AMENDED BY BY-LAW:
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s. 23 - Approval Relating to Financial
Value – Staff or Staff and Council |
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s. 34- Green Procurement |
THE CORPORATION OF THE CITY OF BURLINGTON
BY-LAW NUMBER 69-2005
PROCUREMENT BY-LAW
A by-law to establish the City of Burlington’s
corporate reference for business practices related to
procurement and other commercial activities by the
City, and to repeal By-law 135-2004.
File: 465-00 (CC-72-05)
WHEREAS the Council of the Corporation of the City of Burlington enacted By-law 135-2004 to accept Purchasing Policy as the City of Burlington’s corporate reference for business practices related to purchasing and other commercial activities by the City; and
WHEREAS Section 5 (3) of the Municipal Act, 2001, directs that municipal powers be exercised by way of by-law; and
WHEREAS Section 271(1) of the Municipal Act, 2001, directs municipalities to establish policies with respect to its procurement of goods and services; and
NOW THEREFORE BE IT RESOLVED THAT THE COUNCIL OF THE CORPORATION OF THE CITY OF BURLINGTON HEREBY ENACTS AS FOLLOWS:
1. THAT the City of Burlington approves this Procurement By-law as the City of Burlington’s corporate reference for business practices related to procurement and other commercial activities by the City, as set out in Schedules A to F attached hereto and forming part of this By-law.
2. THAT By-law 135-2004 is hereby repealed when this By-law comes into effect.
3. THAT this By-law shall come into effect on November 7, 2005.
ENACTED AND PASSED this 7th day of November, 2005.
______________________________
MAYOR
Robert
S. MacIsaac
______________________________
CITY CLERK
Kim
Phillips
SCHEDULE ‘A’ TO BY-LAW 69-2005
PROCUREMENT BY-LAW
TABLE OF CONTENTS
1) Standard Terms and Conditions
2) Formal Bid / Proposal Requests
and Standard Terms and Conditions
3) Responsibility for Issuing and
Receiving Bid, Proposal and other ** Commercial Requests
4) Bid Opportunity Communication
5) Purchasing Policy Compliance,
the P.M.A.C. Code of Ethics and the Staff Code of Conduct
6) Alternate Dispute Resolution
8) Declaration of Conflict of
Interest
9) Unauthorized Purchases and
Consequences
12) Bid / Proposal Request
Document Fees
13) Response Time for Bids /
Proposals
15) Legalities – Bid Redundancies
and Disqualification Criteria
16) Evaluation of Bids and
Documentation
17) Procurement Service Review and
Evaluation
18) Information - Publicly
Disclosed
19) Information - Confidential
20) Budget Figures and Upset Price
Disclosure
23) Approval Relating to Financial
Value – Staff or Staff and Council
24) Revenue Generating Contracts
25) Report Writing Responsibility
27) Decentralization /
Centralization
28) Halton Co-operative
Purchasing Group, (H.C.P.G.)
combining
other Halton government agencies’ requirements into one co-ordinated pricing.
29) Councillors Doing Business
with the City
34) Environmentally Friendly
Products and Services
35) Local Vendors and Tax Arrears
37) Disposal of Obsolete or
Surplus Goods
39) Payment Following Receipt of
Goods or Services
42) Disaster / Emergency
Requirements
SECTION
To minimize risk and ensure a comprehensive approach from the City’s
perspective the City’s Standard Terms and Conditions pertaining to the Purchase of Goods and Services and the Standard Terms and Conditions Pertaining to the Purchase of Consulting Services, including definitions, as detailed in Schedules B and C to this Procurement By-law, form an integral part of the City’s contracts.
All formal written requests for quotations, proposals and tenders by the City will include a Standard Terms and Conditions document. An abbreviated version is included with the City’s purchase orders (see Schedule C). Construction Tender Requests utilize a separate document in this regard.
There is a need to ensure consistency of policy and practice as well as minimize the City’s liability in matters of contractual obligations. Consequently, only the Purchasing Services section of the Finance Department or the Engineering Department can request formal written bids or proposals valued over $20,000. This will ensure that administrative efficiencies and volume economies are realized. Further, it will ensure that personnel experienced in contractual matters are utilized for the City’s significant expenditures.
** E.G. Requests for Qualifications, Requests for Information, Requests for Expressions of Interest, Requests for Offers, etc.
Engineering is a technically specialized aspect of the City. Consequently, the Engineering Department will issue and administer all bid or other requests for contracts which require engineering, design, construction, and/or inspection services, e.g. road construction.
Bids will be delivered to either the Clerks Department in the case of tenders, or the Purchasing Services section of the Finance Department in non-tender situations. This will be clearly stated in the bid request document.
The
City’s formal written bid opportunities are posted on the City’s website. In some cases Electronic Tendering Network
(ETN) and the Ontario Public Buyer’s Association (OPBA) websites are also used.
With the intent of ensuring corporate business practices that will be above reproach, Purchasing Services staff, SAP Designated Users, and Purchase Card Carriers will be guided by this Procurement By-law. Purchase Card carriers must also acknowledge and comply with the conditions of the Purchase Card Policy. If these controls are not complied with while procuring goods and services on behalf of the City, disciplinary action may be taken. Beyond ethical issues a sense of the legal responsibilities inherent in procurement can be seen by the legislative references listed in Schedule E. The Procurement By-law also practices the spirit of the Purchasing Management Association of Canada’s Code of Ethics (see Schedule F).
The parties to the City of Burlington bid processes, in order to administratively minimize disputes and resolve them as rapidly and amicably as possible when they do occur, may apply to implement the following Dispute Resolution process:
Any vendor who has an objection to the award of a product or service contract to any contractor by the City of Burlington shall contact the respective Purchasing staff member to request a debriefing meeting in which the issues of concern may be discussed.
