Chapter 2.30 — PURCHASING

Pursuant to Government Code Section 54201 et seq., the purchasing system set out in this chapter is adopted to establish efficient procedures for the purchase of Goods and Services, to secure the lowest possible cost commensurate with quality, to exercise financial control over purchases, to clearly define authority for the purchasing function, and to assure the quality of purchases. Except as provided in this Municipal Code, or pursuant to an agreement approved or ratified by the City Council, or as specifically incorporated into City documents by the City, the City of San Marcos, as a Charter City, is exempt from the provisions of the California Public Contract Code.

(Ord. No. 2010-1332, 3-9-10; Ord. No. 2022-1524, § 2(Exh. A), 10-11-2022)

For the purposes of this chapter, the following definitions apply:

(a)

Affiliate means any individual or business entity related to a Contractor where either one directly or indirectly controls, or has the power to control the other, or where a third party controls or has the power to control both the individual person or business entity and the

Contractor.

(b)

Appropriation refers to funds set aside through the budgeting process by the City Council for a specific use.

(c)

Awarding Authority means the entity who has the power to legally assign work, accept Bids, and bind the City to a Contract.

(d)

Best Value means the best value to the City based on all factors that may include the following:

Cost, including life-cycle cost where applicable;

The ability, capacity, and skill of a Contractor to perform a Contract or provide the Goods or Services;

The ability of a Contractor to provide the Goods or Services promptly or within the time specified without delay or interferences;

The character, integrity, reputation, judgment, experience, and efficiency of a Contractor;

The quality of a Contractor's performance on previous purchases/Services with the City;

The ability of a Contractor to provide future maintenance, repairs, parts, and services for the use of the Goods and Services purchased; and

The quality of a Good or Service including such factors as warranties, vendor financial stability, performance, operational costs, compatibility with other City Goods, and other factors.

(e)

Bid or Construction Bid means the submission of a bid, proposal, or quote in response to a solicitation or other request by the City for bids, proposals, or quotes, and all bid and Contract documents used for soliciting competitive bids. The bid defines, in detail, the terms, conditions, and specifications of the Construction Projects required by the City.

(f)

Change Order is a written amendment executed by both parties to a Contract modifying the terms of an existing Contract. A Change Order may revise, add to, or delete previous requirements of the work, adjust the Contract sum, or adjust the time for completion of the Contract.

(g)

Claim means any request or demand for money or damages submitted or made pursuant to a Contract, statute, or law, to the City, or an officer, employee, or agent of the City.

(h)

Construction Projects means projects involving the expenditure of City funds for the erection, construction, alteration, repair or improvement of any public structure, building, road, or other public improvement of any kind.

(i)

Contract is synonymous with "agreement" and, regardless of which term is used, it means an agreement between the City and one or more other parties for the purchase or disposition of Goods, General Services, Professional Services, and/or Construction Projects.

(j)

Contractor means any Person that either (i) directly or indirectly through an Affiliate submits offers for and/or is awarded, or reasonably may be expected to submit offers for and/or be awarded, a City Contract for the purchase or disposition of Goods, General Services, Professional Services and/or Construction Projects; or (ii) conducts business or reasonably may be expected to conduct business with the City as an agent or representative of another Contractor. The term Contractor also includes any Person that participates as a bidder or a subcontractor. The term Contractor also includes vendor and means any Person that has entered into a Contract with the City for the provision or disposition of Goods, General Services, Professional Services, and/or Construction Projects.

(k)

Cooperative Purchasing is a form of purchasing that utilizes the competitive pricing and terms of a Contract or program entered into by another government entity or cooperative program that includes other governmental agencies following a bidding process (also referenced as "piggybacking"). The originating entity will competitively award a contract or pricing agreement that will include language allowing other entities to utilize the request for proposals/request for qualifications, bid and/or contract, or program, which may be advantageous in terms of pricing and other terms and conditions, thereby providing the Best Value to the City rather than initiating its own solicitation process for the acquisition of similar Goods and/or Services. Cooperative Purchasing will be subject to expiration and/or other limitations contained in the originating entity's program.

(l)

Debarment or Debarred means the administrative action taken by the City to declare that a Contractor is ineligible to submit a Bid, or be awarded a service, procurement, public works Contract, or any other Contract with the City for a period up to three (3) years, unless the Debarment is extended pursuant to section 2.30.190(b) of this Municipal Code or is made permanent pursuant to Section 2.30.190(b), in which case there is no expiration applicable to said Debarment.

(m)

Department Purchasing Officer means the Director of each department or division of the City, as appointed by the City Manager, who shall have the authority to make purchases as set forth in this chapter for the Director's respective department or division. Subject to the approval of the City Manager, the Director of each department or division, when necessary or as they deem appropriate, may delegate such authority to other management staff in their department or division, should the Director be absent or unavailable to perform their purchasing function.

(n)

Environmentally Preferable Products means Goods and Services that have a lesser or reduced effect on human health and the environment when compared with competing Goods or Services that serve the same purpose, as determined by the City Manager or designee.

(o)

Goods means articles or items that are moveable at the time of sale, including, but not limited to, equipment, supplies, and/or materials.

(p)

Field Order means a written or verbal order issued by the City Manager, or designee, to the Contractor as a directive to clarify a specification, resolve a site access difficulty, deal with technical execution problems, or change the Contract documents. A Field Order itself cannot change the Contract price or time but if it resulted in increasing costs or time, a subsequent written Change Order is required.

(q)

Petty Cash means a small amount of cash on hand to use for making small purchases.

(r)

Petty Cash Custodian means the person responsible for the Petty Cash.

(s)

Public Project means: (1) construction, reconstruction, erection, alteration, renovation, improvement, demolition, and/or repair work involving any publicly owned, leased, or operated facility; or (2) painting or repainting of any publicly owned, leased, or operated facility. "Public Project" does not include maintenance work, which includes all of the following: (1) routine, recurring, and usual work for the preservation or protection of any publicly owned or publicly operated facility for its intended purposes; (2) minor repainting; (3) resurfacing of streets and highways at less than one inch; (4) landscape maintenance, including mowing, watering, trimming, pruning, planting, replacement of plants, and servicing of irrigation and sprinkler systems.

(t)

Purchase Order (PO) means an authorization for the City to pay the Contractor, supplier or vendor that provides Goods and/or Services.

(u)

Request for Proposals (RFP) means all documents used for soliciting competitive proposals. The RFP defines, in detail, the terms, conditions, and specifications of Goods and/or Services required by the City.

(v)

Request for Qualifications (RFQ) means a request seeking a written presentation of the professional qualifications and experience of a proposed Contractor. The RFQ should be used in conjunction with the RFP.

