall be filed with the Purchasing Agent in writing no later than seven (7) calendar days after the posting of the intent to award and shall set forth the basis for the protest and any proposed remedy.

3.19-2 The Purchasing Agent will review the protest as soon as possible and will provide a written response to the protestor. The Purchasing Agent's decision on a bid protest for a procurement in an amount no more than Fifty Thousand Dollars ($50,000) shall be final.

3.19-3 For procurements having a value of more than Fifty Thousand Dollars ($50,000), the City Council will consider the protest and take action thereupon, which action shall be final.

(Ord. No. 23.15, § 3, 1/5/21)

3.20-1 Definitions. For the purposes of this Section I-2-3.20 the following words and phrases shall have the following meanings:

1. Act means the Uniform Public Construction Cost Accounting Act (California Public Contracts Code section 22000 et seq.).

2. Commission means the California Uniform Construction Cost Accounting Commission.

3. Facility means any plant, building, structure, ground facility, utility system, subject to the limitation of subsection 4 of the definition for public project below, real property, streets and highways, or other public works improvement.

4. Public project has the meaning assigned to it under Public Contract Code section 22002, as it may be amended from time to time.

3.20-2 Public Project Contracting Procedures. The City shall follow the contracting procedures set forth in Article 3 of Act (Public Contract Code section 22030 et seq.). The City shall procure public projects by force account, negotiated contract, purchase order, informal bidding or formal bidding as required in accordance with the applicable dollar amount limitations under Section 22032 of the Act, as it may be amended from time to time.

3.20-3 Contractors List. The Director of Public Works, in coordination with the City's Purchasing Agent, shall compile and maintain a list of qualified contractors identified according to categories of work. This list shall comply with the requirements of Section 22034 of the Act and the criteria promulgated, from time to time, by the Commission.

3.20-4 Informal Bidding - Notice.

(a) When a public project is to be performed which qualifies for informal bidding, notice of such project shall be given as follows unless an exception to competitive bidding applies:

(1) Mailed notice shall be sent to all contractors on the contractors list for the category of work being bid; and

(2) Mailed notice shall be given to all construction trade journals specified by the Commission for the receipt of such notice for Santa Clara County; and

(3) Additional notice to other contractors and/or trade journals may, in the discretion of the City, be given.

(b) If the product or service to be acquired is proprietary in nature such that it can only be obtained from a certain contractor or contractors, notice inviting bids may be sent only to such contractor or contractors.

(c) All mailing of notices to contractors and construction trade journals shall be completed not less than ten days before bids are due.

(d) The notice shall describe the project in general terms, how to obtain more detailed information about the project and shall state the time and place for submission of bids.

3.20-5 Formal Bidding—Notice.

(a) When a public project is to be performed that requires formal bidding, notice of such project shall be given as follows unless an exception to competitive bidding applies:

(1) The notice shall state the time and place for the receiving and opening of sealed bids and distinctly describe the project.

(2) The notice shall be published at least 14 calendar days before the date of opening the bids in a newspaper of general circulation, printed and published in the City; or, if there is no newspaper printed and published within the jurisdiction of the City, in a newspaper of general circulation which is circulated within the City.

(3) The notice inviting formal bids shall also be mailed to all construction trade journals specified by the Commission for the receipt of such notice for Santa Clara County. The notice shall be mailed at least 15 calendar days before the date of opening the bids.

3.20-6 Award of Contracts. The City Manager is authorized to award contracts for public projects of less than or equal to one-hundred thousand dollars.

3.20-7 Rejection of Bids. The City Manager or the City Council, as the case may be, may, in the Manager's or Council's discretion, reject all bids and proceed as authorized by the Act.

3.20-8 Approval of Plans and Designs. The City Engineer, or designee, is authorized to approve plans and designs, and all amendments and addenda thereto, for performance of a public project of the City.

(Ord. No. 315, § 2, 1/7/25; Ord. No. 23.15, § 3, 1/5/21)

The Purchasing Agent is authorized to enter into and execute for and on behalf of the City, without the prior approval of the City Council, any amendment or change order to a supply or service contract previously approved by the Council within the following guidelines:

(a) To extend the term of the contract, at the recommendation of the Requesting Department, for a period not to exceed twelve (12) consecutive months from the last Council-approved expiration date;

(b) To make minor revisions to the scope of services or schedule;

(c) To make clerical corrections; or

(d) The Purchasing Agent may also approve and sign assignments of contracts previously approved by the City Council when he or she has determined that the proposed assignee has the ability, capacity, experience and skill and is otherwise qualified to perform the contract.

All modifications to contracts, including, but not limited to, changes to the scope of the work, quantity of goods, price or term shall be made in writing and approved by the Requesting Department. Amendments or change orders are permitted only if the modification would not cause the contract to exceed the monetary limits defined below:

All contract changes must be reflected on the Purchase Order and/or contract amendment. All other changes outside the parameters defined in this section must be approved by the City Council.

(Ord. No. 23.15, § 3, 1/5/21)

Except as otherwise approved by the Purchasing Agent or pursuant to Section I-2-2.03, no contract award for supplies or services shall be deemed to be an authorization to proceed with provision of the supplies or services until a purchase order is appropriately authorized and issued.

(Ord. No. 23.15, § 3, 1/5/21)

Upon ascertaining the price to be paid for supplies or services, the Purchasing Agent shall issue a purchase order. The Purchasing Agent shall forward the original purchase order to the vendor, retaining one (1) copy for his purchase order file. He shall likewise forward one (1) copy of the purchase order to the requesting department to be used as a receiving report.

(Ord. No. 23.15, § 3, 1/5/21)

No purchase order shall be issued until it has been ascertained that there is to the credit of the requesting department a sufficient unencumbered appropriated balance in excess of all unpaid obligations to defray the amount of such order.

