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7.40 Purchasing Policies and Bidding

7.40 Purchasing Policies and Bidding

Chapter 7.00: Business Services

7.40*

PURCHASING POLICIES AND BIDDING

POLICY

The purpose of this policy is to establish criteria by which the School Board will authorize purchases and the entering into contracts pursuant to bids awarded. It is also designed to implement provisions of Chapter 120, Florida Statutes. Florida Statutes, State Board of Education rules, School Board rules, State Department of Agriculture and Consumer Services rules, School Board rules and administrative procedures shall be carefully observed when making any purchases. The District shall recognize purchasing terms as defined by law and rule.

The Superintendent must approve purchase orders of five thousand dollars ($5,000.00) or more and purchase orders under five thousand ($5,000.00) may be signed by the Director of Finance.

I. Waiver of Bid Requirements

A. Purchase Under Governmental Contracts

The School Board will make purchases at the unit price in County contracts, District School Board contracts, State Purchasing Commission contracts, State On-Line Procurement System, State University System Cooperative Bidding Agreements, cooperative contracts with other school boards and bid agreements of other school boards, unless the goods and services can be purchased at a lesser price on the open market.

B. Single Source Commodities or Contractual Services

1. The Superintendent shall not recommend to the Board the award of a contract or the purchase of materials for the construction, modification, alteration, or repair of a District owned facility from a sole source supplier unless:

a. After considering all available alternative materials and systems it is determined that the specification of a sole material or system is justified based on its cost and interchangeability, and

b. The sole source specification has been recommended by the architect or engineer of record.

2. The Superintendent and staff shall document the justification in writing and place in the project file all action taken on such purchases or contracts.

C. Other Exceptions to Bidding Requirements

Food (excluding procurement of food items for the School Food Service program), items for resale, used books, items sold by the Department of Corrections pursuant to Section

946.24 Florida Statutes, and any other item exempted by law or rule are not subject to the requirement for requesting competitive solicitations. The Director of Finance shall submit justification for these exceptions when they are presented for approval of the School Board.

D. Professional Services

Professional services including, but not limited to, attorneys, auditors, management consultants, architects, engineers, and land surveyors are also exempt from the bid requirement. However, services of architects, engineers and land surveyors shall be selected and negotiated pursuant to School Board policy and to Section 287.055 Florida Statutes.

E. Quotations Permitted

The authority shall be vested in the Director of Finance, under the Superintendent’s direction, for making purchases or entering contracts for temporary employment services and expending monies from properly budgeted materials, supplies, and services costing twenty-five thousand dollars ($25,000.00) or less provided they are not on established State Contract and are not otherwise exempt from bidding by State Board of Education rules. The purchasing agent shall:

1. Request two (2) written or telephone quotations for items totaling more than five thousand dollars ($5,000.00), but less than twenty-five thousand dollars ($25,000.00); and,

2. Obtain written or telephone quotations for purchases of five thousand dollars

($5,000.00) or less when practical and in the School Board’s best interest. F. Emergency Purchases

The Superintendent or his/her designee may authorize an emergency purchase without formal competitive bidding if one of the following conditions exists:

1. Threat to public health, safety, or welfare;

2. Emergency conditions; or

3. Delay of the goods or services would be detrimental to the best interest of the schools.

However, such emergency purchases shall be made after obtaining pricing information from at least two (2) vendors. If the Superintendent determines in writing that the time required to obtain pricing information will enhance the emergency situation, the emergency purchase may be made without quotations. All such emergency purchases shall be reported to the School Board for approval at the next regularly scheduled meeting.

II. Formal Bids

A. Competitive Sealed Bids

The School Board shall request sealed bids from at least three (3) sources for purchases in excess of twenty-five thousand dollars ($25,000.00) except noted above in I.A-F.

B. General Advertisement, Construction Projects

A public notice for an invitation to bid shall be published in a newspaper of general circulation for a reasonable period prior to the bid opening. The Board shall publish as prescribed below a legal notice briefly giving the essential information including at least the following:

1. For all advertisements:

a. A statement that bids are to be filed in the office of the Board;

b. Date, time and place for the opening of bids.

2. For Construction Projects Advertisements:

a. Brief statement of work contemplated and identification of location of work by project name;

b. From whom and when plans and specifications will be available;

c. Any other information for bid bonds and deposits for plans and specifications. This notice shall be published once a week on the same day of the week, in a newspaper which is entered or which has wide circulation in the School Board’s district and which is available for the publication of official notices and customarily contains information of a public character. The last such notice shall appear at least one (1) week prior to the date set for the opening of bids. Any corrections or changes in the advertisement shall be made at least one (1) week prior to the final date set for opening bids. Notices shall be published according to the following schedule:

Project Cost

Successive Weeks

Published

Up to $200,000.00 1

$200,000.00 - $500,000.00 2

$500,000.00 and above 3

d. All bids are to be publicly opened and tabulated by the Superintendent or a member of his/her staff and other designated individuals of the School Board at a previously announced time and place prior to the meeting of the School Board so that recommendations can be made to the Board at the meeting.

C. Requirements for Award of a Construction Contract Pursuant to Bid

The bidder must comply with all bid specifications and for bids over twenty five thousand dollars ($25,000.00) and must have provided with the bid a good faith deposit in the amount of five percent (5%) of the bid by way of a cashier’s check or a bid bond from a surety insurer authorized to do business in the state of Florida as surety and approved in the amount of the bid amount or above.

D. Bid Openings

Public openings of competitive sealed bids may be tabulated by the Director of Finance or his/her designee at the time and place specified in the advertisement.

E. Withdrawal of Competitive Sealed Bid

A competitive sealed bid that is clearly erroneous may be withdrawn before or after a contract is awarded. An awarded contract may be canceled because of an error if the Director of Finance is notified in writing in a timely manner. No changes in bid prices or other bid provisions are prejudicial either to the best interest of the School Board or to fair competition shall be permitted. If a competitive sealed bid contains an alteration or correction when opened, the affected bidder who made the change shall have initialed the change.

F. Requirements for Bid to be Considered

No bid shall be considered if the bidder fails to comply with the terms and conditions of the bid form, or the procedure for submitting bids as authorized in the official advertisement and other documents pertaining to the bidding as authorized by the Board.

G. Award of Bid

The Superintendent shall recommend the lowest responsible and best bid meeting specifications to the School Board. The Board shall have the right to reject any and all bids and to accept other than the lowest bid meeting specifications; however, in such event, the School Board shall enter the justification into the minutes of the meeting when the award is made.

H. Communications with Prospective Bidders

The School Board, through the Director of Finance, may communicate with prospective bidders for clarification and to assure full understanding of and conformance to the solicitation requirements. The School Board, through the Director of Finance, may discuss the request for proposal criteria with qualified bidders to assure that the award is in the School Board’s best interests, provided, however, that due consideration must be given to fair competition.

III. Waiver of Irregularities and Rejection of Bid

A. The School Board, at a regular or special meeting, shall consider all bids received and within the time limit listed in the specifications, either reject all bids or award the bid to the lowest responsible bidder for the actual amount of the bid considering base bid and alternates accepted as listed in the bid documents. The School Board may reject the bid of any bidder who has previously failed in the performance of an award, who has not delivered an on-time contract of similar nature, or who is not in the position to perform properly under the award.

B. The School Board reserves the right to inspect all facilities of bidders to determine the above- mentioned items and also reserves the right to waive irregularities and minor technicalities if so stated in the bidding specifications. The Board may elect to request a rebid.

IV. Awards

A. The School Board may consider several factors, including but not limited to the following, to determine the responsible and best bid:

1. The quality of workmanship;

2. The ability of the bidder to meet time requirements given his/her current work force and current obligations;

3. The financial stability and current obligations of the bidder;

4. The past performance of the bidder with the Board;

5. The experience and ability of the bidder;

6. Other factors which influence the bidder to perform

7. The facilities and capacity of the bidder.

B. The School Board may reject any bid from a bidder who has not been a bona fide going concern prior to the submission of the bid.

C. This policy (Section C) shall become a part of the bid documents by reference. By such provision, the bidder shall acknowledge that he has read and understands that he is bound by the terms and conditions herein set forth.

D. An award shall not be effective until the Director of Finance forwards a written purchase order or notice of award to the successful bidder, after action of the School Board.

