HomeMy WebLinkAboutordinance.council.046-91 ORDINANCE NO. 46
Series of 1991
AN ORDINANCE BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, TO
AMEND THE MUNICIPAL CODE BY ADDING A NEW CHAPTER 3 FOR THE
ADOPTION OF A PROCUREMENT CODE.
WHEREAS, the City Council recognizes the need to simplify, clarify, and standardize the law
governing the procurement of goods and services by the City; and,
WHEREAS, it is beneficial to increase public confidence in the procedures followed by City
employees in public procurement; and,
WHEREAS, the public welfare requires effective competition among vendors of goods and
services to the City and the fair and equitable treatment of all persons who deal with the
procurement system of the City.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF ASPEN,
COLORADO:
Section 1
That the Aspen Municipal Code is hereby amended by the addition of a new Chapter 3
entitled "Procurement Code", to read as follows:
Chapter 3
PROCUREMENT CODE
ARTICLE 1 - GENE1GkL PROVISIONS
Sec. 3-1. Purposes, Interpretation of Rules.
(a) Interpretation. This Code shall be construed and applied to promote its underlying
purposes m~d policies.
(b) Purposes and Policies. The underlying purposes and policies of this Code are:
(1) to simplify, clarify, and standardize the law governing procurement by this
City;
(2) to permit the continued development of procurement policies and practices;
(3) to provide for increased public confidence in the procedures followed in
public procurement;
(4) to ensure the fair and equitable treatment of ail persons who deal with the
procurement system of this City;
(5) to provide increased economy in City procurement activities and to maximize
to the fullest extent practicable the purchasing value of public funds of the
City;
(6) to foster effective broad-based competition within the free enterprise system;
and
(7) to provide safeguards for the maintenance of a procurement system of quality
and integrity.
Sec. 3-2. Procurement Contrary to This Chapter.
Except as otherwise may be provided by law, it shall be unlawful for any City officer or
employee to order a procurement contrary to the provisions of this Chapter. Any procurement
or contract so made shall be void and wholly without effect and shall not be binding upon the
City in any manner.
Sec. 3-3. Requirement of Good Faith
This Code requires all parties involved in the negotiation, performance, or administration
of City contracts to act in good faith.
Sec. 3-4. Application of this Code
This Code shall apply to every expenditure of public funds irrespective of their source,
including federal assistance monies, by this City, acting through a Governmental Body as defined
herein, under any contract, except that this Code shall not apply to either grants or contracts
between the City and other governments. Nothing in this Code or in regulations promulgated
hereunder shall prevent any Governmental Body from complying with the terms and conditions
of any grant, gift, bequest, or cooperative agreement.
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~0 Sec. 3-5. Definitions
The words defined in this Section shall have the meanings set forth below whenever they
appear in this Code, unless:
(1) the context in which they are used clearly requires a different meaning; or
(2) a different definition is prescribed for a particular article or provision.
(a) Brand name means a specification limited to one (1) or more items by
manufacturer's name or catalog number.
(b) Business means any corporation, partnership, individual, sole proprietorship, joint
stock company, joint venture, or any other private legal entity.
(c) Change Order means a written order signed by a Procurement Officer, modifying
an existing contract to authorize changes within the scope of work, additions or
deletions to the work or an adjustment to any other provision of the contract.
(d) Construction means the process of building, altering, repairing, improving, or
demolishing any public structure or building, or other public improvements of' any
kind to any public real property. It does not include the routine operations, routine
repair, or routine maintenance of existing structures, buildings, or real property.
(e) Contract means any agreement enforceable by law between the City and one (1) or
more outside parties, regardless of form or title, for procurement of Supplies,
Services or Construction.
(f) Contract Modification means any written alteration in specifications, delivery point,
rate of delivery, period of performance, price, quantity, or other provisions of any
contract accomplished by mutual action of the parties to the contract. Before a
contract is executed, modifications are typically processed as an Addenda to the
Invitation for Bids or Request for Proposals; after the contract is executed,
modifications are processed as Change Orders.
(g) Contractor means any person having a contract with a Governmental Body.
(h) Cost-reimbursement Contract means a contract under which a contractor is
reimbursed for costs which are allowable and allocable in accordance with the
contract terms and the provisions of this Code, and a fee, if any.
(i) Data means recorded information, regardless of form or characteristic.
(j) Department Head means the person in charge of each major administrative division
of the City who has overall management responsibility for an operation or a group
of related operations within a functional area, as determined by the City Manager.
.. Any authority for procuring Supplies, Services or Construction granted to
Department Heads pursuant to this Chapter are intended to be granted similarly to
Agency Heads and Assistant City Managers.
(k) Designee means a duly authorized representative of a person holding a superior
position.
(1) Employee means an individual drawing a salary from a Governmental Body.
(m) Established Cataloe Price means the price included in a Catalog, price list, schedule,
or other form that:
. (1) is regularly maintained by a manufacturer or contractor;
(2) is either published or otherwise available for inspection by customers; and
(3) states prices at which sales are currently or were last made to a significant
number of any category of buyers constituting the general buying public for
the Supplies or Services involved.
(n) Governmental Body means any department, commission, council, board, bureau,
committee, institution, legislative body, agency, government corporation, or other
establishment or official of the executive, legislative, or judicial branch of this City.
(o) Grant means the furnishing by the City of assistance, whether financial or otherwise
to any person to support a program authorized by law. It does not include an award
whose primary purpose is to procure an end product, whether in the form of
Supplies, Services, or Construction; a contract resulting from such an award is not
a grant but a Procurement Contract.
(p) Invitation for Bids means all documents, whether attached or incorporated by
reference utilized for soliciting bids.
(cO Legal Services means the advice, representation, document preparation or related
services of an attorney as special counsel provided to the City upon the request of
the City Attorney.
(r) Litigation Services means professional or other services procured by the City
Attorney for the purpose of evaluating, preparing, providing or presenting evidence
at the trial of any lawsuit to which the City is a party. Litigation services shall not
include Legal Services.
(s) May denotes the permissive.
(t) Person means any business, individual, union, committee, club, other organization,
or group of individuals.
(u) Procurement means buying, purchasing, renting, leasing, or otherwise acquiring any
supplies, Services, or Construction. It also includes all functions that pertain to the
obtaining of any Supply, Service, or Construction, including description: of
requirements, selection and solicitation of sources, preparation and award of
contract, and ail phases of contract administration. Procurement shall not include the
buying, purchasing, renting or leasing of real property.
(v) Public Notice shail mean any publication reasonably caiculated to inform responsible
bidders or offerors. Public notice shail occur for a reasonable time and may be
disseminated through any means of mass communication, including, but not limited
to, newspapers, other written publications, posting, television, radio, other
broadcasting media, and electronic billboards.
(w) Procurement Officer means any Department Head, Agency Head, Assistant City
Manager, or the City Attorney whenever such person undertakes the duties set forth
herein by approving source selection and contract formation for the procurement of
any Supply, Service or Construction on behaif of the City.
(x) Professional Services means the furnishing of labor, time, effort or expertise by a
contractor with speciaiized knowledge in a field, including but not limited to
architecture, engineering, medicine, finance, accounting, appraisai and land
surveying.
(y) Purchase Description means the words used in a solicitation to describe the Supplies,
Services, or Construction to be purchased, and includes specifications attached to,
or made part of, the solicitation.
(z) Regulation means a Governmental Body's statement, having generai or particular
applicability and future effect, designed to implement, interpret, or prescribe law or
policy, or describing organization, procedure, or practice requirements.
(aa) Request for Proposais means all documents, whether attached or incorporated by
reference, utilized for soliciting proposals~
(bb) Responsible Bidder or Offeror means a person who has the capability in all respects
to perform fully the contract requirements, and the integrity and reliability which
will assure good faith performance.
(cc) Responsive Bidder means a person who has submitted a bid which confirms in all
material respects to the Invitation for Bids or Request for Proposais.