Should the debriefing meeting fail to satisfy the vendor, an appeal of the award decision may be requested in writing to the Supervisor of Purchasing Services within ten (10) days of the debriefing meeting. The appeal shall be reviewed by a Dispute Committee. The Dispute Committee shall be comprised of the original evaluation committee members and the Supervisor of Purchasing or designate.
The matter will be considered closed after the Dispute Committee’s decision.
If any director, officer, employee, agent or other representative of a vendor, including any other parties that may be involved in a joint venture, consortium, or similar business relationship with the vendor, makes any representation, lobbying effort, or solicitation to any elected representative or employee or agent not with Purchasing Services of the City, or to the media, with respect to the vendor’s submission, during the interval from the bid opportunity closing date and the subsequent award, i.e. the bid review period the City shall reject said submission. This requirement does not extend to any public deputations that may be made to any committee in accordance with the respective City procedural By-laws. Inquiries must not be directed to non-Purchasing Services/Engineering City staff or elected officials during the bid review period. Directing inquires to other than Purchasing Services, or applicable Engineering staff in the case of Construction Bid Requests, during the bid review period shall result in the respective vendor’s submission being rejected.
All vendors retained by the City of Burlington shall disclose to the City prior to submitting a bid and/or accepting an assignment, any actual or potential conflict of interest. If Purchasing Services staff determine such a conflict of interest does exist, the City may, at its discretion, withhold the assignment from the vendor until the matter is resolved. If a significant conflict of interest is deemed to exist, then the vendor shall be ineligible for the contract or shall take such steps that are deemed necessary to remove the conflict of interest without penalty to the City.
Unauthorized
purchases by staff and flagrant disregard for the City’s policies are not
acceptable. With an aim to inspire policy adherence and minimize the
possibility of City embarrassment and potential liability, the responsibility
for payment may become that of the individual who purchased it.
In order to comply with senior government trade agreements all needs with a projected value over $100,000. must be advertised. Advertising is at the discretion of Purchasing Services staff for needs with a value less than $100,000.
Advertising, Not Related to Construction
All non-construction bid request advertising will be co-ordinated by Purchasing Services and Corporate Communications staff.
a) Verbal
Requests for Written Quotations are used for needs valued up to $20,000. * (including taxes and freight). A minimum of three quotations are requested,
where feasible, and copies kept on file for audit or reference purposes. Exceptions to this comparison quotation
process may be implemented at the discretion of individual Department
Heads. Supporting rationale will be
available.
b) Formal Written Requests for Bids (i.e. Quotations or Proposals) are utilized for needs valued over $20,000. and up to $100,000. (including taxes and freight). A minimum of three quotations is required where feasible. Quotation copies are kept in the specific file for audit or reference purposes.
c) Formal Written Requests for Tenders are a formal method by which the City requests pricing. They are utilized when specific needs can be described and the respective value is over $100,000. Request for Tenders are advertised and sealed bids are submitted to the Clerks Department by a specified closing date. Bids are opened at a public meeting and the name of the vendors and their total prices are read aloud. A copy of this information is subsequently mailed to the tender process participants. Tender copies are kept in a specific file for audit or reference purposes.
d) Formal Written Requests for Proposals (R.F.P.s) may be valued over or under $100,000. An R.F.P. describes a function to be performed and the vendor submits his recommended solution and approach as well as the corresponding prices. Depending upon the nature of the specific need the actual request for (sale) offers may be preceded by a Request for Information (R.F.I.), Request for Expressions of Interest (R.F.E.I.), Request for Pre-Qualification (R.F.P.Q.) or a Request for Offers (R.F.O.), in the case of the City offering goods for sale. All of these written requests are to be issued and received by Purchasing Services staff. R.F.P.s are not formally opened in public. Response information and competitor identities are confidential. After the award the name of the successful vendor will be disclosed to the public. The R.F.P. process permits negotiation, unlike tenders.
N.B. Purchases valued up to $20,000. (including taxes and freight) are decentralized and delegated to “named or designated” SAP users, and Purchase Card carriers. Competitive bids and Purchasing Services staff approval are not necessarily required. Established contracts, when available, will be used by designated users and Purchase Card carriers to ensure lowest prices are paid and that economies of scale are not lost. Staff so empowered are required to comply with the City’s Procurement By-law.
e) Vendors of Record
Some vendors may earn a Vendor of Record status. This will be predicated upon competitive pricing, quality workmanship and exemplary service. As such, repetitive work requirements with a value under $20,000. per incidence may be directed to Vendors of Record when the administrative requirements of a formal bid process are not economically feasible. Situations with a value over $20,000. will be subject to a formal competitive bidding process.
f) Non-Competitive Procurement
In some situations a Competitive Bid Process may not be possible or preferred. This is known as “non-competitive procurement”.
Non-competitive procurement includes:
- sole sourcing
- single sourcing
- unsolicited proposals.
Sole sourcing is the procurement of a product or service that is unique to a particular vendor and cannot be obtained from another source. In the absence of competitive bidding appropriate signature authority and, if applicable based on the value, Council approval may be required.
Single sourcing is the procurement of a product or service from a particular vendor rather than through solicitation of bids from other vendors who can also provide the same item. Single sourcing may be the best course to take in some circumstances. These situations will be limited to values under $20,000. The rationale for single sourcing will be documented and clear about the circumstances supporting this procurement method. Situations valued over $20,000. will be subject to a formal competitive bidding process.
