National City Municipal Code Ch. 2.63 Contractor Responsibility

A. "Awarding authority" means the City of National City.

B. "Contract" as used within this chapter, means any contracts for the performance of public works construction, alteration, demolition, installation, or repair work within the meaning of California Labor Code Section 1720(a).

C. "Contractor" means any person, firm, corporation, partnership, association, or any combination thereof, which enters into a contract with the awarding authority.

D. "Subcontractor" means any person not an employee who enters into a contract with a contractor to assist the contractor in performing a contract.

E. "Bidder" means any person or entity that applies for any contract whether or not the application process is through an invitation for bid, request for proposal, request for qualifications or other procurement process.

F. "Bid" means any application submitted by a bidder in response to an Invitation to bid, request for proposal, or request for qualifications or other procurement process.

G. "Invitation for bid" means the process through which the awarding authority solicits bids, including requests for proposals and requests for qualifications.

(Ord. 2018-2450, § 1, 10-16-2018)

A. Prior to awarding a contract, the city engineer, or designee, shall make a determination that the prospective contractor is one that has the necessary quality, fitness, and capacity to perform the work set forth in the contract. Responsibility will be determined by the city engineer, or designee, from reliable information concerning a number of criteria, including but not limited to: management expertise; technical qualifications; experience; organization; material; equipment and facilities necessary to perform the work; financial resources; satisfactory performance on other contracts; satisfactory record of compliance with relevant laws and regulations; and satisfactory record of business integrity.

B. The lowest monetary and responsive bidder shall complete and submit a questionnaire developed by the city engineer, or designee, which will provide information the awarding authority needs in order to determine if the bidder meets the criteria set forth in subsection "A" of this section, within the timeframe identified in the standard contract documents. Failure of the bidder to complete and submit the questionnaire in a timely manner may result in the city engineer, or designee, making a determination of non-responsiveness. If no bid is required, the prospective contractor must submit a questionnaire. The response to the questionnaire must be signed under penalty of perjury. If, after execution of a contract, the city engineer, or designee, learns that the contractor submitted false information on the questionnaire, the city engineer, or designee, may terminate the contract and pursue the remedies set forth in Section 2.63.060 of this chapter. The contractor shall be obligated to update its responses to the questionnaire during the term of the contract within thirty calendar days after any change to the responses previously provided if such change would affect contractor's fitness and ability to continue performing the contract. The city engineer, or designee, may consider failure of the contractor to update the questionnaire with this information as a material breach of the contract and invoke the remedies set forth in Section 2.63.060 of this chapter.

C. Consistent with Public Contract Code Section 20101, as amended, questionnaires and financial statements shall not be public records and shall not be open to public inspection. However, the one-page "Contact Information" page that contains the names, business address, and phone numbers of the contractor who submits a questionnaire is subject to public inspection because it contains no financial, proprietary, or other confidential information. To determine bidder responsibility, the awarding authority may rely on a number of criteria, including but not limited to the following: (1) criteria described in Subpart A of this section; (2) responses to the questionnaire; (3) information from compliance and regulatory agencies; and (4) independent investigation.

D. Before awarding the contract to a bidder other than the low monetary bidder, the city engineer, or designee, must notify the low monetary bidder of any evidence reflecting upon their responsibility received from others or adduced as a result of independent investigation and afford them an opportunity to rebut such adverse evidence at a responsibility hearing. At the responsibility hearing, the low monetary bidder will be allowed to present evidence that the low monetary bidder is qualified to perform the contract. The low monetary bidder must exercise its right to request a hearing within five calendar days after receipt of the notice described in this subsection D. Failure to submit a written request for a hearing within the time frame set forth in this section will be deemed a waiver of the right to a responsibility hearing. If so waived, the awarding authority may determine whether the contract should be awarded to another bidder, or whether the bidder is non-responsible for the contract or future contracts. The determination by an awarding authority that the bidder is non-responsible shall be final and constitute exhaustion of the bidder's administrative remedies.

E. A list of individuals and entities which have been determined to be non-responsible by the awarding authority shall be maintained by the city engineer, or designee. After two years from the date the individual or entity has been determined to be non-responsible, the individual or entity may request removal from the list by the awarding authority. If the individual or entity can satisfy the awarding authority that it has the necessary quality, fitness, and capacity to perform work in accordance with the criteria set forth in subsection A of this section, its name shall be removed from the list. Unless otherwise removed from the list by the awarding authority, names shall remain on the list for five years from the date of being declared non-responsible.