(dd) Services mean the performance of maintenance or the furnishing of labor, time or
effort which does not involve the delivery of a specific end product other than a
report or other item which is merely incidental to the performance of the service.
Services shail not include services rendered under an employment agreement nor
shail it include professionai services as that term is defined in this Section.
(ee) Shall denotes the imperative.
(fO Specification shall mean any description of the physical or functional characteriStics
of the nature of the Supply, Service or Construction item. It may include a
or
description of any requirement for inspecting, testing or preparing a Supply, SerVice
or Construction item for delivery or a procedure for determining whether the
requirements are satisfied.
(gg) Supplies means all property, including but not limited to equipment, materials,
printing, insurance, and leases of real property, excluding land or permanent interest
in land.
(hh) Surplus Supplies means any supplies no longer having any use to the City. This
includes obsolete supplies, scrap materials, and non-expendable supplies that no
longer have a useful life or purpose
(ii) Using Agency means any Governmental Body of the City which utilizes any
Supplies, SerVices, or Construction procured under this Code.
Sec. 3-6. Public Access to Procurement Information.
Procurement information shall be a public record to the extent provided by law and shall be
available to the public as provided by law.
Sec. 3-7. Specifications.
(a) Intent. All specifications, including but not limited to design, performance and brand
name specifications, shall be drafted so as to provide a clear and concise description
of the Supply, Service or Construction desired.
(b) Preparation. Before appropriate approvals are obtained in accordance with Section
3-11, for a procurement in excess of one thousand dollars ($1000.00), the
Procurement Officer shall cause to be prepared written specifications detailing the
City's requirements for the Supplies, Services or Construction.
(c) Brand Name Specifications. A brand name specification may be used when the
Procurement Officer has determined that sufficient sources for competition exist for
the procurement of the Supply and that the use of the brand name specification is not
intended to limit or restrict competition. A brand name specification may also be
used to describe the standard of quality, performance and other salient
characteristics. In such cases, the solicitation shall contain explanatory language that
the use of a brand name is for the purpose of describing the standard desired and that
the substitution of equivalent Supplies is permitted.
ARTICLE 2 - PROCUREMENT ORGANIZATION AND AUTHORITY
Sec. 3-8. Authority and Duties of the Finance Department.
(a) The City Manager shall appoint, with the prior consultation of the Director of the
Finance Department, Procurement Officers who, because of their particular
knowledge and expertise, shall serve as principal procurement officials for the City
of Aspen and perform those duties set forth in this Chapter with respect to the
procurement of specialized Supply, Service or Construction items. (By way of
example and not as limitation upon this authority, the specialized Supply, Service or
Construction items delegated to a special Procurement Officer may include data
processing equipment, motor vehicles, insurance policies, office supplies and
furniture, and City construction projects.)
(b) Except as otherwise provided in this Code, the Finance Depm-tment shall have the
authority and responsibility to promulgate regulations with the written approval of
the City Manager, consistent with this Code, governing the procurement,
management, control, and disposal of any and all Supplies, Services, and
Construction to be procured by the City. Said regulations shall include, but not
necessarily be limited to the following subject matters:
(1) City owned vehicles;
(2) A City-wide system for utilizing purchase orders for all procurements;
(3) Travel by employees and elected official on City business;
(4) The establishment and use of petty cash funds;
(5) The appointment and utilization of special Procurement Officers for the
procurement of specialized Supplies, Services or Construction items pursuant
to Section 3-8(a) herein; and
(6) Supply management systems, including the disposition of Surplus Supplies
and inventory maintenance of capital Supplies.
(c) No regulation shall change any commitment, right or obligation of the City or of a
Contractor under a contract in existence on the effective date of such regulation.
The Finance Department shall consider and decide matters of policy within the
provisions of this Code including those referred to it by Department Heads. The
Finance Department shall have the power to audit and monitor the implementation
of its regulations and the requirements of this Code, but shall not exercise authority
over the award or administration of any particular contract or over any disPute,
claim, or litigation pertaining thereto.
Sec. 3-9. Duties of Department Heads and Procurement Officers.
(a) Duties of Department Heads. Department Heads shall, in accordance with regulations
which may be promulgated by the Finance Department, work closely with special
Procurement Officers appointed for the procurement of specialized Supplies, Services
or Construction pursuant to Section 3-8(a) herein, the City Manager and other
Department Heads to ensure compliance by all employees and departments of the
City of Aspen with the provisions of this Chapter and any regulations which may be
promulgated pursuant thereto.
(b) Duties of Procurement Officers. Except as otherwise provided in this Code,
Procurement Officers shall, in accordance with regulations which may be
promulgated by the Finance Department:
(1) Act to procure for the City the highest quality in Supplies, Services and
Construction at the least expense to the City consistent with the provisions of
this Code and regulations promulgated pursuant to this Code by the Finance
Department;
(2) Discourage uniform bidding and endeavor to obtain as full and open
competition as possible on all purchases and sales;
(3) Establish and maintain programs for the inspection, testing, and acceptance
of Supplies, Services, and Construction;
(4) Explore the possibilities of "bulk purchasing" so as to take full advantage of
discounts;
(5) Act so as to procure for the City all federal and state tax exemptions to which
it might be entitledi
(6) Cooperate with the Finance Department, with other Department Heads, and
other Governmental Bodies, so as to secure for the City the maximum
efficiency in budgeting and accounting;
(7) Have the authority, upon approval of the City Manager, to identify vendors
who default on their quotations, to identify irresponsible bidders, and to
begin disqualification proceedings against them in accordance with this Code;
and
(8) Endeavor to make purchases of recycled materials and other Supplies that
preserve, to the maximum extent possible, the environment and minimize
energy consumption for their production or use.
(9) Make a special effort to solicit and encourage local, minority and women
owned businesses and suppliers to participate in the City's procurement
process.
Sec. 3-10. Authority of City Attorney.
The City Attorney shall have the same authority with respect to procurements for the City
Attorney's Office as set forth herein for the City Manager. Notwithstanding any provision to the
contrary in this Chapter relating to competition or otherwise, the City Attorney shall have the
authority to contract for Litigation Services, as defined herein, by any method that the City
Attorney believes is in the City's best interests.
Sec. 3-11. Approvals.
No procurement shall be made without the prior written approvals required to be made in
accordance with this Section.
(a) City Council. All procurements subject to the terms of this Chapter in excess of
twenty five thousand dollars ($25,000.00) shall be approved by City Council by
motion or resolution.
(b) City Manager. All procurements subject to the terms of this Chapter in excess of two
thousand dollars ($2,000.00) shall be approved by the City Manager.
(c) Department Heads. Department Heads shall have the authority to approve
procurements in an amount which does not exceed two thousand dollars ($2,000i00),
without the prior approval of the City Manager or City Council; provided, however
that sufficient funds are available in the Department Head's department budget for
the item(s) purchased.
No procurement shall be divided so as to avoid the approvals that would otherwise be
required by the above.
Sec. 3-12. Formal Contract Procedure.
Except as otherwise provided herein, all procurement in excess of ten thousand dollars
($10,000.00), or whenever a Department Head or City Manager requests the same, shall be
purchased by a formal written contract approved as to form by the City Attorney. Unless the
Department Head seeking approval from the City Manager explains the lack of a need for same,
all procurement in excess of two thousand dollars ($2,000.00) shall be purchased by formal
written contract approved as to form by the City Attorney and executed by the City Manager.
ARTICLE 3 - SOURCE SELECTION AND CONTRACT FORMATION
Sec. 3-13. Methods of Source Selection - Affh'mative Action Goals.
(a) Unless otherwise authorized by law, all City contracts shall be awarded by
competitive sealed bidding, pursuant to Section 3-14 (Competitive Sealed Bidding), except as
provided in:
(1) Section 3-15 (Competitive Sealed Proposals);
(2) Section 3-16 (Small Purchases);
(3) Section 3-17 (Miscellaneous Exemptions);
(4) Section 3-18 (Emergency Procurement);
(5) Section 3-19 (State Bid).