(Ord. No. 23.15, § 3, 1/5/21)

Upon receipt by any Department of supplies or services, the Department head or designee, shall be responsible for the making of a careful check of the quality, condition, and quantity of goods received against a copy of the purchase order and the packing list, when applicable, or services rendered as specified in the contract.

(Ord. No. 23.15, § 3, 1/5/21)

The Department head or designee, upon receipt of a vendor's invoice, shall check the invoice for correctness of quantities, unit prices, price extensions, discounts, transportation, allowances, services rendered, hourly rates etc. When applicable, the Department head or designee shall compare the same with the purchase order and packing list. Approved invoices shall be forwarded to Accounts Payable for payment processing.

(Ord. No. 23.15, § 3, 1/5/21)

The Department head or designee shall inspect, or cause to be inspected, all deliveries of supplies or services to determine their conformance to specifications. The Department head or designee shall have the authority to require chemical, physical, or other tests of samples of deliveries which are necessary to determine quality and conformance to the specifications. In the performance of such tests, the Department head or designee shall have the authority to make use of laboratory facilities of any department of the City or any outside laboratory at the vendor's expense.

(Ord. No. 23.15, § 3, 1/5/21)

Except as otherwise provided by State law or City ordinance, the Purchasing Agent or designee shall be empowered to dispose of property of the City, including abandoned property, which cannot be used by any department of the City, at public or private sale or by renting or destroying the same, (all with or without notice, competitive bid or necessity of posting bid bonds, at the Purchasing Agent or designee's discretion, and upon such terms as he or she deems best) provided any single item of property involved does not exceed Five Thousand Dollars ($5,000) in estimated current market value.

(Ord. No. 23.15, § 3, 1/5/21)

The Purchasing Agent or designee may, in his or her discretion, require that a deposit in the amount of the bid or any fraction thereof accompany each bid upon the disposal of City property.

(Ord. No. 23.15, § 3, 1/5/21)

In the event that the estimated value of any single item of property exceeds Five Thousand Dollars ($5,000) in current market value, the City Council may, upon notice, empower the Purchasing Agent to dispose of it (in accordance with the same terms and conditions and subject to the same discretion and limitations as if it were estimated at Five Thousand Dollars ($5,000) or less in value). Alternatively, the City Council may elect to sell, rent or destroy the same in accordance with whatever provisions, terms and conditions the City Council may elect.

(Ord. No. 23.15, § 3, 1/5/21)

Notwithstanding the other provisions of this Chapter, the City Manager or designee is authorized to determine the disposition of:

(a) police service dogs including:

(1) sale or donation of the police service dog to the assigned police officer when the officer leaves the canine unit or if the police service dog can no longer perform its required duties;

(2) the original supplier; or

(3) any other method that best serves the interests of the City; and

(b) surplus firearms including:

(1) sale or donation to a law enforcement agency;

(2) sale to an authorized firearms retailer;

(3) sale or donation to an active or retired sworn member of the police department consistent with the Memorandum of Understanding between the City and the Milpitas Police Officers Association; or

(4) destruction if no safe alternative is available.

(Ord. No. 23.15, § 3, 1/5/21)

Claims for loss, damage, breakage, shortage or otherwise, claims for refund, claims for adjustment, and claims for insurance or other indemnity shall be made promptly by the Purchasing Agent.

(Ord. No. 23.15, § 3, 1/5/21)

Every employee participating in the procurement, management, storage, and use of supplies or services purchased by the City for its benefit shall adhere to the following principles:

(1) City employees shall not obligate the City, financially or otherwise, by any means, including, but not limited to, purchase orders and contracts, when the employee has a personal, material, financial, or other interest in the obligation.

(2) City employees shall not accept any form of gratuities.

(3) City employees may not accept discounts, reward points, sales, reduced prices, or other benefits offered for personal purchases by suppliers because of employee's relationship with the City.

(4) City employees shall be personally liable for any unauthorized procurements.

(Ord. No. 23.15, § 3, 1/5/21)

If any provisions of this Chapter or any application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or application of this Chapter that can be given effect without the invalid provisions or application, and to this end, the provisions of this Chapter are declared to be severable.

(Ord. No. 23.15, § 3, 1/5/21)

The provisions of this Chapter shall not apply to items that typically cannot be bid or that the City Council has chosen to exclude from bidding. The following list is exemplary of these types of items and/or services but is not intended to be all inclusive.

11.01-1 To franchises governed by the provisions of the California Public Utilities Code or other statute of the State of California;

11.01-2 Where State or Federal law requires a different procedure;

11.01-3 To franchises, rights, privileges, licenses and permits granted by the City of Milpitas (including, but not limited to, franchises, rights and privileges granted for refuse disposal under Title V, Chapter 200 of the Milpitas Municipal Code and the Cable Franchise under Title III, Chapter 22 of the Milpitas Municipal Code;

11.01-4 To the purchase of insurance;

11.01-5 To the purchase of art;

11.01-6 To the leasing, purchase or sale of land or any interest therein;

11.01-7 To the hiring of or contracting for personnel (whether as temporary, seasonal or permanent employees, agents or independent contractors);

11.01-8 To the purchase of utilities, including, but not limited to telephone service, gas, electricity or water;

11.01-9 To the purchase of securities for the City's investment portfolio subject to the City's investment policy.

11.01-10 To the payments of debt service and bond indebtedness; arbitrage compliance; refunds of deposits; payments and/or pass through of collections on behalf of other governmental agencies; budget approved memberships and dues; authorized Community Development Block Grants (CDBG); memorandum of understanding obligations; budget approved contributions to not-for-profit organizations; United States Postal Service postage; City Council approved grant programs; employee travel expenses.

(Ord. No. 23.15, § 3, 1/5/21)