V. Requirement for Performance and Payment Bond and Insurance

A. Any person or corporation entering into a formal contract with the School Board, in excess of twenty five thousand dollars ($25,000.00) for the construction of any facility, for the prosecution and completion of the construction work, or for repairs upon a building or facility, shall be required, before commencing the work, to execute a one hundred percent (100%) payment and performance bond in accordance with requirements of Section 255.05 F.S. and to provide liability insurance coverage as stipulated below. The performance and payment bond executed by the bidder must be by a bonding company approved by the Florida Department of Insurance and the United States Treasury Department to write such bonds in amounts equal to or exceeding the amount for each contract. The insurance company writing any policy, including liability, shall have a Best rating of “A+” or “above” or verified equivalent.

B. Liability insurance or any other insurance protecting the contract bidder and the School Board shall not only be written by an insurance company with the required rating but must be in the amounts stipulated in the bid documents which are incorporated with and made a part of the bid contract. The insurance company must be licensed to do business in the state of Florida.

VI. Protests Arising from the Bidding Process

A. Notice of Bid Solicitation

A bid solicitation, notice of decision, or intended decision shall be given by U.S. Mail or by hand delivery by the Purchasing Department.

B. Notice of Intended Decision for Bid or Other Award.

1. Unless otherwise specified herein, all notices shall be issued by the Purchasing Department. Notices of intent to award or reject bids shall be given to all bidders by posting the bid tabulations at the Purchasing Department with recommendations reflecting the lowest and best bid meeting specifications, terms, and conditions. The date and time of posting for a specific bid tabulation and recommendation may be established in the bid documents. Bidders will be notified by registered mail, return receipt, of bid posting date and time not covered in bid documents and of any delay in the bid posting date. Any notification letters shall advise all bidders of the date and time at which bid tabulations will be posted, which date shall be at least three (3) days subsequent to the date the notice letter is mailed. The bid tabulation with the recommended award will remain on display for no fewer than seventy two (72) hours. The notice shall contain the following statement:

“Failure to file a protest within the time prescribed in Section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under Chapter 120, Florida Statutes.”

2. The School Board is not obligated to accept the recommendation placed before it, nor is it bound by a notice of intended decision.

C. Actions Differing from the Notice

Each action on a bid presented to the School Board shall be preceded by a recommendation from the Superintendent. In the event the School Board takes action to award a bid which differs from the posted notice of intended decision (or last notice of intended decision if more than one was provided), such award does not become final until seven (7) days after the Board’s actions. Within two (2) working days of such Board action, all bidders shall be notified of the action by registered mail, return receipt.

D. Protest

1. Any person adversely affected by the decision or intended decision shall file a notice of protest, in writing, within seventy two (72) hours after the posting of the bid tabulation (or receipt of written notice of intended decision) and shall file a formal written protest within ten (10) days after the date the notice of protest was filed. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. The formal written protest shall state with particularity the facts and law upon which the protest is based. All protests shall be filed with the School Board at the location described in the bid documents.

2. A protest is filed when it is received by the School Board at the location described in the bid documents. Accordingly, a protest is not valid unless it is received within the times specified in Section VII.D.

3. Upon receipt of a formal written Notice of Protest which has been timely filed, the School Board shall stop the bid solicitation process or the contract award process until the subject of the protest is resolved by final School Board action, unless the Superintendent sets forth in writing particular facts and circumstances which require the continuance of the bid solicitation process or the contract award process without delay in order to avoid an immediate and serious danger to the public health, safety or welfare. When the Superintendent so notifies the School Board, then the Superintendent is authorized to continue the bid solicitation process or the contract award process and to release purchase orders for the purchases regardless of the protest.

4. When the contract award process is stopped due to the filing of a Notice of Protest, the School Board authorizes the extension of any existing contract for the goods or services contained in the bid or request for proposals being protested under whatever terms and conditions are determined by the Superintendent to be in the best interest of the School Board until such time as the new award under protest can be approved by the School Board.

5. The method for computing the time in which to file a notice of protest and formal written protests is as follows:

6. Notice of Protest

a. The bidder must file a written notice of protest within seventy two (72) hours following notice of the Board’s decision or intended decision. The notice of protest should be filed with the School Board at the location described in and to the official designated in the bid documents and will include at least the following information:

1) The bidder’s name, address, and telephone number;

2) The name of the bidder’s representative (the Board will forward all notices to this representative);

3) A brief factual summary of the basis for the protest;

4) The name and bid number of the solicitation.

b. All previous notices will be abandoned unless renewed in accordance with the above-mentioned time limits for filing a protest (refer to Section 120.57(3), F.S.) after the Board makes a decision. If the seventy two (72) hours expire on a Saturday, Sunday, or holiday, the notice of protest must be received by the same hour the next day.

7. Formal Written Protest

a. The bidder shall specify the following items:

1) The solicitation involved;

2) A clear statement explaining the grounds for the protest;

3) The applicable statutes, rules or other legal authority involved;

4) The requested relief sought.

b. The formal written protest will be timely filed with the School Board at the location described in and to the official designated in the bid documents within ten (10) days after the date of the filing of the notice of protest. The protest will be timely filed by the close of the business day or day when the ten (10)day period expires. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under Chapter 120, Florida Statutes.

c. The day of the event from which the period of time begins will not be included. The last day of the period will be included. However, if the last day is a Saturday, Sunday or legal holiday when the School Board administrative office is closed, the period will run until the end of the next day that is not a Saturday, Sunday or legal holiday.

8. Security

a. Significant damages and losses will be suffered by the Board as a result of the time lost and costs associated with an unsuccessful Bid Protest and such damages and losses will be difficult, if not impossible to prove. Therefore, each Formal Written Protest will be accompanied by Security in an amount equal to 15 percent of the total value of the contract or

$5,000.00, whichever is less.

b. The Security may be in the form of a bank cashier’s check or bank certified check payable to “The School District of Okeechobee County, Florida”, or the Security may be in the form of a Bond naming as Obligee therein “The School District of Okeechobee County, Florida”. Each such Bond shall be executed by the Protesting Party as the Principal therein, and by a Surety. The Protest Bond shall be dated the same date as the date shown in the Formal Written Protest. There must be attached to each Protest Bond a duly authenticated or certified Power of Attorney evidencing that the Attorney-in-Fact who executed the Protest Bond on behalf of and in the name of the Surety thereon, has the authority to so execute the Protest Bond on the date of the Protest Bond.

c. If the Protesting Party is successful in the Bid Protest, the Security submitted shall be returned in full to the Protesting Party.

d. If the Protesting Party is unsuccessful in the Bid Protest, the Security submitted by the Protesting Party in the form of a cashier’s check or bank certified check shall be kept and retained by the Board and the Board may receive and retain all moneys represented by such check and the Protesting Party shall have no right to same or to a refund of any part of same.

e. If the Protesting Party is unsuccessful and the Security submitted by the Protesting Party is in the form of a Protest Bond, the Protesting Party and the Surety on said Protest Bond shall forthwith pay over to the Board the full monetary amount and penal sum of the Protest Bond,

and such amount and sum shall be retained by the Board.

f. If the Protesting Party’s protest is unsuccessful, said Protesting Party shall be liable for all attorney fees and other administrative costs associated with the unsuccessful Bid Protest.

g. To qualify as a successful Bid Protest:

1) In the case of a protest of another party’s bid, the bid being protested must be rejected by the Board for the reasons stated in the Protesting Party’s Formal Written Protest.

2) In the case of the protest of a rejection of the Protesting Party’s own bid, for the protest to be successful, the Board must award the contract to the Protesting Party.

9. Settlement and Resolution

Within seven (7) days, excluding Saturday, Sunday, and legal holidays, following the formal written protest, the School Board shall provide an opportunity to resolve the protest by mutual agreement between the parties. However, if a settlement will determine a substantial interest of another bidder, the settlement must be determined in an informal proceeding. Any such proposed settlement must be approved by the Superintendent and submitted to the School Board for final action.

10. Informal Proceedings

a. When a protest cannot be resolved by mutual agreement within seven (7) days and if there is no disputed issue of material fact, the Superintendent shall appoint a presiding officer to conduct an informal proceeding pursuant to the Florida Administrative Procedures Act (Section 120.57(2) Florida Statutes). The presiding officer shall seek a mutually agreeable resolution within seven (7) days of the receipt of the referred protest.

b. The presiding officer may notify other individuals/bidders whose interest may be substantially affected by these proceedings.

c. A petition to intervene will be considered on its merits.

d. A protesting bidder may submit the following items either prior to or at the hearing: written or physical materials/objects, statements/affidavits, written agreements regarding the issues.

e. The protesting bidder, representative, or counsel may present an oral presentation of the relevant evidence of arguments. However, direct and cross-examination will not be permitted. The presiding officer may make inquiries regarding the protest.

f. The judicial rules of evidence shall not apply. The presiding officer will base his/her decision on the reasonable information presented at the proceedings. The presiding officer will render a decision within thirty (30) days following the conclusion of the proceedings. The decision will include the terms and/or conditions of any settlement and/or conform to the Florida Administrative Procedures Act for final orders and proceedings (Section 120.57, Florida Statutes).

g. If the presiding officer finds that a dispute exists regarding a material fact in the resolution of the protest, his/her decision will notify the protesting bidder regarding his/her rights to petition for a formal proceeding under the provisions of the Florida Administrative Procedures Act (Section 120.57, Florida Statutes).

h. The protesting bidder shall have ten (10) working days following the date of the close of the informal hearing to petition for a formal proceeding. Any party to the informal hearing may arrange for the hearing to be stenographically recorded.

11. Formal Proceedings

If by mutual agreement a resolution is not reached by the informal hearing process as set forth herein and if there is a disputed issue of material fact, the matter shall be referred to the Florida Department of Administration, Division of Administrative Hearings, for proceedings under Section 120.57(1), Florida Statutes.

a. Interveners

Participation by interveners will be determined by the terms of the order issued in response to the petition to intervene.

b. Time Limits

The time limit for filing a protest may be altered by provisions incorporated into the invitations for bids or requests for proposal.

c. Entitlement to Costs

The protesting bidder will not be entitled to any costs incurred with the solicitation, which includes bid preparation costs and attorney’s fees.

VII. The School Board shall approve all subcontractors. When a construction contract has been awarded to a contractor on the basis of proper bids, payments on that contract shall be made on a scheduled basis in an amount approved by the architect. This amount shall consider the ten percent (10%) hold-back required by Florida Statutes. Upon completion of the construction, the final payment shall be made only on the School Board’s approval after proper inspection of the facilities.

VIII. Purchase of Foods and Non-Food Items for the Food Services Department

The Superintendent shall develop and prescribe a Competitive Procurement Plan for purchasing food and non-food supply items for the school food services program.

A. The Plan shall contain procedures to ensure conformity with the Federal Food, Drug and Cosmetic Act, the Federal Meat Inspection Act, and the Meat Inspection Law of Florida when purchasing foods.

B. The Plan shall provide for various types of selection procedures as alternatives to the bidding requirements prescribed herein. Bidding requirements specified in this rule shall be waived if they conflict or are inconsistent with the Plan. All purchases of milk shall comply with State Department of Agriculture and Consumer Services Rule

5P-1.003.

C. Purchases of equipment items and professional services shall be excluded from the Plan and shall be subject to procedures for purchases and protest of bids described herein.

IX. Conflict of Interest

No School Board employee may directly or indirectly purchase or recommend the purchase of goods or services from any business organization in which his / her spouse or child has a material interest as defined by Section 112.312, Florida Statutes.

X. Multi-Year Purchase Agreements

No obligation shall be created by contract, purchase order, maintenance agreement, lease- purchase agreement, lease agreement, or other instrument which exceeds a period of twelve (12) months. The Superintendent shall develop and prescribe a uniform termination clause which shall be incorporated in and made a part of any multi-year obligation agreement or contract.

STATUTORY AUTHORITY: 1001.41, 1001.42, F.S.

LAWS IMPLEMENTED: 112.312, 119.071, 120.57, 212.08, 212.0821, 255.04, 274.02,

287.017, 287.057, 1001.43, 1010.01, 1010.04, 1013.47, F.S.

STATE BOARD OF EDUCATION RULES: 6A-1.012, 6A-1.085, 6A-1.087

STATE DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES RULES:

5P-1.003

HISTORY: Adopted: 07/14/1998

Revision Date(s): 08/14/2001, 12/09/2003, 01/20/2004,

11/22/2005, 03/09/2010, 10/11/2011

Formerly: F-2, F-3, F-5, F-23, F-24, F-34, F-41

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