(b) The following preferences shall be considered in source selection for all City
contracts as part of the City's affirmative action goals relating to local, women and minority
owned businesses:
(1) Preference shall be given in the procurement of Supplies and Services
produced, manufactured, sold, distributed, offered or grown in the City of
Aspen, if such preference is not for Supplies or Services of inferior quality
to those offered by competitors outside of the City; and, in the procurement
of Services and Construction contracts to bidders with offices or a place of
business located within the City of Aspen if all other evaluation criteria set
forth herein or in the Invitation for Bids or Request for Proposals are equal
to bidders with offices located outside of the City of Aspen. Secondary
preference may be given by the City in procurement of Supplies and Services
produced, manufactured, sold, distributed or grown in the Roaring Fork
River valley if such preference is not for Supplies or Services of inferior
quality to those offered by competitors outside of said valley; and, in the
procurement of Services and Construction contracts to bidders located in the
Roaring Fork River valley if all other evaluation criteria set forth herein, or
in the Invitation for Bids or Requests for Proposals, are equal to bidders
located outside of said valley.
For any procurement not exceeding $10,000.00 the preference given pursuant
to this subsection 3-13(b)(1) may be in an amount not to exceed five percent
(5%) of the total price.
(2) Preference shall be given in the procurement of Supplies, Services and
Construction to minority and women owned businesses provided all other
evaluation criteria set forth herein, or in the Invitation for Bids or Request
for Proposals, are equal to other bids or proposals received.
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Sec. 3-14. Competitive Sealed Bidding.
(a) Conditions for Use. Contracts shall be awarded by competitive sealed bidding
except as otherwise provided in Section 3-13 (Methods of Source Selection).
(b) Invitation for Bids. An Invitation for Bids shall be issued and shall include a
Purchase Description, and all contractual terms and conditions applicable to the
procurement. The Purchase Description shall seek to promote overall economy for
the purposes intended and encourage competition in satisfying the City's needs, and
it shall not be unduly restrictive.
(c) Public Notice. Adequate public notice of the Invitation for Bids shall be given a
reasonable time prior to the date set forth therein for the opening of bids. If a state
or federal law or regulation controls the procurement process for any particular
purchase, adequate public notice may be mandated by applicable state or federal laws
or regulations. In the absence of exigent or emergency circumstances described in
Section 3-18 (Emergency Procurement), adequate notice shall mean publication of
a public notice which summarizes the Invitation for Bids in a newspaper of general
circulation for two consecutive weeks with the last publication being not more than
one week prior to the date set forth therein for the opening of bids.
(d) Bid Opening. Bids shall 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 such other relevant information as may be specified by regulation,
together with the name of each bidder shall be recorded; the record and each bid
shall be open to public inspection.
(e) Facsimile Transmissions. Facsimile transmissions shall not be accepted for either
bids or corrections to previously submitted bids. The City of Aspen by receiving
facsimile transmissions makes no representation with respect to its ability to maintain
the confidentiality of the contents of such transmissions.
(f) Bid Acceptance and Bid Evaluation. Bids shall be unconditionally accepted without
alteration or correction, except as authorized in this Code. Bids shall be evaluated
based on the requirements set forth in the Invitation for Bids, which may include
criteria to determine acceptability such as inspection, testing, quality, workmanship,
delivery, and suitability for a particular purpose. Those criteria that will affect the
bid price and be considered in evaluation for award shall be objectively measurable,
such as discounts, transportation costs, and total or life cycle costs. The Invitation
for Bids shall set forth the evaluation criteria to be used. In addition to the
evaluation criteria set forth in the Invitation to Bid, the following criteria may be
considered, in addition to price:
(1) The ability, capacity and Skill of the bidder to perform the contract or
provide the Service or Construction required;
(2) Whether the bidder can perform the contract or provide the Service or
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Construction promptly, or within the time specified, without delay or
~O interference;
(3) The character, integrity, reputation, judgment, experience and efficiency of
the bidder;
(4) The quality of performance of previous contracts or Services;
(5) The previous and existing compliance by the bidder with laws and ordinances
relating to the contract or Service;
(6) The sufficiency of the financial resources and ability of the bidder to perform
the contract or provid& the Service or Construction;
(7) The quality, availability and adaptability of the Supplies, Services or
Construction to the particular use required; and,
(8) The ability of the bidder to provide future maintenance and Service for the
use of the subject of the contract.
(9) The affirmative action goal preferences set forth at Section 3-13(b) herein.
(g) Correction or Withdrawal of Bids; Cancellation of Awards. Correction or
withdrawal of inadvertently erroneous bids before or after award, or cancellation of
awards or contracts based on such bid mistakes, shall be permitted. After bid
opening no changes in bid prices or other provisions of bids prejudicial to the
interest of the City or fair competition shall be permitted. Except as otherwise
provided by regulation, all decisions to permit the correction or withdrawal of bids,
or to cancel awards or contracts based on bid mistakes, shall be supported by a
written determination made by the Department Head and approved by the City
Attorney.
(h) Award. The contract shall be awarded with reasonable promptness by written notice
to the lowest Responsible and Responsive Bidder whose bid meets the requirements
and criteria set forth at subsection (f) herein and in the Invitation for Bids or Request
for Proposals. In the event all bids for a construction project exceed available funds
as certified by the appropriate fiscal officer, and the low Responsive and Responsible
Bid does not exceed such funds by more than ten percent, the Procurement Officer
is authorized in situations where time or economic considerations preclude re-
solicitation of work of a reduced scope to negotiate an adjustment of the bid price,
including changes in the bid requirements with the low Responsive and Responsible
bidder, in order to bring the bid within the amount of available funds. If the low bid
exceeds available funds by ten percent or more, the City Manager may authorize the
Procurement Officer to negotiate an adjustment of the bid price after determining in
writing that such action is in the best interests of the City. Even if the lowest bid
does not exceed available funds a Procurement Officer, with the City Manager's
prior approval, shall have the authority, consistent with the general underlying
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purposes and policies of this Code as set forth at Section 3-1(b) herein and in the
best interests of the City, to negotiate with the lowest Responsible and Responsive
Bidder to adjust the bid price, alter the quantity or quality of Supplies to be
procured, or alter the scope of Services or Construction to be provided. If the
procurement is subject to City Council approval pursuant to Section 3-11 herein; the
written notice shall indicate that the award is subject to City Council approval.
(i) Multi-Step Sealed Bidding. When it is considered impractical to initially prepare a
Purchase Description to support an award based on price, an Invitation for Bids may
be issued requesting the submission of unpriced offers to be followed by an
Invitation for Bids limited to those bidders whose offers have been qualified under
the criteria set forth in the first solicitation.
Sec. 3-15. Competitive Sealed Proposals.
(a) Conditions for Use. Procurement for the following are eligible for award by
competitive sealed proposals:
(1) When the Procurement Officer determines in writing that the use of
competitive sealed bidding is either not practicable or not advantageous to the
City, a contract may be entered into by competitive sealed proposals. The
Finance Department may provide by regulation that it is either not practicable
or not advantageous to the City to procure specified types of SupPlies,
Services, or Construction by competitive sealed bidding; or
(2) For professional services.
(b) Requests for Proposals. Proposals shall be solicited through a Request for
Proposals. The Request for Proposals shall seek to promote overall economy for the
purposes intended and encourage competition in satisfying the City's needs, and it
shall not be unduly restrictive.
(c) Public Notice. Adequate public notice of the Request for Proposals shall be given
in a reasonable time prior to the date set forth therein for the receipt of proposals.
If a state or federal law or regulation controls the procurement process for any
particular purchase, adequate public notice may be mandated by applicable state or
federal laws or regulations. In the absence of exigent or emergency circumstances
described in Section 3-18 (Emergency Procurement), adequate notice shall mean
publication of a public notice which summarizes the Request for Proposals in a
newspaper of general circulation for two consecutive weeks with the last publication
being not more than one week prior to the date set forth therein for the opening of
bids.
