TOWN OF TAOS
400 CAMINO DE LA PLACITA
TAOS, NM 87571
INTERNAL POLICY #9
RELATED TO THE PROCUREMENT
OF GOODS AND SERVICES BY
TOWN OF TAOS, ITS MANAGEMENT AND
EMPLOYEES
Superseding Policy #8 (Resolution 1987-30) dated November 18, 1987
Revised August 16, 2005 to include Affordable Housing Program (Pgs 17-18)
TOWN OF TAOS
RESOLUTION NO. 05-26
A RESOLUTION ADOPTING REGULATIONS REGARDING THE PROCUREMENT PROCESS OF THE TOWN OF TAOS PURSUANT TO THE REQUIREMENTS OF THE PROCUREMENT CODE (BEING SECTIONS 13-1-28 TO 13-1-1 99 NMSA 1978, AS AMENDED) AND PUBLIC WORKS CONTRACTS (BEING SECTIONS 13-4-1 TO 13-4-42 NMSA 1978, AS AMENDED).
WHEREAS, the purpose of this Resolution is to adopt regulations to translate or define the general and specific requirements of the Procurement Code; and
WHEREAS, the purposes of the Procurement Code are to provide for the fair and equitable treatment of all persons involved in public procurement, to maximize the purchasing value of public funds and to provide safeguards for maintaining a procurement system of quality and integrity; and
WHEREAS, the governing body may adopt regulations through resolution or ordinance to effect the powers and duties granted the Town of Taos by state law;
NOW THEREFORE, BE IT RESOLVED BY THE GOVERNING BODY OF THE TOWN OF TAOS, that the regulations attached hereto are the purchasing processes to be utilized by all officers and employees of the Town of Taos through the Central Purchasing Office in the procurement of tangible personal property, services and construction.
This Resolution replaces and supersedes Policy #8 (Resolution 1987-30) dated November 18, 1987 in its entirety.
APPROVED AND ADOPTED by the governing body at its meeting of June 28, 2005.
TOWN OF TAOS: Bobby f. Duran, Mayor
ATTEST: Town Clerk
INDEX
Section Title Page
1. Application of the code 4
2. Definitions 4
3. Central Purchasing Office 7
4. Exemptions from the Procurement Code 7
5. Competitive sealed bids 8
6. Competitive sealed proposals 13
7. Specifications 18
8. Miscellaneous bid and proposal matters 19
9. Contract matters 22
10. Types of contracts 23
11. Multiple source award 25
12. Miscellaneous procurement matters 25
13. Small purchases 27
14. Sole source or emergency procurement 28
15. Other types of procurement 29
16. Employee Participation 31
17. Protests 32
18. Public works performance and payment bonds 36
19. Minimum wage rates (construction) 36
20. Construction contract retainage 37
21. Public works mediation 37
PROCUREMENT REGULATIONS
APPLICATION OF THE CODE. (13-1-30)
The code applies to all expenditures by the Town of Taos for procurement of tangible personal property, services and construction.
Procurement involving the expenditure of federal funds must be conducted in accordance with the mandatory applicable federal laws and regulations. Such laws and regulations will supersede the procurement code where the procurement code is inconsistent with those federal laws and regulations.
DEFINITIONS.
GENERAL. Regulations regarding definitions are adopted to clarify those particular terms defined in the Procurement Code (13-l-28 to 13-1-199 NMSA 1978 - the "Procurement Code") and governed by Section 2 of these regulations.
ARCHITECTURAL SERVICES. (13-1-31) Architectural services shall not include work normally included within zoning, land use planning, or city or town planning.
Public works projects over $100,000 involving architecture must be provided by a legal, resident architect. (6l-15-9 NMSA 1978).)
CENTRAL PURCHASING OFFICE. (13-1-37)
There is hereby created a Central Purchasing Office to be administered by a procurement officer/purchasing agent designated by the Manager.
CONSTRUCTION. (13-1-40) Construction shall not include the routine maintenance, operation or repair of existing facilities.
The definition of construction includes altering, repairing, installing or demolishing a variety of facilities including roads, buildings, plumbing, electrical, sewage, heating, air conditioning, tunnels, tanks, treatment facilities, athletic fields, stadiums, etc.
In addition, construction also includes leveling or clearing land, excavating earth, and drilling wells of any types. This is a very broad definition and conceivably would include virtually any public work or construction.
CONSTRUCTION MANAGEMENT. (13-1-40.1) Means consulting services related to the process of management applied to a public works project for any duration from conception to completion of the project for the purpose of controlling time, cost and quality of the project.
CONSTRUCTION MANAGER. (13-1-40.l) Means a person who acts as an agent of the local public body for construction management, for whom the local public body shall assume all the risks and responsibilities.
CONTRACT MODIFICATION. (13-1-42) Definition means any written alteration in the provisions of a contract accomplished by mutual action of the parties to the contract.
Note that a modification to a contract must be in writing and agreed to by mutual action of the parties to the contract.
DETERMINATION. (I3-1-52) Means the written documentation of a decision of a procurement officer including findings of fact required to support a decision.
In any litigation, the determination will form a major portion of the record upon which the court will base its decision.
DIRECT OR INDIRECT PARTICIPATION. (l3-1-53) This definition is quite broad and covers any type of involvement through decision, approval, disapproval, recommendation, formulation of any part of a purchase request, influencing the content of any specification, investigation, auditing or the rendering of advice.
EMPLOYEE. (13-1-54) Employees cover all individuals receiving salary, wages or per diem and mileage from the Town of Taos. They can be elected officials and can even be compensated individuals who are performing personal services as an elected or appointed official or performing personal services in some other capacity for a the Town of Taos. Remember that the definition of employees is very broad and includes virtually anyone who is an official of the Town of Taos or a traditional employee of the Town of Taos who provides services to the local public body.
IMMEDIATE FAMILY. (I3-I-62) Immediate family refers only to spouse, children, parents, brothers and sisters and is not necessarily consistent with other state statutes regarding nepotism or other conflicts of interest involving relations.
LOCAL PUBLIC BODY. (13-I-67) The word "Town of Taos" is used in the regulation as a substitute for the term "local public body".
NOTICE OF INVITATION FOR BIDS (IFB)( l3-1-70) This document is issued by the procurement officer and contains a brief description of the services, construction, or items of personal property to be procured. It also sets forth the location where the invitation for bid can be obtained, where bids are to be received, the cost if any for copies of plans and specifications, the date and place of the bid opening and any other information as the procurement officer deems necessary.
PRICE AGREEMENT. (13-1-7l) This means a definite or indefinite quantity contract and the contract must require that the Town of Taos issue a purchase order in order to obtain tangible personal property, services or construction under the definite quantity or indefinite quantity contract.
PROCUREMENT. (l3-l-74)
A. This definition includes the purchasing, renting, leasing, lease-purchasing or otherwise acquiring items of tangible personal property, services or construction.
B. It also includes all aspects of procurement, including but not limited to, preparation of specifications, solicitation of sources, qualification or disqualification of sources, preparation and award of contract and contract administration. Thus, it is far more than the act of buying and bidding that forms the procurement process. Preparation of specifications upon which bidders will rely is also a part of procurement as is contract administration after the contract has been let.
Note that the selling or leasing of municipal utility facilities or real property; and the sale, exchange and gift of property is governed by § 3-54-1 through 3-54-3 NMSA 1978 and not by the Procurement Code
PROCUREMENT OFFICER/Purchasing Agent. (13-l-75) This is the person authorized to enter into or administer contracts and make written determinations with respect thereto as determined by the Town Manager or the governing body.
PROFESSIONAL SERVICES. (13-1-76) In the definition under the procurement code, "Professional Services" means the services of architects, archeologists, engineers, surveyors, landscape architects, medical arts practitioners, scientists, management and systems analysts, certified public accountants, registered public accountants, lawyers, psychologists, planners, researchers, construction managers and other persons or businesses providing similar professional services, which may be designated as such by a determination issued by the purchasing office and approved by the Town Attorney.
Professional Services are further defined by the TOWN OF TAOS to include professional or technical services provided by an individual and/or an entity that possess the experience or knowledge or education to provide said service which fill the needs required by the Town of Taos. This definition shall not apply to construction services.
PURCHASE ORDER. (13-1-77) This is the document issued by the Central Purchasing Office directing a contractor to deliver items of tangible personal property, services or construction pursuant to a contract.
The statute requires that there be an existing contract. Normally, one would assume that the purchase order is the contract itself. However, that is not the case under the procurement code. Purchase Order is the means by which the Central Purchasing Officer will direct a contractor to perform under an existing contract. However, see provisions regarding small purchases where ‘Purchase Order" is used in its normal commercially used sense.
PURCHASE REQUEST. (13-l-78) This document is submitted by a department or division (using agency), to request that the Central Purchasing Office obtain a contract for a specified service, construction or item of tangible personal property. At the TOWN OF TAOS-Commonly referred to as a requisition.
REGULATION. (13-1-80) This term refers to any rule, order or statement of policy, in whole or in part, and as may subsequently be amended or repealed, normally adopted by resolution or ordinance, issued by the Town of Taos to affect persons not members or employees of the Town of Taos.
RESPONSIBLE BIDDER. (13-1-82) This is a person who submits a responsive bid and supplies, when required, sufficient information and data to prove that the bidder can perform as promised in the bid.
RESPONSIBLE OFFEROR. (13-l-83) This is a person who meets the same qualifications as required for a responsible bidder, except that the responsible offeror has submitted a responsive proposal to a request for proposals.
