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ORDINANCE AMENDMENT OF THE NEW HAVEN BOARD OF ALDERS TO THE CITY OF NEW HAVEN’S CODE OF ORDINANCES AMENDING SECTIONS 2-451, 2-482, 2-483, AND 2-488 OF THE CITY’S PURCHASING AND PROCUREMENT ORDINANCES.
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WHEREAS, the Bureau of Purchases of the City of New Haven requests to amend various sections of the city’s purchasing and procurement ordinances; and
WHEREAS: the Bureau of Purchases submits the proposed ordinance amendments herewith which are incorporated herein by reference; and
WHEREAS, the proposed amendments by the Bureau of Purchases are intended to modernize the city’s procurement framework, align procedures with Connecticut statutory requirements, and reduce administrative delays.
NOW THEREFORE BE IT ORDAINED by the Board of Alders of the City of New Haven that sections 2-451, 2-482, 2-483, 2-488 of the Code of Ordinances of the City of New Haven, are hereby amended to read as follows:
Sec. 2-376. Authorization of contracts to be executed one year from date, and non-bid contracts more than one hundred fifty thousand dollars.
(a) Unless expressly authorized by law or by vote of the board of alders, the city shall not be bound by any contract executed after one (1) year from the date thereof.
(b) The board of alder's prior approval is necessary for any city contract that does not go to public solicitation and that costs more than one hundred and fifty thousand dollars ($150,000).
(c) The determination of whether a city contract is to be submitted to the board of alders for prior approval pursuant to section 2-376 is if one of the following conditions exist:
a. If its initial term is longer than one year, exclusive of options/renewals that are less than two years.
b. If options/renewals on the initial term exceed two years collectively and/or consecutively, or
c. If any options/renewals materially alter the terms or conditions of a contract in the judgment of the city purchasing agent.
Sec. 2-451. Purchasing and procurement procedures.
(a) Declaration of policy. The City of New Haven hereby declares that it narrowly construes the types of personal services that can be provided through the procurement procedures set forth in Article VI, Section 5of the city charter; as amended from time to time. This policy is premised upon the following grounds:
(1) Article VII, Section 3(D) of the city charter, as amended from time to time, provides for a civil service board. Article VI, Section 6(B) of the city charter provides for the personnel director or designee and other employees as shall be provided in the budget.
(2) Article VII, Section 3(D) (4) of the city charter, as amended from time to time, sets forth a broad mandate and duty of the civil service board to ascertain the competency of applicants for all positions or promotions in the city government by competitive examination except for specified exceptions.
(3) Unless Article VII, Section 3(D) of the city charter is narrowly construed, the purchasing agent could usurp the position and authority of the civil service board and the personnel director and their clear charter mandate to provide for employment based upon merit selection.
(b) Definitions. The following are defined terms for the purposes of this article:
Municipal employee means any person who holds employment with the municipal government of New Haven for which such person receives financial compensation from the city:
(1) Whether such employment is in the classified or unclassified service.
(2) Whether such employment is part-time or full-time; and
(3) Whether such employment is permanent or temporary.
Independent contractor means any individual(s), firm, partnership, or limited liability company, corporation, or other business or corporate entity recognized or defined by the general statutes of the State of Connecticut or any other jurisdiction that contracts to perform certain specified work according to such entity's own methods and means, and without being subject to the control or supervision of any municipal employee except as to the result of the work; consistent with independent contractor standards set forth in the Internal Revenue Code or State of Connecticut Department of Revenue Service as amended from time to time.
The municipal government of the City of New Haven means:
(1) The City of New Haven, and all departments, agencies, authorities, boards, commissions, bureaus, and offices created by and existing under the city charter.
(2) The City of New Haven and all departments, agencies, authorities, boards, commissions, bureaus, and offices created by or existing under an ordinance or resolution of the board of alders of the City of New Haven (whether such ordinance or resolution was adopted pursuant to a state statute authorizing such ordinance or resolution).