Unsolicited proposals present needs defined by the vendor, rather than the City. As such, the objectivity of the procurement function can be put at risk. Unsolicited proposals will be considered by Purchasing Services only when it is judged to be in the City’s best interests. If the value of the proposal exceeds $20,000 written reasons must be kept on file and City Manager approval obtained in addition to other appropriate signature authorizations by the involved parties. If applicable, based on the value, Council approval may be required in order to permit a contract to proceed. Otherwise, it cannot be considered. Instead, a competitive bid process must be undertaken.
g) The
“Two-Envelope” procurement process
The two-envelope approach is used when the purchaser wants to evaluate the technical and qualitative information of a given proposal without being influenced by prior knowledge of the corresponding pricing information. The “two-envelope” process may be used when a Request for Proposal (RFP) is issued. In this process, each bid is submitted in two envelopes with technical and qualitative information shown in the first envelope and the bid price in the second. The second envelope is opened only if the first envelope shows that the vendor is qualified.
h) Forms of Contract
The City may document its contract terms in the following ways:
1) with a Purchase Order
2) with a Contract (i.e. blanket order) generated by Purchasing Services
3) with a Contract/Agreement generated by the City’s Legal Department
4) with a Letter of Agreement issued by City staff to vendors for situations valued at less than $10,000, including taxes.
Further Notes
i) Tie Bids
In the event of a tie bid, equal in all respects, the award decision will be decided by a coin toss. This will be in the presence of the respective vendors and the Purchasing Services staff member(s). The coin will be tossed be the City Clerk, or designate.
j )
In-House Bids
If the City wishes to entertain an “in-house bid” or “shadow bid” it is necessary to formally declare this in the bid request document. In such situations the following clause will be incorporated into the bid request document:
“Vendors
should note that the City has the capacity to supply the need described
herein. Consequently, a division of the
City has been invited to submit a bid which will be included in our evaluation
process.”
Some bid/proposal request invitations involve extensive background documentation, enclosures, drawings, etc. creating a large package of materials.
A reasonable, non-refundable, fee in proportion to the detail and volume of these complex bid/proposal request documents will apply.
There is an internal cost for bid request / proposal documents. This is comprised
of staff time, materials, printing and distribution. These fees will offset this
aspect of the City’s business administration in the case of complex bid
documents. Other, concise, bid / proposal documents will continue to be without
charge.
A minimum response time ranging from 10 to 15 calendar days will be
offered, whenever feasible, to vendors to quote or make proposals related to
Request for Tenders, Request for Proposals and complex Formal Written
Quotation Requests.
All non-construction related bid and performance securities (i.e. bonds, certified cheques and irrevocable Letters of Credit) will be held and released when appropriate by Purchasing Services staff.
Some traditional bid requirements are now considered unnecessary and redundant. As a result bid submissions no longer require:
i) a corporate seal
ii) an agreement to bond signature
iii) a statutory declaration signature
Bid submissions will be disqualified if the following requirements are not met:
i) - received after 2:00 p.m. on the advertised closing date for tenders
ii) - not signed by a proper officer of the firm
iii) - not accompanied by a certified cheque, or an irrevocable letter of credit or a properly executed bid bond, if applicable, in the amount specified.
Evaluations of bid responses will be by Purchasing Services staff and may
include representative(s) from the initiating department(s). Original evaluation score sheets from each
evaluator, signed and dated, will be kept on file by Purchasing Services. This will ensure accountability and process
transparency in the event of inquiries or audits. Vendor information submitted in confidence
will remain confidential, subject to the provisions of the Freedom of Information and Protection of
Privacy Act, R.S.O. 1990.
In order to measure and document the performance of the Purchasing Services section in relation to its mandate an annual report will summarize the past twelve months. It will encompass the number of vendor complaints and the number of respective resolutions as well as other noteworthy information.
Tenders are received by the Clerks Department. They are opened at a public meeting. The names of the respondents and the total amount of their bids are read aloud. A written copy of this information is mailed to the respondents.
In non-tender situations only the successful company’s name will be disclosed after the award.
To enhance value achievement and protect the competitive position of the City’s
vendors City staff will not disclose commercial information (e.g. prices and
response information) in non-tender situations. The names of the unsuccessful
vendors will also be regarded as confidential information.
Notwithstanding this, some circumstances may necessitate competitor respondent identification disclosure before the closing date. For instance, legitimate collaboration between general contractors and sub-trades or required group site visits.
In the case of co-operative bid requests whereby the City co-ordinates bids for several other agencies, bid disclosure will be made to the other agencies participating or that may wish to join the subsequent contract. This will be explained in the invitation document.
Budget figures and upset price points will not be provided to vendors, whenever
feasible.
In order to avoid a “pricing up to the limit” response by vendors it is recommended that this information continue to remain in confidence, whenever feasible, and as deemed by Purchasing Services staff. In some cases this financial information can be regarded as part of the specification and is necessary to explain the depth of work required. In these circumstances the discretion of Purchasing Services staff will be utilized concerning possible disclosure.
Purchasing Services staff have the option of implementing negotiation at their discretion when best value for the City can result.
“Best Value” as opposed to lowest price will be the concept applied when making
purchase and bid acceptance recommendations.
Value can be quantified with a financial impact and may include:
a) negotiating improved revenue returns for advertising on City property
b) negotiating rebates based upon annual purchase value with vendors
c) negotiating improved discounts for quick payment of invoices
d) suggesting alternative products, offering equal or higher performance at sometimes dramatically lower costs than that of the products initially specified by user departments
e) negotiating a gain by way of barter, e.g. a portion of no charge services in return for a contract award
f) negotiating better warranties
g) negotiating no-charge extras
h) changing processes, etc.
A) Under
$100,000.