(d) Receipt of Proposals. Proposals shall be opened so as to avoid disclosure of contents
to competing offerors during the process of negotiation. A list of proposals received
shall be prepared and shall be open for public inspection after contract award.
(e) Evaluation Factors. The Request for Proposals shall state the relative importance of
and other evaluation factors.
price
(f) Discussion with Responsible Offerors and Revisions to Proposals. As provided in
the Request for Proposals, discussions may be conducted with responsible offerors
who submit proposals determined to be reasonably susceptible of being selected for
award for the purpose of clarification to assure full understanding of, and
responsiveness to, the solicitation requirements. Offerors shall be accorded fair and
equal treatment with respect to any opportunity for discussion and revision of
proposals and such revisions may be permitted after submission and prior to award
for the purpose of obtaining best and final offers. In conducting discussions, there
shall be no disclosure of any information derived from proposals submitted by
competing offerors.
(g) Award. Award shall be made to the responsible offeror whose proposal is
determined in writing to be the most advantageous to the City taking into
consideration price and the evaluation factors set forth in the Request for Proposals
and the additional criteria set forth at Section 3-14(f) herein. No other factors or
criteria shall be used in the evaluation. The contract file shall contain the basis on
which the award is made.
Sec. 3-16. Small Purchases.
(a) Small Purchases. Any procurement not exceeding $10,000.00 may be made by the
Procurement Officer by negotiation without formal competition for the purchase of
Supplies, Services or Construction; subject, however, to the approval process
required by Section 3-11.
(b) Negotiated Procurement. Negotiated procurement shall be made on the open market,
but whenever practical or advantageous, the Procurement Officer shall obtain quotes
from at least two (2) suppliers or vendors. Negotiated procurement shall be awarded
to the person supplying the lowest Responsible Bid or Offer.
(c) Division of Procurement. No contract shall be divided so as to constitute a Small
Purchase under this Section.
Sec. 3-17. Miscellaneous Exemptions.
(a) A contract may be awarded for a Supply, Service, or Construction item without
competition when the Procurement Officer determines in writing that one or more
of the following conditions exist.
(1) There exists only one responsible source;
(2) Although there exists more than one responsible source, a competitive
process cannot reasonably be used or, if used, will result in a substantially
higher cost to the City, will otherwise injure the City's financial interests, or
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will substantially impede the City's administrative functions or the delivery
of services to the public, or to provide uniform and economical repair and
maintenance;
(3) A particular Supply or Service is required in order to standardize or maintain
standardization for the purpose of reducing financial investment or
simplifying administration;
(4) The Supply is perishable;
(5) The Supply qualifies as an object of fine art;
(6) A particular Supply is required to match Supplies in use;
(7) A particular Supply is required to enable use by a specific individual;
(8) A particular Supply is prescribed by a professional advisor;
(9) The Supply, Service or Construction is the subject of a Change Order to an
existing contract for Construction which does not exceed a cumulative cost
of fifteen percent (15%) of the original contract awarded pursuant to an
Invitation for Bids.
(10) In any case where the City has, within the preceding two (2) years, pursuant
to an Invitation to Bid, awarded a contract for the procurement of any
Supply, Service or Construction on a unit price basis, the Procurement
Officer may negotiate with the successful bidder for the purchase of
additional quantities of the Supply, units of Service or Construction. No such
procurement shall be made at a price higher than the previous award.
(b) The Procurement Officer shall submit each determination made under this Section
to the City Manager for prior approval.
Sec. 3-18. Emergency Procurement.
(a) Notwithstanding' any other provision of this Code, in the case of an apparent
emergency which threatens the public health, welfare, or safety requiring the
immediate purchase of a Supply, Service or Construction, the City Manager shall
have the power to authorize the Procurement Officer to secure the necessary items
in the open market without competition regardless of the amount of the expenditure.
(b) In no event shall the contract price exceed commercially reasonable prices.
(c) A full written report of the circumstances of all emergency purchases over ten
thousand dollars ($10,000.00) shall be made by the City Manager to the City
Council. The report shall be received by the City Council at a regular meeting and
such report shall be open to public inspection.
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Sec. 3-19. State Bid.
A contract may be awarded for a Supply, Service, or Construction item on the terms and
to the contractors that have been selected under the State of Colorado's competitive bid system
for use by local government.
Sec. 3-20. Cancellation of Invitations for Bids or Requests for Proposals.
An Invitation for Bids, a Request for Proposals, or other solicitation may be canceled, or
any or all bids or proposals may be rejected in whole or in part as may be specified in the
solicitation. The reasons therefor shall be made a part of the contract file.
Sec. 3-21. Responsibility of Bidders and Offerors.
(a) Determination of Non-responsibility. A written determination of non-responsibility of
a bidder or offeror may be made by the Procurement Officer upon reasonable grounds. The
unreasonable failure of a bidder or offeror to promptly supply information in connection with
an inquiry with respect to responsibility may be grounds for a determination of non-responsibility
with respect to such bidder or offeror.
(b) Right of Nondisclosure. Information furnished by a bidder or offeror pursuant to this
Section shall not be disclosed outside of the City Manager's Office, the City Attorney's Office,
the Finance Department or the Procurement Officer without prior written consent by the bidder
or offeror.
Sec. 3-22. Pre-qualifications of Suppliers.
Prospective suppliers may be pre-qualified for particular types of Supplies, Services, and
Construction. Solicitation mailing lists of potential contractors shall incinde but shall not be
limited to such pre-qualified suppliers.
Sec. 3-23. Bid Security.
(a) Requirement for Bid Security. When deemed necessa~y by a Department Head or
the Procurement Officer, bid bonds or other equivalent security shall be required and
the Invitation for Bids or Request for Proposals shall describe the requirements. Bid
security shall be a bond provided by a surety company authorized to do business in
this state, or the equivalent in cash, or some other instrument in a form satisfactory
to the City.
(b) Amount of Security Bid. Bid security shall be in an amount equal to at least five
percent (5%) of the amount of the bid.
(c) Rejection of Bids for Noncompliance with Bid Security Requirements. When the
Invitation for Bids requires security, noncompliance requires that the bid be rejected
unless it is determined that the bid falls to comply in a non-substantial manner with
the security requirements.
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(d) Withdrawal of Bids After the bids are opened, ~they shall be irrevocable for the
period specified in the Invitation for Bids, except as provided in Section 3-~4(f)
(Competitive Sealed Bidding, Correction or Withdrawal of Bids; Cancellation of
Awards). If a bidder is permitted to withdraw its bid before award, no action shall
be had against the bidder or the bid security.
(e) Forfeiture of Security. Unsuccessful bidders or offerors shall be entitled to the return
of any cash deposit following the execution of an agreement with the successful
bidder. Unless a specific extension is granted in writing, a successful bidder or
offeror shall forfeit any bid bond or equivalent security required by the Procurement
Officer upon its failure to enter into a contract within fifteen (15) days after the
award.
Sec. 3-24. Contract Performance and Paytnent Bonds.
(a) When Required - Amounts. When a Construction contract is awarded in excess of
ten thousand dollars ($10,000.00), or it is deemed necessary by the Procurement
Officer or the City Manager, the following bonds or security shall be delivered to
the City and shall become binding on the parties upon the execution of the contract:
(1) a performance bond or other security satisfactory to the City, executed by a
surety company authorized to do business in this state or otherwise secured
in a manner satisfactory to the City; and
(2) a payment bond or other security satisfactory to the City, executed by a
surety company authorized to do business in this state or otherwise secured
ina manner satisfactory to the City, 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) Amount of Bonds or Other Security. The amount of the performance and payment
bonds or other security specified in Subsection (a) of this Section shall be determined
by the City Manager. In determining the amounts required, the City Manager shall
weigh the following policy considerations:
(1) The Colorado state legislature has determined that for contruction contracts
in excess of fifty thousand dollars ($50,000.00), it is prudent to obtain
performance and payment bonds in amounts equal to 50% of the price
specified in the contract. (See Sections 24-105-202 and 38-26-106, C.R.S.).