Expert professional consultant means any independent contractor as defined herein providing highly technical, specialized, and advanced advice and/or work product, and whose responsibilities shall not include any job duties:
(1) For which a civil service test (or classification) currently exists; or
(2) Which are assigned to any current member of a city bargaining unit.
(c) Scope of purchasing agent's authority to procure contracts pursuant to Article VI, Section 5 of the city charter:
(1) The purchasing agent shall process requests for qualifications or proposals only for work to be performed by independent contractors, as defined herein. However, the following types of independent contractors are specifically excluded from the procurement procedures set forth in Article VI, Section 5 of the city charter as amended from time to time:
a. Architects.
b. Engineers.
c. Land surveyors.
d. Physicians/Medical Personnel (including APRN (Advanced Practice Registered Nurse) , DO (Doctor of Osteopathic Medicine), Specialized Nurse titles (e.g. Infectious Disease Control), and other specialized clinicians, such as, various licensed Mental Health providers (e.g. LMSW, LCSW, psychologists etc.)
e. Dentists.
f. Lawyers/Attorneys.
g. Professional Financial Advisors/Accountants.
h. Artists.
i. Actuaries.
j. Economists, Planners, Building Inspectors and Certified Zoning Professionals
k. Expert professional consultants; and
l. Such other professional or technical services as the board of alders-may provide by ordinance.
m. Such other professional or technical services as the purchasing agent deems qualified as an exempt professional.
(2) Contracts with the excluded classes of independent contractors shall only be entered into by the mayor on behalf of any municipal department, authority, board, commission, bureau, or office, by the president of the board of alders on behalf of the board of alders or by the president of the board of education on behalf of the Department of Education.
(3) The city's purchasing agent shall immediately cease and desist from utilizing the procurement procedures of Article VI, Section 5 as amended from time to time to procure personal services, except and unless the provider of the services is an independent contractor, as defined herein. Contracts with expert professional consultants shall be initiated through a written proposal describing the program and the personnel involved.
(a) Upon receipt of the written proposal, expert professional consultant agreements can be entered up to an amount not to exceed one hundred and fifty thousand dollars ($150,000)
(4) For the purposes of requests for qualifications or proposals for work performed by independent contractors for professional services, whether the business is a "city-based business," as defined in section 2-483(a) of the code, shall be a factor considered in the selection of such contractor.
(5) No contract shall be awarded to any contractor, if the entity, or any owner, officer or director thereof is delinquent in any tax or other financial obligation to the city, including, without limitation, a current or ongoing contract dispute concerning performance under an agreement with the municipal government if, in the opinion of the Corporation Counsel, the current or ongoing contract dispute is related to the requirements of the solicitation.
The fact that any other entity of which the owner or principal of any contractor is an officer or director is delinquent in the payment of any tax or other financial obligation to the city, shall be a negative factor in the selection or award of such contractor until such obligation is settled.
Notwithstanding the foregoing, when an emergency has been declared or an emergency procurement has been authorized in accordance with applicable law, the purchasing agent may permit the award of a contract and the immediate commencement of work if the purchasing agent determines in writing that delaying the work to resolve or collect the outstanding obligation would threaten public health or safety, disrupt an essential public service, cause substantial damage to public property, or otherwise materially impair the city’s response to the emergency. Before the awarding of such a contract, the purchasing agent shall consult with the corporation counsel and the tax collector, controller, or other city official responsible for the outstanding obligation, as applicable.
An emergency award under this provision shall not waive, forgive, compromise, or otherwise affect the contractor’s outstanding obligation or the City’s rights and remedies. The City may pursue collection, offset amounts owed against payments otherwise due under the emergency contract to the extent permitted by law, require an agreed repayment arrangement, or take any other lawful collection action after the immediate emergency has been addressed. The written procurement record shall state the nature of the emergency, the reason immediate performance was necessary, the known outstanding obligation, and the measures to be taken to protect the City’s financial interests.
(d) Authority of the purchasing agent to determine status as an independent contractor and/or exempt professional, subject to review:
(1) The purchasing agent shall determine in the first instance whether a "request for proposal" is properly seeking work to be done by an independent contractor as defined herein.
