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TC Res. No. 2011-08 Authorizing the town manager of the town of avon to establish a written procurement policyTOWN OF AVON RESOLUTION NO. 11 -08 Series of 2011 A RESOLUTION AUTHORIZING THE TOWN MANAGER OF THE TOWN OF AVON TO ESTABLISH A WRITTEN PROCUREMENT POLICY WHEREAS, the Town of Avon was awarded grants from the U.S. Department of Transportation and Colorado Department of Transportation for the construction of the I -70 Regional Transportation Operations Facility located at 0500 Swift Gulch Road; and WHEREAS, the U.S. Department of Transportation's Third Party Contracting guidance requires grant recipients possess written procurement procedures; and WHEREAS, the Town of Avon created the Town of Avon Procurement Policy; and WHEREAS, the Policy ensures fair treatment of all persons dealing with the Town's procurement system and provides standards for employee conduct with respect to procurement; and WHEREAS, the Policy will foster fair and open competition for Town procurements; and WHEREAS, the Town Manager, Assistant Town Manager - Finance, or duly authorized representative may amend the Procurement Policy from time to time as required, provided that the revisions meet the intent of the Policy and allow for fair and open competition in Town procurement activities. NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON that the Town Council authorizes the Town Manager to establish the Town of Avon Procurement Policy. ACCEPTED, APPROVED AND ADOPTED March 22, 2011. AVON TOWN COUNCIL I-j By: Rich Carro 1, Mayor 0 Memo To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager _ Approved: Scott Wright, Asst. Town Manager — Finance From: Justin Hildreth, P.E., Town Engineer /f Jeffrey Schneider, P.E., Project Engineer Date: March 15, 2011 Re: Resolution 11 -08, Series of 2011, A Resolution Authorizing the Town Manager of the Town of Avon to Establish a Written Procurement Policy Summary: Last fall, the Town was notified that it received a $7,500,000 grant from the Federal Transit Administration (FTA) to improve the Swift Gulch Public Works Facility located at 500 Swift Gulch Road. Staff is also anticipating that the Town will receive an additional federal grant for the construction of a bus storage facility at Swift Gulch. In order for the Town to be considered to have the technical capacity to administer the federal grant monies, FTA requires that the Town "maintain written standards of conduct governing the performance of its employees engaged in the award and administration of contracts" (FTA Circular C 4220.1F, Third Party Contracting Guidance, November 1, 2008). Currently, the Town does not have a written policy, but generally follows principles of fair and open • competition. Resolution 11 -08, Series of 2011, allows the Town Manager to adopt the Town of Avon Procurement Policy, and is attached as Exhibit A to this memorandum. The Town of Avon Procurement Policy is attached hereto as Exhibit B. Staff recommends approval of Resolution 11 -08, series of 2011, A Resolution Authorizing the Town Manager of the Town of Avon to Establish a Written Procurement Policy. Discussion: Due to the award of federal monies to design and construct the improvements at Swift Gulch, the Town is required to have a written procurement policy. This procurement policy will be attached to all Town procurements, including Requests for Proposals, whether grant- funded or not. The Town has been operating without a formal written policy, but generally follows the requirements set forth in the Procurement Policy, especially with respect to competitive bidding procedures for design and construction services. The adoption of a formal policy will carry additional auditing requirements in the future, but that additional auditing can be expected with receipt of several million dollars of federal funding. The Policy included with Resolution 11 -08 provides guidance to Town employees on their roles and responsibilities with respect to procurement. It establishes Department Heads as Procurement Managers, giving them authority to enter into contracts for various goods and services. It gives the Town Manager authority to sign for contracts that have annual budget appropriations, and also establishes the Town Council as the Procurement Appeals Board, in the event that a contractor or vendor wishes to appeal the decisions of the Town Manager or Department Head. The Policy also establishes solicitation procedures for purchasing, • allowing for small purchases to be made without formal solicitation, and allow for sole 0 source justification and emergency procurements. Finally, numerous procedures regarding • appeal, disbarment, and employee conduct are included. Staff believes that this document will be a useful tool, not only meeting Federal requirements, but also providing the Town, the community, and potential vendors /contractors with an improved framework with which to conduct business. Financial Implications: There are no financial implications to the Town with the adoption of Resolution 11 -08. Failure to do so will jeopardize over $10 Million in grant funding. A nominal amount of additional auditing fees may be realized in future years that can be absorbed by the General Fund. Recommendation: Staff recommends approval of Resolution 11 -08, Series of 2011, A Resolution Authorizing the Town Manager of the Town of Avon to Establish a Written Procurement Policy. Proposed Motion: I move to approve Resolution No. 11 -08, Series of 2011, A Resolution Authorizing the Town Manager of the Town of Avon to Establish a Written Procurement Policy. Town Manager Comments: X4- f� Attachments: Exhibit A Resolution 11 -08, Series of 2011, A Resolution Authorizing the Town Manager of the Town of Avon to Establish a Written Procurement Policy Exhibit B Town of Avon Procurement Policy • • a • TOWN OF AVON RESOLUTION NO. 11 -08 Series of 2011 A RESOLUTION AUTHORIZING THE TOWN MANAGER OF THE TOWN OF AVON TO ESTABLISH A WRITTEN PROCUREMENT POLICY WHEREAS, the Town of Avon was awarded grants from the U.S. Department of Transportation and Colorado Department of Transportation for the construction of the I -70 Regional Transportation Operations Facility located at 0500 Swift Gulch Road; and WHEREAS, the U.S. Department of Transportation's Third Party Contracting guidance requires grant recipients possess written procurement procedures; and WHEREAS, the Town of Avon created the Town of Avon Procurement Policy; and WHEREAS, the Policy ensures fair treatment of all persons dealing with the Town's procurement system and provides standards for employee conduct with respect to procurement; and WHEREAS, the Policy will foster fair and open competition for Town procurements; and • WHEREAS the Town Manager, Assistant Town Manager-Finance, or duly authorized representative may amend the Procurement Policy from time to time as required, provided that the revisions meet the intent of the Policy and allow for fair and open competition in Town procurement activities. NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON: 1. The Town Council authorizes the Town Manager to establish the Town of Avon Procurement Policy. 2. This resolution is to be in full force and effect from and after its passage and approval. • ADOPTED March 22, 2011. TOWN COUNCIL TOWN OF AVON, COLORADO Rich Carroll, Mayor ATTEST: Patty McKenny, Town Clerk • • U 4— • TOWN OF AVON PROCUREMENT POLICY ARTICLE 1 - GENERAL PROVISIONS Part A — Purposes, Construction, and Application 1 -101 PURPOSES, RULES OF CONSTRUCTION (1) Interpretation. This policy shall be construed and applied to promote its underlying purposes and policies. (2) Purposes and Policies. The underlying purposes and policies of this Policy are: (a) to simplify, clarify, and modernize the law governing procurement by the Town; (b) to permit the continued development of procurement policies and practices; (c) to provide for increased public confidence in the procedures followed in public procurement; (d) to ensure the fair and equitable treatment of all persons who deal with the procurement system of the Town of Avon; (e) to provide increased economy in Town procurement activities and to maximize to the fullest extent practicable the purchasing value of public funds of the Town; (f) to foster effective broad -based competition within the free enterprise system; and (g) To provide safeguards for the maintenance of a procurement system of quality and integrity. (3) Singular - Plural and Gender Rules. In this Policy, unless the context requires otherwise: • (a) words in the singular number include the plural, and those in the plural include the singular; and (b) words of a particular gender include any gender and the neuter, and when the sense so indicates, words of the neuter gender may refer to any gender. 1 -102 REQUIREMENT OF GOOD FAITH This policy requires all parties involved in the negotiation, performance, or administration of Town contracts to act in good faith. 1 -103 APPLICATION OF THIS POLICY (1) General Application. This policy applies only to contracts solicited or entered into after the effective date of this Policy unless the parties agree to its application to a contract solicited or entered into prior to the effective date. (2) Application to Town of Avon Procurement. This policy shall apply to every expenditure of public funds irrespective of their source, including federal assistance monies, by the Town, acting through a governmental body as defined herein, under any contract, except that this Policy shall not apply to either grants or contracts between the Town and other governments, special districts, or quasi- municipal governments. In addition, this policy shall also apply to the disposal of Town property including rights in real estate (leases, licenses, and permits) and rights to use Town property for commercial • purposes. Nothing in this Policy or in regulations promulgated hereunder shall prevent any governmental body from complying with the terms and conditions of any grant, gift, bequest, or • cooperative agreement. (3) Exemptions to Town Procurement. This policy shall not apply to interests in real estate (leases, licenses, right of way use, or permits, etc.) of one year or less, provided that: (a) the term of the real estate interest is not determined to be one year in length to evade the procurement requirements of this policy, and (b) prior written determination by Procurement Officer of the need for, and interests of the Town in, the exemption is provided. (4) Termination of Procurements. The Town reserves the right to terminate negotiations and/or cancel any procurement process at any time for any reason. 1 -104 SEVERABILITY If any provision of this Policy or any application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or application of this Policy which can be given effect without the invalid provision or application, and to this end the provisions of this Policy are declared to be severable. 1 -105 EFFECTIVE DATE The policy will become effective on April XX, 2011 and applicable to all contracts executed thereafter. Part B — Determinations • 1 -201 DETERMINATIONS Written determinations required by this Policy shall be retained in the appropriate official contract file kept by the Town Clerk. Part C - Definitions of Terms Used in this Policy 1 -301 DEFINITIONS The words defined in this Section shall have the meanings set forth below whenever they appear in this Policy, unless: (a) the context in which they are used clearly requires a different meaning; or (b) a different definition is prescribed for a particular Article or provision. (1) Business means any corporation, partnership, individual, sole proprietorship, Joint Stock Company, joint venture, LLP, LLC or any other private legal entity. (2) Change Order means a written order signed by the Procurement Officer, directing the contractor to make changes which the Changes clause of the contract authorizes the Procurement Officer to order without the consent of the contractor. U 31 (3) Department Head or their designee means any employee authorized by the Town Manager is to direct the operations of any purchasing agency of the Town. (4) Construction means the process of building, altering, repairing, improving, or demolishing any public structure or building, or other public improvements of any kind to any public real property. It does not include the routine operations, routine repair, or routine maintenance of existing structures, buildings, or real property. (5) Contract means all types of Town agreements, regardless of what they may be called, for the procurement or disposal of supplies, services, or construction. (6) Contract Modification means any written alteration in specifications, delivery point, and rate of delivery, period of performance, price, quantity, or other provisions of any contract accomplished by mutual action of the parties to the contract. (7) Contractor means any person having a contract with a governmental body. (8) Data means recorded information, regardless of form or characteristic. (9) Designee means a duly authorized representative of a person holding a superior position. (10) Employee means an individual drawing a salary from the governmental body, whether elected or not and any non - compensated individual performing a personal service for any • governmental body, including but not limited to members of the Town Council, members of volunteer and /or advisory boards. (11) Governmental Body means any department, commission, council, board, bureau, committee, institution, legislative body, agency, government corporation, or other establishment or official of the executive, legislative, or judicial branch of the Town. (12) Grant means the furnishing by the Town of assistance, whether financial or otherwise to any person to support a program authorized by law. It does not include an award whose primary purpose is to procure an end product, whether in the form of supplies, services, or construction; a contract resulting from such an award is not a grant but a procurement contract. (13) Participant means any individual, or firm intending to submit a proposal in response to a formal solicitation by the Town. (14) Person means any business, individual, union, committee, club, other organization, or group of individuals. (15) Procurement means buying, purchasing, renting, leasing, or otherwise acquiring any supplies, services, or construction. It also includes all functions that pertain to the obtaining of any property, service, or construction, including description of requirements, selection, and solicitation of sources, preparation, and award of contract, and all phases of contract • administration. (16) Procurement Officer means any person duly authorized by the Town Manager to negotiate • and to administer Requests for Proposals and contracts and make written determinations with respect thereto. The term also includes an authorized representative acting within the limits of authority. (17) Property means all Town property, including but not limited to equipment, materials, documents, water rights, insurance, supplies, and leases of real property, excluding land or permanent interest in land. (18) Purchasing Agency means any governmental body, which is authorized by this Code or its implementing regulations, or by way of delegation, to enter into contracts. (19) Regulation means a governmental body's statement, having general or particular applicability and future effect, designed to implement, interpret, or prescribe law or policy, or describing organization, procedure, or practice requirements. (20) Selection Committee — a group of not less than two individuals designated to review proposals and recommend a selection from the participants. Town Council and the Town Manager are prohibited from serving on a selection committee. (2 1) Services mean the furnishing of labor, time, or effort by a contractor, not involving the delivery of a specific end product other than reports which are merely incidental to the required performance. This term shall not include employment agreements or collective bargaining is agreements. (22) Using Agency means any governmental body of the Town, which utilizes any supplies, services, or construction procured under this Code. Part D - Public Access 1 -401 PUBLIC ACCESS TO PROCUREMENT INFORMATION Procurement information shall be a public record to the extent provided by law and shall be available to the public as provided by law. ARTICLE 2 - PROCUREMENT ORGANIZATION Part A — Town Council of Avon, Town Manager, or its Designee 2 -101 AUTHORITY AND DUTIES OF THE TOWN COUNCIL AND TOWN MANAGER OR DESIGNEE (1) Avon Town Council. Per the Town of Avon Home Rule Charter Section 4.9, The Town Council shall have all legislative powers and functions of municipal government. The Town Council shall approve all contracts entered into by the Town shown in the annual general or Capital Improvement Program (CIP) budgets, either directly or indirectly through the delegation • 0 • of authority to the Town Manager. Town Council shall also serve as the Procurement Appeals Board. (2) Town Manager or its Designee. Per Section 8.3 of the Avon Home Rule Charter, the Town Manager shall establish a system of accounting and auditing for the Town which shall reflect, in accordance with generally accepted accounting principles, the financial condition and financial operation of the Town, and to provide for engineering, architectural, maintenance, and construction services required by the Town. No regulation shall change any commitment, right, or obligation of the Town or of a contractor under a contract in existence on the effective date of such regulation. The Town Manager or its designee shall consider and decide matters of policy within the provisions of this Policy including those referred to it by department heads. The Town Manager or its designee shall have the power to audit and monitor the implementation of its regulations and the requirements of this Policy. Part B - Department Heads 2 -201 AUTHORITY OF DEPARTMENT HEADS OR THEIR DESIGNEE (1) Principal Contracting Officers of the Town of Avon. The department heads shall serve as the procurement officers of the Town. (2) Duties. Except as otherwise specifically provided in this Code, the department heads shall: • ( a )p rocure or supervise the procurement of all supplies, services, property, leases and construction needed by the Town; (b) exercise general supervision and control over all inventories of supplies belonging to the Town; (c) sell, trade, or otherwise dispose of surplus supplies belonging to the Town; (d) establish and maintain programs for the inspection, testing, and acceptance of supplies, services, and construction; (e) Identify significant procurements during the annual budget process by listing any planned single purchase over $3,000 as a line item in the annual budget. These procurements will be listed in the budget document. The list shall describe the following for each item, services, or project to be procured: (1) A brief description of the scope, service, or product to be procured; (2) Schedule for project (i.e. fiscal year intended); (3) State or Federal funding if used, or potential for State reimbursement, should be identified as an expected revenue. • The Town Manager has the authority to sign contracts up to and including $100,000 and any • contract identified in an approved budget. All procurements that are not presented in the annual budget to the Town Council during the initial budget can be presented throughout the year as either a budget amendment or separately, if necessary. ARTICLE 3 - SOURCE SELECTION AND CONTRACT FORMATION Part A — Definitions 3 -101 PURPOSE This Article applies to procurement of architecture and engineering services, construction services, and construction management services (only). 3 -101 DEFINITIONS OF TERMS USED IN THIS ARTICLE (1) Cost - reimbursement contract means a contract under which a contractor is reimbursed for costs which are allowable and allocable in accordance with the contract terms and the provisions of this policy, and a fee, if any. (2) Established Catalogue Price means the price included in a catalogue, price list, schedule, or other form that: (a) is regularly maintained by a manufacturer or contractor; (b) is either published or otherwise available for inspection by customers; and (c) states prices at which sales are currently or were last made to a significant number of any • category of buyers constituting the general buying public for the supplies or services involved. (3) Purchase description means the words used in a solicitation to describe the supplies, services, or construction to be purchased, and includes specifications attached to, or made part of, the solicitation. (4) Request for Proposals (RFP) means all documents, whether attached or incorporated by reference, utilized for soliciting proposals. (5) Responsible Proposer means a person who has the capability in all respects to perform fully the contract requirements and the integrity and reliability, which will assure good faith performance. (6) Responsive Proposer means a person who has submitted a proposal which conforms in all material respects to the Request for Proposals. Part B - Methods of Source Selection 3 -201 METHODS OF SOURCE SELECTION Unless otherwise authorized by law, all Town contracts shall be awarded by competitive sealed proposals, pursuant to Section 3 -202 (Competitive Sealed Proposal), except as provided in: (a) Section 3 -203 (Multi -step Sealed Proposals); • /0 (b) Section 3 -204 (Small Purchases); • (c) Section 3 -205 (Sole Source Procurement); (d) Section 3 -206 (Emergency Procurements); (f) Section 3 -207 (State Bid). 3 -202 COMPETITIVE SEALED PROPOSALS (1) Conditions for Use. Contracts shall be awarded by competitive sealed proposals except as otherwise provided in Section 3 -201 (Method of Source Selection). (2) Requests for Proposals. Proposals shall be solicited through a Request for Proposals. The Request for Proposals shall seek to promote overall economy and quality for the purpose intended and encourage competition in satisfying the Town's needs, and it shall not be unduly restrictive. The solicitation shall include a proposed contract for the proposal received. A bid bond may be required if it is determined to be in the best interest of the Town. (3) Public Notice. Public notice of the Request for Proposals shall be given at least 14 calendar days prior to the date set forth therein of the opening of the proposals. (4) Receipt of Proposals. Proposals shall be opened so as to avoid disclosure of contents to competing proposers during the process of negotiation. A Register of Proposals shall be prepared and be open for public inspection after contract award. • (5) Selection Committee. The selection committee will conduct an independent review of each submission. After all documents have been reviewed and scored independently, the committee will meet and make a final selection. The Selection Committee may elect to hold discussions or ask for answers to specific questions. Any discussion is to include, and be held strictly between the selection committee and proposer. Any clarifications to the proposal must be submitted to the Selection Committee in writing. The Selection Committee may elect to have those proposers whose proposals are deemed by the Selection Committee to be most responsive to the evaluation factors give oral presentations. (6) Evaluation Factors. The Request for proposals shall state the evaluation factors and their relative importance. Although price may be a major consideration, the Town doesn't evaluate the proposal on price alone, and in cases of Architectural /Engineering design services, the evaluation may be strictly qualifications- based. (7) Discussion with Responsible Proposers and Revisions to Proposals. As provided in the Request for Proposals discussions may be conducted with responsible proposers who submit proposals determined to be reasonably susceptible of being selected for award for the purpose of clarification to assure full understanding of, and responsiveness to, the solicitation requirements. Proposers shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals and such revisions may be permitted after submission and prior to award for the purpose of obtaining best and final offers. In conducting discussions, there shall be no disclosure of any information derived from proposals submitted by competing • proposers. J/ (8) Award. Award shall be made to the responsible proposer whose proposal is determined in • writing to be the most advantageous to the Town taking into consideration the evaluation factors set forth in the Request for Proposals. No other factors or criteria shall be used in the evaluation. The contract file shall contain the basis on which the award is made. 3 -203 MULTI -STEP SEALED PROPOSALS (1) Conditions for Use. When, with the approval in advance by the Town Manager or its designee, the procurement officer determine that the strict application of the requirement for Competitive Sealed Proposals is either not practical or not advantageous to the Town, a contract may be entered into by Multi -Step Sealed Proposal. Multi -step Sealed Proposal can be used when one or more elements of the project can be effectively combined. (2) Request for Multi -Step Sealed Proposals. Proposals shall be solicited through a Request for Multi -Step Sealed Proposals. The request shall seek to promote overall workmanship and quality for the purpose intended and encourage competition in satisfying the Town's needs, and it may not be unduly restrictive. The solicitation shall include a proposed contract for the proposal received. (3) Public Notice. Adequate public notice of the Request for Multi -Step Sealed Proposals shall be given in the same manner as provided in Section 3- 202(3) (Competitive Sealed Proposals, Public Notice). (4) Receipt p t of Proposals. Proposals shall be opened so as to avoid disclosure of contents to • competing officers ensuring the process of negotiation. A Register of Proposers shall be prepared by the procurement officer, and shall be open for public inspection after contract award. (5) Selection Committee. The selection committee will conduct an independent review of each submission. After all documents have been reviewed and scored independently, the committee, will meet and make a final selection. The Selection Committee may elect to hold discussions or ask for answers to specific questions. Any discussion is to include, and be held strictly between the selection committee and proposer. Any clarifications to the proposal must be submitted to the Selection Committee in writing. The Selection Committee may elect to have those proposers whose proposals are deemed by the Selection Committee to be most responsive to the evaluation factors give oral presentations. (6) Evaluation Factors. The Request for Multi -Step Sealed Proposals shall state the relative importance of the evaluation factors. The initial stage(s) of the selection shall focus on quality or contractor responsibility issues, but not to the exclusion of cost or revenue as a consideration and the final stage(s) of the selection shall focus on cost or revenue issues and may exclude further consideration of quality or responsibility. (7) Discussion with Responsible Proposers and Revisions to Proposals. As provided in the Request for Multi -Step Sealed Proposals discussions may be conducted with responsible C 1) • proposers who submit proposals determined to be reasonably susceptible of being selected for award for the purpose of clarification to assure full understanding of, and responsiveness to, the solicitation requirements. Proposers shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals and such revisions may be permitted after submission and prior to award for the purpose of obtaining best and final offers. In conducting discussions, there shall be no disclosure of any information derived from proposals submitted by competing proposers. (8) Best and final offer - In multi -step proposing, it may be determined to be in the Town's best interest to select a proposal that best meets the Town's requirements and negotiate that proposal so that the project may be completed under the various constraints facing the Town for that project. (9) Award. Award shall be made to the responsible proposer whose proposal is determined in writing to be the most advantageous to the Town taking into consideration price or revenue generated and other evaluation criteria set forth in the Request for Multi -Step Sealed Proposals. No other factors or criteria shall be used in the evaluation. The contract file shall contain the basis on which the award is made. 3 -204 SMALL PURCHASES Any procurement up to $100,000 may be made in accordance with small purchase procedures provided, however, that procurement requirements shall not be artificially divided so as to isconstitute a small purchase under this Section. Department Heads shall use these procedures to meet purposes and policies of the Procurement Policy provided in Section 101 (2) (c), (d) and (e). (1) All purchases between $3,000 and $100,000 shall require informal proposals documented by the department head. The department head should retain a written document of the proposals received in the procurement file. (a) projects between $3,000 and $25,000 will only require the approval of the department head; (b) projects between $25,000 and $100,000 will require the approval of the department head and Town Manager or its designee. Written documentation should include proposed scope of solicitation, price proposed, and conditions for that proposed price and time line for completion. The department head should solicit at least three proposals. All purchases under $3,000 may require informal bidding by the department head as they feel is appropriate. Written documentation of the bid process undertaken is desirable, but not required. 3 -205 SOLE SOURCE PROCUREMENT A contract may be awarded for a property, service, or construction item without competition iswhen the procurement officer and the Town Manager, Assistant Town Manager- Finance, 13 Finance Director, or designee determines in writing that there is only one acceptable source for the required property, service, or construction item. • 3 -206 EMERGENCY PROCUREMENTS Notwithstanding any other provision of this Policy, the procurement officer may make emergency procurements when there exists a threat to public health, welfare, or safety under emergency conditions provided that such emergency procurements shall be made with such competition as is practicable under the circumstances. A written determination of the basis for the emergency and for the selection of the particular contractor shall be included in the contract file. 3 -207 STATE BID A contract may be awarded for a property, service, or construction item on the terms and to the contractors that have been selected under the State of Colorado's or other governmental jurisdictions with competitive procurement process with department head and Town Manager or its designee approval. The other jurisdiction's process must maintain the spirit of the Town's procurement standards in order for the proposal to be accepted by the Town. This process must be documented. Part C - Cancellation of Requests for Proposals 3 -301 CANCELLATION OF REQUESTS FOR PROPOSALS A Request for Proposals, or other solicitation may be cancelled, or any or all proposals may be • rejected in whole or in part as may be specified in the solicitation, when it is in the best interest of the Town. The reasons therefore shall be made a part of the contract file. Part D - Qualifications and Duties 3 -401 RESPONSIBILITY AND RESPONSIVENESS OF PROPOSERS (1) Determination of Non - responsibility and Non - responsiveness The unreasonable failure of a proposer to promptly supply all requested information in connection with an inquiry with respect to responsibility or responsiveness may be grounds for a written determination of non - responsibility or nonresponsiveness with respect to such proposer. The Town reserves the right to waive any and all irregularities. (2) Right of Nondisclosure. Information furnished and designated as confidential by a proposer pursuant to this Section shall not be disclosed outside of the selection committee and procurement officer without prior written consent by the proposer. 3 -402 PREQUALIFICATION OF SUPPLIERS Prospective suppliers may be prequalified for particular types of supplies, services, and construction. Solicitation mailing lists of potential contractors shall include but shall not be limited to such prequalified suppliers. • lu_ • Part E —Bonds 3 -501 BID SECURITY (1) Requirement for Bid Security. Bid security may be required for any procurement at the discretion of the procurement officer. Bid security shall be a bond provided by a surety company authorized to do business in this state, or the equivalent in cash, or otherwise supplied in a form satisfactory to the Town Attorney. (2) Rejection of Proposals for Noncompliance with Bid Security Requirements. When the Request for Proposal requires security, noncompliance requires that the proposal be rejected unless, it is determined that the proposal fails to comply in a non - substantial manner with the security requirements. (3) Withdrawal of Proposals. After the proposals are opened, they shall be irrevocable for the period specified in the Request for Proposals. If a proposer is permitted to withdraw its proposal before award, no action shall be had against the proposer or the bid security. 3 -502 CONTRACT PERFORMANCE AND PAYMENT BONDS (1) When Required - Amounts. When a construction contract is awarded in excess of an amount established by the Town Manager or its designee, or federal, state or local statutes, the following bonds or security shall be delivered to the Town and shall become binding on the parties upon the execution of the contract: • (a) a performance bond satisfactory to the Town, executed by a surety company authorized to do business in this state or otherwise secured in a manner satisfactory to the Town, in an amount equal to 100% of the price specified in the contract; and (b) a payment bond (labor and materials bond) satisfactory to the Town, executed by a surety company authorized to do business in this state or otherwise secured in a manner satisfactory to the Town, for the protection of all persons supplying labor and material to the contractor or its subcontractors for the performance of the work provided for in the contract. The bond shall be in an amount equal to 100% of the price specified in the contract. (2) Authority to Require Additional Bonds. Nothing in this Section shall be construed to limit the authority of the Town to require a performance bond or other security in addition to those bonds, or in circumstances other than specified in Subsection (1) of this Section. 3 -503 BOND FORMS AND COPIES (1) Bond Forms. The Town Attorney or its designee shall review the form of the bonds required by this Part. (2) Certified Copies of Bonds. Any person may request and obtain from the Town a certified • copy of a bond upon payment of the cost of reproduction of the bond and postage, if any. A certified copy of a bond shall be prima facie evidence of the contents, execution, and delivery of the original. • (3) Bond Location. All bonds shall be stored in the Town vault. Part F - Types of Contracts 3 -601 TYPES OF CONTRACTS Subject to the limitations of this Section, any type of contract, which will promote the best interests of the Town, may be used; provided that the use of a cost - plus -a- percentage -of -cost contract is prohibited. A cost - reimbursement contract may be used only when a determination is made in writing that such a contract is likely to be less costly to the Town than any other type or that it is impracticable to obtain the supplies, services, or construction required except under such a contract. 3 -602 MULTI -TERM CONTRACTS (1) Specified Period. Unless otherwise provided by law, a contract for property or services may be entered into for any period of time deemed to be in the best interests of the Town provided the term of the contract and conditions of renewal or extension, if any, are included in the solicitation and funds are available for the first fiscal period at the time of contracting Payment and performance obligations for the succeeding fiscal periods shall be subject to the availability and appropriation of funds therefore. (2) Determination Prior to Use. Prior to the utilization of a multi -term contract, it shall be • determined in writing: (a) that estimated requirements cover the period of the contract and are reasonably firm and continuing; and (b) that such a contract will serve the best interests of the Town by encouraging effective competition or otherwise promoting economies in Town procurement. 3 -603 TASK ORDER CONTRACTS (1) Task order contracts can be used when a vendor may be needed on an "as needed" basis. Performance of the work shall begin only when the Contractor has received a fully executed Task Order. These contracts may be for one year or may be a multi -term contract. These contracts have a "not to exceed" amount and a scope of work, but actual work is performed under a Task Order. Part G - Contract Clauses and Fiscal Responsibility 3 -701 CONTRACT CLAUSES AND THEIR ADMINISTRATION (1) Required Clauses. The Town Attorney shall promulgate policies requiring the inclusion in Town contracts of clauses providing for adjustments in prices, time of performance, or other contract provisions, as appropriate, and covering the following subjects: 1� • (2)(a) The unilateral right of the Town to order in writing: (i) changes in the work within the scope of the contract; and (ii)changes in the time of performance of the contract that does not alter the scope of the contract work; (b) variations occurring between estimated quantities of work in a contract and actual quantities; (c) suspension of work ordered by the Town; and (d) site conditions differing from those indicated in the contract, or ordinarily encountered, except that differing site conditions need not be included in a contract: (i) when the contract is negotiated; (ii) when the contractor provides the site or design; or (iii) when the parties have otherwise agreed with respect to the risk o (e) insurance and indemnification requirements. (2) Price Adjustments (a) Adjustments in price pursuant to clauses promulgated under Subsection (1) of this section shall be computed in one or more of the following ways: (i) by agreement on a fixed price adjustment before commencement of the pertinent performance or as soon thereafter as practicable; (ii) by unit prices specified in the contract or subsequently agreed upon; (iii) by the costs attributable to the events or situations under such clauses with adjustment of profit or fee, all as specified in the contract or subsequently agreed upon; (iv) in such manner as the contracting parties may mutually agree; or (v) in the absence of agreement by the parties, by a unilateral determination by the Town of the • costs attributable to the events or situations under such clauses with adjustment of profit or fee, all as computed by the Town and subject to the provisions of Article 5 (Legal and Contractual Remedies). (3) Additional Contract Clauses. The Town Attorney may promulgate policies requiring the inclusion in Town contracts of clauses providing for appropriate remedies and covering the following subjects: (a) Liquidated damages as appropriate (b) Specified excuses for delay or nonperformance; (c) Termination of the contract for default; and (d) Termination of the contract in whole or part for the convenience of the Town (4) Modification of Required Clauses. Department heads may vary the clauses promulgated by the Town Attorney under Subsection (1) and Subsection (3) of this Section with the approval of the Town Attorney and Town's Designated Risk Manager for insurance related issues. 3 -702 FISCAL RESPONSIBILITY Every contract modification, change order, or contract price adjustment under a contract with the Town in excess of an amount established by the Town Council during either budget adoption or amendment shall be subject to prior written certification by the Finance Department as to the • effect of the contract modification, change order, or adjustment in contract price on the total 11 project budget or the total contract budget. In the event that the certification discloses a resulting increase in the total project budget and/or the total contract budget, the Procurement Officer shall • not execute or make such contract modification, change order, or adjustment in contract price unless sufficient funds are available therefore, or the scope of the project or contract is adjusted so as to permit the degree of completion that is feasible within the total project budget and/or total contract budget as it existed prior to the contract modification, change order, or adjustment in contract price under consideration. Part H - Inspection of Plant and Audit of Records 3 -801 RIGHT TO INSPECT PLANT The Town may at reasonable times, inspect the part of the plant or place of business of a contractor or any subcontractor, which is related to the performance of any contract awarded or to be awarded by the Town. 3 -802 RIGHTS TO AUDIT RECORDS (1) Audit of Cost or Pricing Data. The Town may, at reasonable times and places, audit the books and records of any person who has submitted cost or pricing data to the extent that such books or records relate to such cost or pricing data. Any person who receives a contract, change order or contract modification for which cost or pricing data is required, shall maintain such books and records that relate to such costs or pricing data for three years from the date of final payment under the contract, unless a shorter period is otherwise authorized in writing. (2) Contract Audit. The Town shall be entitled to audit the books and records of a contractor or • any subcontractor under any negotiated contract or subcontract other than a firm fixed -price contract to the extent that such books and records relate to the performance of such contract or subcontract. Such books and records shall be maintained by the contractor for a period of three years from the date of final payment under the prime contract and by the subcontractor for a period of three years from the date of final payment under the subcontract, unless a shorter period is otherwise authorized in writing. Part I - Determinations and Reports 3 -901 FINALITY OF DETERMINATIONS The determinations required by Section 3- 202(6) (Competitive Sealed Proposals, Correction or Withdrawal of Bids; Cancellation of Awards), Section 3- 202(7) (Competitive Sealed Proposals, Section 3- 203(8) (Multi -step Sealed Proposals, Award), Section 3 -205 (Sole Source Procurement), Section 3 -206 (Emergency Procurements), Section 3- 401(1) (Responsibility of Proposers, Determination of Nonresponsibility), Section 3 -601 (Types of Contracts), and Section 3- 602(2) (Multi -Term Contracts Determination Prior to Use) are final and conclusive unless they are clearly erroneous, arbitrary, capricious, or contrary to law. 3 -902 REPORTING OF ANTICOMPETITIVE PRACTICES When for any reason collusion or other anti - competitive practices are suspected among any bidders or offerors, a notice of the relevant facts shall be transmitted to the Town Attorney. • E • 3 -903 RETENTION OF PROCUREMENT RECORDS All procurement records shall be retained and disposed of in accordance with record retention guidelines and schedules approved by the law. All retained documents shall be made available to the Town Clerk or a designee upon request and proper receipt therefore. 3 -904 RECORD OF PROCUREMENT ACTIONS TAKEN UNDER SECTION 3 -205 (SOLE SOURCE PROCUREMENT) AND SECTION 3 -206 (EMERGENCY PROCUREMENTS) (1) Contents of Record. The Finance Department shall maintain a record, available for public inspection, listing all contracts made under Section 3 -205 (Sole Source Procurement) or Section 3 -206 (Emergency Procurements) for a minimum of three years. The record shall contain: (a) each contractor's name (b) the amount and type of each contract; and (c) a listing of the supplies, services, or construction procured under each contract. ARTICLE 4 - PROPERTY MANAGEMENT Part A — Definitions 4 -101 DEFINITIONS OF TERMS USED IN THIS ARTICLE • (1) Excess Property means any property other than expendable property having a remaining useful life but which is no longer required by the Using Agency in possession of the property. (2) Expendable Property means all tangible property other than fixed assets. (3) Fixed assets means all tangible property having an original acquisition cost of over $5,000 per unit and a probable useful life of more than one year. (4) Property means, all supplies, including but not limited to equipment, materials, printing, and leases of real property, excluding land or permanent interest in land. (5) Surplus Property means any property other than expendable property no longer having any use to the Town. This includes obsolete property, scrap materials, and fixed assets that have completed their useful life cycle. 4 -201 PROPERTY MANAGEMENT REGULATIONS REQUIRED The Town Manager or its designee shall promulgate regulations governing: (a) the management of property during its entire life cycle; (b) the sale, lease, or disposal of surplus property by public auction; competitive sealed proposals, or other appropriate method designated by regulation; (c) the transfer of property; i9 (d) the donation of property to non - profit or other governmental organizations for public benefit as approved by the Town Council. • ARTICLE 5 - LEGAL AND CONTRACTUAL REMEDIES Part A - Pre - Litigation Resolution of Controversies 5 -101 AUTHORITY TO RESOLVE PROTESTED SOLICITATIONS AND AWARDS (1) Right to Protest. Any actual or prospective proposer or contractor who is aggrieved in connection with the solicitation or award of a contract shall first try to resolve the grievance /protest with the procurement officer. If the grievance is not satisfied, the prospective proposer or contractor shall then protest to the Town Manager. The protest shall be submitted in writing within 5 days after such aggrieved person knows or should have known of the facts giving rise thereto. (2) Authority to Resolve Protests. The Town Manager shall have the authority, prior to the commencement of an action in court concerning the controversy, to settle and resolve a protest of an aggrieved proposer or contractor, actual or prospective, concerning the solicitation or award of a contract. (3) Decision. If the protest is not resolved by mutual agreement, the Town Manager shall promptly issue a decision in writing. The decision shall: (a) state the reason for the action taken; and • (b) inform the protestant of its right to administrative review as provided in this Article. (4) Notice of Decision. A copy of the decision under Subsection (3) of this Section shall be mailed or otherwise furnished immediately to the protestant and any other party intervening. (5) Finality of Decision. A decision under Subsection (3) of this Section shall be final and conclusive, unless the protestant appeals administratively to the Town Council acting as the Procurement Appeals Board. 5 -102 AUTHORITY TO DEBAR OR SUSPEND (1) Authority. After reasonable notice to the person involved and reasonable opportunity for that person to be heard, the Town Manager, after consultation with the Town Attorney shall have the authority to debar a person for cause from consideration for award of contracts. The debarment shall not be for a period of more than three years. The same officer, after consultation with the Town Attorney, shall have authority to suspend a person from consideration for award of contracts if there is probable cause for debarment. The suspension shall not be for a period exceeding three months. (2) Causes for Debarment or Suspension. The causes for debarment or suspension include the following: • I) o • (a) conviction for commission of a criminal offense as an incident to obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract; (b) conviction under state or federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, or any other offense indicating a lack of business integrity or business honesty which currently, seriously, and directly affects responsibility as a Town contractor; (c) conviction under state or federal antitrust statutes arising out of the submission of bids or proposals; (d) violation of contract provisions, as set forth below, of a character which is regarded by the Town Manager to be so serious as to justify debarment action: (i) failure without good cause to perform in accordance with the specifications or within the time limit provided in the contract; or (ii)a recent record of failure to perform or of unsatisfactory performance in accordance with the terms of one or more contracts; provided that failure to perform or unsatisfactory performance caused by acts beyond the control of the contractor shall not be considered to be a basis for debarment; (e) filing of false or misleading information as part of the procurement process; (f) filing or prosecution of protest or appeal that is groundless or frivolous; (g) collusion with other prospective competitors or any other anticompetitive act, omission or agreement that is contrary to the interest of the taxpayers; (h) any other cause the Town Manager determines to be so serious and compelling as to affect responsibility as a Town contractor, including but not limited to debarment by another • government for any cause; and (i) for violation of the ethical standards set forth in Article 7 (Ethics in Public Contracting). (3) Decision. The Town Manager shall issue a written decision to debar or suspend. The decision shall: (a) state the reasons for the action taken; and (b) inform the debarred or suspended person involved of its right to administrative review as provided in this Article. (4) Notice of Decision. A copy of the decision under Subsection (3) of this Section shall be mailed or otherwise furnished immediately to the debarred or suspended person and any other party intervening. (5) Finality of Decision. A decision under Subsection (3) of this section shall be final and conclusive, unless the debarred or suspended person appeals administratively to the Town Council acting as the Procurement Appeals Board. 5 -103 AUTHORITY TO RESOLVE CONTRACT AND BREACH OF CONTRACT CONTROVERSIES (1) Applicability. This section applies to controversies between the Town and a contractor and which arise under or by virtue of, a contract between them. This includes, without limitation, • 114 controversies based upon breach of contract, mistake, misrepresentation, or other cause for contract modification or rescission. • (2) Authority. The Town Manager is authorized upon written request, prior to commencement of an action in a court or arbitration concerning the controversy, to settle and resolve a controversy described in Subsection (1) of this Section. (3) Decision. If such a controversy is not resolved by mutual agreement, the Town Manager shall promptly issue a decision in writing. The decision shall: (a) state the reason for the action taken; and (b) inform the contractor of its right to administrative review as provided in this Article. (4) Notice of Decision. A copy of the decision under Subsection (3) of this Section shall be mailed or otherwise furnished immediately to the contractor. (5) Finality of Decision. The decision under Subsection (3) of this Section shall be final and conclusive, unless the contractor appeals administratively to the Town Council acting as the Procurement Appeals Board. (6) Failure to Render Timely Decisions. If the Town Manager does not issue the written decision required under Subsection (3) of this section within 120 days after written request for a final decision, or within such longer period as may be agreed upon by the parties, then the contractor may proceed with other remedies. Part B - Solicitation of Award in Violation of Law • 5 -201 APPLICABILITY OF THIS PART Except in situation in which a temporary restraining order must be requested from a court, the provisions of this Part apply where it is determined administratively, or upon administrative or judicial review, that a solicitation or award of a contract is in violation of law. 5 -202 REMEDIES PRIOR TO AN AWARD If prior to an award it is determined that a solicitation or proposed award of a contract is in violation of law, then the solicitation or proposed award shall be: (a) cancelled; or (b) revised to comply with the law. 5 -203 REMEDIES AFTER AN AWARD If after an award it is determined that a solicitation or award of a contract is in violation of the law, then: (a) if the person awarded the contract has not acted fraudulently or in bad faith: (i) the contract may be ratified and affirmed, provided it is determined that doing so is in the best interests of the Town; or (ii) the contract may be terminated and the person awarded the contract, plus a reasonable profit, prior to the termination; • 42- (b) if the person awarded the contract has acted fraudulently or in bad faith: • (i) the contract may be declared null and void; or (ii) the contract may be ratified and affirmed if such action is in the best interests of the Town, without prejudice to the Town's rights to such damages as may be appropriate. Part C — Interest 5 -301 INTEREST Interest on amounts ultimately determined to be due to a contractor or the Town shall be payable at the statutory rate applicable to judgments from the date the claim arose through the date of decision or judgment, whichever is later. Part D - Procurement Appeals Board 5 -401 CREATION OF THE PROCUREMENT APPEALS BOARD The Town Council shall act as the Procurement Appeals Board. 5 -402 DECISIONS OF THE PROCUREMENT APPEALS BOARD Acting by one or more of its members, the Procurement Appeals Board shall issue a decision in writing or take other appropriate action on each appeal submitted. A copy isof any decision shall be provided to all parties and the Town Manager. 5 -403 JURISDICTION OF THE PROCUREMENT APPEALS BOARD Unless an action has been initiated previously in court for essentially the same cause of action, or unless within 15 days after the action is brought before the Procurement Appeals Board, written objection is made by either the aggrieved proposer, or contractor, prospective or actual, or the Town Attorney, the board shall have jurisdiction to review and determine de novo: (a) any appeal by an aggrieved party from a determination by the Town Manager which is authorized by: (i) Section 5 -101 (Authority to Resolve Protested Solicitations and Awards); (ii) Section 5 -102 (Authority to Debar or Suspend); and (iii) Section 5 -103 (Authority to Resolve Contracts and Breach of Contract Controversies) 5 -404 APPEAL OF SOLICITATIONS OR AWARDS (1) Scope. This section applies to: (a) an appeal addressed to the Board of a decision under Section 5- 101(3) (Authority to Resolve Protested Solicitations and Awards, Decision). (2) Time Limitations on Filing a Protest or an Appeal. (a) For an appeal under Subsection (1)(a) of this section, the aggrieved person shall file an appeal within seven days of the receipt of a decision under Section 5 -101 (Authority to Resolve • Protested Solicitations and Awards, Decision). 2-� (3) Decision. On any appeal under Subsection (1)(a) of this Section, the Board shall promptly • decide whether the solicitation or award was in accordance with the Constitution, statutes, regulations, and the terms and conditions of the solicitation. The proceedings shall be de novo. Any prior determinations by administrative officials shall not be final or conclusive. (4) Finality of Decision. A determination of an issue of fact by the Board under Subsection (3) of this Section shall be final and conclusive. 5 -405 SUSPENSION OR DEBARMENT PROCEEDINGS (1) Scope. This section applies to a review by the Procurement Appeals Board of a decision under Section 5 -102 (Authority to Debar or Suspend) (2) Time Limitation on Filing an Appeal. The aggrieved person shall file its appeal with the Board within 60 days of the receipt of a decision under Section 5- 102(3) (Authority to Debar or Suspend). (3) Decision. The Board shall promptly decide whether, or the extent to which, the debarment or suspension was in accordance with the Constitution, statutes, regulations, and the best interests of the Town, and was fair. The proceedings shall be de novo. Any prior determinations by administrative officials shall not be final or conclusive. (4) Finality of Decision. A determination of an issue of fact by the Board under Subsection (3) of this Section shall be final and conclusive. • 5 -406 CONTRACT AND BREACH OF CONTRACT CONTROVERSIES (1) Scope. This section applies to a review by the Procurement Appeals Board of a decision under Section 5 -103 (Authority to Resolve Contract and Breach of Contract Controversies). (2) Time Limitation on Filing an Appeal. The aggrieved contractor shall file its appeal with the Board within 60 days of the receipt of the decision under Section 5- 103(3)(Authority to Resolve Contract and Breach of Contract Controversies, Decision). (3) Decision. The Board shall promptly decide the contract or breach of contract controversy. The proceedings shall be de novo. Any prior determination by administrative officials shall not be final or conclusive. (4) Finality of Decision. A determination of an issue of fact by the Board under Subsection (3) of this Section shall be final and conclusive. 5 -407 APPEAL AND REVIEW OF PROCUREMENT APPEALS BOARD DECISIONS (1) Appeal. Any person receiving an adverse decision, the Town, or both may appeal from a decision by the Procurement Appeals Board to the courts under Colorado Rules of Civil Procedure Rule 106. D-4— • (2) Authorization of Appeal by the Town. The Town shall make no such appeal unless recommended by the Town Manager, or the department head involved and approved by the Town Attorney. 5 -408 DISCONTINUANCE OF CONTRACTOR'S APPEAL After notice of an appeal to the Procurement Appeals Board has been filed with the Town Manager, a contractor may not discontinue such appeal without prejudice, except as authorized by the Board. ARTICLE 6 - FEDERAL OR STATE ASSISTANCE OR CONTRACT PROCUREMENT REQUIREMENTS 6 -101 COMPLIANCE WITH FEDERAL OR STATE REQUIREMENTS Where procurement involves the expenditure of federal or state assistance or contract funds, the Procurement Officer shall comply with such federal or state law and authorized regulations which are mandatorily applicable and which are not presently reflected in this Policy. ARTICLE 7 - ETHICS IN PUBLIC CONTRACTING Part A — Definitions 7 -101 DEFINITIONS OF TERMS USED IN THIS ARTICLE • (1) Blind Trust means an independently managed trust in which the employee beneficiary has no management rights and in which the employee - beneficiary is not given notice of alterations in, or other dispositions of, property subject to trust. (2) Confidential Information means any information which is available to an employee only because of the employee's status as an employee of the Town and is not a matter of public knowledge or available to the public on request. (3) Conspicuously means written in such special or distinctive format, print, or manner that a reasonable person against whom it is to operate ought to have noticed it. (4) Direct or Indirect Participation means involvement through decision, approval, disapproval, recommendation, preparation of any part of a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity. (5) Financial Interest means: (a) ownership of any interest or involvement in any relationship from which, or as a result of which, a person within the past year has received, or is presently or in the future entitled to receive, more than $1 per year, or its equivalent; (b) ownership of such interest in any property or any business as may be specified by the Town Council; or • �Lri (c) holding a position in a business such as an officer, director, trustee, partner, employee, or the • like, or holding any position of management. (6) Gratuity means a payment, loan, subscription, advance deposit of money, services, or anything of more than nominal value, present or promised, unless consideration of substantially equal or greater value is received. (7) Immediate Family means a spouse, significant other, children, parents, brothers, or sisters. (8) Official Responsibility means direct administrative or operating authority, whether intermediate or final, either exercisable alone or with others, either personally or through subordinates, to approve, disapprove, or otherwise direct Town action. (9) Purchase Request means the document whereby a Using Agency requests that a contract be entered into for a specified need, and may include, but is not limited to, the technical description of the requested item, delivery schedule, transportation, criteria for evaluation, suggested sources of supply, and information supplied for the making of any written determination required by this Policy. Part B - Standards of Conduct 7 -201 STATEMENT OF POLICY Public employment is a public trust. It is the policy of the Town to promote and balance the objective of protecting government integrity and the objective of facilitating the recruitment and • retention of personnel needed by the Town. Such policy is implemented by prescribing essential standards of ethical conduct without creating unnecessary obstacles to entering public service. Public employees and Town Council members must discharge their duties impartially so as to assure fair, competitive access to governmental procurement by responsible contractors. Moreover, they should conduct themselves in such a manner as to foster public confidence in the integrity of the Town procurement organization. To achieve the purpose of this Article, it is essential that those doing business with the Town also observe the ethical standards prescribed herein. 7 -202 GENERAL STANDARDS OF ETHICAL CONDUCT (1) General Ethical Standards for Employees. Any attempt to realize personal gain through public employment by conduct inconsistent with the proper discharge of the Employee's duties is a breach of a public trust. In order to fulfill this general prescribed standard, Employees must also meet the specific standards set forth in: Section 7 -203 (Employee Conflict of Interest); Section 7 -204 (Employee Disclosure Requirements); Section 7 -205 (Gratuities and Kickbacks); Section 7 -206 (Prohibition Against Contingent Fees); Section 7 -207 (Restrictions on Employment of Present and Former Employees); and Section 7 -208 (Use of Confidential Information). • -G • (2) General Ethical Standards for Non - employees. Any effort to influence any public Employee to breach the standards of ethical conduct set forth in this Section and Section 7 -204 through Section 7 -209 of this Article is also a breach of ethical standards. 7 -203 EMPLOYEE CONFLICTS OF INTEREST (1) Conflict of Interest. It shall be a breach of ethical standards for any Employee to participate directly or indirectly in a procurement when the employee knows that: (a) the Employee or any member of the Employee's immediate family has a financial interest pertaining to the procurement; (b) a business or organization in which the Employee, or any member of the Employee's immediate family, has a financial interest pertaining to the procurement; or (c) any other person, business, or organization with whom the Employee or any member of the Employee's immediate family is negotiating or has an arrangement concerning prospective employment is involved in the procurement. (2) Financial Interest in a Blind Trust. Where an Employee or any member of the Employee's immediate family holds a financial interest in a blind trust, the Employee shall not be deemed to have a conflict of interest with regard to matters pertaining to that financial interest, provided that disclosure of the existence of the blind trust has been made to the Town Attorney. (3) Discovery of Actual or Potential Conflict of Interest, Disqualification, and Waiver. Upon the discovery of an actual or potential conflict of interest, an Employee shall • promptly file a written statement of disqualification and shall withdraw from further participation in the transaction involved. The Employee may, at the same time, apply to the Town Council in accordance with Section 7- 401(3) for an advisory opinion as to what further participation, if any, the Employee may have in the transaction. 7 -204 EMPLOYEE DISCLOSURE REQUIREMENTS (1) Disclosure of Benefit Received from Contract. Any Employee who has, or obtains any benefit from, any Town contract with a business in which the Employee or member of an Employee's immediate family has a financial interest shall report such benefit to the Town Attorney and procurement officer; provided, however, this Section shall not apply to a contract with a business where the Employee's interest in the business has been placed in a disclosed blind trust. (2) Failure to Disclose Benefit Received. Any Employee who knows or should have known of such benefit, and fails to report such benefit to the Town Attorney and procurement officer, is in breach of the ethical standards of this Section. (3) Notice. Notice of this requirement shall be provided in the Personnel Policy and Procedures Manual. 7 -205 GRATUITIES AND KICKBACKS (1) Gratuities. It shall be a breach of ethical standards for any person to offer, give, or agree to • give any Employee or former Employee, or for any Employee or former Employee to solicit, 11 demand, accept, or agree to accept from another person, a gratuity or an offer of employment in • connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to any program requirement or a contract or subcontract, or to any solicitation or proposal therefore. (2) Kickbacks. It shall be a breach of ethical standards for any payment, gratuity, or offer of employment to be made by or on behalf of a subcontractor under a contract to the prime contractor or higher tier subcontractor or any person associated therewith, as an inducement for the award of a subcontract or order. (3) Contract Clause. The prohibition against gratuities and kickbacks prescribed in this Section shall be conspicuously set forth in every contract and solicitation therefore. 7 -206 PROHIBITION AGAINST CONTINGENT FEES (1) Contingent Fees. It shall be a breach of ethical standards for a person to be retained, or to retain a person, to solicit or secure a Town contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, except for retention of a bona fide employee or bona fide established commercial selling agencies for the purpose of securing business. (2) Representation of Contractor. Every person, before being awarded a Town contract, shall • represent in writing, that such person has not retained anyone in violation of Subsection (1) of this Section. Failure to do so constitutes a breach of ethical standards. (3) Contract Clause. The representation prescribed in Subsection (2) of this Section shall be conspicuously set forth in every contract and solicitation therefore. 7 -207 RESTRICTIONS ON EMPLOYMENT OF PRESENT AND FORMER EMPLOYEES (1) Contemporaneous Employment Prohibited. Except as may be permitted by regulations or rulings of the Town Council, it shall be a breach of ethical standards for any Employee who is participating directly or indirectly in the procurement process to become or be, while such an Employee, the Employee of any person contracting with the governmental body by whom the Employee is employed. (2) Restrictions on Former Employees in Matters Connected with Their Former Duties. (a) Six Months Representation Restriction Regarding Matters in Which a Former Employee Was Directly Involved. It shall be a breach of ethical standards for any former employee, within six months after cessation of the former employee's official responsibility, knowingly to act as a principal, or as an agent for anyone other than the Town, in connection with any: (i) judicial or other proceeding, application, request for a ruling, or other determination; • ��R (ii) contract; • (iii) claim; or (iv) charge or controversy, in matters in the former Employee was directly involved. (3) Disqualification of Business When an Employee Has a Financial Interest. It shall be a breach of ethical standards for a business in which an Employee has a financial interest knowingly to act as a principal, or as an agent for anyone other than the Town, in connection with any: (a) judicial or other proceeding, application, request for a ruling, or other determination; (b) contract; (c) claim; or (d) charge or controversy, in which the Employee or a member of the employee's immediate family either participates personally and substantially through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise under the provisions of this Policy, or which is the subject of the Employee's official responsibility under the provisions of this Policy, where the Town is a party or has direct or substantial interest. 7 -208 USE OF CONFIDENTIAL INFORMATION It shall be a breach of ethical standards for any Employee or former Employee, or Town Council member knowingly to use confidential information for actual or anticipated personal gain, or for the actual or anticipated personal gain of another person. Part C — Remedies • 7 -301 CIVIL AND ADMINISTRATIVE REMEDIES AGAINST EMPLOYEES WHO BREACH ETHICAL STANDARDS (1) Existing Remedies Not Impaired. Civil and administrative remedies against employees, which are in existence on the effective date of this Policy, shall not be impaired. (2) Supplemental Remedies. In addition to existing remedies for breach of the ethical standards of this Article or regulations promulgated hereunder, the Town Council may impose any one or more of the following: (a) oral or written warnings or reprimands; (b) suspension with or without pay for a specified period or time; and (c) termination of employment. (3) Right to Recover from Employee Value Received in Breach of Ethical Standards. The value of anything received by an employee in breach of the ethical standards of this Article or regulations promulgated hereunder shall be recoverable by the Town as provided in Section 7- 303 (Recovery of Value Transferred or Received in Breach of Ethical Standards). (4) Due Process. All procedures under this Section shall be in accordance with due process requirements and existing law. In addition, notice and an opportunity for a hearing shall be provided prior to imposition of any suspension or termination of employment. • 7 -302 CIVIL AND ADMINISTRATIVE REMEDIES AGAINST NONEMPLOYEES 93 WHO BREACH ETHICAL STANDARDS • (1) Existing Remedies Not Impaired. Civil and administrative remedies against non- employees, which are in existence on the effective date of this Policy, shall not be impaired. (2) Supplemental Remedies. In addition to existing remedies for breach of the ethical standards of this Article or regulations promulgated hereunder, the Town Council may impose any one or more of the following: (a) written warnings or reprimands; (b) termination of transactions; or (c) debarment or suspension from being a contractor or subcontractor under Town contracts. (3) Right to Recover from Non - Employee Value Transferred in Breach of Ethical Standards. The value of anything transferred in a breach of ethical standards of this Article or regulations promulgated hereunder by a nonemployee shall be recoverable by the Town as provided in Section 7 -303 (Recovery of Value Transferred or Received in Breach of Ethical Standards). (4) Right of the Town to Debar or Suspend. Debarment or suspension may be imposed in accordance with the procedures set forth in Section 5 -102 (Authority to Debar or Suspend) for breach of the ethical standards of this Article, provided that such action may not be taken without the concurrence of the Town Attorney. (5) Due Process. All procedures under this Section shall be in accordance with due P rocess • requirements, including, but not limited to, a right to notice and an opportunity for a hearing prior to imposition of any termination, debarment, or suspension from being a contractor or subcontractor under a Town contract. 7 -303 RECOVERY OF VALUE TRANSFERRED OR RECEIVED IN BREACH OF ETHICAL STANDARDS (1) General Provisions. The value of anything transferred or received in breach of the ethical standards of this Article or regulations promulgated hereunder by an Employee or a non - Employee may be recovered from both the Employee and non - Employee. (2) Recovery of Kickbacks by the Town. Upon a showing that a subcontractor made a kickback to a prime contractor or a higher tier subcontractor in connection with the award of a subcontract or order thereunder, it shall be conclusively presumed that the amount thereof was included in the price of the subcontract or order and ultimately borne by the Town and will be recoverable hereunder from the recipient. In addition, said value may also be recovered from the subcontractor making such kickbacks. Recovery from one offending party shall not preclude recovery from the other offending parties. Part D - Opinions and Waivers 7 -401 OPINIONS AND WAIVERS • 30 (1) Advisory Opinions. On written request of employees or contractors, the Town Attorney may • render advisory opinions regarding the appropriateness of the course of conduct to be followed in proposed transactions. Compliance with requirements of a duly promulgated advisory opinion of the Town Attorney shall be deemed to constitute compliance with the ethical standards of this Article. (2) Waiver. On written request of an employee, the Town Council may grant an employee a written waiver from the application of Section 7 -203 (Employee Conflict of Interest) and grant permission to proceed with the transaction to such extent and upon such terms and conditions as may be specified. Such waiver and permission may be granted when the interests of the Town so require or when the ethical conflict is insubstantial or remote. • •