Purchase/Contract Values under $100,000 do not require Council approval or a report to Council. Staff will administer these purchases and contracts subject to budget control, funding availability and signing authority limits.
B) From
$100,000. to $1,000,000.
i) Purchase/Contract Values from $100,000. to $1,000,000. require a report. Approval by Council is not required if the following criteria are all present:
a) competitive bid process has been utilized with more than one bid received
b) recommended vendor is low bid meeting specifications in the case of a tender competition, or best quantifiable value (see Section 22) in the case of a proposal competition
c) budget approval exists for purchase
d) Director of Finance, and the respective General Manager and the Supervisor of Purchasing Services written approvals received
e) City Manager’s written approval received.
N.B.
Notwithstanding the nature of Delegated Authority, subject to staff’s
discretion, Council approval may be requested for contracts under $100,000., or
$1,000,000. notwithstanding the above criteria being
present, if considered to be in the best interests of the City.
ii) Purchase / Contract Values from $100,000. to $1,000,000. without all of
the above criteria in place require both a report to Council and Council approval.
In order to keep Council informed of transactions under Delegated Authority (i.e. those contracts not requiring Council approval), a quarterly report is circulated from the City Manager’s office summarizing contracts within the $500,000 to $1,000,000. value range.
In addition staff will inform Council by means of a monthly tender/contract award summary sheet to be included with the weekly Council bundles for Delegated Authority awards valued at more than $500,000.
C) Over
$1,000,000.
Purchase /
Contract Values over $1,000,000. require both a
report to Council and Council approval.
All values referenced are gross amounts before possible reductions as a
consequence of tax rebates and tax credits.
24) Revenue Generating ContractsPurchasing Services staff will participate in the development of revenue generating contracts that are preceded by a competitive bid process. The same approval limits and requirements in relation to value that apply in purchase circumstances (see Section 20), will be applicable to revenue generating contracts. 25) Report Writing ResponsibilityReport writing responsibilities recommending Council approval for expenditures will typically belong to the initiating department receiving the respective goods or services. Generally, the initiating department is best equipped and qualified for this. The report signatories will continue to be available at the Standing Committee if questions are asked. In the cased of multi-department bids Purchasing Services staff may choose to co-ordinate and write the report. 26) Contract ExtensionsContracts may be extended at the discretion of Purchasing Services staff. When a vendor has been retained and their contract is approaching its end it may be to the City's advantage to extend the contract. This option / extension is contingent upon the following criteria prior to the extension of any existing contracts: 1. Staff supervising the contract, in conjunction with Purchasing Services, must identify contracts that if put through a bid process are not likely to result in a price advantage to the City. 2. An investigation of the marketplace for such products and/or services must indicate that recent prices reflect an increase in costs. 3. The
extension does not require any contract amendments which could be deemed “unfair or inequitable” to the
community and in the marketplace. |
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This option will enable the City to avoid price increases that otherwise might result by allowing selected existing contracts to expire. Council may be advised of some contract extensions if considered appropriate (e.g. banking services). Purchasing Services staff will be accountable for all such decisions and maintain a record of contract extension rationale on file in Purchasing Services. 27) Decentralization / CentralizationDecentralization of procurement by way of S.A.P. Designated Users and Purchase Card carriers has been designed to complement the advantages of standardization and economies of scale. Corporate wide efforts by Purchasing Services will establish competitively decided contracts with the best value. Decentralized order personnel will adhere to these commercial source selections. Consequently many products and services will continue to be co-ordinated by Purchasing Services staff. For example: vehicles, H.V.A.C. needs, utilities, clothing, printing services, office furniture, office equipment, e.g. photocopiers, fax machines, etc., consulting services, computer hardware & software, voice and telecommunication equipment, revenue generating contracts, etc. |
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These categories may be revised at the discretion of Purchasing Services staff. 28) Halton Co-operative Purchasing Group (H.C.P.G.)The City’s Purchasing Services section will continue to participate and take a leadership role with the Halton Co-operative Purchasing Group (H.C.P.G.). This is appropriate when economies of scale and administrative efficiencies exist by combining other Halton government agencies’ requirements into one co-ordinated pricing.29) Councillors Doing Business with the CityThe Council of the City of Burlington considers it desirable to enhance public trust and confidence in their municipal Council by adopting a policy governing the conduct of members of Council respecting contracts or other legal relationships involving the City Corporation and any member in his or her personal capacity, or affecting or benefiting the interest of such member. The Council believes that such transactions should be as open and as transparent as possible to ensure that public scrutiny can be brought to bear and ensure that public expectations arising from the trust conferred on members by their election to public office are seen to be served and fulfilled. It is also essential that members of Council not become involved in matters in which their economic self-interest may be in conflict with their public duty. Every member, before entering into such a transaction, is required to make full and public disclosure. 1. Nothing in this by-law affects in any way any obligation imposed on any member by the Municipal Conflict of Interest Act, or any other law. 2. In this by-law, indirect interest or involvement of a Council member includes any interest or involvement of: - the spouse, child or parent of the member; - any body, partnership or association of which the member is a member, director or officer; - any corporation of which the member is a director or officer; and - any private corporation of which the member is a shareholder, but does not include the Burlington Economic Development Corporation or any other organization or corporation of which the Councillor is a director, officer, shareholder or member by reason of being appointed by Council. 3. No member shall, directly or indirectly become involved, or take steps to become involved, in any transaction with the City or any of its agencies, boards or commissions, or any committee thereof (collectively referred to as the “City”), in which the member could receive any improper advantage or benefit. 4. No member shall use information gained in the execution of his or her office that is not available to the general public, to further or seek to further the member’s private interest. 5. No member shall use his or her influence of office to further his or her private interest. 6. No member of Council shall attempt in any way to influence decision-making or processing with respect to any transaction in which the member has any direct or indirect financial or other interest. 7. No member shall act as a paid agent in appearing before or dealing with the City. 8. While a member is not precluded from being a part to any transaction with the City, or having a direct or indirect interest in such a transaction, he or she must take the utmost care that before doing so, full disclosure of the proposed transaction is provided as follows: a) Every member who intends to become involved in any transaction with the City by responding to any tender or quotation request, request for proposal, request for expressions of interest, etc., shall include a written notice of any direct or indirect interest of the member, and shall direct the City Clerk not to circulate to them any confidential information related to the transaction which they normally would be eligible to receive as a member of Council. b) In addition to 8(a), immediately after responding to any tender or quotation request, request for proposal, request for expressions of interest, etc., the member shall notify the Clerk in writing.