(2) The City has a policy of encouraging local, minority and women owned
businesses to participate in the City's procurement process. (See Section 3-
9Co)(9) herein). The cost of obtaining performance and payment bonds may
discourage local, minority and women owned businesses from bidding on
City construction projects.
(3) It is in the City's interest to ensure that construction projects will be
17
completed according to the contract documents without the City having to
expend more than the contract amount.
(4) It is in the City's interest to ensure that payment is made for all labor and
materials supplied to City construction projects by contractors and
subcontractors.
(5) Certain construction projects may be required by state, or federal law to be
bonded in a particular manner or in a certain amount. (See Section 31:25-
516, C.R.S., special improvement districts).
(6) Phasing of bond amounts should be considered, when appropriate, for
projects that are constructed in discrete and identifiable phases.
Sec. 3-25. Bond Forms and Copies.
(a) Bond Forms. The City Attorney may determine the form of the bonds required by
this Code.
Certified Copies of Bonds. Any person may request and obtain from the City a
certified copy of a bond upon payment of the cost of reproduction of the bond and
postage, if any. A certified copy of a bond shall be prima facie evidence of the
contents, execution, and delivery of the original.
Sec. 3-26. Type of Contracts.
Subject to the limitations of this Section, any type of contract which will promote the best
interests of the City may be used; provided that the use of a cost-plus-a-percentage-of-cost
contract is prohibited. A cost-reimbursement contract may be used only when a determination
is made in writing that such a contract is likely to be less costly to the City than any other type
or that it is impracticable to obtain the Supplies, Services, or Construction required except under
such a contract.
Sec. 3-27. Multi-term Contracts.
(a) Specified Period. No contract for Supplies, Services or Construction, including all
renewals, shall be made by the City for a period longer than five (5) years, unless
authorized by resolution.. All contracts extending beyond one (1) year in duration
shall be contingent upon and subject to duly enacted appropriations of the City of
Aspen.
(b) Determination Prior to Use. Prior to the utilization of a multi-year contract, it shall
be determined in writing:
(1) that estimated requirements cover the period of the contract and are
reasonablY firm and continuing;
!0 (2) that such a contract will serve the best interests of the City by encouraging
effective competition or otherwise promoting economies in City procurement;
(3) that the contract beyond the first fiscal year shall be expressly contingent
upon the annual budgeting and appropriation of sufficient funds on an annual
basis or by nonlapsing appropriations; and,
(4) that the contract clearly states that when funds are not appropriated or
otherwise made available to support the continuation of the City's
performance or obligations in a subsequent fiscal period, the contract shall
be canceled.
Sec. 3-28. Contract Clauses.
The City Attorney may require the inclusion in City contracts of clauses providing for
adjustments in prices, time of performance, or other contract provisions, as deemed appropriate
by the City Attorney, and covering the following subjects:
(1) Liquidated damages as appropriate;
(2) Specified excuses for delay or nonperformance;
(3) Termination of the contract for default;
(4) Termination of the contract in whole or part for the convenience of the City;
(5) Non-discrimination;
(6) Insurance and Indemnification requirements;
(7) Notice of the applicability of the City of Aspen Procurement Code; and
Sec. 3-29. Contract Modifications and Change Orders - Fiscal Responsibility.
Every Contract Modification, Change Order, or contract price adjustment under a contract
with the City shall be subject to prior written certification by the Finance Department as to: the
effect of the Contract Modification, Change Order, or adjustment in contract price on the total
project budget or the total contract budget. In the event that the certification discloses a
resulting increase in the total project budget and/or the total contract budget, the Procurement
Officer shall not execute or make such Contract Modification, Change Order, or adjustment in
contract price unless sufficient funds are available therefor, or the scope of the project or
contract is adjusted so as to permit the degree of completion that is feasible within the total
project budget and/or total contract budget as it existed prior to the Contract Modification,
Change Order, or adjustment in contract price under consideration.
19
Sec. 3-30. Right to Inspect Plant.
The City may at reasonable times, inspect the part of the plant or place of business of a
contractor or any subcontractor which is related to the performance of any contract awarded or
to be awarded by the City.
Sec. 3-31. Right to Audit Records
The City shall be entitled to audit the books and records of a contractor or any subcontractor
under any negotiated contract or subcontract other than a firm fixed-price contract to the extent
that such book~ and records relate to the performance of such contract or subcontract. Such
books and records shall be maintained by the contractor for a period of three years from the date
of final payment under the prime contract and by the subcontractor for a period of three years
from the date of final payment under the subcontract, unless a shorter period is otherwise
authorized in writing.
Sec. 3-32. Finality of Determinations.
The determinations required by Section 3-14(0 (Competitive Sealed Bidding, Correction or
Withdrawal of Bids; Cancellation of Awards), Section 3-15(a) (Competitive Sealed Proposals,
Conditions for Use), Section 3-15(g) (Competitive Sealed Proposals, Award), Section 3-17
(Miscellaneous Exemption), Section 3-18 (Emergency Procurement), Section 3-212(a)
(Responsibility of Bidders and Offerors, Determination of Non-responsibility), Section 3-14(g)
(Competitive Sealed Bidding, Award), Section 3-26 (Types of Contracts), and Section 3-27
(Multi-Term Contracts Determination Prior to Use) are final and conclusive unless they are
clearly erroneous, arbitrary, capricious, or contrary to law as determined by a court of
competent jurisdiction.
Sec. 3-33. Reporting of Anticompetitive Practices.
When for any reason collusion or other anticompetitive practices are suspected among any
bidders or offerors, a notice of the relevant facts shall be transmitted to the City Attorney.
Sec. 3-34. Retention of Procurement Records.
All procurement records shall be retained and disposed of in accordance with records
retention guidelines and schedules approved by the law. All retained documents shall be made
available to the City Attorney or a designee upon request and proper receipt therefor.
Sec. 3-35. Record of Procurement Actions Taken Under Section 3-17 (Miscellaneous
Exemptions) and Section 3-18 (Emergency Procurement).
The Finance Department and City Clerk shall maintain a record listing all contracts made
under Section 3-17 (Miscellaneous Exemption) or Section 3-18 (Emergency Procurement)for
a minimum of three years. The record shall contain:
(1) each contractor's name;
2O
(2) the amount and type of each contract; and
(3) a listing of the Supplies, Services, or Construction procured under each
contract.
ARTICLE 4 - LEGAL AND CONTRACTUAL REMEDIES
Part A - Pre-Litigation Resolution of Controversies
Sec. 3-36. Authority to Resolve Protested Solicitations and Awards.
(a) Right to Protest. Any actual or prospective bidder, offeror, or contractor who is
aggrieved in connection with the solicitation or award of a contract may protest to
the City Manager. The protest shall be submitted in writing within 14 days after
such aggrieved person knows or should have known of the facts giving rise thereto.
(b) Authority to Resolve Protests. The City Manager or his/her designee shall have the
authority, prior to the commencement of an action in court concerning the
controversy, to settle and resolve a protest of an aggrieved bidder, offeror, or
contractor, actual or prospective, concerning the solicitation or award of a contract.
(c) Decision. If the protest is not resolved by mutual agreement, the City Manager or
her/his designee shall promptly issue a decision in writing. The decision shall:
(1) state the reason for the action taken; and
(2) inform the protestant of its right to administrative review as provided in Xhis
Article.
(d) Notice of Decision. A copy of the decision under Subsection (c) of this Section shall
be mailed or otherwise furnished immediately to the protestant and any other party
intervening.
(e) Finality of Decision. A decision under Subsection (c) of this Section shall be final
and conclusive, unless the protestant appeals administratively to City Council acting
as the Procurement Appeals Board.
Sec. 3-37. Authority to Debar or Suspend.
(a) Authority. After reasonable notice to the person involved and reasonable opportunity
for that person to be heard, the City Manager, after consultation with the City
Attorney, shall have the authority to debar a person for cause from consideration for
award of contracts. The debarment shall not be for a period of more than three
years. The City Manager, after consultation with the City Attorney, shall also have
authority to suspend a person from consideration for award of contracts if there is
probable cause for debarment. The suspension shall not be for a period exceeding
three months.