(2) Upon the determination that a "request for qualification or proposal" is properly seeking work to be done by such an independent contractor, the department initiating said request selects the proposing party to perform such work.
(e) Electronic Commerce.
(1) Electronic Transmission of Information: Electronic commerce shall include, but not be limited to, on-line vendor registration, acceptance of bids and proposals by electronic mail, electronic or virtual purchasing malls and catalogs, internet auctions and reverse auctions, notifications of solicitations and download capability and acceptance of electronic (digital) signatures.
Notwithstanding any other provisions, this chapter applies to records generated, stored, processed, communicated, or used for any purpose by the City of New Haven for purchasing, acquisition, services, or disposition of personal property. This shall apply to all City of New Haven contracts and agreements.
The mayor, budget director, or controller or their designee is authorized to promulgate procedures to coordinate, create, implement, and facilitate the use of common approaches and technical infrastructure, as appropriate, to enhance the utilization of electronic commerce, electronic records, electronic signatures, and electronic security procedures by and for City of New Haven for these purposes.
The purchasing agent shall be authorized to develop, implement, and facilitate procedures for the use of electronic records, electronic signatures, and security procedures for all other purposes. The Purchasing Agent is authorized to promulgate methods, means, and standards for secure electronic procurement transactions.
(2) Electronic Signature and Records: An electronic record satisfies any rule requiring a document to be in writing. An electronic signature satisfies any rule of law requiring a signature. Any electronic record is signed as a matter of law if it contains a secure electronic signature.
An electronic signature is deemed to be secure if it is created by application of a security procedure that is commercially reasonable and provided the electronic signature can be verified. Further, it is considered secure if it can be linked to the electronic record to which it relates in a manner such that, if the record is changed, the electronic signature is invalidated.
An electronic record is deemed to be secure if it is created by application of a security procedure that is commercially reasonable and agreed to by City of New Haven. The electronic record will be deemed secure when it can be verified not to have been altered since a specified point in time.
Sec. 2-481. Workers compensation insurance required of respondents to city solicitations.
(a) Whenever the city purchasing agent advertises a solicitation the city purchasing agent shall require that the contractors maintain a workers' compensation insurance policy, a binder for such a policy, or evidence of adequate self-insurance protecting company workers against injury. This requirement shall be a condition precedent to the award of any contract. The general contractor shall certify the existence of adequate insurance for all subcontractors.
(b) Any such workers' compensation insurance policy shall be issued by a company authorized to write such policies in Connecticut and shall be in such form that is satisfactory to the city purchasing agent.
(c) The city purchasing agent shall require and affirm that no respondent, including any general contractors and subcontractors, is in arrears to the state's second injury fund.Sec. 2-482. Minimum procurement requirements.
(a) Except as otherwise required by federal state, or local law or regulation, sealed solicitations shall not be required for contracts or purchases of supplies, materials or equipment and non-construction related services having a value not greater than the maximum amount for which a municipality may dispense with sealed bidding pursuant to Connecticut General Statutes § 7-148v(a), as amended from time to time. Contracts and purchases for said items and services having a value greater than five thousand dollars ($5,000.00), but not greater than such maximum amount, shall be awarded in accordance with procedures established by the purchasing agent, which shall include preference for city-based businesses as defined in section 2-483 of the code and consistent with the procedures set forth therein.
(b) Except as otherwise required by federal, state, or local law or regulation, sealed bidding shall not be required for construction and construction related contracts and services having a value not greater than the maximum amount for which a municipality may dispense with sealed bidding pursuant to Connecticut General Statutes § 7-148v(a), as amended from time to time. Contracts and purchases for construction and such related services having a value greater than five thousand dollars ($5000.00), but not greater than such maximum amount, shall be awarded in accordance with informal quotation and informal bidding procedures established by the purchasing agent, which shall include preference for city-based businesses as defined in section 2-483 of the code and consistent with the procedures set forth therein.
(1) As applicable or as required, Chapter 12 ¼ of the New Haven Code of Ordinances a sheltered market program for Small Construction Business Enterprises (or Small Contractor Development) shall be utilized. Sealed bidding shall not be required for construction and construction related contracts and services in the sheltered market having a value not greater than the maximum amount for which a municipality may dispense with sealed bidding pursuant to Connecticut General Statutes § 7-148v(a), as amended from time to time. Shelter market contracts and purchases for construction and such related services having a value greater than five thousand dollars ($5000.00), not greater than such maximum amount, shall be awarded in accordance with informal quotation and informal bidding procedures established by the purchasing agent, which shall include the preference for city-based businesses as defined in section 2-483 of the code and consistent with the procedures set forth therein.
(c) Except as otherwise required by federal state, or local law or regulation, in the case of an emergency as determined by the city purchasing agent, where there is a threat to life, public health or safety, improved property, or some other dangerous situation that requires immediate action to alleviate the threat, an emergency procurement committee of the following City agencies will be convened to approve an emergency contracts (non-bid) not to exceed one hundred fifty hundred thousand dollars ($150,000):
City Engineering Department
City Corporation Counsel's Office
City Finance or Purchasing Department
Department of Public Health Department
Office of Policy, Management, and Grants
Small Contractor Development Office (as applicable)
Commission on Equal Opportunity (as applicable)
One Alder representing Aldermanic Leadership
One Alder representing Finance Committee
If regarding the Board of Education, representatives from the Board of Education including:
Superintendent or designee
Chief Operating Officer Office
Board of Education Finance Office
Quorum of the emergency procurement committee shall consist of five of the members referenced above. At the request of the City purchasing agent, the Mayor or designee will call a meeting of the emergency procurement committee within twenty-four hours at a time and place specified by the Mayor or the Mayor's designee. All emergency contract approvals shall be reported in the Monthly Financial Report.
(d) Sole Source Agreements: as deemed approved by the purchasing agent, sole source agreements may be entered into as agreements not to exceed one hundred and fifty thousand dollars ($150,000). A sole source procurement may be used when only one vendor or supplier is able to fill requirements for the intended use. Sole source may be used for compatibility with equipment for repair purposes, or for compatibility with existing systems. Standardization may require a sole source procurement, depending upon the intended use.
Standardization, which is either established because of past procurement(s) or by approval of the Purchasing Policy is a satisfactory condition for a sole source determination by the city purchasing agent. City agencies must seek written approval from the Purchasing Agent for any cooperative purchase.
(e) Cooperative Purchasing Agreement: the City purchasing agent shall be required to take advantage of incentives, cooperative agreements and consortiums generally available. Through cooperative purchasing arrangements, the dollars spent (purchases) increases, and this increased spend helps to leverage the organization's ability to obtain deeper discounts and achieve greater savings, as deemed approved by the purchasing agent. Cooperative purchasing agreements may be awarded in the same manner as RFP/RFQ/Bid Solicitations.
(f) Except Procurement Purchases: The following services shall be exempt from the procurement guidelines and policies:
a. New or Used vehicle purchases: New and Used vehicle purchases are exempt from the procurement requirements due to the nature of the purchase. The City will exhaust all options when purchasing a vehicle including utilizing cooperative purchasing contracts or utilizing local New Haven county dealerships. At the end of each calendar year, the City will report to the Board of Alders the list of vendors from which the City has purchased vehicles.
b. Auto Body Repairs: Due to the nature of vehicle auto/body repairs, at the beginning of each fiscal year, the purchasing agent shall publish a list to City agencies and the Board of Education of acceptable body/auto repair facilities. The purchasing agent may add or modify the list throughout the fiscal year based on request from City agencies and Board of Education
c. Software: Software as deemed by the purchasing agent as unique and qualifying as a sole source vendor. The designation of exempt from procurement policies would have to be demonstrated as the software being proprietary. Proprietary software is owned by an organization or an individual, as opposed to "public-domain software," which is freely distributed.
d. Recurring information technology maintenance and support services: Following the initial procurement of information technology software or hardware in accordance with applicable procurement requirements, the purchasing agent may approve the annual renewal of related maintenance, licensing, subscription, upgrade, technical support and similar services. Such services may be renewed automatically from year to year, unless canceled by the City.
e. Quasi Government Agencies: Agreement made with quasi-government agencies for municipal services. The duration of the agreement must meet the terms and conditions as outlined in section 2-376 of the code. Quasi agencies include:
i. New Haven Solid Waste Authority
ii. New Haven Parking Authority
iii. Tweed New Haven Airport
iv. Economic Development Corporation
v. State of Connecticut
vi. Other Connecticut municipalities
Sec. 2-483. Preference for city-based businesses.
(a) For the purpose of this section "city-based business" shall mean a business with a principal place of business located within the City of New Haven by occupying real property in which to conduct such business or by paying ad valorem taxes on business property to the City of New Haven. A business shall not be considered a "city-based business" unless evidence satisfactory to the purchasing agent has been submitted with each bid to establish that said business has its bona fide place of business in New Haven. Such evidence may include evidence of ownership of or a long-term lease of the real estate from which its place of business is operated, or payment of property taxes on the personal property of the business. A "city-based business" shall maintain such status throughout the term of any contract with the City of New Haven. Failure to maintain such status shall be grounds for the city to terminate said contract.
(b) On any contracts or purchases the lowest responsible bidder shall be determined in the following order:
(1) On contracts or purchases involving a total contract price of one million dollars ($1,000,000.00) or less: any city-based bidder that submitted a low bid not more than fifteen (15) percent higher than the lowest bid, provided such city-based bidder agrees to accept the award of the bid at the lowest bid amount. If more than one (1) city-based bidder has submitted bids not more than fifteen (15) percent higher than the lowest bid and has agreed to accept the award of the bid at the lowest bid amount, the lowest responsible bidder shall be the city-based bidder that submitted the lowest bid.
(2) On contracts or purchases involving a total contract price of more than one million dollars ($1,000,000.00) but less than five million dollars ($5,000,000.00): any city-based bidder that submitted a bid not more than ten (10) percent higher than the lowest bid, provided such city-based bidder agrees to accept the award of the bid at the lowest bid amount. If more than one (1) city-based bidder has submitted bids not more than ten (10) percent higher than the lowest bid and has agreed to accept the award of the bid at the lowest bid amount, the lowest responsible bidder shall be the city-based bidder that submitted the lowest bid.
(3) On contracts or purchases involving a total contract price of more than five million dollars ($5,000,000.00): any city-based bidder that submitted a bid not more than six (6) percent higher than the lowest bid, provided such city-based bidder agrees to accept the award of the bid at the lowest bid amount. If more than one (1) city-based bidder has submitted bids not more than six (6) percent higher than the lowest bid and has agreed to accept the award of the bid at the lowest bid amount, the lowest responsible bidder shall be the city-based bidder that submitted the lowest bid.
(4) The responsible low bidder.
(c) The City of New Haven's policy on city-based businesses shall be stated in the invitation to bid.
(d) This section shall not apply in any situation where the preference created by this section would violate federal and state law.
(e) Paragraph (b)(1), (2) and (3) shall apply to any contracts or purchases that are put out to competitive bid, and the city and the contractor are to share in the revenue generated by the contractor's services.
Sec. 2-488. - Performance and payment bond.
(a) Pursuant to Conn. General Statutes section 49-41, as amended from time to time, and unless otherwise authorized, the city purchasing agent shall require that contractors obtain a payment bond and performance bond when their contracts involve the construction, alteration or repair of any public building or public work of the municipality. The bonds must be in amounts and forms that are satisfactory to the city purchasing agent.
(b) The city purchasing agent has discretion to require a performance bond for any contract exceeding twenty-five thousand dollars ($25,000.00) for the provision of supplies, materials, or equipment.
(c) At the discretion of the purchasing agent, any bond required under this section shall be electronically executed, authenticated and delivered as an electronic bond through a system designated or approved by the city purchasing agent. Any electronic bond shall be verifiable, binding and enforceable and shall otherwise comply with Connecticut General Statutes § 49-41 and all other applicable requirements. The city purchasing agent may permit submission of a paper bond when electronic submission is impracticable or is not in the city’s best interests.