9. Regardless of the value of the transaction, every transaction in which a member has a direct or indirect interest shall not be dealt with through any delegated or detached administrative process. The award of the contract shall only be made by the remaining members of City Council. 10. Any contract or other transaction in respect of which any provision of this policy is or has been contravened may be rendered void or voidable at the discretion of Council. 11. Clerk’s Notification (a) Once the Clerk has been notified in writing by the member that the member has responded to a tender or quotation request, request for proposal, request for expressions of interest, etc., the Clerk shall notify the Council and the Director of Finance. (b) Where a member responds to a tender or quotation request, request for proposals, request for expressions of interest, etc., all other proponents that have expressed an interest in submitting or have submitted a proposal before the original closing date, shall be notified by the City Clerk immediately that a member is also a proponent in the competition. Closing dates may be altered as required to accommodate the bid/proposal change in relation to information disclosure. 12. Procedures Specific to Non-Tender Requests: (a) All proponents will have the opportunity to withdraw, replace or allow their non-tender submission to remain “as is” prior to the closing date. All proponents will be asked to make an election in writing as to how they wish to proceed. (b) As part of the notification process identified in 11(b), each proponent will be reminded that the City’s Standard Terms and Conditions provides that all submissions, including prices and sources will be disclosed following an award of a contract whether the Council member is the successful proponent or not. (c) Staff will evaluate every proposal and in the event that the Preferred Proponent is the member, the transaction shall be referred to the City’s Auditor for review and comment prior to staff making a recommendation regarding a Preferred Proponent to Committee and Council. The purpose of the referral is to provide an independent opinion as to whether the evaluation criteria has been appropriately and consistently applied to all of the proposals received, including the member’s proposal. Full information as to the nature of the direct or indirect interest of the member shall be provided as part of the document containing any recommendation. (d) Following the auditor’s review, staff shall prepare a public report to Committee and Council recommending a Preferred Proponent for consideration at a public meeting. If further negotiations are required with the named Preferred Proponent prior to a final recommendation being made, a confidential companion report will be presented in which staff outlines the areas in which further negotiations are required. The purpose of the confidential report will be to receive Council’s instructions for proceeding with the negotiations. (e) Where the Preferred Proponent is the member, staff shall not negotiate face to face with the Preferred Proponent. An intermediary will be retained to undertake the negotiations with staff’s assistance. (f) Following the negotiations, a further public report will be made to Council with a final recommendation for the award of the contract. The report shall include a copy of the confidential report and the draft contract mutually acceptable to both the City and the Preferred Proponent, where possible. (g) Full particulars of every transaction entered into or granted by Council with a member shall be made available to the public through the office of the City Clerk, including all submissions received, any response by the member to any tender or quotation request, request for proposal, request for expressions of interest, all reports, including confidential reports written for the purposes of obtaining further negotiating instructions, or other documentation. 13. Procedures Specific to Tenders: (a) Every tender transaction in which a member has a direct or indirect interest will be opened at a meeting open to the public at which time all respondents’ names and prices will be publicly disclosed. (b) In the event that the successful tender is that which has been submitted by the member, and the bid is not the low bid, the transaction shall be referred to the City’s Auditor for assessment in accordance with paragraph 12(c) of this policy prior to staff making a report and recommendation regarding the award of the tender to Committee and Council. (c) All reports to Committee and Council regarding the tender award will be made at a meeting open to the public. Full particulars of every such transaction shall be provided to Council. (d) Where possible a copy of the contract agreeable to both the City and the successful proponent shall be included in the Council report. (e) Full particulars of every transaction entered into or granted by the Council with a member shall be made available to the public through the office of the Clerk, including all submissions and any response by the member to the tender request, all reports, or other documentation. 30) Staff Benefits Generally,
City staff will not be able to benefit by procuring goods from the City at
the City’s net cost. Exceptions may be
initiated with the City Manager’s approval.
31) Canadian ContentThe City will endeavour to achieve Best Value in its commercial transactions. With this in mind the City will not be bound to purchase goods or services based upon Canadian content.
32) Local PreferenceThe City will endeavour to achieve Best Value in its commercial transactions. |
The Procurement By-law meets or exceeds present requirements concerning senior government free trade agreements (e.g. electronic advertising for designated bid opportunities).
The City utilizes electronic advertising.
The purchase of environmentally-responsible products and services will be considered at all times. These products and services are defined as those having a lesser or reduced effect on human health and the environment when compared to other products and services that serve the same purpose. Specifications will include, unless otherwise justified, environmentally-responsible products that: use recycled materials; are durable, reusable or are designed to be recycled; consume fewer resources in their manufacture and/or their use; and services that use environmentally-responsible practices.
This provision reinforces the City’s concern for environmental issues.