~!O (b) Causes for Debarment or Suspension. The causes for debarment or suspension
include the following:
(1) conviction for commission of a criminal offense as an incident to obtaining
or attempting to obtain a public or private contract or subcontract, or in the
performance of such contract or subcontract;
(2) conviction under state or federal statutes of embezzlement, theft, forgery,
bribery, falsification or destruction of records, receiving stolen propertyi or
any other offense indicating a lack of business integrity or business honesty
which currently, seriously, and directly affects responsibility as a City
contractor;
(3) conviction under state or federal antitrust statutes arising out of the
submission of bids or proposals;
(4) violation of contract provisions, as set forth below, of a character which is
regarded by the City Manager to be so serious as to justify debarment action:
(A) deliberate failure without good cause to perform in accordance
with the specifications or within the time limit provided inthe
contract; or
O (B) a recent record of failure to perform or of unsatisfactory
performance in accordance with the terms of one or more
contracts; provided that failure to perform or unsatisfactory
performance caused by acts beyond the control of the
contractor shall not be considered to be a basis for debarment;
(5) any other cause the City Manager determines to be so serious and compelling
as to affect responsibility as a City contractor, including debarment by
another governmental entity, or failure to pay any municipal fine, fee,
business license or permit; and,
(6) for violation of the ethical standards set forth in Article 5 (Ethics in Public
Contracting).
(c) Decision. The City Manager shall issue a written decision to debar or suspend. The
decision shall:
(1) state the reasons for the action taken; and
(2) inform the debarred or suspended person involved of its right to
administrative review as provided in this Code.
(d) Notice of Decision. A copy of the decision under Subsection (c) of this Section shall
be mailed or otherwise furnished immediately to the debarred or suspended person
22
and any other party intervening.
(e) Finality of Decision. A decision under Subsection (c) of this section shall be final
and conclusive, unless the debarred or suspended person appeals administratively to
City Council acting as the Procurement Appeals Board.
Sec. 3-38. Authority to Resolve Contract and Breach of Contract Controversies.
(a) Applicability. This section applies to controversies between the City and a
contractor and which arise under, or by virtue of, a contract between them. This
includes, without limitation, controversies based upon breach of contract, mistake,
misrepresentation, or other cause for Contract Modification or rescission.
(b) Authority. The City Manager or her/his designee is authorized, prior to
commencement of an action in a court concerning the controversy, to settle and
resolve a controversy described in Subsection (a) of this Section.
(c) Decision. If such a controversy is not resolved by mutual agreement, the City
Manager, or his/her designee shall promptly issue a decision in writing. The
decision shall:
(1) state the reason for the action taken; and
(2) inform the contractor of its right to administrative review as provided in this
Code.
(d) Notice of Decision. A copy of the decision under Subsection (c) of this Section shall
be mailed or otherwise furnished immediately to the contractor.
(e) Finality of Decision. The decision under Subsection (c) of this Section shall be final
and conclusive, unless the contractor appeals administratively to City Council acting
as the Procurement Appeals Board.
(f) Failure to Render Timely Decisions. If the City Manager, or his/her designee does
not issue the written decision required under Subsection (c) of this section within 120
days after written request for a final decision, or within such longer period as may
be agreed upon by the parties, then the contractor may proceed as if an adverse
decision had been received.
Part B - Solicitation of Award in Violation of Law
Sec. 3-39. Applicability of this Part.
The provisions of this Part apply where it is determined administratively, or upon
administrative or judicial review, that a solicitation or award of a contract is in violation of law.
23
Sec. 3-40. Remedies Prior to Award.
If prior to an award it is determined that a solicitation or proposed award of a contract is
in violation of law, then the solicitation or proposed award shall be:
(a) canceled; or
(b) revised to comply with the law.
Sec. 3-41. Remedies After an Award.
If after an award it is determined that a solicitation or award of a contract is in violation of
the law, then:
(a) if the person awarded the contract has not acted fraudulently or in bad faith:
(1) the contract may be ratified and affirmed, provided it is determined
that doing so is in the best interests of City; or
(2) the contract may be terminated upon payment of a reasonable profit
to the person awarded a contract.
(b) if the person awarded the contract has acted fraudulently or in bath faith:
(1) the contract may be declared null and void; or
(2) the contract may be ratified and affirmed if such action is in the best
interests of the City, without prejudice to the City's rights to such
damages as may be appropriate.
Sec. 3-42. Interest
Interest on amounts ultimately determined to be due to a contractor or the City shall be
payable at the statutory rate applicable to judgments from the date the claim arose through the
date of decision or judgment, whichever is later.
Part C - Procurement Appeals Board
Sec. 3-43. Creation of the Procurement Appeals Board
The City Council shall act as the Procurement Appeals Board.
Sec. 3-44. Decision of the Procurement Appeals Board.
Acting by one or more of its members and with the assistance of the City Attorney, the
Procurement Appeals Board shall issue a decision in writing or take other appropriate action on
each appeal submitted. A copy of any decision shall be provided to all parties and the City
24
Manager.
Sec. 3-45. Jurisdiction of the Procurement Appeals Board.
Unless an action has been initiated previously in court for essentially the same cause of
action, or unless within 15 days after the action is brought before the procurement Appeals
Board, written objection is made by either the aggrieved bidder, offeror, or contractor, prospec-
tive or actual, the Board shall have jurisdiction to review and determine de novo:
(a) any protest of a solicitation or award of a contract addressed to the Board by
an aggrieved actual or prospective bidder or offeror, or a contractor; and
(b) any appeal by an aggrieved party from a determination by the City Manager,
or a designee which is authorized by:
(1) Section 3-36 (Authority to Resolve Protested Solicitations and
Awards);
(2) Section 3-37 (Authority to Debar or Suspend); and,
(3) Section 3-38 (Authority to Resolve Contracts and Breach of Contract
Controversies)
Sec. 3-46. Protest of Solicitations or Awards.
(a) Scope. This section applies to:
(1) a protest of solicitation or award of a contract addressed to the Procurement
Appeals Board by an aggrieved actual or prospective bidder or offeror, or a
contractor; and
(2) an appeal addressed to the Board of a decision under Section 3-36(c)
(Authority to Resolve Protested Solicitations and Awards, Decision).
(b) Time Limitations on Filing a Protest or an Appeal.
(1) For a protest under Subsection (a)(1) of this Section, the aggrieved person
shall file a protest with the Board within 14 days after the aggrieved person
knew or should have known of the facts and circumstances upon which the
protest is based.
(2) For an appeal under Subsection (a)(2) of this Section, the aggrieved person
shall file an appeal within seven days of the receipt of a decision under
Section 3-36(c) (Authority to Resolve Protested Solicitations and Awards,
Decision).
(c) Decision. On any direct protest under Subsection (a)(1) of this Section or appeal
25
under Subsection (a)(2) of this Section, the Board shall promptly decide whether the
solicitation or award was in accordance with the Constitution, statutes, regulations,
· and the terms and conditions of the solicitation. The proceedings shall be de novo.
Any prior determinations by administrative officials shall not be final or conclusive.
(d) Standard of Review for Factual Issues. A determination of an issue of fact by the
Board under Subsection (c) of this Section shall be final and conclusive.
Sec. 3-47. Suspension or Debarment Proceedings.
(a) Scope. This section applies to a review by the Procurement Appeals Board of a
decision under Section 3-37 (Authority to Debar or Suspend).
(b) Time Limitation on Filing an Appeal. The aggrieved person shall file its appeal with
the Board within 30 days of the receipt of a decision under Section 3-37(c)
(Authority to Debar or Suspend, Decision).
(c) Decision. The Board shall promptly decide whether, or the extent to which, the
debarment or suspension was in accordance with the constitution and statutes of the
State of Colorado and the ordinances and best interests of the City, and was fair.
The proceedings shall be de novo. Any prior determinations by administrative
officials shall not be final or conclusive.