(w)

Responsible Bidder or Responsible Proposer means a bidder or proposer determined by the Awarding Authority to:

Have the ability, capacity, experience, and skill to provide the Goods, General Services, Professional Services, and/or Construction Projects in accordance with Bid or proposal specifications;

Have the ability to provide the Goods, General Services, Professional Services, and/or Construction Projects promptly, or within the time specified, with a minimum of Contract Change Orders;

Have equipment, facilities, and resources of such capacity and location to enable the bidder or proposer to provide the required Goods, General Services, Professional Services, and/or Construction Projects;

Be able to provide future maintenance, repair, parts, and service for the use of the Goods and/or Construction Projects purchased or completed; and

Have a record of satisfactory performance under prior Contracts with the City or other purchasers where such bidder or proposer has previously been awarded the same or similar Contracts.

(x)

Responsive Bid or Responsive Proposal means a Bid or proposal determined by the Awarding Authority to be a complete Bid or proposal which conforms in all material respects to the requirements of the Bid, RFP, Contract or other proposal documents.

(y)

Services means work performed, or labor, time, and effort expended, by the Contractor, and for purposes of this definition, may include both General Services and Professional Services.

General Services means any work performed or Services rendered, with or without the furnishing of materials, including, but not limited to:

a)

Repairing, modifying and maintaining City vehicles and equipment;

b)

Licensing software;

c)

Repairing, modifying and maintaining software;

d)

Cleaning, analyzing, testing, moving, removing or disposing of City supplies and equipment (other than by sale);

e)

Providing temporary personnel services which are not Professional Services;

f)

Providing security guard and related services;

g)

Performing repair, demolition or other work required to abate a nuisance;

h)

Leasing or renting equipment, and related maintenance agreements; or

i)

Maintaining work on City property including: (i) routine, recurring, and usual work for the preservation or protection of any publicly owned or operated facility for its intended purposes; (ii) minor repainting; (iii) resurfacing of streets and highways at less than one inch; or (iv) landscape maintenance. General Service does not include work defined as a Public Project.

Professional Services means Services involving the provisions of a report, study, plan, design, specification, document, program, advice, recommendation, analysis, review, opinion, inspection, investigation, audit, brokering or representation of the City before or in dealings with another party, or any other Services which require a special skill or expertise of a professional, scientific or technical nature. Professional Services include, but are not limited to:

a)

Private architectural;

b)

Landscape architectural;

c)

Engineering, surveying;

d)

Environmental;

e)

Land surveying;

f)

Auditing;

g)

Construction project management firms; or

h)

Right-of-way.

(z)

Quote means a verbal or written promise from the Contractor guaranteeing that the cost of specific Goods or Services will not be exceeded.

(Ord. No. 2019-1473, § 2, 5-4-2019; Ord. No. 2022-1524, § 2(Exh. A), 10-11-2022)

No obligation for the payment of Goods, Services, Construction, and/or Public Projects shall be incurred by the City except as prescribed by this chapter. Any agreement entered into contrary to the provisions of this chapter shall be void and any Claim or demand against the City based thereon shall be invalid.

(Ord. No. 2022-1524, § 2(Exh. A), 10-11-2022)

The City Manager shall supervise the purchasing system established by this chapter. Except as otherwise provided in this chapter, no purchase shall be made, Contract let, or expenditure made, unless the purchase, Contract, or expenditure has been approved by the City Council or the City Manager or his or her designee(s) within the parameters of this chapter. The City Manager may adopt uniform written policies for the effective administration of this chapter and may adopt standard Purchase Orders and agreements for purchases.

(a)

Pre-Award.

The City reserves the right to (i) reject all Bids or proposals; (ii) cancel any solicitation for competitive Bids; and/or (iii) re-bid any solicitation for competitive Bids. At its sole discretion, the City may exercise any of these rights at any time and for any reason, including, but not limited to, during the protest process.

The City Manager is authorized to adopt and amend written policies and procedures, which are in accordance with applicable state and federal requirements, relating to the protest process.

The City Manager, or designee, is authorized to rule on protests or challenges to the content of any Bid solicitations and RFPs. The City Manager's determination on such protest(s) constitutes final action, and is not subject to further protest, appeal, or review by the City.

The City Manager, or designee, is authorized to rule on protests or challenges to the intended award of Contracts within the City Manager's authorization to award as provided by this Section 2.30.030. The City Manager's determination on such protest(s) constitutes final action, and is not subject to further protest, appeal, or review by the City.

The City Manager, or designee, is authorized to make recommendations to the City Council relating to protests or challenges to the intended award of Contracts that must be awarded by the City Council as provided by this Section 2.30.030. The City Council shall review and consider the recommendation, concurrent with the City Council's decision on the intended award of the Contract. The City Council's decision on such protest(s) shall constitute final action, and is not subject to further protest, appeal, or review by the City.

(b)

Award and Execution of Contracts.

Except in emergency situations, pursuant to Section 2.30.120, all Contracts for Goods and Services for which there is an Appropriation shall be awarded by the City Manager or his or her designee(s). Each month, or as necessary, the City Manager shall submit a report to the City Council of all purchases of Goods and award of Services Contracts with an individual value of over $250,000.00.

Public Project Contracts of $250,000.00 or less for which there is an Appropriation shall be awarded by the City Manager. Except in emergency situations, Public Project Contracts over $250,000.00 shall be awarded by the City Council unless the City Council delegates the authority to the City Manager, on a case-by-case basis due to urgency considerations. If the authority is delegated by the City Council, the City Manager is authorized to rule on any Bid challenges or protests, and his or her ruling shall be final with no appeal rights.

The City Manager may determine that it is in the best interest of the City to accomplish a Public Project for which there is an Appropriation by the use of the employees of the City by force account or by private Contractors via negotiated Contract or Purchase Order. The City Manager shall have authority to act for the City in all aspects of such projects within the limits of subsection 2.30.030(b) (2).

The City Manager is authorized to acquire all rights-of-way, and execute the agreements associated therewith, as may be accomplished by negotiated Contracts, necessary for the completion of capital improvement projects for which there is an Appropriation. All other real property purchases, and any and all eminent domain actions, shall be authorized by the City Council.

(c)

Issuance of Field Orders, Award and Execution of Change Orders.

With the exception of Contract changes necessitated by emergency situations, this Section shall apply to all Contracts entered into by the City, including Public Project Contracts. Contractors shall make no change in a Contract without the issuance of a written Change Order (or Field Order in advance of a written Change Order). Contractors shall not be entitled to be paid for any such change unless and until a written Change Order has first been approved and executed in accordance with this Section, designating in advance the work to be done and the amount of additional compensation to be paid. Notwithstanding the foregoing, the City Manager may authorize payment on a Field Order in advance of an executed Change Order; provided however, that exercise of such discretionary authority shall not alter the Contract provisions or required procedures, and shall not mandate such early payment on future Field Orders. In an emergency situation, the designated City representative may direct the Contractor to perform emergency changes and reimburse the Contractor on a time and materials basis.

The City Manager shall have the authority to issue and execute Contract Field Orders or Contract Change Orders as follows:

A.

To a maximum of $250,000.00 for Contracts having an initial value of $2,500,000.00 or less.

B.

To a maximum of ten percent of the initial Contract value for Contracts having an initial value of more than $2,500,000.00.

Notwithstanding subsection 2 above, the cumulative value of all Contract Field Orders and/or Change Orders issued by the City Manager for any one Contract for which there is an Appropriation shall not exceed the amount specified below for the category applicable to said Contract, unless City Council approval of a Contract amendment or a new Contract has been secured in advance of such exceedance:

A.

Small Procurement: $30,000.00;

B.

Informal Procurement: $150,000.00;

C.

Formal Procurement:

Contracts with Initial Value of $2,500,000.00 or less: Initial Value of Original Contract, up to a maximum of $250,000.00.

Contracts with Initial Value of more than $2,500,000.00: ten percent of the initial value.

The City Manager may delegate to the Assistant City Manager(s), Director(s), City Engineer, and/or Fire Chief the ability to issue Field Orders in advance of written Change Orders for work costing up to $30,000.00 provided that cumulatively the project's budget is not exceeded. For purposes of this subdivision, any Field Orders incorporated into an executed Change Order shall not be included in the $30,000.00 threshold limit.

(Ord. No. 2017-1458, § 2, 12-12-2017; Ord. No. 2019-1473, § 3, 5-4-2019; Ord. No. 2022-1524, § 2(Exh. A), 10-11-2022)

The Department Purchasing Officer shall have the duty and authority to:

(a)

Goods and General Services.

(1)

Purchase or Contract for Goods and General Services required by the department of $30,000.00 or less, and for which there is an Appropriation, in accordance with purchasing procedures prescribed by this chapter and such administrative regulations as the City Manager may adopt for the internal management and operation of the purchasing system;

(2)

Negotiate Contracts and make recommendations to the City Manager for the purchase of Goods and Services costing more than $30,000.00;

(3)

Act to procure for the City the Best Value in Goods and General Services;

(4)

Endeavor to obtain as full and open a competition as possible on all purchases;

(5)

Prepare and recommend to the City Manager rules, and revisions or amendments to such rules, governing the purchase of Goods and General Services for the City;

(6)

Keep informed of current developments in the field of purchasing, prices, market conditions, and new products affecting the officer's department;

(7)

Prescribe and maintain such forms as are reasonably necessary to the operation of this chapter and other rules and regulations;

(8)

Require chemical and physical tests of samples submitted with the Bids and samples of deliveries which are necessary to determine quality and conformance with specifications;

(9)

Recommend to the City Manager the transfer of surplus or unused Goods between departments and divisions and/or to others as needed;

(10)

Approve specifications for Goods and General Services for the department or division;

(11)

Supervise the inspection of all Goods and General Services purchased to ensure conformance with specifications; and

(12)

Conduct all bidding, negotiations, or other procedures established by Sections 2.30.060, 2.30.070, and 2.30.090, as applicable, and at the direction of the City Manager.

(b)

Cooperative Purchasing. Procure Goods and Services where the total cost of such Goods and Services is $30,000.00 or less, and for which there is an Appropriation, in accordance with the purchasing procedures prescribed by this chapter and such administrative regulations as the City Manager may adopt for the internal management and operation of the purchasing system.

(c)

Professional Services. Procure Professional Services where the total cost of such Professional Services is $30,000.00 or less for which there is an Appropriation, in accordance with the purchasing procedures prescribed by Section 2.30.080 of this chapter and such administrative regulations as the City Manager may adopt for the internal management and operation of the purchasing system.

(Ord. No. 2022-1524, § 2(Exh. A), 10-11-2022)

Unless exempted from this chapter, pursuant to Sections 2.30.110, 2.30.120, or 2.30.130, purchases of Goods and Services shall be by one of the methods established in Sections 2.30.060, 2.30.070, 2.30.080, 2.30.090, 2.30.170 or 2.30.180 of this chapter. All Contracts shall be in writing.

(a)

Use of Purchase Orders or Contract Required. Purchases of Goods and Services shall be made by Purchase Orders and/or Contract with the exception of those items purchased utilizing Petty Cash or credit cards, as outlined in Sections 2.30.170 and 2.30.180, respectively. Except as otherwise provided in this chapter, no Purchase Order shall be issued or Contract entered into without the prior approval of the City Manager or a designated representative. Department Purchasing Officers may issue Purchase Orders for purchases of Goods and Services for which there is an Appropriation, within the limits of Section 2.30.040. For purchases of $30,000.00 or less,

the Purchase Order may serve as the written Contract for the purchase; however, the Department Purchasing Officer should consider the Goods or Services being purchased and whether or not there would be value in entering into a written agreement for the purchase. The City Manager shall establish a standard form Purchase Order. The Department Purchasing Officers may establish annual (blanket) Purchase Orders with vendors of Goods or Services purchased by the City on a routine and continuing basis, per fiscal year.

(b)

Encumbrance of Funds. Except in cases of emergency or in cases where specific authority has been first obtained from the City Council by a budget amendment, a Purchase Order shall not be issued or a Contract entered into unless there exists an unencumbered Appropriation in the fund account against which the purchase is to be charged in an amount equal to or greater than the cost of the purchase. The Department Purchasing Officer shall monitor all Purchase Orders and Contracts to assure compliance with this Subsection.

(c)

Cumulative Purchases. No purchase shall be artificially divided to bring it, or any portion thereof, within the applicable purchase limitation. Any effort to circumvent the dollar limits set by this Purchasing Ordinance is prohibited.

(d)

Goods, Services and Public Projects Acquired with Federal or State grant Funds. When the grant terms and conditions require compliance with procedures that are more restrictive than this chapter, such procedures will control. However, in the event such procedures are less restrictive, this chapter shall govern to the extent permitted by the terms and conditions of such grant.

(Ord. No. 2022-1524, § 2(Exh. A), 10-11-2022)

The cost thresholds set forth in this section shall apply to the total cost in any one transaction, or the cumulative cost for the same Goods from the same Contractor arising out of the same procurement. Procurements shall not be divided so as to avoid the threshold requirements.

(a)

Small Procurements (≤ $30,000.00). Procurements of Goods, where the total cost of Goods is $30,000.00 or less shall be made using simplified and cost effective operational procedures and forms approved by the City Manager. The use of formal or informal Bids is not required but is considered the best management practice.

Micro Purchases (≤ $5,000.00). Procurements of Goods, where the total cost is $5,000.00 or less are exempt from the bidding provisions of this chapter.

(b)

Informal Bidding (> $30,000.00 and ≤ $150,000.00):

Informal bidding procedures shall be utilized when:

a)

The anticipated cost of the Goods to be purchased is greater than $30,000.00 and up to $150,000.00; or

b)

No Bids are received pursuant to the formal Bid procedures established; or

c)

All Bids received substantially exceed the City's estimated costs, as determined by the Department Purchasing Officer through the formal bidding procedure.

The City Manager may designate types or classes of procurements costing more than $150,000.00 which may be purchased through the use of informal bidding procedures whenever the City Manager finds that the use of the informal bidding procedure is advantageous to the City consistent with applicable law.

Informal bidding procedures shall be as follows:

a)

Bids shall be obtained by written or oral request.

b)

A minimum of three bidders should be solicited, unless the City Manager deems it to be infeasible.

c)

Responses shall be in writing, and may be transmitted by facsimile, by mail, electronically over the internet, or by any other means of delivery as described in the Bid documents.

d)

All Contracts shall be awarded based on the Best Value to the City or the lowest Responsive Bid submitted by a Responsible Bidder, as determined by the Department Purchasing Officer, and shall be awarded by the Department Purchasing Officer or City Manager within the parameters of Section 2.30.040.

(c)

Formal Bidding (> $150,000.00):

Except when the provisions of Sections 2.30.090, 2.30.110, and/or 2.30.120 are applicable, formal bidding procedures shall be utilized when the procurement does not meet the requirements of Subsections (a) or (b), above.

Formal bidding procedures shall be as follows:

a)

The Department Purchasing Officer shall issue a notice inviting Bids using one or more methods designed to provide reasonable public notice in a manner which will permit current information to be disseminated widely. The notice shall include at minimum:

i.

Instructions to bidders;

ii.

Specifications describing the required Goods;

iii.

Bid forms and schedules;

iv.

Any required bond forms;

v.

General Contract provisions;

vi.

The time on or before which Bids will be received;

vii.

Where and with whom Bids shall be filed;

viii.

The date, time, and place where and when Bids will be publicly opened;

ix.

Statement of bidders' exceptions.

b)

Sealed formal Bids shall be received by the City at a time, date, and place designated in the Bid documents. Formal Bids, timely received, will be publicly opened by the City and the aggregate Bid pricing shall be read aloud.

c)

Any person or entity with whom the City has contracted to prepare or assist in the preparation of Bid or RFP documents is ineligible to submit a Bid or proposal for the provision of the Goods so specified in the notice inviting Bids or RFP.

d)

Formal Bids received after the deadline for receipt of Bids shall not be accepted by the City and shall be returned to the bidder unopened, unless opening is necessary for identification purposes. The Department Purchasing Officer shall submit written notification to the bidder whose Bid was received after the deadline stating what the deadline was, when the Bid was actually received and that the Bid is being returned because it was received after the deadline.

If no Bids are received or if no Bids meet the requirements as specified in the solicitation documents, the Department Purchasing Officer may reissue the solicitation using the informal bidding procedures, negotiate a Contract based upon the solicitation without further complying with this Section, or the City may terminate the procurement.

If two or more Bids are received with the same total amount or unit price, quality and service being equal, and if the public interest will not permit the delay of re-advertising for Bids, the City Manager may exercise sound discretion and accept the Bid he or she chooses.

In considering formal Bids for Goods, the Awarding Authority may waive minor defects or irregularities, provided that the irregularities do not affect the Bid amount or give a particular Bidder an advantage over others.

All Bids shall be deemed rejected if no action is taken on the Bids or proposals within 90 days after the Bids have been received and opened, unless Bidders agree to extend a Bid's effective date at the request of the City.

The Awarding Authority shall have the authority to reject all Bids if the Awarding Authority determines that doing so is in the best interest of the City. Cancellation of a procurement process by the Awarding Authority does not constitute fulfillment of the Formal bidding procedures of this chapter, which must be undertaken anew in the event of cancellation of a Bid.

(d)

The City may utilize the procedures for Request for Qualification and/or Proposal set forth in Sections 2.30.080(a) and (b).

(e)

Additional Responsibilities and Authorities.

The City shall have the authority to require a performance, payment, warranty and/or any other applicable bond(s) in such amount as it finds reasonably necessary to protect the best interests of the City consistent with applicable law. If the City requires such bond(s), the amount of the bond shall be described in the notice inviting Bids or RFP documents.

All Contracts shall be awarded based on the Best Value to the City or the lowest Responsive Bid submitted by a Responsible Bidder. Best Value criteria, if used, must be determined before Bids/quotes are published or distributed to potential bidders/suppliers.

(Ord. No. 2022-1524, § 2(Exh. A), 10-11-2022)

The cost thresholds set forth in this section shall apply to the total cost in any one transaction, or the cumulative cost for the same General Services from the same Contractor arising out of the same procurement. Procurements shall not be divided so as to avoid the threshold requirements.

(a)

Small Procurements (≤ $30,000.00). Procurements of General Services, where the total cost is $30,000.00 or less shall be made using simplified and cost effective operational procedures approved by the City Manager and forms approved by the City Manager. The use of formal or informal Bids is not required, but is considered the best management practice.

Micro Purchases (≤ $5,000.00). Procurements of General Services, where the total cost is $5,000.00 or less, are exempt from the bidding provisions of this chapter.

(b)

Informal Bidding (> $30,000.00 and ≤ $150,000.00). Informal bidding procedures, as set forth in Section 2.30.060(b)(3) may be utilized:

When the anticipated cost of the General Services does not meet the requirements of Subsection (a) and does not exceed $150,000.00;

When no Bids are received pursuant to the formal Bid procedures established;

When all Bids received substantially exceed the City's estimated costs, as determined by the Department Purchasing Officer through the formal bidding procedure.

(c)

Formal Bidding (> $150,000.00).

Formal bidding procedures shall be utilized when the anticipated cost of the General Services does not meet the requirements of subsections (a) or (b).

The formal bidding procedures and requirements shall be as set forth in Sections 2.30.060(c),(d) and (e).

The City Manager may designate types or classes of General Services costing more than $150,000.00 which may be purchased through the use of other purchasing procedures if the City Manager finds such procedures to be advantageous to the City and consistent with applicable law.

(d)

The City may utilize procedures for Request for Qualification and/or Proposal set forth in Sections 2.30.080(a) and (b).

(Ord. No. 2022-1524, § 2(Exh. A), 10-11-2022)

The selection of Professional Services should be based on the professional qualifications necessary for the satisfactory performance of the Professional Services required, on demonstrated competence, and on a fair and reasonable price consistent with Government Code Section 4526 and applicable law. The cost thresholds set forth in this section shall apply to the total cost in any one transaction, or the cumulative cost for the same Professional Services from the same Contractor arising out of the same procurement. Procurements shall not be divided so as to avoid the threshold requirements.

(a)

Informal Proposal (≤ $150,000.00):

Procurements of Professional Services where the total cost is expected to be $150,000.00 or less shall be made using informal proposal procedures, as set forth herein.

Informal proposal procedures shall be as follows:

a)

Proposals shall be obtained by written or oral request.

b)

When possible, a minimum of three proposers should be solicited.

c)

Responses shall be in writing, and may be transmitted by facsimile, mail, electronically over the internet, or any other means of delivery as described in the proposal documents.

(b)

Formal Proposal (> $150,000.00):

Procurements of Professional Services where the total cost is expected to exceed $150,000.00 shall be made using formal proposal procedures, as set forth herein.

Formal proposal procedures shall be as follows:

a)

The Department Purchasing Officer shall use the RFP and/or RFQ process to solicit proposers. The RFP should include:

i.

Instructions to proposer;

ii.

Specifications describing the required Professional Services;

iii.

Any required licenses, insurance and/or bond forms;

iv.

General Contract provisions;

v.

The time on or before which proposals will be received;

vi.

Where and with whom proposals shall be filed.

b)

When possible, a minimum of three proposers should be solicited. The City Manager may waive the requirements for solicitation of multiple proposals if only one individual or firm can reasonably provide the Professional Services, and/or it is in the best interest of the City to waive the requirement.

c)

Formal proposals received after the deadline for receipt of proposals shall not be accepted by the City. The City shall submit written notification to the proposer whose proposal was received after the deadline setting forth the deadline, when the proposal was actually received, and that the proposal is being rejected because it was received after the deadline.

If no proposals are received or if no proposals meet the requirements as specified in the RFP or RFQ documents, the City may reissue the solicitation using the informal proposal procedures, negotiate a Contract based upon the solicitation without further complying with this Section, or the City may terminate the procurement.

If two or more proposals are received with the same total amount, quality and service being equal, and if the public interest will not permit the delay of re-advertising for the RFP or RFQ, the City Manager may exercise discretion to accept the proposal which they determine will provide the Best Value to the City.

All proposals shall be deemed rejected if no action is taken on the proposals within 90 days after the proposals have been received and opened, unless proposers agree to extend the effective date of an RFP or RFQ at the request of the City.

The Awarding Authority shall have the authority to reject all proposals if doing so is in the best interest of the City.

(c)

Additional Responsibilities and Authorities:

The City shall have the authority to require a performance and/or other bond(s) in such amount as it finds reasonably necessary to protect the best interests of the City consistent with applicable law. If the City requires such bond(s), the amount of the bond shall be described in the RFP or RFQ.

All Contracts shall be awarded based on the Best Value to the City as determined by the City Manager or Department Purchasing Officer and shall be awarded by the City Manager or Department Purchasing Officer within the parameters of Sections 2.30.030 or 2.30.040. Best Value criteria, if used, must be determined before an RFP or RFQ is published or distributed to potential proposers.

(Ord. No. 2022-1524, § 2(Exh. A), 10-11-2022)

(a)

The City Manager may authorize the procurement of highly specialized Goods, General Services and/or Professional Services other than those listed in Sections 2.30.060, 2.30.070 and 2.30.080, by competitive negotiations when:

The cost of the Goods, General Services, and/or Professional Services is greater than $30,000.00 for one transaction, or the cumulative cost for the same Goods or Services from the same Contractor arising out of the same procurement, which shall not be divided so as to avoid the threshold requirements; and

The Goods and/or Services are such that suitable technical or performance specifications are not readily available; or

The City is not able to develop descriptive specifications; or

Requesting proposals for the particular Service or Goods to be procured would be more advantageous to the City.

(b)

Whenever possible, at least three proposals shall be received and the award will be based on the proposal that is determined to be most advantageous to the City, taking into consideration price and the evaluation criteria set forth in the RFP. Competitive negotiations are not intended to be used for the purpose of avoiding the bidding procedure set forth in this chapter.

(Ord. No. 2022-1524, § 2(Exh. A), 10-11-2022)

(a)

Purpose and Intent. The Charter of the City of San Marcos, ratified by the voters on June 7, 1994, and amended by the voters on November 7, 2000, provides at Section 200 as follows:

Section 200. Public Works Contracts. The City shall have the power to establish standards, procedures, rules or regulations to regulate all aspects of the bidding, award and performance of any public works contract, including, but not limited to, the compensation rates to be paid for the performance of such work.

The Subsections that follow are enacted for the purpose of implementing Section 200 of the Charter. This Section is intended to supersede the provisions of the Public Contract Code and the Labor Code and, except with respect to state-imposed requirements relating to the payment of prevailing wage by charter cities and/or as expressly set forth in this Section or applicable Contract documents, the provisions of the Public Contract Code and the Labor Code shall have no application to Public Projects of the City of San Marcos or its agencies.

(b)

Methods of Contracting. The City shall have the right to determine the method of contracting and procedures and rules applicable to contracting for Public Projects, including any "public project" as defined in Public Contract Code Sections 20161 or 22002, or any "public works" as defined in Labor Code Sections 1720, 1720.2, or 1720.3. In contracting for any Public Project Contract, the City shall have the right to determine the method, procedures and rules which will provide the City with the Best Value, in compliance with other

City ordinances, rules, or regulations. Without limiting the right of the City to use any other method of contracting, any of the methods listed in Sections 2.30.060, 2.30.070, 2.30.080, and 2.30.090 may be used for Public Project Contracts.

(c)

Construction Project Procurement. The City shall follow the informal and formal bidding procedures and requirements as may be applicable and set forth in Sections 2.30.060(b), (c), (d), and (e).

(d)

Bonds. The City shall have the right to require a Bid, payment, performance, warranty, or any other applicable bond(s), each in amounts determined by the City to be necessary to protect the best interest of the City, to be filed with the City by the Contractor as a condition to any Contract for a Public Project.

(e)

Payment of Prevailing Wages. Payment of prevailing wages pursuant to Labor Code Section 1770 and compliance with the prevailing wage requirements in Labor Code Sections 1770 et seq., shall be required for any Public Project Contract entered into by the City or any of its agencies when required as a condition of any Federal or State grants and on other jobs considered to be of Statewide concern.

(f)

The City may employ additional procedures with respect to any Public Project upon the approval of the City Manager, and the City may alter the procedures set forth in this Section for any Public Project provided that the alterations are first approved by the City Manager (for Contracts which the City Manager may approve without City Council approval pursuant to Section 2.30.030) or by the City Council (with respect to all other Contracts). Any such additional procedures or altered procedures shall be set forth in the instructions to bidders.

(Ord. No. 2022-1524, § 2(Exh. A), 10-11-2022)

The City will determine when and if the Prequalification and Debarment procedures specified below will be applicable to and required for a public work project(s). When the City determines that Prequalification procedures are applicable and required, the following procedures will be used to prequalify Contractors for eligibility to Bid on public works projects.

(a)

Qualified Bidder Determination. For purposes of this chapter, any reference to "qualified" shall mean determining whether a prospective bidder has met the specified criteria for a Responsible Bidder pursuant to this chapter 2.30, rather than determining the lowest responsible bidder in a bidding process. Meeting the definition of "Responsive Bidder" is not sufficient to be considered a qualified bidder.

(b)

Notice of Prequalification Procedure to Prospective Bidders. The City shall distribute a notice to prospective bidders inviting the submission of prequalification information.

(c)

Prequalification Procedure. The City's prequalification procedure includes the following:

Standardized Questionnaire and Financial Statement. The City shall require prospective bidders to complete and submit a standardized questionnaire and financial statement, including a statement of the prospective bidder's prior experience in performing public works projects. Each questionnaire, and any other documents and materials submitted to the City as part of the prequalification requirements, must be signed under penalty of perjury by an individual who has the legal authority to bind the Contractor on whose behalf that person is signing. If any information provided by a prospective bidder changes, the prospective bidder must immediately notify the City and provide updated and accurate information in writing. Omission of any requested information may result in automatic disqualification of the prospective bidder by the City.

Uniform Scoring System. The City shall have the right to rate prospective bidders on the basis of their completed standardized questionnaires, financial statements, and interviews, to determine whether or not prospective bidders are qualified to perform work on City public works projects, refined or tailored as needed to address any given project. In determining responsibility, the City may choose to consider certain factors, including, but not limited to, the prospective bidder's business history and organizational performance; compliance with occupational safety and health laws, workers' compensation and other labor legislation; and completion of recent projects and quality of performance.

Disqualification Determination. If a prospective bidder is determined not to be qualified under the City's specified criteria, the City shall state its determination and the basis thereof in writing, including any supporting evidence received or adduced in the course of the City's review, and shall deliver a copy of such determination to the prospective bidder. The effective date of the notice is the date that said notice is deposited in the U.S. Mail. The prospective bidder shall be permitted to dispute the disqualification and rebut any evidence used against the prospective bidder prior to the closing time for receipt of bids on the project. If the prospective bidder does not timely dispute the disqualification by or before the closing time for receipt of bids on the project, then no further action by the City is necessary, and the prequalification rating of the bidder becomes effective without any further proceedings.

Appeal Process. The disqualified bidder will be given the opportunity to rebut any evidence used as a basis for the disqualification and to present evidence to the City relating to why the bidder should be deemed to be qualified. The disqualified bidder may give written notice requesting the appeal to the City Clerk within ten (10) days following the effective date of the City's disqualification determination. As soon as is feasible, but not later than the expiration of thirty (30) days following receipt of the request for an appeal, the City Manager shall hear the appeal. The disqualified bidder may rebut evidence which is the basis for the City's determination and present evidence as to why the bidder is qualified. The City Manager may affirm the disqualification or reverse the determination. The decision of the City Manager with respect to the appeal serves as the City's final determination and serves to exhaust the disqualified bidder's administrative remedies. Disqualified bidders may apply in future prequalification processes.

Modification of Prequalification Procedure. City staff have the right to periodically update and revise any or all of the questions included in the standardized questionnaire and financial Prequalification and Debarment statement and/or the uniform scoring system on an administrative basis. City Council approval shall not be needed for such updates and/or revisions.

(d)

Duration of the Prequalification. The City shall have the right to prequalify each prospective bidder for a single project, or for multiple projects occurring within two (2) calendar years following the date of initial prequalification.

(e)

Revocation of Prequalified Status. Following a determination of prequalification, in the event a material change occurs with respect to information or documentation submitted on a prospective bidder's prequalification application through the date of submission of a Bid or award of a Contract, the prospective bidder must inform the City of the same. In the event it learns of such a material change, the City has the right to further evaluate said prospective bidder's qualifications, and to revoke a prequalification determination in writing, and shall deliver a copy of such determination to the disqualified bidder. Such material changes may include, but are not limited to, submission of materially false information, failing to disclose disqualifying information, changes to a prospective bidder's bonding capacity and/or financial condition, departure of key personnel, or other factors that would affect the ability of a prospective bidder to perform the work and would therefore place public funds at risk should the prospective bidder be determined to be prequalified and be awarded a Contract. Any appeal of a City determination to revoke a prequalification determination shall be processed in accordance with section 2.30.105(c)(4), above. The decision of the City Manager with respect to such appeal serves as the City's final determination, and serves to exhaust the bidder's administrative remedies.

(f)

Prequalification of Subcontractors. Nothing in this Section shall preclude the City from prequalifying or disqualifying a subcontractor. The City has the right, but not the obligation, to disqualify subcontractors from working on a public works project as determined to be in the best interest of the City. The disqualification of a subcontractor by the City does not necessarily disqualify prime Contractor

determined by the City to be prequalified to Bid on a public works project. If a subcontractor is not qualified, the prime Contractor shall be given an opportunity to replace that subcontractor with a new subcontractor subject to this prequalification procedure, or a subcontractor already prequalified by the City, at the prime Contractor's discretion.

(g)

Confidentiality and the Public Records Act. To the extent permitted by law, the City shall keep confidential all prequalification documents submitted by any prospective bidder that are clearly and specifically marked as confidential, and such information deemed to be confidential shall not be considered a public record and shall not be open to public inspection if the City receives a request for documents under the Public Records Act. If any question exists regarding the confidentiality of any documents submitted by any prospective bidder, the City will notify the prospective bidder prior to releasing the documents. An exception exists for a list of the names of prospective bidders applying for prequalification status, their California construction or other professional license number, classifications, and expiration dates, and names of associated qualifying individuals, and their DIR Public Works Contractor Registration Number, which are public records subject to disclosure under the Public Records Act (California Government Code sections 6250 et seq.).

(Ord. No. 2021-1497, § 2, 7-13-2021; Ord. No. 2022-1524, § 2(Exh. A), 10-11-2022)

Purchase of Goods and Services by Contract, arrangement, and agreement for Cooperative Purchasing programs with the State, the County, or any other municipality, public corporation, agency or jurisdiction within the State or any other state may be made by the City Manager or the Department Purchasing Officer in accordance with this chapter, when the administering or lead agency has made their purchases in a competitive manner.

Prior to making the decision to use a Cooperative Purchasing contract, the City Manager or Department Purchasing Officer shall conduct extensive due diligence by:

(a)

Comparing the Cooperative Purchasing Contracts available for the required Goods or Services, conducting market research, and evaluating whether the use of a Cooperative Purchasing Contract is appropriate.

(b)

Analyzing all costs associated with conducting a competitive solicitation.

(c)

Ensuring that the use of the Cooperative Purchasing Contract meets competitive purchasing requirements.

(d)

Reviewing the Cooperative Purchasing Contract for conformance with all applicable laws and best practices.

(e)

Analyzing the specifications of Goods and/or Services, price, terms, and conditions and other factors such as: cost to utilize the Cooperative Purchasing Contract, shipping, minimum spend requirements, and availability of Contract documentation, to ensure that the Cooperative Purchasing Contract produces the Best Value to the City.

(f)

Ensuring that the City's required terms and conditions are incorporated into the Contract.

(g)

Incorporating or removing additional terms and conditions by developing a Contract or Purchase Order that is signed by both the City Manager or the Department Purchasing Officer and the supplier.

(h)

Contacting the cooperative lead agency to verify Contract application and eligibility, and obtain documentation to verify the pricing schedule, Contract and/or Bid process.

(i)

Goods or Services purchased through Cooperative Purchasing should comply with the pricing terms and specifications of the underlying Cooperative Purchasing schedule, bid and Contract documents. Any deviation from the terms and conditions contained in the underlying Cooperative Purchasing Bid and Contract documents should be evaluated by the City, but may be authorized under the City's purchasing authority pursuant to this chapter.

(Ord. No. 2022-1524, § 2(Exh. A), 10-11-2022)

(a)

Public Health and Safety Emergencies. In cases of emergency, as determined by the City Council, including, but not limited to, states of emergency defined in Government Code Section 8558, as may be amended from time to time, when repair or replacements are necessary to permit the continued conduct of the operation or services of a public agency or to avoid danger to life or property, the City Manager may then proceed at once to replace or repair any public facility or infrastructure and/or procure the necessary Goods and/or Services adopting the plans, specifications, or working details giving notice of Bids to let Contracts. Emergency work may be completed by day labor under the direction of the City Manager, or by Contractor, or a combination of the two. The City Manager is delegated the power to declare a public emergency subject to confirmation by the City Council, by a four-fifths vote within 48 hours following the City Manager's declaration of a public emergency.

(b)

City Employee and Tenant Health and Safety Emergencies. In cases of emergency relating to City facilities, equipment, machinery and/or property, including, but not limited to, interior flooding, fire, damage and failure or imminent failure of critical equipment, machinery or infrastructure, where business interruptions may occur and/or the City employee or tenant health and safety is a concern, the City Manager may then proceed at once to replace, repair and/or procure Goods and/or Services necessary to mitigate the emergency relating to the City facility, equipment, machinery or property. In exercising this provision, the Department Purchasing Officer shall report to the City Manager within 24 hours, in a manner as the City Manager may prescribe, the total estimated or actual cost of the Goods and/or Services, selected Contractor, if necessary, and scope of the work to be performed.

Goods and Services not subject to the provisions of this chapter are as follows:

(a)

Utility Services and related charges, such as the monthly recurring water, sewer, natural gas, electricity, cable, telephone, or communication usage and/or other Service charges;

(b)

Work or Services performed by or for another public or quasi-public entity, including but not limited to those defined in subdivision (b) of Section 605 of the California Unemployment Insurance Code, as may be amended from time to time;

(c)

Real property purchases and related title and escrow fees;

(d)

Tenant improvements contracted and paid for by a third party (e.g., a lessee of City property);

(e)

Credit card purchases of gasoline, oil, or emergency automotive needs;

(f)

Transportation and freight charges when not specifically indicated on a Purchase Order;

(g)

Insurance and bond premiums;

(h)

Advertising;

(i)

Works of art;

(j)

Transportation and travel expenses of City officers;

(k)

Payroll related activities or transactions; and

(l)

Exempt services contracts as defined in section 10335.5(c) of the California Public Contract Code, as may be amended from time to time.

(Ord. No. 2022-1524, § 2(Exh. A), 10-11-2022)

The City Council shall, by resolution, establish policies and procedures which define a preference for making certain purchases within the City of San Marcos. Any purchase shall be made in accordance with the policies and procedures set forth in said resolution.

In the purchasing of Goods or Services, unlawful activity including, but not limited to, rebates, kickbacks, or other unlawful consideration is prohibited. No City employee shall participate in the selection process if that employee has a relationship with a person or business entity seeking a Contract with the City that would subject that employee to the prohibition of California Government Code Section 87100 et seq. (Conflicts of Interest), or if the provisions of California Government Code section 1090 would prohibit such a Contract.

(Ord. No. 2022-1524, § 2(Exh. A), 10-11-2022)

It is the intent of the City Council that the City of San Marcos takes a leadership role in recycling its waste products and in the purchase of Environmentally Preferable Products for use in the delivery of City Services. The City Manager shall establish policies and procedures which define a preference for purchasing Environmentally Preferable Products. Purchases shall be made in accordance with such policies and procedures.

Petty Cash shall be used to pay for small purchases and for the immediate need of Goods or Services that cannot be obtained or purchased from a vendor with a Purchase Order or credit card.

Prior to obtaining the Petty Cash, the following must occur:

(a)

All City Manager's Petty Cash reimbursements and advances must be approved by the Finance Director.

(b)

All the Department Purchasing Officer's Petty Cash reimbursements and advances must be approved by the City Manager, or his or her designee.

(c)

All other City employee's Petty Cash reimbursement requests and advances must be approved by the Department Purchasing Officer.

All Petty Cash advances must be cleared within 24 hours or by the next business day by returning the purchase receipt(s) and remaining money, if any, to the Petty Cash Custodian.

The use of credit cards allows for a more efficient, cost-effective method of purchasing and paying for small-dollar transactions, which reduces the use of blanket Purchase Orders, and Petty Cash. Credit cards are to be used for official City business only. Use of a credit card is not intended to avoid or bypass appropriate purchase procedures or replace effective procurement planning which enables volume discounts. The purchase of capital or Contract items or the division of purchases in order to circumvent the dollar limits set by this Purchasing Ordinance is prohibited. All credit card purchases must be approved by the Department Purchasing Officer.

(Ord. No. 2015-1413, 9-22-15; Ord. No. 2022-1524, § 2(Exh. A), 10-11-2022)

Debarment is an administrative sanction to be imposed only in the public interest for the City's protection, and is not imposed for purposes of punishment. It is designed to protect the City by ensuring full and open competition by granting awards only to Contractors qualified under this chapter. Debarment prohibits the awarding of Contracts to, and the execution of Contracts with, a debarred Contractor.

(a)

Grounds for Debarment. In addition to all other remedies permitted by law, upon a finding of any of the following grounds, the City may declare Debarment of a Contractor:

Two (2) or more Claims of computational or other errors in Bid submission within a two (2) year period;

Failure or refusal to timely provide or properly execute Contract documents;

More than one occurrence of substandard performance by such Contractor on any City Contract or agreement, including, but not limited to: (a) a material breach of the Contract or agreement; (b) a failure to complete work required under the Contract or agreement on time and/or within budget when such failure is attributable to such person's negligent or wrongful actions or inactions; (c) substandard quality of work and/or materials; or (d) any negligent or wrongful failure to furnish or install materials in accordance with Contract requirements, and/or failure to cooperate with the City such that timely, satisfactory completion of the work was jeopardized. The occurrences of substandard performance described herein may occur on the same Contract or agreement or on different Contracts or agreements. The use of substandard materials and/or failure to furnish or install materials in accordance with Contract requirements may be used to support Debarment even if the discovery of the defect is subsequent to acceptance of the work and expiration of the warranty if such defect is because of intentionally deficient or grossly negligent performance of the Contract or agreement;

Two (2) or more occasions within a two (2) year period of failure to meet bonding or insurance requirements acceptable to the City in the time periods required by the Contract;

Failure or refusal to properly perform or complete Contract work or warranty performance;

Failure or refusal to honor or observe contractual obligations or legal requirements pertaining to the Contract;

One or more violations by such Contractor, during the performance of any City Contract or agreement, of any labor or safety statutes, regulations or standards including, but not limited to, applicable local, state, or federal statutes, regulations or standards governing prevailing wage, occupational safety and health, and nondiscrimination requirements;

One or more violations by such Contractor of any law or regulation governing the handling, transfer, storage, or disposal of hazardous materials or hazardous waste;

One or more violations by such Contractor of any law or regulation governing the handling, transfer, storage, or disposal of solid waste generated in connection with construction or demolition;

Submission of a bid, proposal, or other document pertaining to or required by a City Contract or agreement, or pertaining to or required by any provision of the bid documents, or this Municipal Code, or applicable state or federal law, and/or during the performance of work, which is known by Contractor to be false or to contain false information, or the submission of a false or fraudulent Claim;

Knowingly doing business with a debarred third party in performance of any City Contract or agreement awarded after debarment of said third party;

Any finalized Debarment of the Contractor by another governmental agency on grounds justifying debarment under this Section, during the period of such Debarment; or

Received two or more final performance evaluations with a rating of unsatisfactory in any two-year period.

The grounds for Debarment set forth in this section 2.30.190(a) are not intended to be an exhaustive list of the acts or omissions for which a Contractor may be Debarred, and grounds other than those enumerated above may be a basis for Debarment.

(b)

Grounds for Permanent Debarment.

A judgment, settlement, stipulation, plea agreement, final conviction, including a plea of nolo contendere, or final unappealable civil judgment, of any of the grounds listed below, constitutes grounds for permanent debarment of the Contractor who is subject to, or the Affiliate of, the Contractor who is subject to the judgment, settlement, stipulation, plea agreement, final conviction, or final unappeasable civil judgment:

A.

Under any state or federal statute or municipal ordinance for fraud, bribery, collusion, conspiracy, theft, bid rigging, forgery, falsification, or destruction of records, receiving stolen property, perjury, embezzlement, or any other similar crime; or

B.

For commission of a criminal offense arising out of obtaining or attempting to obtain a public or private Contractor subcontract, or in the performance of such Contractor subcontract; or

C.

For any offense, action, or inaction indicating a lack of business integrity or business honesty.

A Fair Political Practices Commission enforcement order against a Contractor, either following a hearing or by stipulation, imposing a penalty for a violation of the campaign contribution provisions of the California Political Reform Act, or an administrative determination and/or a Superior Court judgment against a bidder or Contractor, either following a hearing or by stipulation, finding a violation of the campaign contribution provisions of the San Marcos Municipal Code.

The Contractor has engaged in any corrupt practice in bidding, award, administration, or performance of a Contract.

The Contractor operates in a manner designed to evade the application of or to defeat the purpose of this Section 2.30.190.

A person or persons representing Contractor has committed an act or omission so serious or compelling in nature that it affects the present responsibility of the Contractor to be awarded a Contract or to participate as a subcontractor.

(c)

Debarment Determination, Notice. If grounds for Debarment are found to exist under section 2.30.190(a) or section 2.30.190(b), above, the City shall state its determination and the basis thereof in writing, and shall deliver a copy of such determination to the Contractor. The effective date of the notice of Debarment is the date that said notice is deposited in the U.S. Mail. The Contractor shall be permitted to dispute the Debarment and rebut any evidence used against the Contractor pursuant to section 2.30.190(d), below.

(d)

Appeal Process. The Contractor will be given the opportunity to rebut any evidence used as a basis for the Debarment and to present evidence to the City relating to why the Contractor should not be Debarred. The Contractor may give written notice requesting the appeal to the City Clerk within ten (10) days following receipt of the City's Debarment determination. Within thirty (30) days following receipt of the request for an appeal, the City Manager shall hear the appeal. The Contractor may rebut evidence which is the basis for the City's determination and present evidence as to why the Contractor should not be Debarred. The City Manager may affirm the Debarment or reverse the Debarment. The City Manager's determination with respect to the appeal serves as the City's final determination, and serves to exhaust the Contractor's administrative remedies.

(e)

Term and Effect of Debarment. Debarment constitutes Debarment of all divisions or other organizational elements of the Contractor for an initial period of up to three (3) years, unless the Debarment decision is limited by its terms to specific divisions, organizational elements, or commodities, or unless the Debarment is made permanent pursuant to Section 2.30.190(b), above. Prior to expiration of the time period of any nonpermanent Debarment imposed under this article, the City Manager may review the record of the evidence presented during the debarment proceedings, as well as any additional facts or information relevant to a review of the Debarment. The City Manager may extend the existing non-permanent Debarment, for successive additional periods of up to two years each, if the City Manager determines that such extension is necessary to protect the public interest. If the City Manager determines that Debarment for an additional period is necessary, the appeal procedures established by section 2.30.190(d), above, shall be applicable to such decision. City officers, employees and agents shall not solicit offers from, or award Contracts to, any Debarred Contractors. Debarred Contractors are also excluded from conducting business with the City as agents or representatives of other Contractors. The City may extend the Debarment decision to include any Affiliate of the Contractor if the Affiliate is specifically named, given written notice of the proposed Debarment, and provided an opportunity to respond.

(f)

Effect of Debarment by Another Governmental Agency. The City may also debar a Contractor that is the subject of a final debarment determination by another governmental agency until the term of the debarment by such other governmental agency expires. The Contractor may appeal a debarment determination pursuant to section 2.30.190(d), above. The City Manager may affirm the Debarment or reverse the Debarment. The City Manager's determination serves as the City's final determination, and serves to exhaust the Contractor's administrative remedies.

(g)

Continuation of Existing Contracts. Debarment shall be deemed a material breach of any other Contract between the City and the Contractor, and any existing Contracts between the City and the Contractor may be terminated immediately upon Debarment. Notwithstanding the foregoing, the City may continue contracts in existence at the time of Debarment, upon a determination by the City Council, after receiving advice from the City Manager and City Attorney as to the effects of termination of an existing agreement with the Contractor.

(h)

List of Debarred Contractors. The City shall compile and maintain a current consolidated list of all Debarments. The list shall indicate the names and addresses of all debarred Contractors, the ground(s) for Debarment, and the termination date for each listing. After the opening of Bids or receipt of proposals, the contracting officer shall review the list of the Debarments. Bids received from any listed Contractor in response to an invitation for Bids shall be recorded as received, and then rejected by reason of Debarment. Proposals, quotations, or offers received from any listed Contractor shall not be evaluated for award or included in the competitive process by the applicable City Department during the period the Contractor is on the Debarment list.

(Ord. No. 2021-1497, § 2, 7-13-2021; Ord. No. 2022-1524, § 2(Exh. A), 10-11-2022)