RESPONSIVE BID. (13-1-84) This is a bid which conforms in all material respects to the requirements established in the invitation for bids. Material respects of a bid include, but are not limited to, price, quality, quantity or delivery requirements.
RESPONSIVE OFFER. (13-1-85) This is similar to a responsive bid except that the offer conforms in all material respects to requirements set forth in the request for proposals.
SERVICES. (13-1-87) Services do not include obtaining the services of employees of the Town of Taos.
CENTRAL PURCHASING OFFICE.
The central purchasing office shall be responsible for the control of procurement for the Town of Taos and shall perform all duties required by the Procurement Code and this policy.
EXEMPTIONS FROM THE PROCUREMENT CODE. ( 13-1-98)
A. Procurement of items of tangible personal property or services by the Town of Taos from a state agency, or other government body.
B. Printing and duplicating contracts involving materials which are required to be filed in connection with proceedings before administrative agencies or state or federal courts;
C. Purchases of publicly provided or publicly regulated gas or municipal water or sewage and refuse collection services;
D. Purchases of books and periodicals from the publishers or copyright holders thereof;
E. Travel or shipping by common carrier or by private conveyance or the cost of meals and lodging;
F. Purchase of animals to be used for exhibit;
G. Minor purchases consisting of magazine subscriptions, conference registration fees and other similar purchases where prepayments are required;
H. The issuance, sale and delivery of public securities pursuant to the applicable authorizing statute with the exception of bond attorneys and general financial consultants;
J. Contracts entered into by the Town of Taos with a private independent contractor for the operation, or provision and operation, of a jail;
L. Contracts and expenditures for services to be paid or compensated by money or other property transferred to New Mexico law enforcement agencies by the United States department of justice drug enforcement administration.
M. Contracts with professional entertainers;
N. Contracts and expenditures for litigation expenses in connection with proceedings before administrative agencies or state or federal courts, including experts, mediators, court reports, process servers and witness fees, but not including attorney contracts;
O. Works of art for museums or for display in public buildings or places;
P. purchases of advertising in all media, including radio, television, print and electronic.
COMPETITIVE SEALED BIDS. (EXPENDITURE IS EXPECTED TO BE OVER $20,000.00)
EXCEPTIONS FROM COMPETIVE SEALED BIDS (l3-l-lO2) All procurement shall be achieved by competitive sealed bids except:
A. when competitive sealed proposals are authorized;
B. for small purchases; (l3-I-l25)
C. for sole source procurements; (13-l-126)
D. for emergency procurements; (I3-l-I27)
E. regarding existing contracts; (I3-I-l29) and
F. for purchases from anti-poverty program businesses. (l3-1-l3O)
INVITATIONS FOR BIDS (IFB)(13-l-1O3) The Central Purchasing Office shall review and approve all invitations for bid, which shall contain:
A. the specifications for the services, construction, or items of tangible personal property to be procured;
B. all contractual terms and conditions applicable to the procurement;
C. the location where bids are to be received;
D. date, time and place of the bid opening; and
E. A notice that states: "The Procurement Code, Sections 13-1-28 through 13-1-I99NMSA 1978 imposes civil and criminal penalties for its violation. In addition, the New Mexico criminal statutes impose felony penalties for illegal bribes, gratuities and kickbacks".
These include copies of any standard contract provisions; all evaluation criteria, including but not limited to testing, quality, workmanship, delivery time, inspection, price, discounts, transportation costs, life cycle tests, etc; the bid form; and all other matters required by law or regulation of the Town of Taos or placed therein at the discretion of the central purchasing office.
No notice of an invitation for bids shall be published prior to the completion and/or approval of the invitation for bids (IFB) by the central purchasing office.
BIDDERS. Any business requesting an invitation for bids shall, at the time the request is made, provide to the central purchasing office its current mailing address, phone number, fax number and e-mail address if available.
ADDENDUM TO AN INVITATION FOR BID- adds information - change in quantity, time table (above and beyond original bid)
AMENDMENTS TO AN INVITATION FOR BID.(IFB) Amendments may be made to the Bid if necessary to:
A. make any changes in the invitation for bids such as changes in quantity, purchase descriptions, specifications, delivery schedules, and opening dates;
B. correct defects or ambiguities; or,
C. furnish to other bidders information given to one bidder if such information will assist the other bidders in submitting bids or if the lack of such information would prejudice the other bidders.
The amendment shall be mailed, faxed, or e-mailed to all potential bidders, not less than 5 days prior to the scheduled bid opening. The bidder shall include the signed acknowledgement with their bid.
BID FORM. The central purchasing office shall prepare bid forms to be used by bidders responding to invitations for bid. Award shall be based on the Base Bid received (ie…exclusive of GRT)
BID SAMPLES AND DESCRIPTIVE LITERATURE.
A. "Descriptive literature" means information available in the ordinary course of business, which shows the characteristics, construction, or operation of an item which enables the Town of Taos to consider whether the item meets its needs.
B. "Bid sample’ means a sample to be furnished by a bidder to show the characteristics of the item offered in the bid.
C. Bid samples or descriptive literature may be required when it is necessary to evaluate required characteristics of the items bid.
D. Bid samples, when required, shall be furnished free of expense to the Town of Taos and prior to the time set for the opening of bids. Samples not destroyed or mutilated in testing will be returned upon request by mail, express or freight, collect. Each sample must be labeled to clearly show the bid number and the bidder’s name.
BIDDING TIME.
A. "Bidding time," means the period of time between publication of the invitation for bids and the date of bid opening.
B. The central purchasing office shall allow a reasonable bidding time for preparation of bids, except when a shorter time is determined to be in the best interests of the Town of Taos. In no event shall the bidding time be less than 10 calendar days.
PUBLIC NOTICE. (l3-I-l04) Publications of invitations for bid or a notice thereof shall be made in one of the following newspaper(s):
THE TAOS NEWS
ALBUQUERQUE JOURNAL
THE NEW MEXICAN
A. The central purchasing office may authorize additional publications in more than one newspaper at its discretion.
B. Additional Notices:
1) In addition to a publication of the invitation for bids or the notice of invitation for bids the Town of Taos shall send copies of the notice or invitation for bids when an expenditure involves more than $5,000 to any businesses which have stated in writing an interest in submitting bids for particular categories of items of tangible personal property, construction and services.
2) The Town of Taos may establish registration fees for different categories of services, construction or items of tangible personal properties. Such fees must be related to the actual direct cost of furnishing copies of the notice or invitation for bids to prospective bidders. The fees shall be used exclusively for the purpose of furnishing such copies.
PRE-BID CONFERENCES. Pre-bid conferences may be conducted to explain the procurement requirements. Pre-bid conferences shall not be mandatory. They shall be announced to all prospective bidders known to have received an invitation for bids. The conference should be held long enough after the invitation for bids has been issued to allow bidders to become familiar with it, but sufficiently before bid opening to allow consideration of the conference results in preparing their bids. Nothing stated at the pre-bid conference shall change the invitation for bids unless a change is made by written amendment as provided in this policy.
RECEIPT AND ACCEPTANCE OF BIDS. (13-1-lO5)
A. Bids must be accepted for consideration without alteration or correction except as authorized in the Procurement Code.
B. Bids are to be evaluated on the requirements set forth on the invitation for bids. Any criteria, which will affect the bid price, such as discounts, transportation costs, total or life cycle costs, must be objectively measurable and defined by regulation. No criteria may be used in bid evaluation that are not set forth in the invitation for bids.
C. Bid Filing. Each bid received by the central purchasing office shall be stamped "received" and labeled with date and time of filing. All bids received, shall be retained by the central purchasing office in a secure place until the date and time for opening.
D. Negotiations. If the lowest responsible bid has otherwise qualified, and if there is no change in the original terms and conditions, the lowest bidder may negotiate with the purchaser for a lower total bid in order to avoid rejection of all bids for the reason that the lowest bid was up to ten percent higher than budgeted project funds. Such negotiation shall not be allowed if the lowest bid was more than ten percent over budget project funds (13-l-1O5).
This provision only allows you to negotiate downward with the lowest, responsible bidder and not with any other bidder to bring a project within budgeted funds. Inability to negotiate a lower price will necessitate rejecting all bids and re-bidding.
CORRECTION OR WITHDRAWAL OF BIDS. (l3-1-lO6)
A. A bid containing a mistake discovered before bid opening may be modified or withdrawn by a bidder prior to the opening by delivering a written or telegraphic notice to the Central Purchasing Office.
B. After bid opening, no modifications in prices or other provisions of bids are permitted. However, a low bidder alleging a material mistake of fact which makes his bid non responsive may be permitted to withdraw his bid if:
1) the mistake is clearly evident on the face of the bid;
2) the bidder submits evidence which clearly and convincingly demonstrates that a mistake was made. The decision to permit or deny withdrawal of a bid on the basis of a mistake is a decision to be made by the procurement officer and shall be supported by a determination setting forth the grounds of the decision.
C. After the bid opening and prior to the award the following provisions apply in addition to those in the Procurement Code:
1) Technical Irregularities. Technical irregularities are matters of form rather than substance evident from the bid document, or insignificant mistakes that can be waived or corrected without prejudice to other bidders; that is, when there is no effect on the price, quantity, quality, delivery, or contractual conditions. The procurement officer may waive such irregularities or allow the low bidder to correct them if either is in the best interest of the Town of Taos.
Examples include but are not limited to the failure of a low bidder to:
a) return the number of signed bids required by the invitation for bids; or
b) sign the bid, but only if the unsigned bid is accompanied by other material indicating the low bidders intent to be bound.