(d) Standard of Review for Factual Issues. A determination of an issue of fact by the
Board under Subsection (c) of this Section shall be final and conclusive.
Sec. 3-48. Contract and Breach of Contract Controversies.
(a) Scope. This section applies to a review by the Procurement Appeals Board of a
decision under Section 3-38 (Authority to Resolve Contract and Breach of Contract
Controversies).
(b) Time Limitation on Filing an Appeal. The aggrieved contractor shall file its appeal
with the Board within 30 days of the receipt of the decision under Section 3-38(c)
(Authority to Resolve Contract and Breach of Contract Controversies, Decision).
(c) Decision. The Board shall promptly decide the contract or breach of contract
controversy. The proceedings shall be de novo. Any prior determination by
administrative officials shall not be final or conclusive.
(d) Standard of Review for Factual Issues. A determination of an issue of fact by the
Board under Subsection (c) of this Section shall be final and conclusive.
Sec. 3-49. Finality of a Decision on an Issue of Law.
A determination by the Procurement Appeals Board on an issue of law shall be final and
conclusive.
26
Sec. 3-50. Appeal and Review of Procurement Appeals Board Decisions.
Any person receiving an adverse decision from the Procurement Appeals Board may initiate
an appeal to the courts.
Sec. 3-51. Discontinuance of Contractor's Appeal.
After notice of an appeal to the Procurement Appeals Board has been filed, a contractor may
not discontinue such appeal without prejudice, except as authorized by the Board.
ARTICLE 5 - ETHICS IN PUBLIC CONTRACTING
Part A - Definitions
Sec. 3-52. Definitions of Terms Used in this Article.
(a) Confidential Information means any information which is available to an employee
only because of the employee's status as an employee of this City and is not a matter
of public knowledge or available to the public on request.
(b) Conspicuously means written in such special or distinctive format, print, or manner
that a reasonable person against whom it is to operate ought to have noticed it.
(c) Direct or Indirect Participation means involvement through decision, approval,
disapproval, recommendation, preparation of any part of a purchase request,
influencing the content of any specification or procurement standard, rendering of
advice, investigation, auditing, or in any other advisory capacity.
(d) Financial Interest means:
(1) ownership of any interest or involvement in any relationship from which, or
as a result of which, a person within the past year has received, or is
presently or in the future entitled to receive, more than one dollar ($1.00) per
year, or its equivalent;
(2) ownership of such interest in any property or any business as may be
specified by the City Council; or
(3) holding a position in a business such as an officer, director, trustee, partner,
employee, or the like, or holding any position of management.
(e) Gratuity means a payment, loan, subscription, advance deposit of money, Services,
or anything of more than nominal value, present or promised, unless consideration
of substantially equal or greater value is received.
(f) Immediate Family means a spouse, children, parents, brothers or sisters.
(g) Official Responsibility means direct administrative or operating authority, whether
intermediate or final, either exercisable alone or with others, either personally or
through subordinates, to approve, disapprove, or otherwise direct City action.
(h) Purchase Request means the document whereby a Using Agency requests that a
contract be entered into for a specified need, and may include, but is not limited to,
the technical description of the requested item, delivery schedule, transportation,
criteria for evaluation, suggested sources of supply, and information supplied for the
making of any written determination required by this Code.
Part B - Standards of Conduct
Sec. 3-53. Statement of Policy.
Public employment is a public trust. It is the policy of the City to promote and balance the
objective of protecting government integrity and the objective of facilitating the recruitment and
retention of personnel needed by the City. Such policy is implemented by prescribing essential
standards of ethical conduct without creating unnecessary obstacles to entering public service.
Public employees must discharge their duties impartially so as to assure fair, competitive
access to governmental procurement by responsible contractors. Moreover, they should conduct
themselves in such a manner as to foster public confidence in the integrity of the City
procurement organization.
To achieve the purpose of this Article, it is essential that those doing business with the City
also observe the ethical standards prescribed herein.
Sec. 3-54. General Standards of Ethical Conduct.
(a) General Ethical Standards for Employees. Any attempt to realize personal gain
through public employment by conduct inconsistent with the proper discharge of the
employee's duties is a breach of a public trust. In order to fulfill this general
prescribed standard, employees must also meet the specific standards set forth in:
Section 3-55 (Employee Conflict of Interest); Section 3-56 (Employee Disclosure
Requirements); Section 3-57 (Gratuities and Kickbacks); Section 3-58 (Prohibition
Against Contingent Fees); Section 3-59 (Restrictions on Employment of Present and
Former Employees); and Section 3-60 (Use of Confidential Information).
(b) General Ethical Standards for Non-employees. Any effort to influence any public
employee to breach the standards of ethical conduct set forth in this Section and
Section 3-56 through Section 3-60 of this Article is also a breach of ethical
standards.
Sec. 3-55. Employee Conflict of Interest.
(a) Conflict of Interest. Unless a specific exemption is obtained pursuant to Section 3-
59(a) herein, it shall be a breach of ethical standards for any employee to participate
28
directly or indirectly in drafting or preparing specifications, obtaining or processing
approvals, Participating in source selection or contract formation, or granting
approval for any procurement when the employee knows that:
(1) the employee or any member of the employee's immediate family has a
financial interest pertaining to the procurement;
(2) a business or organization in which the employee, or any member of the
employee's immediate family, has a financial interest pertaining to the
procurement; or
(3) any other person, business, or organization with whom the employee or any
member of the employee's immediate family is negotiating or hasan
arrangement conceming prospective employment is involved in the
procurement.
(b) Discovery of Actual or Potential Conflict of Interest, Disqualification, and Waiver.
Upon the discovery of an actual or potential conflict of interest, an employee shall
promptly file a written statement of disqualification and shall withdraw from further
participation in the transaction involved. The employee may, at the same time,
apply to the City Attorney in accordance with Section 3-64(a) for an advisory
opinion as to what further participation, if any, the employee may have in the
transaction.
(c) Notice. Notice of this prohibition shall be provided in accordance with regulations
promulgated by the Finance Department.
Sec. 3-56. Employee Disclosure Requirements.
(a) Disclosure of Benefit Received from Contract. Any employee who has, or obtains
any benefit from, any City contract with a business in which the employee has a
financial interest shall report such benefit to the City Attorney; provided, however,
this Section shall not apply to a contract with a business where the employee's
interest in the business has been placed in a disclosed blind trust.
(b) Failure to Disclose Benefit Received. Any employee who knows or should have
known of such benefit, .and fails to report such benefit to the City Attorney, is in
breach of the ethical standards of this Section.
(c) Notice. Notice of this requirement shall be provided in accordance with regulations
promulgated by the Finance Department.
Sec. 3-57. Gratuities and Kickbacks~
(a) Gratuities. It shall be a breach of ethical standards for any person to offer, give, or
agree to give any employee or former employee, or. for any employee or former
employee to solicit, demand, accept, or agree to accept from another person, a
29
gratuity or an offer of employment in connection with any decision, approval,
disapproval, recommendation, preparation of any part of a program requirement or
a purchase request, influencing the content of any specification or procurement
standard, rendering of advice, investigation, auditing, or in any other advisory
capacity in any proceeding or application, request for ruling, determination; claim
or controversy, or other particular matter, pertaining to any program requirement or
a contract or subcontract, or to any solicitation or proposal therefor.
(b) Kickbacks. It shall be a breach of ethical standards for any payment, gratuity, or
offer of employment to be made by or on behalf of a subcontractor under a contract
to the prime contractor or higher tier subcontractor or any person associated
therewith, as an inducement for the award of a subcontract or order.
(c) Contract Clause. The prohibition against gratuities and kickbacks prescribed in this
Section shall be conspicuously set forth in every contract and solicitation therefor.
See. 3-58. Prohibition Against Contingent Fees.
(a) Contingent Fees. It shall be a breach of ethical standards for a person to be
retained, or to retain a person, to solicit or secure a City contract upon an agreement
or understanding for a commission, percentage, brokerage, or contingent fee, except
for retention of a bona fide employee, bona fide established commercial selling
agencies for the purpose of securing business, or a contract for legal services.