F. Contractors shall ensure that their subcontractors meet the criteria for responsibility as set forth in subsection A of this section.

(Ord. 2018-2450, § 1, 10-16-2018)

A. Contractors shall comply with all applicable federal, state, and local laws in the performance of the contract, including but not limited to laws regarding health and safety, labor and employment, wage and hours, and licensing laws which affect employees.

B. Contractors shall notify the awarding authority within thirty calendar days after receiving notification that any government agency has initiated an investigation which may result in a finding that the contractor is not in compliance with subsection A of this section. Initiation of an investigation is not, by itself, a basis for a determination of non-responsibility by the awarding authority.

C. Contractors shall notify the awarding authority within thirty calendar days of all findings by a government agency or court of competent jurisdiction that the contractor has violated subsection A of this section.

D. Upon award of a contract, contractors shall complete a pledge of compliance, on file with the city engineer, attesting under penalty of perjury to compliance with subsection A of this section. Whenever any contract, which was not initially subject to this chapter is amended, the contractor shall complete a pledge of compliance attesting under penalty of perjury to compliance with subsection A of this section.

E. Contractors shall ensure that their subcontractors complete a pledge of compliance attesting under penalty of perjury to compliance with subsection A of this section.

F. Contractors shall ensure that their subcontractors comply with subsections B and C of this section.

(Ord. 2018-2450, § 1, 10-16-2018)

In order to promote the purposes of this chapter and to protect the awarding authority's interests, the following contracts are exempt from its application: Contracts with a governmental entity such as the United States of America, the State of California, a county, city or public agency of such entities, or a public or quasi-public corporation located therein and declared by law to have such public status.

(Ord. 2018-2450, § 1, 10-16-2018)

A. The city engineer, or designee, shall develop a questionnaire to be used by awarding authorities for determining bidder responsibility within sixty days after the effective date of this chapter.

B. The city engineer, or designee, shall monitor compliance with this Chapter including investigation of alleged violations.

(Ord. 2018-2450, § 1, 10-16-2018)

A. Contracts shall provide that violation of this chapter may constitute a material breach thereof and may entitle the awarding authority to terminate the contract and otherwise pursue legal remedies that may be available.

B. Contract amendments shall provide that violation of Section 2.63.030 may constitute a material breach thereof and may entitle the awarding authority to terminate the contract and otherwise pursue legal remedies that may be available.

C. Violations of this chapter may be reported to the city engineer, or designee, which shall investigate such complaint. Whether based upon such complaint or otherwise, if the city engineer, or designee, has determined that the contractor has violated any provision of this chapter, with the exception of any combination of subsections A, B, and C of Section 2.63.030, the city engineer, or designee, shall issue a written notice to the contractor citing the violation and number of calendar days after receipt of notice for which the violation is to be corrected. If the contractor has not corrected the violation, or taken reasonable steps to correct the violation within ten calendar days, then the city engineer, or designee, may:

1. Request the awarding authority to declare a material breach of the contract and exercise its contractual remedies thereunder, which are to include but not be limited to termination of the contract.

2. Request the awarding authority to declare the contractor to be non-responsible in accordance with the procedures set forth in Section 2.63.020 of this chapter.

(Ord. 2018-2450, § 1, 10-16-2018)

This chapter shall be applicable to invitations for bids issued thirty days after this chapter's passage.

(Ord. 2018-2450, § 1, 10-16-2018)

The provisions of this chapter shall not be applicable to those instances in which its application would be prohibited by federal or state law or where the application would violate or be inconsistent with the terms or condition of a grant or contract with an agency of the United States, the State of California or the instruction of an authorized representative of any such agency with respect to any such grant or contract.

(Ord. 2018-2450, § 1, 10-16-2018)

The city council declares that the judicial invalidity of any subsection or portion of this chapter shall not affect the validity of any other remaining section or portion; that the city council would have adopted each of those remaining portions, notwithstanding any later declared invalidity. If any provision determined invalid under the preceding sentence can either be judicially severed or interpreted in a way that could harmonize it with the remaining provisions, then it may be severed or interpreted and applied so as to give full purpose, meaning, and effect to the remaining provisions of this chapter.

(Ord. 2018-2450, § 1, 10-16-2018)