Chapter 2.09 — PUBLIC WORKS CONTRACTING

This chapter shall be known and may be cited and referred to as the "Public Works Contracting Ordinance of the City of Sunnyvale." (Ord. 2628-99 § 4)

The purposes of this chapter are to elaborate upon the methods and procedures pertaining to contracts for public works as set forth in Section 1309 of the city Charter, to provide for the fair and equitable treatment of all persons involved in the public works contracting process, to obtain the highest possible value in exchange for public funds and to safeguard the quality and integrity of the public works contracting system. (Ord. 2628-99 § 4)

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

Bid documents. The documents, including their attachments and addenda, which set forth instructions to bidders and are disseminated for the purpose of soliciting bids.

City employee. An individual who performs services for the city in the capacity of an elected or appointed official, or as a compensated employee of the city or of a temporary services agency retained by the city. "City employee" does not include independent contractors.

Change order. Any order made or issued, for and on behalf of the city for any alteration in, deviation from, addition to or omission from any public works project for which a city contract shall have been awarded or entered into, including any increase or decrease in the quantity of any item or portion of the work or the omission of any item or portion of the work, and also including such extra work as may be determined by the officer or body authorized to issue such a change order to be required for the proper completion or construction of the whole work contemplated.

City-public utility contract. Any public works contract made and entered into for and on behalf of the city with any public utility which is either publicly owned or is regulated by the Public Utilities Commission of the state, for the doing by such public utility, for the city, of any work or thing which is included in the definition of "public works project" where the work involves property of the public utility and is otherwise of direct concern to both the city and the public utility.

Construction. The process of building, erecting, improving or demolishing a public work.

Contract. Agreements, regardless of how they may be labeled, between the city and one or more other parties for the performance of a public works project.

Contractor. Any person who has entered into an agreement with the city to complete a public work.

End user. The city of Sunnyvale or any component thereof requiring a public works project.

Financial interest.

(1) Ownership of any interest or involvement in any relationship from which, or as a result of which, a person has received compensation within the past year, or is entitled to, or is currently receiving compensation;

(2) Ownership, whether wholly or in part, of any property or business; or

(3) Status as an officer, director, trustee, partner, employee, or manager of a business.

Gratuity. A gift, payment, loan, advance, deposit of money, or service, presented or promised in return for or in anticipation of favorable consideration in the contracting process. "Gratuity" does not include the compensation paid by or due from the city or from a temporary service agency under contract with the city to an employee in connection with the employee's services for the city.

Immediate family. Any spouse, child, stepchild, parent or stepparent of a city employee. The relationship of parent to child includes both natural and adoptive relationships.

Improvement. A modification, alteration or addition to a public work which changes its type, size or extent and which is intended to make it better than its original status. Improvement does not include maintenance and repair.

Intergovernmental contract. Any public works contract made and entered into for and on behalf of the city with any other governmental, public or quasi-public agency, for the doing by such other governmental, public or quasi-public agency, for the city, of any work or thing which is included in the definition of "public works project."

Maintenance and repair services. Services intended to preserve and/or restore a public work to a clean, safe, efficient and/or continually usable condition. Maintenance and repair services may include, but are not limited to: carpentry, electrical, painting, plumbing, glazing and other craftwork to preserve a facility in the condition for which it was intended; repairs, cleaning and other operations on machinery and other equipment permanently attached to a facility as fixtures; the mowing, pruning, and trimming of lawns, grass, trees, shrubs, bushes and hedges; and regular removal or relocation of by-products or waste products accumulated at city facilities as the result of on-going environmental processes.

Person. Any individual, partnership, limited partnership, association, corporation, labor union, committee, club, governmental, public or quasi-public entity.

Professional services. Services which involve the exercise of professional discretion and independent judgment based on an advanced or specialized knowledge, expertise or training gained by formal studies or experience. Such services include, but are not limited to, those provided by appraisers, architects, attorneys, engineers, instructors, insurance advisors, physicians and other specialized consultants.