(b) Representation of Contractor. Every person, before being awarded a City contract,
shall represent in writing, that such person has not retained anyone in violation of
Subsection (a) of this Section. Failure to do so constitutes a breach of ethical
standards.
(c) Contract Clause. The representation prescribed in Subsection (b) of this Section
shall be conspicuously set forth in every contract and solicitation therefor.
See. 3-59. Restrictions on Employment of Present and Former Employees.
(a) Exemptions for Contemporaneous Employment. A contemporaneous employee may
be exempted from the conflict of interest provisions of Section 3-55 herein upon a
written finding by the City Manager that to do so is in the best interest of the City
and that full disclosure has, or will shortly, be made pursuant to Section 3-56(a)
herein.
(b) Restrictions on Former Employees in Matters Connected with Their Former Duties.
(1) Permanent Disqualification of Former Employee Personally Involved
in a Particular Matter. It shall be a breach of ethical standards for
any former employee knowingly to act as a principal, or as an agent
for anyone other than the City, in connection with any:
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~iO (A) judicial or other proceeding, application, request for a ruling,
or other determination;
(B) contract;
(C) claim; or
(D) charge or controversy,
in which the employee participated personally or substantially through
decision, approval, disapproval, recommendation, rendering of
advice, investigation, or otherwise under the provisions of this Code,
where the City is a party or has direct and substantial interest.
(2) Six Months Representation Restriction Regarding Matters for Which
a Former Employee Was Officially Responsible. It shall be a breach
of ethical standards for any former employee, within six months after
cessation of the former employee's official responsibility, knowingly
to act as a principal, or as an agent for anyone other than the City, in
connection with any:
(A) judicial or other proceeding, application, request for a ruling,
or other determination;
(B) contract;
(C) claim; or
{!~ (D) charge or controversy,
in matters which were generally within the former employee's official
responsibility under the provisions of this Code, where the City is a
party or has direct or substantial interest.
(c) Disqualification of Business When an Employee Has a Financial Interest. It shall
be a breach of ethical standards for a business in which an employee has a financial
interest knowingly to act as a principal, or as an agent for anyone other than the
City, in connection with any:
(1) judicial or other proceeding, application, request for a ruling, or other
determination;
(2) contract;
(3) claim; or
(4) charge or controversy,
in which the employee either participates personally and substantially through
decision, approval, disapproval, recommendation, the rendering of advice,
investigation, or otherwise under the provisions of this Code, or which is the subject
of the employee's official responsibility under the provisions of this Code, where the
City is a party or has direct or substantial interest.
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Sec. 3-60. Use of Confidential Information.
It shall be a breach of ethical standards for any employee or former employee knowingly
to use confidential information for actual or anticipated personal gain, or for the actual or
anticipated personal gain of another person.
Part C - Remedies
Sec. 3-61. Civil and Administrative Remedies Against Employees who Breach Ethical
Standards.
(a) Existing Remedies Not Imnaired. Civil and administrative remedies against
employees which are in existence on the effective date of this Code shall not be
impaired.
(b) Supplemental Remedies. In addition to existing remedies for breach of the ethical
standards of this Article or regulations promulgated hereunder, the City Manager
may impose any one or more of the following:
(1) oral or written warnings or reprimands;
(2) suspension with or without pay for a specified period of time; and
(3) termination of employment.
(c) Right to Recover from Employee Value Received in Breach of Ethical Standards.
The value of anything received by an employee in breach of the ethical standards of
this Article or regulations promulgated hereunder shall be recoverable by the City
as provided in Section 3-63 (Recovery of Value Transferred or Received in Breach
of Ethical Standards).
(d) Due Process. All procedures under this Section shall be in accordance with due
process requirements and existing law. In addition, notice and an opportunity for
a hearing shall be provided prior to imposition of any suspension or termination of
employment.
Sec. 3-62. Civil and Administrative Remedies Against Non-employees Who Breach Ethical
Standards.
(a) Existing Remedies Not Impaired. Civil and administrative remedies against non-
employees which are in existence on the effective date of this Code shall not be
impaired.
(b) Supplemental Remedies. In addition to existing remedies for breach of the et~cal
standards of this Article or regulations promulgated hereunder, the City Manager
may impose any one or more of the following:
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(1) written warnings or reprimands;
(2) termination of transactions; and
(3) debarment or suspension from being a contractor or subcontractor under City
contracts.
(c) Right to Recover from Non-Employee Value Transferred in Breach of Ethical
Standards. The value of anything transferred in a breach of ethical standards of this
Article or regulations promulgated hereunder by a non-employee shall be recoverable
by the City as provided in Section 3-63 (Recovery of Value Transferred or Received
in Breach of Ethical Standards).
(d) Right of the City to Debar or Suspend. Debarment or suspension may be imposed
in accordance with the procedures set forth in Section 3-37 (Authority to Debar or
Suspend) for breach of the ethical standards of this Article, provided that such action
may not be taken without the concurrence of the City Attorney.
(e) Due Process. All procedures under this Section shall be in accordance with due
process requirements, including, but not limited to, a right to notice and an
opportunity for a heating prior to imposition of any termination, debarment, or
suspension from being a contractor or subcontractor under a City contract.
Sec. 3-63. ReCovery of Value Transferred or Received in Breach of Ethical Standards.
(a) General Provisions. The value of anything transferred or received in breach of the
ethical standards of this Article or regulations promulgated hereunder by an
employee or a non-employee may be recovered from both the employee and non-
employee.
(b) Recovery_ of Kickbacks by the City. Upon a showing that a subcontractor made a
kickback to a prime contractor or a higher tier subcontractor in connection with the
award of a subcontract or order thereunder, it shall be conclusively presumed that
the amount thereof was included in the price of the subcontract or order and
ultimately borne by the City and will be recoverable hereunder from the recipient.
In addition, said value may also be recovered from the subcontractor making such
kickbacks. Recovery from one offending party shall not preclude recovery from the
other offending parties.
Part D - Opinions and Waivers
Sec. 3-64. Opinions and Waivers.
(a) Advisory_ Opinions. On written request of employees, the City Manager or City
Council, the City Attorney may render advisory opinions regarding the
appropriateness of the course of conduct to be followed in proposed transactions.
Compliance with requirements of a duly promulgated advisory opinion of the City
33
Attorney shall be deemed to constitute compliance with the ethical standards of this
Article.
(b) Waiver. On written request of an employee, with the prior concurrence of the City
Manager, the City Council may grant an employee a written waiver from the
application of Section 3-55 (Employee Conflict of Interest) and grant permission to
proceed with the transaction to such extent and upon such terms and conditions as
may be specified. Such waiver and permission may be granted when the interests
of the City so require or when the ethical conflict is insubstantial or remote.
ARTICLE 6 - SUPPLY MANAGEMENT
Sec. 3-65. Supply Management Regulations Required.
The Finance Department, with the prior written approval of the City Manager, shall
promulgate regulations governing:
(a) The management and inventory of Supplies during their entire useful life; and,
(b) The sale, lease, or disposal of Surplus Supplies by public auction, competitive sealed
bidding, or other appropriate method designated by regulation.
Section 2
If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any
reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall
be deemed a separate, distinct and independent provision and shall not affect the validity of the
remaining portions hereof.
Section 3
This Code shall apply to contract solicited or entered into after the effective date of this
Ordinance unless the parties agree to its application to a contract solicited or entered into prior
to the effective date.
A public hearing on the ordinance shall be held on the/~ day of ~, 19~[,
in the City Council Chambers, Aspen City Hall, Aspen, Colorado.
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INTRODUCED, READ AND ORDERED PUBLISHED as provided by law by the City
Council of the City of Aspen on the ~ay of dJ-.5~ , 1991.
John S. Bennett, Mayor
ATTEST:
Kathryn S. ~(~ch, City Clerk '
1992.
Jo . Bennett, Mayor
ATTEST: