Richmond Municipal Code Art. VII Legal and Contractual Remedies

(a) Right to Protest. Any actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation or award of a contract may protest to the City Council. Protestors are urged to seek resolution of their complaints initially with the Finance Director. The protest shall be submitted in writing within ten calendar days after such aggrieved person knows or should have known of the facts giving rise thereto.

(b) Authority to Resolve Protests. The Finance Director shall have the authority, before the commencement of an action in court concerning the controversy, to settle and resolve a protest of an aggrieved bidder, offeror, or contractor, actual or prospective, concerning the solicitation or award of a contract. This authority shall be exercised in accordance with regulations promulgated by the Finance Director.

(c) Decision. If the protest is not resolved by mutual agreement, the Purchasing Manager shall promptly issue a decision in writing. The decision shall:

(1) State the reason for the action being taken; and

(2) Inform the protestant of its right to review as provided in this section.

(d) Notice of Decision. A copy of the decision under Subsection (c) of this section shall be mailed or otherwise furnished immediately to the protestant and any other party intervening.

(e) Finality of Decision. A decision under this section shall be final and conclusive, unless fraudulent, or any person adversely affected by the decision commences an action in court.

(f) Stay of Procurement During Protests. In the event of a timely protest under Subsection (2) of this section, the Finance Director shall not proceed further with the solicitation or with the award of the contract until the Finance Director, after consultation with the head of the using Department, makes a written determination that the award of the contract without delay is necessary to protect substantial interests of the City.

(g) Entitlement to Costs. In addition to any other relief, when a protest is sustained and the protesting bidder or offeror should have been awarded the contract under the solicitation but is not, then the protesting bidder or offeror shall be entitled to the reasonable costs incurred in connection with the solicitation, including bid preparation costs other than attorney's fees.

(Ord. No. 14-20 N.S., § I, 6-30-2020)

After reasonable notice to the person or firm involved, and reasonable opportunity for that person or firm to be heard, upon written recommendation by the Finance Director, the City Council shall have the authority to debar a person for cause from consideration of award of contracts. The debarment shall be for a period of not more than three years. The City Council may suspend a person or firm from consideration for award of contracts if there is probable cause for debarment. The suspension shall be for a period not to exceed three months. The authority to debar or suspend shall be exercised in accordance with regulations.

(a) Causes for Debarment or Suspension. The causes for debarment or suspension include the following:

(1) Conviction of a Criminal Offense. Conviction for commission of a criminal offense as an incident to obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract;

(2) Conviction of a Crime Affecting Responsibility. Conviction under state or federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, or any other offense indicating a lack of business integrity or business honesty which currently, seriously, and directly affects responsibility as a City contractor or supplier;

(3) Conviction of Violation of Anti-Trust Statutes. Conviction under state or federal antitrust statutes arising out of the submission of bids or proposals;

(4) Serious Violation of Contract Provisions. Violation of contract provisions, as set forth below, of a character which is regarded by the City Council to be so serious as to justify debarment action;

(5) Failure to Perform. Deliberate failure without good cause to perform in accordance with the specifications or within the time limit provided in the contract;

(6) Recent Record of Poor Performance. A recent record of failure to perform or of unsatisfactory performance in accordance with the terms of one or more contracts; provided that failure to perform or unsatisfactory performance caused by acts beyond the control of the contractor or supplier shall not be considered to be a basis for debarment;

(7) Other Causes. Any other cause the City Council determines to be so serious and compelling as to affect responsibility as a City contractor or supplier, including debarment by another governmental entity for any cause listed in regulations; or

(8) Violation of Ethical Standards. For violation of the ethical standards set forth in Article VIII, Ethics in Public Contracting, of this chapter.

(Ord. No. 14-20 N.S., § I, 6-30-2020)

The City Council shall issue a written decision to debar or suspend. The decision shall state the reasons for the action taken and inform the debarred or suspended person involved of its rights concerning judicial review.

(Ord. No. 14-20 N.S., § I, 6-30-2020)

A copy of the decision required by Section 2.52.720 (Decision to debar or suspend), shall be mailed, or otherwise furnished immediately to the debarred or suspended person and any other party intervening.

(Ord. No. 14-20 N.S., § I, 6-30-2020)

A decision under Section 2.52.720 (Decision to debar or suspend), shall be final and conclusive, unless fraudulent, or the debarred or suspended person or firm commences an action in court in accordance with applicable law.

(Ord. No. 14-20 N.S., § I, 6-30-2020)

(a) Applicability. This section applies to controversies between the City and a supplier or contractor and which arise under, or by virtue of, a contract between them. This includes without limitation controversies based upon breach of contract, mistake, misrepresentation, or other cause for contract modification or rescission.

(b) Authority. The Purchasing Manager is authorized, before commencement of an action in a court concerning the controversy, to settle and resolve a controversy described in this section.

(c) Decision. If such a controversy is not resolved by mutual agreement, the Purchasing Manager shall promptly issue a decision in writing. The decision shall:

(1) State the reasons for the action taken; and

(2) Inform the contractor of its right to judicial review.

(d) Notice of Decision. A copy of the decision shall be mailed or otherwise furnished immediately to the supplier or contractor.

(e) Finality of Decision. The decision of this section shall be final and conclusive, unless the contractor commences an action in court.

(f) Failure to Render Timely Decision. If the Finance Director does not issue a written decision as required by this section within 120 days after written request for a final decision or within such longer period as may be agreed upon by the parties, then the contractor may proceed.

(Ord. No. 14-20 N.S., § I, 6-30-2020)

If before award it is determined that a solicitation or proposed award of a contract is in violation of law, then the solicitation or proposed award shall be:

(a) Cancelled; or

(b) Revised to comply with the law.

(Ord. No. 14-20 N.S., § I, 6-30-2020)

If after an award it is determined that a solicitation or award of a contract is in violation of law, then:

(a) If the person awarded the contract has not acted fraudulently or in bad faith:

(1) The contract may be ratified and affirmed, provided it is determined that doing so is in the best interests of the City; or

(2) The contract may be terminated and the person awarded the contract shall be compensated for the actual expenses reasonably incurred under the contract, plus a reasonable profit, before the termination.

(b) If the person awarded the contract has acted fraudulently or in bad faith:

(1) The contract may be declared null and void; or

(2) The contract may be ratified and affirmed if such action is in the best interests of the City, without prejudice to the City's rights to such damages as may be appropriate.

(Ord. No. 14-20 N.S., § I, 6-30-2020)

The Purchasing Manager may appoint either an ad hoc or permanent Procurement Appeals Board to be composed of a chairperson and at least two other members for the resolution of procurement disputes.

(Ord. No. 14-20 N.S., § I, 6-30-2020)

(a) Solicitation and Award of Contracts. The courts of Contra Costa County shall have jurisdiction over an action between the City and a bidder, offeror, or contractor, prospective or actual, to determine whether a solicitation or award of a contract is in accordance with the Constitution, statutes, regulations, and the terms and conditions of the solicitation. The courts of Contra Costa County shall have such jurisdiction, whether the actions are at law or in equity, and whether the actions are for monetary damages or for declaratory, injunctive, or other equitable relief.

(b) Time Limitation on Actions. Any action under this section shall be initiated as follows:

(1) Within 30 days after the aggrieved person knows or should have known of the facts giving rise to the action; or

(2) Within 14 days after receipt of a final administrative decision pursuant to Section 2.52.750(b) (Authority to resolve contract and breach of contract controversies).

(c) Debarment or Suspension. The courts of Contra Costa County shall have jurisdiction over an action between the City and a person who is subject to a suspension or debarment proceeding, to determine whether the debarment or suspension is in accordance with the Constitution, statutes, and regulations. The courts of Contra Costa County shall have such jurisdiction, whether the actions are at law or in equity, and whether the actions are for declarative, injunctive, or other equitable relief.

(d) Time Limitation on Actions. Any action under this section shall be commenced within six months after receipt of the decision of the Finance Director.

(e) Actions Under Contracts for Breach of Contract. The courts of Contra Costa County shall have jurisdiction over an action between the City and a contractor, for any cause of action which arises under, or by virtue of, the contract, whether the action is at law or in equity, whether the action is on the contract or for a breach of the contract, and whether the action is for monetary damages or declaratory, injunctive, or other equitable relief.

(f) Time Limitation on Actions. The statutory limitations on an action between private persons on a contract or for breach of contract shall apply to any action commenced pursuant to this section concerning actions on a contract or for breach of contract shall be filed within 12 months after the date of the Finance Director's decision:

(1) Within 30 days after the aggrieved person knows or should have known of the facts giving rise to the action; or

(2) Within 14 days after receipt of a final administrative decision pursuant to Section 2.52.750 (Authority to resolve contract and breach of contract controversies).

(3) Limited Finality for Administrative Determinations. In any judicial action under this section, factual or legal determinations by employees, agents, or other persons appointed by the City shall have no finality and shall not be conclusive, notwithstanding any contract provision, regulation or rule of law to the contrary, except to the extent provided in Section 2.52.750(e) (Authority to resolve contract and breach of contract controversies; finality of decision).

(Ord. No. 14-20 N.S., § I, 6-30-2020)