Public works. All works constructed for the use, protection or enjoyment of the public, including public buildings, streets, drains, sewers, utilities, parks and playgrounds.

Public works contract. Any contract made and entered into for and on behalf of the city, with any other party or parties, for the doing of any work or thing by such other party or parties, which is included in the definition of "public works project." Public works contract does not include an intergovernmental contract, or a city-public utility contract.

Public works project. The construction, improvement or demolition of public works. Public works project does not include maintenance or repair services as defined in this section.

Purchasing officer. The person designated by the city manager as the purchasing officer of the

city, or an individual specifically authorized by the purchasing officer to act on his or her behalf.

Responsible bidder. A bidder determined by the awarding authority:

(1) To have the ability, capacity, experience and skill to perform the work in accordance with bid specifications;

(2) To have the ability to perform the work promptly, or within the time specified;

(3) To have equipment, facilities and resources of such capacity and location to enable the bidder to perform the work;

(4) To have a record of satisfactory or better performance under prior contracts with the city and other property owners where such bidder has previously been awarded such contracts;

(5) To have complied with laws, regulations, guidelines and orders governing prior or existing contracts performed by the bidder, if applicable.

Responsive bidder. A bidder determined by the awarding authority to have submitted a bid which conforms in all material respects to the requirements of the bid documents.

Technical specifications. A description of the physical characteristics or nature of the public works project, including drawings, plans, maps, diagrams, and/or other graphic representations of the project as applicable. (Ord. 2628-99 § 4)

(a) End User. The end user shall:

(1) Specify the public work needed and the availability of funding;

(2) Submit to the purchasing officer a description of the desired physical or functional
characteristics of the public work. If the end user is other than the department of
public works, the end user shall be assisted by the department of public works;

(3) Participate in the evaluation of bids, as required.

(b) Department of Public Works. The department of public works shall be responsible for providing the technical specifications for a public works project. The department of public works shall work with any other department which will be an end user of the project in devising the technical specifications and in subsequently evaluating bids and inspecting the work performed to determine conformity with the requirements set forth in the bid documents and with contractual obligations, authorize payment for conforming work and notify the purchasing officer of nonconforming work.

(c) Purchasing Officer. The purchasing officer shall be responsible for the acquisition of public works for the city in accordance with the provisions of this chapter. No acquisition of a public work shall be made by any city employee independently of the purchasing officer except in cases of emergency, unless otherwise authorized by the city manager. The purchasing officer shall:

(1) Prepare and recommend to the city manager operational procedures and forms for the acquisition of public works, in cooperation with the end user;

(2) Be responsible for dissemination of bid documents and supervision of the bidding process;

(3) Determine the amounts of bid security, labor and materials and performance security acceptable for public works projects, in conformance with state law;

(4) Process the contracts awarded and the payment of any funds due.

(d) City Manager. The city manager shall:

(1) Be the awarding authority for every public works contract for which the cost to the city is two hundred fifty thousand dollars or less;

(2) Be the awarding authority for any public works contract, the cost of which will be fully paid or reimbursed to the city by another governmental, public or quasi-public entity, regardless of amount;

(3) Review the results of all formal competitive bid solicitations for which the city council is the awarding authority and make recommendations to the city council as to the action to be taken.

(4) Upon approval by the awarding authority, execute all contracts when all necessary conditions have been met.

(e) The city council shall be the awarding authority for every public works contract for which the cost to the city is greater than two hundred fifty thousand dollars in any one transaction. (Ord. 2628-99 § 4; Ord. 2870-08 § 2; Ord. 3171-21 § 2; Ord. 3217-23 § 1)

The city manager, after consultation with the director of finance and the director of public works, may delegate authority to solicit, award and process bids for public works projects to city employees in addition to the purchasing officer, if such delegation is deemed necessary for the effective development of a project. Delegation shall be made in advance in writing by the city manager and filed with the city clerk, the director of finance and the director of public works.

The director of finance has authority to make interpretations of this chapter and to adopt policies and procedures consistent with the intent and purpose of this chapter. (Ord. 2628-99 § 4; Ord. 3171-21 § 2; Ord. 3246-25, 9/30/2025)

(a) Informal Competitive Bids. Public works projects anticipated to cost $250,000 or less may be acquired by informal solicitations in accordance with the provisions of this chapter. Solicitations may be verbal (unless otherwise required by law) or written, but bids must be in writing. Where possible, departments are encouraged to solicit three written bids or written quotations; however, procurements anticipated to cost $50,000 or less in one transaction are not subject to a minimum number of written bids or quotations.

(b) Formal Competitive Bids. Public works projects anticipated to cost more than $250,000 shall be acquired by issuance of written invitations for bids. Bid documents include, at a minimum, the notice inviting bids; instructions to bidders; technical specifications; a form for the listing of subcontractors; a noncollusion affidavit; bid forms and schedules; all

required bond forms and the proposed contract document.

(c) Federal or State Funding. When a public works project involves the expenditure of federal or state funds, the acquisition shall be conducted in accordance with mandatory applicable federal or state laws or regulations. Such laws or regulations may be incorporated in administrative policies, and periodically updated, as required. (Ord. 2628-99 § 4; Ord. 3171-21 § 2; Ord. 3246-25, 9/30/2025)

(a) Contracts for public works projects for which the cost to the city in one transaction will exceed two hundred fifty thousand dollars shall be let by formal competitive bidding pursuant to Section 1309 of the city Charter and this chapter. Project requirements shall not be artificially divided so as to avoid the competitive bidding requirement.

(b) The following are exemptions to the competitive bidding requirement:

(1) Intergovernmental contracts;

(2) City-public utility contracts;

(3) Professional or specialized services;

(4) Emergency projects deemed by the council to be of urgent necessity for the
preservation of life, health or property, authorized by the council consistent with the
requirements of Section 1309 of the city Charter;

(5) Situations where solicitations of bids would for any reason be impractical, unavailing
or impossible;

(6) Situations where it is determined that the work in question may be performed better
or more economically by the city with its own employees, when authorized by the
council consistent with the requirements of Section 1309 of the city Charter.

(Ord. 2628-99 § 4; Ord. 3171-21 § 2)

When deemed necessary for an adequate understanding of requirements, the purchasing officer is authorized to require bidders to attend pre-bid conferences or site inspections prior to the time and date set for receipt of bids and to consider nonresponsive bids from those bidders not in attendance. (Ord. 2628-99 § 4)

(a) Formal competitive bids shall be advertised by notice inviting sealed bids published in the official newspaper of the city at least once at least ten days before the time and date set for receiving bids. Bids may be advertised more than once.

(b) The notice shall specify the time on or before which bids will be received; where and with whom bids shall be filed; the date, time and place where and when bids will be publicly opened and the bid of each bidder declared.

(c) At the bidder's request and where city deems feasible, bid documents may be transmitted to the bidder over the Internet. (Ord. 2628-99 § 4)

(a) Before Date and Time for Receipt of Bids. Bids which contain mistakes discovered by a bidder before the date and time for receipt of bids may be modified or withdrawn by written notice to the purchasing officer received prior to the deadline.

(b) After Date and Time for Receipt of Bids. A bidder may not change its bid after the date and time set for receipt of bids except that the bidder may seek the city's consent to the substitution of a subcontractor where the bidder can demonstrate, in accordance with the provisions of state law, that the name of the substituted subcontractor was listed as the result of an inadvertent clerical error.

(c) Withdrawal of Bid. A bidder alleging a mistake in a bid may be permitted to withdraw its bid in conformance with state law. (Ord. 2628-99 § 4)

(a) Receipt of Bids.

(1) Informal Competitive Bids. Bids which are submitted in response to informal competitive bid solicitations shall be in writing and may be transmitted to the purchasing officer by facsimile machine, by mail, electronically over the Internet, or by any other means of delivery. Bids received prior to the date and time designated in the solicitation documents shall be retained in confidence by the purchasing officer until the date and time set for the receipt of bids.

(2) Formal Competitive Bids. Sealed bids submitted in response to formal competitive bid solicitations shall be received by the purchasing officer at a time, date and place designated in the bid documents.

(b) Bid Opening. Formal competitive bids, which are timely received through the city's designated procurement platform, shall be electronically opened by such system at the time specified in the bid notice. The purchasing officer or the purchasing officer's designee shall review the submitted bids following the opening of such bids. The results of the purchasing officer's review shall be communicated to all bidders who submitted bids.

(c) Late Receipt. Formal competitive bids received after the deadline for receipt of bids shall not be accepted and shall be returned to the bidder unopened unless necessary for identification purposes. The purchasing officer shall submit written notification to the bidder stating what the deadline was, when the bid was actually received, and that it is being returned because it was received too late.

(d) No Receipt. If no bids are received in response to a formal competitive bid for a public works project, the purchasing officer may reissue the solicitation or the awarding authority may determine and declare the work in question may be performed better or more economically by the city with its own employees, consistent with the provisions of Section 1309 of the City Charter, or the city may decide to not go forward with the project.

(Ord. 2628-99 § 4; Ord. 3246-25, 9/30/2025)

(a) One Bid Received. In the event that a single bid is received, the awarding authority may reject the bid.

(b) Tie Bids. In the event that an identical price is received from two or more responsive and responsible bidders, and in the judgment of the purchasing officer the public interest will not be served by re-advertising for bids, the purchasing officer may determine the successful bidder by the casting of lots with the tie bidders in public at a date and time set by the purchasing officer.

(c) Irregularities. In considering bids for any public works contracts, the awarding authority may waive, if it wishes to do so, minor defects or irregularities in the bids, provided that the discrepancy does not affect the bid amount or give the bidder an advantage over others. (Ord. 2628-99 § 4; Ord. 3171-21 § 2)

(a) Submission of Bids. Only one bid may be submitted by a "prime contractor" for the same public works project. A contractor submitting a bid as a prime contractor may not also submit sub-bids to competing prime contractors. A contractor who is not submitting a bid as a prime contractor may submit any number of sub-bids to competing prime contractors.

(b) Subcontractors. A prime contractor must include with its bid the name and business address of, and the portion of the work which will be done by each subcontractor who will perform work on the public works project in accordance with state law. After the date and time set for receipt of bids, no substitution of subcontractors in place of those listed in the bid or addition of subcontractors will be permitted except as authorized by state law. (Ord. 2628-99 § 4)

(a) Cancellation of Solicitations. The purchasing officer may cancel competitive bid solicitations before the date and time set for receipt of bids upon a written determination that such action is in the city's best interest for reasons including, but not limited to, any of the following:

(1) The city no longer requires the public works project, as determined by the director of public works, the city manager or the city council;

(2) The city no longer can reasonably expect to fund the public works project, as determined by the director of finance, the city manager or the city council;

(3) Proposed amendments to the solicitation would be of such magnitude that a new solicitation is desirable.

(b) Rejection of Bids. The city manager may reject, in whole or in part, bids received in response to informal competitive bid solicitations or in response to formal bids for which the city manager is the awarding authority. The city council may reject, in whole or in part, bids received for which the city council is the awarding authority. If all bids are rejected,

the city has the discretion to readvertise. (c) Records. The fact that a solicitation was cancelled or bid rejected shall be made part of the project records. (Ord. 2628-99 § 4; Ord. 3171-21 § 2)

(a) Best Interest of City. Subject to the requirements of state and federal law, and the limitations of this chapter, the purchasing officer shall include in the contract document such terms and conditions as will promote the best interests of the city.

(b) Modification of Contracts. The awarding authority may establish a contingency amount for each public works contract in conjunction with the award of contract. Alterations, deviations, additions or deletions from the original scope of work which are determined by the city to be necessary during the progress of work shall be documented by written change orders. The cost of each change order shall be determined by a fair and reasonable valuation, agreed to in writing by the director of public works, or the director's designee, and an authorized representative of the contractor, and shall be added to or deducted from the contract price. Change orders, the cost of which do not exceed the total contract award amount approved by the awarding authority at the time of contract award, shall be authorized in advance of the contractor's performance of the work by the director of public works or the director's designee. Change orders that exceed the total contract award amount shall be authorized by the awarding authority in advance of the contractor's performance of the work. In the event the city and the contractor are unable to agree upon the cost of a change order, the contractor will be paid the actual costs for labor, materials and equipment used in performing the work plus a mark-up as set forth in the contract. (Ord. 2628-99 § 4; Ord. 3171-21 § 2)

Where it is necessary for an awarding authority to take formal action to award a contract, the contract shall not be considered as awarded absent the formal action being taken. Any contract awarded shall be to the lowest responsive and responsible bidder. (Ord. 2628-99 § 4)

(a) Records Maintenance. The purchasing officer shall maintain records for each project which include, at a minimum, the project request from the end user; the bid documents for the project, if any; any and all bids received; the basis on which contract award is made; and a copy of any and all contracts awarded. Such records shall be maintained for a period of time in compliance with state law and the city's records retention schedule and shall be available for public inspection during normal city business hours.

(b) Public Inspection. Bids shall be available for public inspection following the date and time set for receipt of bids. (Ord. 2628-99 § 4)

(a) When Required. The purchasing officer shall have the authority to require bid security, labor and materials and performance bonds as well as specific types and amounts of

insurance coverage for public works projects to the extent required by state or federal law or this chapter or upon a determination that it is in the best interest of the city to do so.

(b) Bid Security. Bid security shall be submitted with the bid and shall be a certified check, cashier's check or surety bond issued by an admitted surety insurer authorized to conduct business in the state of California. If a bidder fails to submit the required bid security with the bid, the bid shall be deemed nonresponsive. After bids are opened, bid security is irrevocable for the period specified in the invitation for bids. If the successful bidder fails to execute the contract within the time specified, the total amount of the bid security shall be forfeited to the city. Bids for public works projects greater than twenty-five thousand dollars shall require the submission of bid security in an amount equal to at least ten percent of the bid. On projects less than or equal to twenty-five thousand dollars, the purchasing officer is authorized to determine if bid security is needed on a project-by-project basis.

(c) Labor and Materials and Performance Security. Labor and materials and performance security shall be in the form of a bond acceptable to the city and issued by an admitted surety insurer authorized to operate in the state of California. Bids for public works projects greater than twenty-five thousand dollars shall require the submission of labor and materials and performance bonds, each in an amount equal to one hundred percent of the contract price, at the same time the contract is executed. Where the contract is with a governmental, public or quasi-public agency or a public utility the requirement for performance and payment security may be waived in writing by the director of public works if the contracting governmental agency or public utility agrees that, to the extent all work is not to be done by its own employees, it will require any and all contractors it awards contracts for the performance of any of the work to provide, before commencement of the work, labor and materials and performance bonds, satisfactory to the city and complying with the provisions of the California Civil Code. Labor and material and performance bonds for public works projects shall be extended in the full amount of the contract for a one-year warranty period beyond the date of acceptance of the work by the city. On projects less than or equal to twenty-five thousand dollars, the purchasing officer is authorized to determine if labor and materials and performance security is needed on a project-by-project basis.

(d) Form of Bonds. The only bonds acceptable to the city shall be those executed on forms approved by the city attorney and included with the bid documents.

(e) Insurance. The risk manager shall determine insurance requirements. The successful bidder shall submit certificates of insurance and endorsement forms, as applicable, as evidence that it has the type and amount of insurance coverage required by the bid documents. Such evidence shall be submitted to the purchasing officer promptly upon request and shall be issued by an admitted insurer authorized to operate in the state of California and acceptable to the city. The risk manager may waive the insurance requirement when the contract is an intergovernmental contract or a city-public utility contract, and the governmental, public or quasi-public agency or the public utility to whom the contract is awarded agrees that it will have all the work done under contract(s) and will require such contractor(s) to obtain and provide evidence of the required insurance before commencement of the work naming the city, its officers, agents and employees as additional insureds to such policy. (Ord. 2628-99 § 4; Ord. 3171-21 § 2)

(a) The contract between the city and the contractor may provide for progress payments, which may be made on the basis of a certified estimate. If a subcontractor or material supplier has filed and served upon the city a stop notice valid under state law, the city shall not make progress payments to the extent the stop notice requires the city to withhold payment from the contractor.

(b) In addition to monies or securities held pursuant to this section, the city shall have the right in its sole discretion to withhold in cash from the last progress payment an amount equal to one and one-half times the value of any outstanding items of corrective work or items listed as uncompleted or uncorrected or omitted work until such items are completed to the satisfaction of the director of public works. (Ord. 2628-99 § 4; Ord. 3171-21 § 2)

(a) In addition to any faithful performance bond that may be required the city shall not enter into, execute or issue any city-public utility contract for any work or improvement, unless at the time of execution of such contract and before commencement of performance of any work, the public utility first deposits with the city a clean-up deposit, calculated by the purchasing officer as a percentage of the total cost of the project; provided, however, that no deposit shall be required where the contract terms provide that the city is to pay for the work. In the event that the public utility refuses or fails for any reason to faithfully perform all the covenants and conditions of the contract, the director may either recommend pursuit of the city's remedies under the faithful performance bond, or else correct, or cause the correction of such defective or incomplete performance at the city's expense and then reimburse the city its costs incurred from such deposit. Retention of money under such deposit is without prejudice to the city's right to any other remedies.

(b) Upon the acceptance of the public improvements either constructed, reconstructed, altered, removed, installed or replaced by the public utility, as corrected or completed, if necessary by the director on the city's behalf, the unexpended portion of such deposit shall be returned to the public utility. (Ord. 2628-99 § 4)

(a) Statement of Policy. City employees shall discharge their duties impartially so as to assure fair competitive access to public works project bids by responsible contractors. Moreover, they shall conduct themselves in such a manner as to foster public confidence in the integrity of public works project activities.

(b) Conflict of Interest. No city employee shall participate directly or indirectly in a public works project when the employee knows that:

(1) The employee or any member of the employee's immediate family has a financial interest pertaining to the project; or

(2) The employee or any member of the employee's immediate family is negotiating or has an employment arrangement which is contingent upon or will be affected by the project.

(c) Withdrawal from Participation. Upon discovery of an actual or potential conflict of interest,

an employee shall promptly withdraw from further participation in the project.

(d) Gratuities. No person shall offer, give or agree to give any city employee any gratuity or offer of employment in connection with a public works project by the city. No city employee shall solicit, demand, accept or agree to accept from any other person a gratuity or an offer of employment in connection with a public works project by the city. (Ord. 2628-99 § 4)

(a) The city shall comply with state law requiring prevailing wages to be paid on all public works projects within the meaning set forth in Labor Code Section 1782, in order to remain eligible for state funding on city construction projects.

(b) If for any reason, Labor Code Section 1782 shall be held to be invalid or inapplicable to charter cities by any court of competent jurisdiction or is otherwise repealed, this section shall automatically sunset and be of no further effect thereafter. (Ord. 3052-14 § 1)