2) Mistakes where intended correct bid is evident. If the mistake and the intended correct bid are clearly evident on the face of the bid document, the low bid shall be corrected to the intended correct bid and may not be withdrawn. Examples of mistakes that may be clearly evident on the face of the bid document are typographical errors, errors in extending unit prices, transposition errors, and arithmetic errors.
All corrections or withdrawals allowed by the central purchasing office shall be supported by a determination of the procurement officer and must be documented in writing and placed with the specific procurement file.
D. If a bid is withdrawn in accordance with the provisions of the Procurement Code and these regulations, the bid security, if any, shall be returned to the bidder ( 13-1-1 47B).
BID OPENING. (I3-1-1O7) Bids are to be opened publicly in the presence of one or more witnesses at the time and place designated in the invitation for bids. The amount of each bid, and each bid item (if appropriate), and other relevant information as may be specified by the Central Purchasing Office, together with the name of each bidder, shall be recorded in the procurement file and each bid shall be opened to public inspection.
BID AWARD. (13-1-108)
A. Following award, a record showing the basis for the award shall be made part of the procurement file and the central purchasing office shall make part of the bid file the names of all people present at the bid opening.
B. Written notice of the award shall be sent to the successful (lowest responsible) bidder.
C. Contracts solicited by competitive sealed bids shall require that the bid amount exclude the applicable state gross receipts tax or applicable local option tax but that the Town of Taos shall be required to pay the applicable tax including any increase in the applicable tax becoming effective after the date the contract is entered into. The applicable gross receipts tax or applicable local option tax shall be shown as a separate amount on each billing or request for payment made under the contract.
This statute requires that you not have the applicable tax as part of your total bid price, although if you wish to know the tax amount for budgeting purposes you can request it as a separate line item, but the amount is not used to determine the lowest responsible bidder.
IDENTICAL LOW BIDS. (l3-1-l1O)
A. Definition. Identical low bids are low responsive bids from responsible bidders which are identical in price after the application of the preferences referred to in § 13-1-21 to 13-1-22 NMSA 1978, and which meet all the requirements and criteria set forth in the invitation for bids.
B. Award. When two or more identical low bids are received, the central purchasing office may:
1) award pursuant to the multiple source award provisions of the Procurement Code and these regulations;
2) award to a resident business if the identical low bids are submitted by a resident business and a non-resident business;
3) award to a resident manufacturer if the identical low bids are submitted by a resident manufacturer and a resident business;
4) award by lottery to one of the identical low bidders; or
5) reject all bids and re-solicit bids or proposals for the required services, construction or items of tangible personal property.
BID SECURITY.
A. When applicable- (13-l-146) Bidders for construction contracts procured by competitive sealed bid must provide bid security when the price is estimated by the procurement officer to exceed $20,000. The bid security shall be equal to at least 5% of the amount of the bid and shall be a bond provided by a surety company authorized to do business in this state or in the form of a cashiers check or certified check.
B. Rejection of bids. (l3-l-147)
1) When the invitation for bids requires bid security and is not provided, the bid must be rejected.
2) If a bidder is permitted to withdraw its bid before award no action shall be taken against the bidder or its surety.
C. Bid and Performance Bonds and Other Security. (I3-I-l48).
1) Bid security, performance bonds, payment bonds or other security may be required for items of tangible personal property or services as the central purchasing office deems necessary to protect the Town of Taos.
2) Any such bonding requirements shall not be used as a substitute for a determination of the responsibility of a bidder or offeror.
3) As to performance and payment bonds required for construction contracts, see the requirements of §13-4-18 NMSA 1978 and Section 22 of these regulations.
COMPETITIVE SEALED PROPOSALS. (EXPENDITURE IS EXPECTED TO BE OVER $30,000.00)
CONDITIONS FOR USE. ( 13-1-Ill)
Competitive sealed proposals may be used when:
A. Procuring professional services; or a design and build project delivery system; or
B. When the Central Purchasing Office or designee makes a written determination that the use of competitive sealed bidding for items of tangible personal property or services is either not practicable or advantageous to the Town of Taos.
C. Competitive sealed proposals shall not be used for the procurement of construction, except as authorized under §6-23-1 et. seq. for public buildings energy efficiency measures and only within the strict conditions of that law.
D. Definitions. The words "practicable" and "advantageous" as used in § 13-1-111 NMSA 1978 are to be given ordinary dictionary meanings. The term "practicable" denotes what may be accomplished or put into practical application. "Advantageous" denotes a judgmental assessment of what is in the Town of Taos’s best interest. Competitive sealed bidding may be practicable, that is, reasonably possible, but not necessarily advantageous, that is, in the Town of Taos’s best interest. The key element in determining advantageousness is the need for flexibility.
The competitive sealed proposals method differs from competitive sealed bidding in two important ways:
I) the proposal may or may not include price; and
2) it permits discussions with competing offerors and changes in their proposals including price; and
3) it allows comparative judgmental evaluations to be made when selecting among acceptable proposals for award of the contract.
An important difference between competitive sealed proposals and competitive sealed bidding is the finality of initial offers. Under competitive sealed proposals, alterations in the nature of a proposal, and in prices, may be made after proposals are opened. Such changes are not allowed, however, under competitive sealed bidding. Therefore, unless it is anticipated that a contract can be awarded solely on the basis of information submitted by bidders at the time of opening, competitive sealed bidding is not practicable or advantageous.
WHEN COMPETITIVE SEALED BIDDING IS NOT PRACTICABLE. Competitive sealed bidding is not practicable unless the nature of the procurement permits award to a low bidder who agrees by its bid to perform without condition or reservation in accordance with the purchase description, delivery or performance schedule, and all other terms and conditions of the invitation for bids. Factors to be considered in determining whether competitive sealed bidding is not practicable include:
A. whether the contract needs to be other than a fixed-price type;
B. whether oral or written discussions may need to be conducted with offerors concerning technical and price aspects of their proposals;
C. whether offerors may need to be afforded the opportunity to revise their proposals, including price;
D. whether award may need to be based upon a comparative evaluation as stated in the request for proposals of differing price, quality, and contractual factors in order to determine the most advantageous offering to the Town of Taos. Quality factors include technical and performance capability and the content of the technical proposal; and
E. whether the primary consideration in determining award may not be price.
WHEN COMPETITIVE SEALED BIDDING IS NOT ADVANTAGEOUS.
A determination may be made to use competitive sealed proposals if it is determined that it is not advantageous to the Town of Taos, even though practicable, to use competitive sealed bidding.
Factors to be considered in determining whether competitive sealed bidding is not
advantageous include:
A. if prior procurements indicate that competitive sealed proposals may result in a more beneficial contract; and
B. whether the factors listed in Paragraphs "b" through "d" above are desirable in conducting a procurement rather than necessary; if they are, then such factors may be used to support a determination that competitive sealed bidding is not advantageous.
REQUEST FOR PROPOSALS. (l3-1-1 12) Competitive sealed proposals are solicited through a request for proposals and shall include the same material that an invitation for bids includes. The request should include the following:
A. The specifications for the services or items of tangible property to be procured;
B. instructions and information to offerors, including the location where proposals are to be received and the date, time and place where proposals are to be received and reviewed;
D. all of the evaluation factors and the relative weights to be given to the factor. Price should be included, when applicable;
E. a statement that discussions may be conducted with offerors who submit proposals determined to be reasonably assured of being selected for award, but that proposals may be accepted without such discussions;
F. a statement of when and how price should be submitted; and
G. a notice that states: "The Procurement Code, Sections 13-1-28 through 13-1-199 NMSA 1978, imposes civil and criminal penalties for its violation. In addition, the New Mexico criminal statutes impose felony penalties for illegal bribes, gratuities and kickbacks".
The request for proposals may incorporate documents by reference, provided that the request specifies where such documents can be obtained. The request for proposals shall require written acknowledgement of the receipt of all amendments issued. The manner in which proposals are to be submitted including any forms for that purpose, may be designated as a part of the request for proposals.
PUBLIC NOTICE. (13-1-l 13). The Request for Proposals shall be published not less than ten (10) calendar days prior to the date set for the receipt of the proposals. The Request for Proposals must be published once in a newspaper of general circulation in the Town of Taos. Publications of invitations for proposals or a notice thereof shall be made in one of the following newspaper(s):
THE TAOS NEWS
ALBUQUERQUE JOURNAL
THE NEW MEXICAN
A. The central purchasing office may authorize additional publications in more than one newspaper at its discretion.
B. The Central Purchasing Officer shall send copies of the REP to those businesses which have signified in writing an interest in submitting proposals and which have paid any required fees.
C. A copy of the REP shall be made available for public inspection at the office of the purchasing agent.
RECEIPT AND REGISTRATION OF PROPOSALS.
A. Proposals and modifications should be time-stamped upon receipt and held in a secure place until the established due date.
B. After the date established for receipt of proposals, a register of proposals should be prepared which includes the name of each offeror, a description sufficient to identify the service, item of tangible personal property offered or construction as authorized under §6-23-1 et. seq. the names and addresses of the required witnesses, and such other information as may be specified by the purchasing agent.
C. Only the register of proposals shall be available to the public or to competing offerors until after award of the contract.
D. Offerors may request in writing non-disclosure of confidential data. Such data should accompany the proposal and should be readily separable from the proposal in order to facilitate eventual public inspection of the non-confidential portion of the proposal.
EVALUATION OF PROPOSALS. ( 13-1-114) Proposals shall be evaluted on the basis of demonstrated competence and qualification for the type of professional service required, and shall be based on the evaluation factors set forth in the request for proposals. Numerical rating systems maybe used but are not required. For the purpose of conducting discussions, proposals shall be initially classified as:
A. acceptable;
B. potentially acceptable, that is, reasonably assured of being made acceptable; or
C. unacceptable (offerors whose proposals are unacceptable shall be so notified promptly).
PROCUREMENT OF PROFESSIONAL SERVICES. (13-l-117.1)
For purposes of this regulation for competitive sealed qualifications-based proposals for architects, engineers, surveyors, and landscape architects: ( 13-1-120)
A. For each proposed local public works project or construction management contract over $25,000, excluding taxes, for architects and engineers and for each proposed local public works project over $5,000, excluding taxes, for landscape architects and surveyors, the local selection committee shall evaluate statements of qualifications and performance data submitted by at least three businesses in regard to the particular project and may conduct interviews with and may require public presentation by all businesses applying for selection regarding their qualifications, their approach to the project and their ability to furnish the required services. (13.I.66.1)
B. The appropriate selection committee shall select, and rank, in the order of their qualifications, no less than three businesses deemed to be the most highly qualified to perform the required services, after considering the following criteria together with any criteria, except price, established by the Town of Taos: (However, price may be considered when procuring services in conjunction with construction management contracts unless the services are those of an architect, engineer, landscape architect or surveyor.)
I) specialized design and technical competence of business, including a joint venture or association, regarding the type of services required;
2) capacity and capability of the business, including any consultants, their representatives, qualifications and locations to perform the work, including any specialized services, within the time limitations;
3) past record of performance on contracts with government agencies or private industry with respect to such factors as control of costs, quality of work and ability to meet schedules;
4) proximity to or familiarity with the area in which the project is located;
5) the amount of design work that will be produced by a New Mexico business within this state;
6) the volume of work previously done for the entity requesting proposals which is not seventy-five percent complete (through the bidding and negotiations phase) with respect to basic professional design services (excluding taxes, reimbursable expenses and additional services), with the objective of effecting an equitable distribution of contracts among qualified businesses and of assuring that the jnterest of the public in having available a substantial number of qualified businesses is protected, provided, however, that the principle of selection of the most highly qualified businesses is not violated; and,
7) other criteria established by the Town of Taos, excluding price.
C. Notwithstanding the requirements of subsections A and B above, if fewer than three businesses have submitted a statement of qualifications for a particular project, the appropriate committee may:
1) rank in order of qualifications and submit to the governing body for award those businesses which have submitted a statement of qualifications; or
2) recommend termination of the selection process and sending out of new notices of the proposed procurement.
D. Negotiations will follow, with the highest qualified business for the architectural, landscape architectural, engineering and surveying services at compensation determined in writing to be fair and reasonable. In making this decision, we shall take into account the estimated value of the services to be rendered and the scope, complexity and professional nature of the services. Should we be unable to negotiate a satisfaction contract with the business considered to be the most qualified at a price determined to be fair and reasonable, negotiations with that business shall be formally terminated. We shall then undertake negotiations with the second most qualified business. Failing accord with the second most qualified business, we shall formally terminate negotiations with that business. We shall then undertake negotiations with the third most qualified business. Should we be unable to negotiate a contract with any of the businesses selected by the committee, additional businesses shall be ranked in order of their qualifications and the Town of Taos shall continue negotiations in accordance with this section until a contract is signed with a qualified business or the procurement process is terminated and a new request for proposals is initiated. The Town of Taos shall publicly announce the business selected for award. Businesses which have not been selected for contract award, shall be notified in writing within fifteen days after an award is made.
NEGOTIATIONS. - Selection (p13-1-1 15) - This section does not apply to selection of architects, engineers, landscape architects and surveyors who submit proposals pursuant to § 13-1-120 through 13-1-124.
A. Offerors submitting proposals can be afforded an opportunity for discussion and revision of proposals.
B. Revision may be permitted after submissions of proposals but prior to award and for the purpose of obtaining the best and final offers in response to a request for proposals. Negotiations may be conducted with responsible offerors.
C. When the Town of Taos is procuring professional services, negotiations shall be conducted with the highest qualified business at compensation determined in writing to be fair and reasonable to both parties.
1) Discussions are held to promote understanding of the Town of Taos’s requirements and offerors’ proposals and to facilitate arriving at a contract that will be most advantageous to the Town of Taos, taking into consideration price, if any, and the other evaluation factors set forth in the request for proposals.
2) In making this decision, the Town of Taos shall take into account the estimated value of the services to be rendered and the scope, complexity and professional nature thereof.
3) The procurement officer shall keep a record of the date, place and purpose of meetings, and those attending.
4) Should the Town of Taos be unable to negotiate a satisfactory contract with the business to be the first and most qualified, at a price determined to be fair and reasonable to both parties, negotiations with that business shall be terminated. The Town of Taos shall then undertake negotiations with the second most qualified business. Failing accord with the second most qualified business, negotiations shall be formally terminated and negotiations with the third most qualified business shall commence. Should negotiations fail with the first, second or third most qualified business, additional businesses, if any, shall be ranked in order of qualifications.
5) Negotiations shall continue until a contract is signed with a qualified business or the procurement process is terminated and a new request for proposals is initiated.
The contents of any proposal shall not be disclosed so as to be available to competing offerors during the negotiation process (l3-1-l 16)
AWARD. (13-1-1 17) The award shall be made to the responsible offeror or offerors whose proposal is most advantageous to the Town of Taos, taking into consideration the evaluation factors set forth in the request for proposals. The procurement officer shall make a written determination showing the basis on which the award was found to be most advantageous to the Town of Taos based on the factors set forth in the request for proposals.
POST NOTICE. The business selected shall be notified of the award. If feasible, all proposers should be notified of the award of the contract and the business selected.
COMPETITIVE SEALED PROPOSALS (PROCUREMENT OF THE SERVICES OF BUILDERS UNDER AN AFFORDABLE HOUSING PROGRAM).
Notwithstanding anything contained herein to the contrary, competitive sealed proposals may be used to procure the services of builders under an affordable housing program ("Affordable Housing Program") authorized under the Affordable Housing Act, NMSA 1978 §6-27-1 et seq.. the New Mexico Mortgage Finance Authority Affordable Housing Rules adopted pursuant to NMSA 1978 §6-27-8(B), and Town of Taos Ordinance No. 05-03.
SPECIFICATIONS.
REQUIREMENT. (l3-l-l64, 165, and 166)
A. All specifications shall be drafted to insure maximum practicable competition.
B. Brand name specification may be used only when the central purchasing office determines that the identified brand name item will satisfy the needs of the Town of Taos.
C. The central purchasing office shall attempt to identify as many sources as possible from which the designated brand name items can be obtained and shall achieve whatever price competition is practicable.
BRAND NAME OR EQUAL SPECIFICATIONS. (13-1-167 and 168).
A. Normally, brand names or equal specifications shall include a description of the particular design, function or performance characteristics required. However, if the essential characteristics of the brand names included in the specifications are commonly known in the industry or trade, such a detailed description is not necessary.
B. Where brand name or equal specifications is used in a solicitation, the solicitation shall contain explanatory language that states, "the use of the brand name is for the purpose of describing a standard of quality, performance and characteristics desired and not intended to limit or restrict competition".
PURCHASE REQUESTS. (13-1-169)
A. The departments (using agency’s) requests for procurement must contain a statement of need, the general characteristics of the item of tangible personal property, construction or service desired, and a statement of the quantity desired and quality desired.
B. The central purchasing office may consolidate procurements.
MISCELLANEOUS BID AND PROPOSAL MATTERS.
REJECTION OR CANCELLATION OF BIDS OR REQUEST FOR PROPOSALS. ( 13-I -
131). An invitation for bids, a request for proposals, or any other solicitations may be cancelled or any or all bids or proposals may be rejected in whole or in part when it is in the best interest of the Town of Taos. A determination containing the reasons therefore shall be made part of the procurement file. Any proposal received in response to a terminated solicitation is not public information and shall not be made available to competing offerors.
A. Prior to Opening. An invitation to bid or request for proposals may be cancelled in whole or in part prior to opening when the central purchasing office makes a written determination that such action is in the Town of Taos’s best interests for reasons including but not limited to:
1) the Town of Taos no longer requires the services, construction or items of tangible personal property;
2) the Town of Taos no longer can reasonably expect to fund the procurement; or
3) proposed amendments to the solicitation would be of such magnitude that a new solicitation is desirable.
B. After Opening. After opening but prior to award, all bids or proposals may be rejected in whole or in part when the central purchasing office makes a written determination that such action is in the Town of Taos’s best interest for reasons including but not limited to:
I) all of the bids and proposals are non-responsive;
2) the services, construction or items of tangible personal properly being procured are no longer required;
3) ambiguous or otherwise inadequate specifications are part of the solicitation;
4) the solicitation does not provide for consideration of all factors of significance to the Town of Taos;
5) prices exceed available funds and it would not be appropriate to adjust quantities to come within available funds;
6) there is reason to believe that the bids or proposals may not have been independently arrived at in open competition, may have been collusive, or may have been submitted in bad faith.
C. Rejection of Individual Bids. Bids submitted pursuant to competitive sealed bidding may be rejected pursuant to the Procurement Code and these regulations for reasons which include but are not limited to:
I) the business that submitted the bid is not responsible;
2) the bid is not responsive; or
3) the service, construction or item of tangible personal property offered in the bid is unacceptable by reason of its failure to meet the requirements of the specifications or permissible alternates or other acceptability criteria set forth in the invitation for bids.
D. Rejection of Individual Proposals. "Proposal" means any offer submitted in response to any solicitation, including an offer under the Procurement Code and these regulations for a small purchase, but not including a bid. Unless the solicitation states otherwise, proposals need not be unconditionally accepted without alteration or correction, and the Town of Taos’s stated requirements may be revised or clarified after proposals are submitted. This flexibility must be considered in determining whether reasons exist for rejecting all or any part of a proposal. Reasons for rejecting proposals include but are not limited to:
1) the business that submitted the proposal is not responsible;
2) the proposal is not responsive; or
3) the proposed price is clearly unreasonable.
E. Notice. When an invitation to bid or request for proposal is cancelled, or when a bid or response is rejected in whole or in part, notice shall be sent to all businesses solicited and the notice shall:
I) identify the solicitation;
2) briefly explain the reason for cancellation; and
3) where appropriate, explain that an opportunity will be given to compete on any
re-solicitation or any future procurements of similar services, construction or items of tangible personal property.
F. Records. When bids or proposals are rejected. or a solicitation cancelled after bids or proposals are received, the bids or proposals which have been opened shall be retained in the procurement file. Unopened bids or proposals shall be returned to the bidders or offerors upon request, or, if no such request is made, such bids or proposals may be destroyed after the time for filing a protest has passed.
IRREGULARITIES IN BIDS OR PROPOSALS. (l3-1-l32)
The Central Purchasing Office may waive technical irregularities in the form of the bid or proposal of the low bidder or offeror which do not alter the price, quality or quantity of the services, construction or items of tangible personal property bid or offered.
RESPONSIBILITY OF BIDDERS AND OFFERORS. (l3-l-l33)
A. If a bidder or offeror who otherwise would have been awarded a contract is found not to be a responsible bidder or offeror, a determination that the bidder or offeror is not a responsible bidder or offeror, setting forth the basis of the finding shall be prepared by the Central Purchasing Office. The failure of bidder or offeror to promptly supply information connected with inquiries with respect to responsibility is grounds for a determination of non-responsibility.
B. Standards. Factors to be considered in determining whether the standard of responsibility has been met include whether a bidder or offeror has:
1) submitted a responsive bid;
2) adequate financial resources, production or service facilities, personnel, service reputation and experience to make satisfactory delivery of the services, construction or items of tangible personal property described in the invitation for bids;
3) a satisfactory record of performance;
4) a satisfactory record of integrity;
5) qualified legally to contract with the Town of Taos;
6) supplied all necessary information and data in connection with the inquiry concerning responsibility.
7) been suspended or debarred under section 20.
C. Ability to Meet Standards. The bidder or offeror may demonstrate the availability of adequate financial resources, production or service facilities, personnel and experience by submitting upon request:
1) evidence that such contractor possesses such necessary items;
2) acceptable plans to subcontract for such necessary items; or
3) a documented commitment from, or explicit arrangement with, a satisfactory source to provide the necessary items.
PREQUALIFICATION OF BIDDERS. ( 13-1-134)
A. Businesses may be pre-qualified by the Central Purchasing Office for particular types of services, construction or items of tangible personal property.
B. Any mailing lists of potential bidders or offerors shall include but not be limited to such pre-qualified businesses.
C. Regulations should be adopted determining the pre-requisites for pre-qualification.
D. Relationship to Pre-qualification. The fact that a business has been pre-qualified by the central purchasing office does not represent a finding of responsibility.
CONTRACT MATTERS.
UNIFORM CONTRACT CLAUSES. (l3-1-17O)
A. The Town of Taos shall require that contracts include uniform clauses providing for termination, price adjustment, adjustment in time or performance, etc. The following are specifically allowed to be included as uniform contract clauses by statute:
1) unilateral right of the Town of Taos to order in writing changes in the work within the scope of the contract and temporary stoppage of the work or delay of performance;
2) variations occurring between estimated quantities of work in a contract and actual quantities;
3) liquidated damages;
4) permissible excuses for delay or nonperformance;
5) termination for default;
6) termination in whole or in part for convenience of the Town of Taos;
7) assignment clauses providing assignment by the contractor to the Town of Taos of causes of action for violation of state or federal anti-trust statutes;
8) identification of subcontractors by bidders in bids; and
9) uniform subcontract clauses.
B. All contracts shall include a clause imposing late payment charges against the Town of Taos in the amount and under the conditions stated in Section 13-1-158 NMSA 1978.
PRICE ADJUSTMENTS. (13-1-171) Adjustments in price shall be computed in one or
more of the following ways as specified in the contract:
A. by agreement on a fixed price adjustment before commencement of performance or as soon thereafter as is practicable;
B. unit price as specified in the contract or subsequently agreed upon;
C. by the cost attributable to the events or conditions as specified in the contract or subsequently agreed upon;
D. by a provision for both upward and downward revision of stated contract price upon the occurrence of specified contingencies if the contract is for commercial items sold in substantial quantities to the general public with prices based upon established catalogue or list prices in a form regularly maintained by the manufacturer or vendor and published or otherwise available for customer inspection. In the event of revision of the stated contract price, the contract file shall be promptly documented by the central purchasing office;
E. in any other manner agreed upon by the parties; or
F. in the absence of agreement of parties by a unilateral determination, reasonably computed by the Town of Taos of the costs attributable to the events or conditions.
TYPES OF CONTRACTS.
GENERAL. (l3-I-149)
A. Subject to the limitations of the procurement code in Sections 13-1-150 to 13-1-154, any type of contract, including but not limited to definite quantity and indefinite quantity contracts and price agreements, is allowed which will promote the best interests of the Town of Taos.
B. Use of a cost-plus-a-percentage-of-cost contract is prohibited except for the purchase of insurance.
C. A cost reimbursement contract may be used when such contract is likely to be less costly or it is impracticable to otherwise obtain the services, construction or items of tangible personal property required.
MULTI-TERM CONTRACTS. (l3-1-I50, 151, and 152)
A. Prerequisites - Prior to the utilization of a multi-term contract, the Central Purchasing Office shall determine that:
1) The estimated requirements over the period of a contract are reasonably firm and continuing, and
2) The contract will serve the best interests of the Town of Taos.
A multi-term is a contract having a term longer than one year.
B. A multi-term contract may be entered into for any period of time not to exceed:
1) four years for items of tangible personal property, construction or services (except for professional services) if the contract amount is under $25,000;
2) eight years including all extensions and renewals for items of tangible personal property, construction or services (except for professional services) if the contract amount is over $25,000, except that for any such contract entered into pursuant to the Public Building Energy Efficiency Act, and Water Conservation Act, the term shall not exceed ten years, including all extensions and renewals; and
3) A contract for professional services may not exceed a term of four years including all extensions and renewals except that a multi-term contract for the services of trustees, escrow agents, registrars, paying agents, letter of credit issuers and other forms of credit enhancement; and other similar services excluding bond attorneys, underwriters and financial advisors with regard to the issuance, sale and delivery of public securities may be for the life of the securities or as long as the securities remain outstanding.
C. Availability of funds - Payment and performance of obligations for any succeeding fiscal periods are subject to the availability and appropriation for funds therefore.
D. Cancellation - If funds are not appropriated or otherwise made available to support continuation of the multi—term contract, the contract shall be cancelled.
CONSTRUCTION MANAGEMENT SERVICES. ( 13-1-100.1)
Construction management services contracts for any construction or public works project are authorized when the Town of Taos makes a determination that it is in the public’s best interest. Construction management services shall not duplicate and are in addition to the normal scope of separate architect or engineer contracts.
Municipalities must follow the regulations adopted by the state when procuring these services.
DESIGN AND BUILD PROJECT DELIVERY SYSTEM. ( 13-1-119.1)
The design and build project delivery system may be authorized when the central purchasing office makes a determination in writing that it is appropriate and in the best interest of the Town of Taos to use the system on a specific project with a maximum allowable construction cost of more than ten million dollars ($10,000,000). The determination shall be issued only after all required criteria are considered. Road and highway construction projects are not allowed.
The Town of Taos must follow the regulations adopted by the state when procuring these services.
CONTRACT MODIFICATIONS:
AMENDMENT- is defined as a change to the basic document (s) for clarification and/or extension of term.
CHANGE ORDER-, usually adds quantities to work; addresses changes in work that were not foreseen, are only for the amount of money needed to incur the changes required, changes to the original scope of work are not allowed.
A change order shall describe changes in the work, both additions and deletions, with attachments of the revised contract documents describing the change(s)and full accounting of the adjustment to the contract sum and the contract time.
Field Order-is a directive issued by the project manager to the contractor for immediate action to be taken , the field order shall include cost and quantities and be made part of a change order.
CHANGE ORDERS OR CONTRACT MODIFICATIONS. ( 13-1-140 and 141)
Professional Services
Professional Services Contract- Maximum amount $30,000.00 per year per vendor, per scope of work, unless solicitation is through RFP. If at any time during the term of the contract, the amount is expected to exceed $30,000.00 an RFP needs to be issued and presented to the governing body for approval.
CERTIFICATION. (l3-1-142) A contractor, actual or prospective, required to submit cost or pricing data shall certify, to the best of its knowledge and belief, the cost or pricing data submitted was accurate, complete and current as of a specified date.
PRICE ADJUSTMENT PROVISION. (l3-1-I43) Whenever cost or pricing data are required, the certification shall contain a provision stating that the price to the Town of Taos (including profit or fee) shall be adjusted to exclude any significant sums by which the Town of Taos reasonably finds that such price was increased because the contractor- furnished cost or pricing data was inaccurate, incomplete or not current as of the date specified.
COST OR PRICE ANALYSIS. (13-1-l44) A cost or price analysis may be conducted prior to the award of a contract other than one awarded by competitive sealed bidding. A written record of such cost or price analysis shall be made part of the procurement file.
COST PRINCIPLES. (I3-1-I45) The Town of Taos may promulgate additional regulations setting forth principles to determine the allow ability of incurred costs for the purpose of reimbursing costs to a contractor.
MULTIPLE SOURCE AWARD.
LIMITATIONS ON USE. (13-1-153)
A. A multiple source award may be made when awards to two or more bidders or offerors are necessary for adequate delivery of goods or services.
B. Multiple source awards shall not be made when a single award will meet the needs of the Town of Taos without sacrifice of economy or service. A multiple source award shall be based on the lowest responsible bid or proposal received in each geographical area.
DETERMINATION REQUIRED. (I3-1-154) The Central Purchasing Office shall make a determination setting forth the reasons for multiple source award.
MISCELLANEOUS PROCUREMENT MATTERS.
RECEIPT OF GOODS. 13-1-157)
A. The department (using agency) is responsible for inspecting and accepting or rejecting
deliveries.
B. The using agency shall determine whether the quantity and quality of the goods meet the specifications of the purchase order or contract.
C. In the event that delivery is unacceptable the using agency shall immediately notify the Central Purchasing Office.
D. The Central Purchasing Office shall notify the vendor of rejection and the vendor shall promptly make satisfactory replacement or supplementary delivery.
E. In the event the vendor fails to comply, the Central Purchasing Office shall not have any obligation to pay for non-conforming items of tangible personal property.
F. If delivery is acceptable the using agency shall certify property delivery to the Central Purchasing Office.
PAYMENT OF PURCHASES. (I3-I-l 58)
A. No payment shall be made unless the using agency certifies that the services, construction or items of personal property have been received and meet specifications, or
B. Unless pre-payment is permitted under Section 5.1 (l3-1-98) by exclusion of the purchase from the Procurement Code.
C. Payments shall be tendered to the contractor within 30 days of the date of certification. If payment is made by mail, the payment shall be deemed tendered on the date it is postmarked. After the thirtieth day from the date that written certification of acceptance is issued, late payment charges shall be paid on the unpaid balance due on the contract to the contractor at the rate of one and one-half percent per month. . For purchases funded by state or federal grants to municipalities, if the Town of Taos has not received the funds from the federal or state funding agencies, payments shall be tendered to the contractor within 5 working days of receipt of funds from that funding agency.
B. If the using agency finds that the services, construction or items of tangible personal property are not acceptable, it shall, within 30 days of the date of receipt of written notice from the contractor that payment is requested for services or construction completed or items of tangible personal property delivered on site, provide to the contractor a letter of exception explaining the defect or objection to the services, construction or delivered tangible personal property along with details of how the contractor may proceed to provide remedial action.
RIGHT TO INSPECT THE PLANT. (13-1-l59) A contract or solicitation therefore may include a provision allowing a Town of Taos at reasonable times to 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.
AUDITS. (13-1-160 and 161)
A. The Town of Taos 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.
B. People supplying cost or pricing data must maintain books and records that relate to such data for three years from the date of final payment under the contract unless a shorter period is authorized in writing.
C. The same provisions relate to an audit of the books and records of any contractor or subcontractor under a negotiated contract or subcontract other than a firm fixed-price contract.
SMALL PURCHASES. (13-1-125)
The Central Purchasing Office shall procure services, construction or items of tangible personal property having a value not exceeding $20,000 in accordance with this small purchase regulation.
For purposes of this regulation the following process shall apply:
A. All purchases under $2500 shall be made at the best obtainable price.
B. All purchases between $2500.01 and $10,000 shall be made by oral or telephone quotes or bids from no fewer than three businesses that are recorded and placed in the procurement file.
C. All purchases between $10,000.01 and $20,000 shall be with written quotes. Sealed bids are required for construction services, please arrange through central purchasing office.
D. Prior to award, the contents of any quotation shall not be disclosed to any other business from which a quotation is solicited.
E. Quotations from local businesses may be obtained by the department and attached to the purchase request submitted to the Central Purchasing Office.
Notwithstanding the requirements above, a Central Purchasing Office may procure professional services having a value not exceeding $30,000, a value not exceeding $25,000 for architects and engineers and $5,000 for landscape architects and surveyors, in accordance with professional services procurement regulations promulgated by the Central Purchasing Office with the authority to issue regulations. (13-1-66.1)
For purposes of this regulation the following process shall apply:
A. All professional services under $30,000 and for architects or engineers under $25,000 and for surveyors or landscape architects under $5,000 shall be procured by calling a reasonable number of firms to obtain either verbal, telephone or written offers. All proposals over this amount shall be procured by competitive sealed proposals or in the case of design professionals by qualifications- based competitive sealed proposals.
B. The Central Purchasing Officer shall provide such information as is necessary to provide the potential offeror the opportunity to provide a proper and timely response.
C. Contracts over $20,000.00 shall be presented to the governing body for approval.
Notwithstanding this regulation, the governing body, pursuant to the authority given them in §l3-1-126 and 13-1-127, retains the prerogative to utilize "sole source" or "emergency procurement", if the situation so warrants for professional services pursuant to the requirements of the Procurement Code.
All quotes on bids must be recorded and placed in the procurement file for audit purposes. Procurement requirements shall not be artificially divided so as to constitute a small purchase.
SOLE SOURCE OR EMERGENCY PROCUREMENT.
SOLE SOURCE PROCUREMENT. (13-1-126)
A. A contract may be awarded without competitive sealed bids or competitive sealed proposals regardless of the estimated cost when the Central Purchasing Office makes a determination, after conducting a good faith review of available sources and consulting the using agency, that there is only one source for the required service, construction or item of tangible personal property.
B. If such a situation exists, the Central Purchasing Office shall conduct negotiations as appropriate in order to obtain the most advantageous terms for the Town of Taos.
C. Request by Using Agency. Any request by a using agency that a procurement be restricted to one potential contractor shall be accompanied by a written explanation as to why no other will be suitable or acceptable to meet the need.
D. Professional Services. A professional service contract may be awarded without competitive sealed proposals when the purchasing office makes a written determination after conducting a good-faith review on available sources that there is only one source for the required professional service. In cases of reasonable doubt, competition should be solicited.
EMERGENCY PROCUREMENTS. ( 13-1-127)
A. An emergency is a situation creating a threat to public health, safety or welfare arising by reason of floods, epidemics, riots, equipment failure, or other similar events. The emergency condition must create an immediate and serious need for items of tangible personal property, services or construction that cannot be met through normal procurement methods and the lack of such services or construction seriously threaten:
1) the functioning of government
2) the preservation or protection of property; or
3) the health or safety of any person.
B. The Central Purchasing Office or designee may authorize emergency procurement when an emergency exists provided that emergency procurements are to be made with such competition as is practicable under the circumstances.
C. A written determination of the basis of the emergency procurement and the selection of a particular contractor shall be included in the procurement file.
D. Emergency procurement shall not include the purchase or lease-purchase of heavy road equipment.
RECORDS. (13-1-l28)
A. The Central Purchasing Office shall maintain for a minimum of three years records of all sole source or emergency procurements.
B. The record of each such procurement shall be public record and shall contain:
1) the contractor’s name and address;
2) the amount and term of the contract;
3) a listing of the services, construction or items of tangible personal property procured under the contract; and
4) the conditions necessitating the purchase.
Construction Emergency or Sole Source Procurement. Notwithstanding the requirements of § 13-1-126 and 13-1-127 NMSA 1978, Sole Source and Emergency Procurement, other sections of statute apply when acquiring construction contracts. If a sole source or emergency construction contract is declared a state wage rate determination pursuant to § 13- 4-11 NMSA 1978 must be obtained if the construction contract is over $20,000.
Even if the emergency occurs over a weekend or holiday you must advise the contractor that he will be required to pay state wage rates and you must contact the Labor Commissioner as soon as possible so he can issue a minimum wage rate determination for the project.
A. To obtain a state wage rate determination, contact:
State Labor Commissioner
P.O. Box 4218
1596 Pacheco
Santa Fe, NM 87503 (505) 827-6875
B. Performance and labor/material payments bonds pursuant to 13-4-18 NMSA 1978 are required if the construction contract is over $25,000. The bonds may be required if a project is under $25,000 at the Town of Taos’s discretion.
PROCUREMENT UNDER EXISTING CONTRACTS. ( 13-1-129)
A. The Central Purchasing Office may contract for services, construction or items of tangible personal property without use of competitive sealed bids or competitive sealed proposals, as follows:
1) when procuring at a price equal to or less than the federal supply contract price or catalog price, whichever is lower, and the purchaser adequately identifies the contract relied upon; or
2) with a business which has a current contract or price agreement with the state purchasing agent or Central Purchasing Office for the items, services or construction meeting the same standard of specifications as the items that are to be procured if the following conditions are met:
a) the quantity purchased does not exceed the quantity which may be purchased under the applicable contract; and
b) the purchase order adequately identifies the contract relied upon by number, if applicable, or by other appropriate reference.
B. The Central Purchasing Office shall retain.a copy of the State Purchasing Division contract or current price agreement relied upon for public inspection and for the use of auditors.
COOPERATIVE PROCUREMENT. ( 13-1-135)
A. The Town of Taos may participate in, sponsor or administer a cooperative procurement agreement for procurement of any services, construction or items of tangible personal property with a state agency, local public body, or external procurement unit in accordance with a joint powers agreement.
As to Joint Powers Agreements see § 11-1-1 to 11-1-7 NMSA 1978.
C. The Central Purchasing Office of the Town of Taos may cooperate with the state purchasing agent in obtaining contracts or price agreements and such contracts or price agreements shall apply to purchase orders issued subsequently under the agreement.
B. Recycled Content Goods (13-1-135.l) Each central purchasing office shall, whenever its price, quality, quantity, availability, and delivery requirements are met, purchase recycled content goods through contracts established by the purchasing division of the general services department or with other central purchasing offices.
PURCHASES FROM ANTI-POVERTY PROGRAM BUSNESSES. (l3-l-130)
A. A Central Purchasing Office may negotiate a contract for materials grown, processed or manufactured in this state by small businesses, cooperatives, communities, self- determination corporations, or other such enterprises designed and operated to alleviate anti-poverty conditions and aided by state or federal anti-poverty programs or private philanthropy.
B. Prior to negotiating a contract under this section, the Central Purchasing Office shall make a determination of the reasonableness of the price and the quality of the materials and that the public interest will best be served by such a procurement.
SMALL BUSINESS ASSISTANCE PURCHASES. (I3-1-I84)
A. It is the policy of the state to encourage small businesses to do business with municipalities.
B. The Central Purchasing Office shall take all reasonable action to insure that small businesses are solicited on each procurement for which they appear to be qualified.
C. The Central Purchasing Office may make special provisions for progress payments to encourage procurement from small businesses in accordance with the regulations promulgated by the Town of Taos.
D. Bid Bonds. (I3-1-186) The Central Purchasing Office may reduce bid bond, performance bond or payment bond requirements, except for construction contract performance or payment bonds, to encourage procurement from small businesses.
PROCUREMENT PURSUANT TO CORRECTIONS INDUSTRIES ACT. (13-1-189)
Municipalities may purchase items of tangible personal property and services offered pursuant to the provisions of the Corrections Industries Act (33-8-1 to 33-8-15 NMSA 1978).
To obtain a catalogue, contact:
Correctional Industries Division
Corrections Department
P. 0. Box 27116
Santa Fe, NM 87502-7116 (505) 827-8637
USED ITEMS. (I3-1-155)
A. A Central Purchasing Office, when procuring used items of tangible personal property the estimated cost of which exceeds five thousand dollars ($5,000), shall request bids as though the items were new, adding specifications that permit used items under conditions to be outlined in the bid specifications, including but not limited to:
1) requiring a written warranty for at least ninety days after date of delivery, and
2) an independent certificate of working order by a qualified mechanic or appraiser.
B. Trade-in or exchange of used items (13-1-156)
1) A Central Purchasing Office, when trading in or exchanging used items of tangible personal property the estimated value of which exceeds five thousand dollars ($5,000) as part-payment on the procurement of new items of tangible personal property, shall:
a) have an independent appraisal made of the items to be traded in or exchanged. The appraisal shall be in writing, shall be made part of the procurement file and shall be a public record. The invitation for bids or request for proposals shall contain notice to prospective bidders or offerors of the description and specifications of the items to be traded in or exchanged, the appraised value of the items to be traded in or exchanged and the location where the items to be traded in or exchanged may be inspected; or
b) have two written quotes for purchase of the property at a specified price.
2) Award shall be based upon the net bid. Bidders or offerors shall compute their net bid or offer by deducting the appraised value or highest quote of the items to be traded in or exchanged from the gross bid or offer on the new items of tangible personal property to be procured.
a) If an amount offered in trade is less than the appraised value or the highest quote but is found to be a fair reflection of the current market, representative of the condition of the items of tangible personal property and in the best interest of the agency, the bid or offer may be accepted.
b) Documentation of the terms of acceptance shall be in writing, shall be made a part of the procurement file and shall be a public record.
EMPLOYEE PARTICIPATION. (13-l-l90)
A. No employee of the Town of Taos (as defined in the procurement code, §13-1-54) can participate directly or indirectly in a procurement when the employee knows that the employee or any member of the employee’s immediate family has a financial interest in the business seeking or obtaining a contract.
B. This prohibition does not apply if the financial interest is held in a blind trust
BRIBES. GRATUITIES, ETC. (13-1-I91) All contracts and solicitations therefore shall contain reference to the criminal laws prohibiting bribes, gratuities and kickbacks.
CONTINGENT FEES. (I3-1-192)
A. No person or business may be retained nor may a business retain a person or business to solicit or secure contracts upon an agreement or understanding that the compensation is contingent upon the award of the contract.
B. The only exception is obtaining professional services in anticipation of the receipt of federal or state grants or loans.
CONTEMPORANEOUS EMPLOYMENT. (13-l-193) No employee of the Town of Taos who is participating directly or indirectly in the procurement process can become or be, while employed by the Town of Taos, an employee of any person or business contracting with the governmental body by whom the employee is employed.
WAIVERS. (13-1-I94)
A. The governing body may grant a waiver from unlawful employee participation (I3-1- 190) or contemporaneous employment (13-1-I93) if it determines that:
1) the contemporaneous employment or financial interest of the employee has been publicly disclosed;
2) the employee will be able to perform his procurement functions without actual or apparent bias or favoritism; and
3) the employee participation is in the best interest of the Town of Taos.
USE OF CONFIDENTIAL INFORMATION. (l3-1-195) No employee of the Town of Taos or former employee may knowingly use confidential information for actual or anticipated personal gain or for the actual or anticipated personal gain of any other person.
PROTESTS.
RIGHTS. (13-I-172)
A. Any bidder or offeror who is aggrieved in connection with a solicitation or award of a
contract may protest to the Central Purchasing Office.
B. The protest must be submitted in writing within fifteen calendar days after knowledge of the facts or occurrences giving rise thereto.
C. What may be Protested. Protestants may file a protest on any phase of a solicitation or award, including, but not limited to, specification preparation, bid solicitation, award, cancellation of solicitation, bid rejection, or other matters arising from a solicitation or award of a contract.
CONTENTS. The protest shall:
A. include the name and address of the protester;
B. identify the contracting activity and the number of the solicitation, if any, and, if a
contract has been awarded, the contract number, if any;
C. contain a statement of the grounds for protest;
D. include supporting exhibits, evidence affidavits, or documents to substantiate any claim unless not available within the filing time in which case the expected availability date shall be indicated; and
E. specify the ruling requested from the central purchasing office.
PLEADINGS. No formal briefs or other technical forms of pleading or motion are required, but protests and other submissions should be concise, logically arranged, and direct.
PROCUREMENTS AFTER PROTEST. ( 13-1-173) In the event of a timely protest the Central Purchasing Office shall not proceed further with the procurement unless the Central Purchasing Office determines that the award of the contract is necessary to protect substantial interests of the Town of Taos.
AUTHORITY TO RESOLVE. (l3-l-l74) The Central Purchasing Office or a designated hearing officer has the authority to take any action reasonably necessary to resolve a protest. This authority shall be exercised in accordance with these regulations promulgated by the Town of Taos but shall not include the authority to award money for damages or attorneys’ fees.
A. Notice to Bidders and Offerors. The Central Purchasing Office shall give notice of the protest to the contractor if award has been made and to all bidders or offerors who appear to have a substantial and reasonable prospect of receiving an award if the protest or appeal is denied.
B. Notice to Using Agency. The Central Purchasing Office shall provide a copy of the protest to any using agency that requested the solicitation.
C. Notice shall be given by first class mail within five (5) days of the filing of the protest.
D. Information Generally Available. The Central Purchasing Office or hearing officer appointed pursuant to section 19.5 shall, upon written request, make available to any party to the protest information bearing on the substance of the protest which has been submitted by parties to the protest, except to the extent that withholding of information is permitted or required by law or regulation.
B. Responses. Any party to the protest, and the using agency, may file a response to the protest within fifteen (15) days after notice of protest is mailed by the Central Purchasing Office. All responses shall be filed with the Central Purchasing Office and a copy shall be mailed to the protester and other parties to the protest by the party or using agency filing a response. The protester may file a rebuttal to any response within ten (10) days of the filing of a response. All responses and rebuttals shall include supporting evidence, documents, exhibits, and affidavits, unless not available within the filing time in which case the expected availability date shall be indicated.
F. Conference or Hearing. The protester, any party to the protest, or the using agency may request a hearing before the Central Purchasing Office within ten (10) days after the deadline for filing the last permissible response or rebuttal. The Central Purchasing Office may schedule a conference or hearing at its discretion if no request has been filed. Notice of hearings shall be mailed to the protester, all interested parties and the using agency not less than fifteen (15) days before the scheduled hearing. Comments of Conference or Hearing. Any written comments to be submitted as a result of the conference or hearing must be received by the Central Purchasing Office within five (5) days of the date on which the conference or hearing was held, unless the Central Purchasing Office provides otherwise.
WRITTEN DETERMINATION. (13-1-175) The Central Purchasing Office or hearing officer shall promptly issue determination relating to the protest, and shall furnish a copy of the determination to the protester, other parties to the protest and the using agency. Such determination should include:
A. the reasons for the action taken;
B. a copy of the protest;
C. a copy of the bid or offer submitted by the protester and a copy of the bid or offer that is being considered for award or whose bid or offer is being protested;
D. a copy of the solicitation, including the specifications or portions thereof, relevant to the protest;
B. a copy of the abstract of bids or offers or relevant portions thereof
F. any other documents which are relevant to the protest, including the contract, if one has been awarded;
G. statement setting forth findings and conclusions in the matter together with any additional evidence or information deemed necessary in determining the validity of the protest. The statement shall be fully responsive to the allegations of the protest.
H. a statement of the relief granted; and
I. a statement to inform all parties of the right to appeal to the governing body and to
judicial review of the final determination pursuant to § 13-1-183 NMSA 1978.
NOTICE OF DETERMINATION. (p13-1-176) A copy of the determination issued under section 19.6 of these regulations shall immediately be mailed to the protestant and other bidders or offerors involved in the procurement.
APPEAL TO GOVERNING BODY.
A. Within fifteen (15) days of the filing of a determination of a protest by the central purchasing office or hearing officer, any aggrieved party may appeal to the governing body by filing an appeal with the municipal clerk and the Central Purchasing Office.
B. Notice of the appeal shall be mailed to all interested parties and the using agency by the Central Purchasing Office by first class mail.
C. The governing body shall within fifteen (15) days decide if it will hear the appeal. If the governing body decides not to hear the appeal, or fails to decide within 15 days, then any aggrieved party shall have the right to judicial review, pursuant § 13-1-183 NMSA 1978, with the 30-day time period beginning to run on the date the governing body decides not to hear the appeal or on the expiration of the 15-day period.
D. If the governing body decides to hear the appeal, the municipal clerk shall set the matter for hearing at a meeting of the governing body but not later than 30 days after the governing body decides to hear the appeal.
E. The governing body may receive additional evidence and may affirm, reject or modify the decision of the Central Purchasing Office. The governing body shall issue a written decision within ten (10) days of the hearing which shall be entered by the Clerk into the minutes book of the Town of Taos and which shall be mailed to all interested parties by the municipal clerk.
F. Any aggrieved person may appeal, pursuant to § 13-1-183 NMSA 1978, the decision of the governing body by filing an action in District Court within 30 days of the entry of the decision by the municipal clerk. On appeal, the record of the proceedings before the Central Purchasing Office and governing body shall constitute the record of the Town of Taos’s actions regarding the procurement at issue.
RELIEF PRIOR TO AWARD. (13-I-181) If, prior to award, the Central Purchasing Office or governing body makes a determination that a solicitation or proposed award of a contract is in violation of law, then the solicitation or proposed award shall be cancelled.
RELIEF AFTER AWARD. (13-l-l82)
A. No Fraud or Bad Faith. If, after an award, the Central Purchasing Office or governing body makes a determination that a solicitation or award of a contract is in violation of law and that the business awarded the contract has not acted fraudulently or in bad faith, then:
1) the contract may be ratified, affirmed and revised to comply with law, provided that a determination is made that doing so is in the best interest of the Town of Taos; or
2) the contract may be terminated and the business awarded the contract shall be compensated for the actual expenses reasonably incurred under the contract, plus a reasonable profit, prior to termination.
B. Fraud or Bad Faith. If, after an award, the Central Purchasing Office or governing body makes a determination that a solicitation or award of a contract is in violation of law and that the business awarded the contract has acted fraudulently or in bad faith, the contract shall be cancelled.
RELIEF FOR PROTESTER. The Central Purchasing Office or governing body may award the protester the reasonable costs incurred in connection with the solicitation, including bid preparation costs, when a protest is sustained and the protester should have been awarded the contract but was not. No award of money damages or attorney’s fees shall be allowed.
DEBARMENT OR SUSPENSION. AUTHORITY. (13-I-177)
A. The Central Purchasing Office, after reasonable notice to the business involved, has the authority to recommend to the governing body of the Town of Taos the suspension or debarment of a business for cause in consideration for award of contracts other than contracts for professional services.
B. Debarment shall not exceed a period of three years and suspension shall not exceed three months. The authority to debar or suspend shall be exercised in accordance with regulations adopted by the Town of Taos. There must be notice and an opportunity for a hearing.
CAUSES. ( 13-1-178) The causes for debarment are set forth in §13-1-178 NMSA 1978.
There is also a catchall in the statutes in which the Central Purchasing Office is allowed to recommend suspension or debarment for any cause occurring within three years of procurement which the Central Purchasing Office determines to be so serious and compelling as to affect responsibility of a contractor.
DETERMINATION. (I3-1-179) The governing body of the Town of Taos shall issue a written determination to debar or suspend which shall:
A. State the reasons for the actions taken, and
B. Inform the business involved of its rights to judicial review.
NOTICE. (13-1-180) A copy of the determination shall be immediately mailed to the debarred or suspended business.
JUDICIAL REVIEW.
TIME LIMIT. (13-1-l83) All actions for judicial review must be filed within thirty days of receipt of notice of the determination.
VENUE. Venue is in the district court for the county in which the Town of Taos is located.
STANDARD OF REVIEW. All determinations made by the Town of Taos shall be sustained unless arbitrary, capricious, contrary to law, clearly erroneous or not based upon substantial evidence.
PUBLIC WORKS (CONSTRUCTION)
PERFORMANCE AND PAYMENT BONDS. (13-4- 18).
When a construction contract is awarded in excess of $25,000, performance and payment bonds shall be delivered by the contractor upon the execution of the contract.
If a contractor fails to deliver the required bonds, the contractor’s bid shall be rejected and its bid security shall be enforced to the extent of actual damages.
The performance bond shall be satisfactory to the Town of Taos, executed by a surety company authorized to do business in this state and the surety to be approved by either the Town of Taos’s governing body, the state board of finance or in federal circular 570 as published by the United States treasury department.
A. The bond shall be in an amount equal to 100% of the contract price
.
B. Prior to bidding, the Central Purchasing Office may reduce the amount of the performance bond to not less than 50% of the contract price if it is determined to be less costly or more advantageous to the Town of Taos to self-insure a part of the performance of the contractor.
The payment bond shall be satisfactory to the Town of Taos, executed by a surety company authorized to do business in this state and the surety company to be approved by either the Town of Taos’s governing body, the state board of finance or in federal circular 570.
A. The bond shall be in an amount equal to 100% of the contract price, 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
B. Prior to bidding, the Central Purchasing Office may reduce the amount of the payment bond to not less than 50% of the contract price if it is determined that is in the best interest of the Town of Taos to do so. Factors to be considered in order to make such a determination include, but are not limited to: the value and number of subcontracts to be awarded by the contractor and the value of the contract.
Federal Circular 570 is published annually, each July 1, and lists companies holding certificates of authority, as acceptable sureties on federal bonds. Copies of this circular may be obtained from the annual July 1st Federal Register or from:
Government Printing Office
Superintendent of Documents
P. 0. Box 371954
Pittsburgh, PA 15250-7954 Phone: (202) 512-1800 Fax: (202) 512-2250
PROJECTS UNDER $25,000. For contracts under $25,000 the Town of Taos may require the bonds in this section at its sole and complete discretion.
MINIMUM WAGE RATES (CONSTRUCTION). (13-4-11) Every proposed construction contract in excess of $60,000 shall contain a provision stating the minimum wages to be paid various classes of laborers and mechanics. Contact the State Labor Commissioner for a wage rate determination.
Every contract in excess of $2000.00 which is funded with Federal monies shall comply with the Davis-Bacon Act. (see Davis-Bacon Act for more info)
CONSTRUCTION CONTRACT RETAINAGE. (13-4-29)
State statute regulates the amount of retainage that the Town of Taos may withhold from a contractor’s progress payment. It is extremely important that the contract documents adequately address "good cause" issues whereby the Town of Taos may withhold more retainage if the situation so warrants. The statute requires:
A. unless good cause exists, the Central Purchasing Office shall not withhold an amount in excess of 5% of payments due and owing a contractor and shall not withhold an amount in excess of 2% of the total contract price as retainage after it determines that the contract is substantially completed.
B. upon completion and acceptance of each separate building, public work or other division of the contract, on which the price is stated separately in the contract, payment may be made without retention of a percentage.
Supplemental General Conditions as part of the contract should be issued that adequately define "good cause" issues that the Owner and Architect/Engineer feel will adequately protect the Town of Taos in the event additional retainage is deemed necessary to be withheld during a construction project. Presently, "good cause" issues are defined in A.I.A. General Conditions (A.I.A. Document A20l, 1976 Edition), Paragraph 9.6 and N.S.P.E. General Conditions (NSPE Document No. 1910-8, 1983 Edition), Paragraphs 14.7 and 152.]
"Good cause" issues should include, but are not limited to:
A. defective work not remedied;
B. third party claims filed or reasonable evidence indicating probable filing of such claims;
C. failure of the contractor to make payments properly to subcontractors or for labor, materials or equipment;
D. reasonable evidence that the work cannot be completed for the unpaid balance of the contract sum;
E. damage to the owner or another contractor;
F. reasonable evidence that the work will not be completed within the contract time;
G. persistent failure to carry out the work in accordance with the contract documents, or;
H. the contract sum has been reduced by change order.
PUBLIC WORKS MEDIATION. (13-4C-1 through 13-4C-ll)
State statute mandates that all disputes related to the performance of a public works project shall exhaust procedures set forth in the Public Works Mediation Act before seeking judicial relief in a court of law.
A dispute that arises under an arbitration clause of a contract for a public works project that includes a clause in the contract that requires arbitration is exempt from the provisions of the Public Works Mediation Act.
When a public works project involves the expenditure of federal funds, the mediation process shall be conducted in accordance with mandatory applicable federal law and regulations. When mandatory applicable federal law or regulations are inconsistent with Public Works Mediation Act compliance with federal law or regulations shall constitute compliance with the Public Works Mediation Act.
See state statute for particulars of the mediation process mandated by law)