35) Local Vendors and Tax ArrearsCity vendors may be in arrears for their City property taxes. In these circumstances the City can offer an agreement to deduct their invoice by an amount equal to the balance outstanding on the tax bill. If the amount of the arrears is more we may agree to apply the total invoice value as a credit against their tax bill. If the vendor is not agreeable to this resolution his bid may be disqualified. 36) Litigation and VendorsActive or pending litigation against the City by a vendor will prevent consideration of any bid submitted by that vendor. Vendors who are involved with the City in litigation matters can represent a compromised effort and a higher likelihood of future problems and liability. For these reasons such vendors will be disqualified. |
Purchasing Services will be involved in advance to assist and co-ordinate the
disposal of all obsolete or surplus goods. This will include vehicles. The value
limit for discretionary sales by Purchasing Services staff will be $10,000.
Purchasing Services staff will be involved in advance to assist and co-ordinate the disposal of hazardous materials.
In light of the specialized and highly regulated nature of this responsibility it is best to maintain it as a centralized function. This will minimize environmental and legal risk to the City.
Typically, the City shall
not pay for goods or services prior to receiving them.
Similarly, purchase deposits
and advance payments will not generally be
employed in the City’s business
practices. Subscriptions represent one
type of
accepted exception.
Endorsement of this by-law includes the allocation of authority for the Corporation’s professional Purchasing Services staff and designated S.A.P. users to issue purchase orders as agents for, and on behalf of, the City. The Purchasing Services staff members are authorized signing officers of the Corporation in this regard for the acquisition of goods and services.
Lease
agreements may only be signed by Purchasing Services staff or Legal Department
staff.
The City Manager may override the Procurement By-law if circumstances justify an exception.
In the event of a natural disaster or other similar emergency situation the discretion of the Supervisor of Purchasing Services will be employed if there is a need that cannot be met within the guidelines of the Procurement By-law. Exercising judicious and prudent judgment, the Supervisor of Purchasing Services may act outside of the Procurement By-law controls in the event of a natural disaster or similar full-scale emergency situation.
Goods and services identified in the operating or capital budget or which were previously planned for acquisition will not be considered emergencies in the context of this provision.
SCHEDULE
B TO BY-LAW 69-2005: STANDARD TERMS AND
CONDITIONS
PERTAINING TO THE
PURCHASE OF GOODS AND SERVICES
Unless otherwise stated, the following Terms and Conditions form part of all Tender, Proposal and Quotation offers to sell goods and services to the Corporation of the City of Burlington.
1. “Corporation” means The Corporation of the City of Burlington.
2. “City” means The Corporation of the City of Burlington.
3. “Tender” means an offer to supply products and/or services to the Corporation at a stated price of $100,000.00 or more.
4. “Request for Proposals” differ from Request for Quotations and Tender Requests in that no particular specification is supplied.
Instead, a need is described for supplier recommendations and respective prices are to be submitted. Proposals differ from Tenders in the following ways:
- Proposals are not opened
in public
- Proposal prices and sources are not disclosed to the competitors. After the contract award only the name of the successful vendor is disclosed.
- Proposals may be open to price
negotiation
- Proposals may be valued over or under $100,000.00
5. “Quotation” means any offer to supply products and/or services to the Corporation at a stated price under $100,000.00. Prices and supplier identities are not disclosed.
6. “Vendor” means the person or organization submitting a Tender, Proposal or Quotation including the person or organization submitting the successful Tender, Proposal or Quotation.
GENERAL TERMS
1.0.
DOCUMENT SUBMISSION
1.1. Tenders must be placed in the Tender depository in the Clerks Department, Main level, City Hall, 426 Brant Street, Burlington, Ontario by 2:00 p.m. on the stated date for public opening at 2:15 p.m. local time unless stated differently. Vendors or representatives may be present at the public Tender opening.
The Vendor names and respective total Tender values will be read aloud at a public Tender opening. Tenders will be reviewed by staff after the opening.
Responses other than Tenders are
received by Purchasing Services. In
Non-Tender circumstances only the name of the successful bidder is disclosed
subsequent to a purchase order award.
All prices and the other Vendor identities are NOT disclosed in
Non-Tender circumstances.
1.2.
A Vendor may withdraw or qualify their bid
at any time prior to the official closing time by submitting a letter bearing
his signature on his letterhead. In the
case of a Tender this will be directed to the Clerks Department who will stamp
thereon the time and date of receipt.
Other bid formats should have communication directed to Purchasing
Services.
1.3.
Telephone calls or facsimiles are not
acceptable for Tender related communication.
1.4.
Bid submissions are irrevocable after the
official closing time.
1.5.
Bid submissions must be signed.
2.0. THE CITY’S RIGHTS IN RELATION TO BID REQUESTS
The City reserves the right to:
a) terminate the process described in a Bid Request at any time, including before the closing date, for any reason whatsoever and will not be responsible for any costs incurred by vendors in the preparation and submission of their responses to Bid Requests.
b) Not to accept any bid and is expressly permitted to reject any or all bids.
c) To terminate negotiations with a bid proponent at any time.
N.B. The
bid request process is designed to allow the City to select one or more
proponents with whom it will attempt to negotiate an arrangement responsive to
the City’s needs. Selection as a
proponent with whom the City will negotiate does not guarantee that the City
will conclude an arrangement with the proponent. The City expressly reserves the right to
terminate the bid process before a proponent is selected, to terminate negotiations
with the selected proponent(s) or to determine that the City’s needs can be
met, or have been met, in a different manner.
3.0.
SECURITIES
Where required the Vendor will provide the Corporation with a valid bid, performance, and labour and material payment bond. This will be issued by a Canadian Surety Company acceptable to the Corporation in its sole discretion. Alternatively, an irrevocable letter of credit from a Canadian chartered bank in the Corporation’s format and in accordance with the Corporation’s requirements may be supplied. A certified cheque is also acceptable.
4.0
OWNERSHIP IN TRANSIT
All prices are F.O.B. destination, freight prepaid to Burlington, Ontario unless otherwise specified.
5.0.
CURRENCY
All references to dollar amounts will be Canadian funds unless otherwise specified.
6.0.
PRICE AND SOURCE DISCLOSURE
6.1.
Tenders are for purchase values of $100,000.
or more. The
names of the respondents and the total Tender prices are read aloud at a public
opening.
6.2.
In Non-Tender situations only the
successful Vendor’s name will be disclosed after the award. All prices and the names of other bid process
participants will be confidential and not revealed. Non-Tender situations include R.F.P.s, Formal
Written Quotation Requests, Verbal Quotation Requests and purchase by
Negotiation. This policy is supported by
the Municipal Freedom of Information and Protection of Privacy Act.
6.3. For Non-Tender situations as noted above in 6.2, an exception will be made if a member of City council becomes a participant in the competition. In this circumstance an addendum will be sent to all of the competitors before the bid submission closing date advising that a council member is now a participant. Consequently, prices and sources will be disclosed following the award of a contract whether the council member is successful or not. Proponents may withdraw, replace or allow their non-tender submission to remain “as is” if already submitted.
7.0.
PRICE DISCREPANCIES
If the extended value, based upon the
estimated quantity, is inconsistent with the unit price, the unit price shall
prevail, and the total price will be corrected accordingly.
8.0.
ESTIMATED QUANTITY
8.1.
The Corporation shall not be bound to accept the estimated quantity
referenced in a Tender, Proposal or Quotation Request or any similar quantity.
8.2.
The supplier shall be required to provide
either the estimated or subsequently confirmed quantity called for in the
Corporation’s Tender, Proposal or Quotation Request.
9.0.
AWARD
9.1.
The lowest or any other bid will not
necessarily be accepted
9.2.
The evaluation of bids is not based solely
on price, but will take into consideration other factors such as quality of
previous work, ability to meet construction schedules on previous work,
co-operation with the Corporation or other persons on previous jobs,
experience, references, senior staff to be used, equipment, plant facilities,
sub-contractors, provisions of securities, etc. as detailed in the specific bid
request document and will take into consideration the best value for the
Corporation.
9.3.
The City reserves the right to accept or
reject all or any part of a submission contingent upon the terms of the
specific bid/proposal request.
10.0.
ACCESSIBILITY
Pursuant to the Ontarians with Disabilities Act, 2001, S.O. 2001, c32, as amended, in deciding to purchase goods or services, the City will have regard for persons with disabilities. The City is committed to accessibility principles and is taking steps to improve accessibility in accordance with the Act.
11.0.
PREPARATORY MATERIALS
Materials necessary for the manufacture of
designated finished products such as artwork and colour
film separations for printing work or casting patterns in the case of foundry
work, etc. once paid for by the Corporation remain the property of the
Corporation and must be returned in good condition upon request.
12.0.
COPYRIGHT
The copyright for respective purchased
concepts and/or materials will become the property of the City of Burlington
unless otherwise mutually agreed upon by the successful proponent and the City.
13.0.
SKID AND DRUM DEPOSITS
If returnable skids, drums or reels are supplied, the Vendor must indicate if an extra charge applies and if this is fully refundable. The Corporation prefers that the Vendor pick up skids, drums or reels when empty with no deposit or demurrage charge.
14.0. INSPECTION
All shipments shall be subject to final
inspection after receipt by the Corporation at destination. Delivery to the Corporation is not to be an
acceptance unless inspected and approved by the Corporation and subject to
rejection based upon:
a) defective products or workmanship discovered within one year of the date of receipt
b) latent defects, frauds and mistakes
15.0. REJECTION
15.1. If any of the goods are found at any time to be defective in material, workmanship, quality, quantity or otherwise not in strict conformity with the specifications or requirements of the original bid request and any subsequent order, the Corporation in addition to any rights to which it may have under warranties or otherwise shall have the right to reject and return such goods for full credit. All freight charges are to be at the Vendor’s expense.
15.2.
Without
limiting the foregoing right of rejection, the Corporation shall have the right
to require prompt replacement, repair or correction of defective work or goods
at the Vendor’s risk and expense. If the
Vendor is unable or unwilling to effect such replacement, repair or correction
the Corporation may do so by using its own workers, goods or facilities or by
outside contract and shall be entitled to charge the original Vendor for excess
costs directly or indirectly occasioned thereby.
16.0.
UNSATISFACTORY
PERFORMANCE
The Corporation reserves the
right to cancel any order or contract at no cost to the Corporation if goods
and services are unsatisfactory.
17.0.
CONTRACT
CANCELLATION
The City may terminate a
subsequent contract with thirty (30) days written notice. Such termination will be without penalty,
damages or liability to the City.
18.0.
DELIVERY
DEFAULT / NON-COMPLIANCE / LACK OF FULFILMENT
18.1. Default of delivery or non-compliance with the Tender, Proposal, Quotation Request or Contract will make the Vendor responsible for any increased cost. Compensation will be the City’s choice of cash or certified cheque payable to the Corporation to obtain proper commodities or services in the open market.
Consequences can include exclusion from City bidding opportunities for up to 3 years.
18.2. If the bid is withdrawn after the closing date and before the validity term expires, the Vendor shall forfeit any deposit/bid bond and shall continue to be liable to the City for any damages beyond the deposit/bond amount. The City may advertise for new Tenders, Proposals or Quotations in this event.
19.0. RISK
If services and/or other goods are being
supplied, such other goods remain at the complete risk, responsibility and loss
of the Vendor until this contract is fully completed. If damage, loss, theft, robbery or impairment
occurs to any goods, the Vendor shall replace such goods at the Vendor’s sole
cost and expense. In the event that the
Vendor terminates or abandons the services either temporarily or permanently
the Corporation may take all necessary steps to complete the services and the
Vendor will be responsible for all damages incurred by the Corporation.
20.0. COLLUSION
The Vendor declares that the bid response is NOT made in conspiracy with any other Vendor bidding for the same products/services and is without collusion or fraud.
21.0. CONFLICT OF INTEREST
The Vendor ensures that advance disclosure
before accepting a purchase award will be made if a member of City Council or
staff has a conflict of interest or a financial interest related to the
purchase order/contract.
22.0. VENDOR RESPONSIBILITIES
22.1. It is mutually agreed and understood that the Vendor shall not assign, transfer, convey, sublet or otherwise dispose of the Tender, Proposal, Quotation or Contract or the right, title or interest therein, or the powers to execute the same, without the previous written consent of the Corporation.
22.2. Acceptance of a purchase order issued by the Corporation for a bid or any part of a bid shall constitute a contract between the Corporation and the Vendor which shall bind the Vendor on his part to furnish and deliver the goods or services at the prices given and in accordance with the conditions of the bid and these Standard Terms and Conditions.
22.3. If requested by the Corporation, the Vendor shall execute a written contract, as an appendix to, and further detailing of, the purchase order.
23.0. CONTRACT AND VENDOR REQUIREMENTS
23.1. The vendor hereby covenants and agrees that if their Tender, Proposal or Quotation or any part thereof is accepted by the Corporation, they:
a) Shall perform the contract in accordance with the specifications, terms and conditions under which it is awarded.
b) Shall indemnify and save harmless the Corporation from any claim or action arising from the alleged infringement of any patent or trade mark as a result of the use or sale of these goods.,
c) Shall guarantee for a reasonable period, goods against defective material or workmanship and to repair or replace any damage which occasioned in transit.,
d) Shall furnish adequate protection from damage for all work and to repair damage of any kind for which the Vendor is responsible, to the premises or equipment, to his own work or the work of other contractors.
e) Shall pay for all permits, licences, fees and inspections and shall give all notices and comply with all by-laws and regulations of the Corporation and Regional Government.,
f) Shall comply with all statutes and regulations of Canada and Ontario applicable to the work and persons employed on or in connection with the work. (The Corporation and Vendor agree that the sale offer, a subsequent purchase order and any schedules attached shall be governed by and construed according to the laws of the Province of Ontario where the Corporation is located and the courts of such Province of Ontario shall have sole jurisdiction. The Vendor agrees to and attorns to the jurisdiction of the Province of Ontario including all executions and processes issued therefrom.),
g) Shall address and be subject to Withholding Tax, if applicable, i.e.
i Payments to non-resident Vendors will be subject to the required Withholding Tax from payment for any services rendered in Canada as required by the Canadian Income Tax Act,
ii Collection of the Withholding Tax by the City may be waived or reduced upon written confirmation by Revenue Canada,
h) Shall use due care that no person is injured and that no property is damaged in the performance of the work. The successful Vendor shall further indemnify the Corporation from all claims that may result from this work. Proof of such indemnification will be required prior to commencement of work (Certificate of Insurance) (see i),
i) Shall covenant and agree to maintain during this agreement, at the Vendor’s own expense, public liability, property damage and comprehensive liability insurance coverage satisfactory to the Corporation, in the amount of not less than $2,000,000.00 (two million dollars) and the policy to include the Corporation as an additional insured. This insurance shall include protection against claims that might be brought against the Corporation by any employee of the Vendor and also protective coverage for all sub-contracted operations. A certified copy of the policy of insurance is to be forwarded to the Corporation. This policy of insurance shall not be cancelled without giving the principal thirty (30) days notice of intention to cancel such policy of insurance
j) Shall pay compensation to the Corporation for time spent to prepare for, and attend, any hearings and for all legal fees concerning any suits or legal action taken against the Vendor, contractors, etc., not directly involving the Corporation.
k) Shall not, except with the consent of the Corporation in writing, release information relating to any subsequent order for advertising, promotional or technical purposes or otherwise give it publicity in any fashion, nor shall the name of the Corporation be used for, or in connection with, any advertising or promotional purpose of the Vendor.
l) Vendors are to treat information gained while working with the City confidentially and not use it for any other project and return it to the City if requested with no copies to be retained.
m) Shall comply with all requirements of the Workplace Safety Insurance Board, and its regulations as amended. The Vendor/contractor shall supply a Workplace Safety Insurance Board Clearance Certificate before commencing work, and one after work is completed.
n) Shall, where work is performed on City property or on behalf of the City, comply with the Occupational Health and Safety Act and its regulations, as amended, and applicable Industry Standards for the work and shall be responsible for and take every precaution reasonable in the circumstances for the protection of all workers associated with the work being performed, whether employed by the Vendor, the City or a third party. The successful Vendor shall indemnify and save harmless the Corporation, its officers, employees, servants and agents from any liability incurred as a result of the Vendor’s negligence or any latent or obvious violation of the Occupational Health and Safety Act.
o) (i) Shall provide a complete list of all controlled products, hazardous materials, products containing hazardous materials, and all biological or chemical agents or devices or equipment producing or emitting a physical agent and any substance, compound, product or physical agent that is deemed to be, or contains, a designated substance as defined under the Act and the Regulations, which will be supplied or used in the work, before commencing. The Vendor/contractor shall provide appropriate information and Material Safety Data Sheets, where required, with the shipment.
(ii) Shall ensure that contractors, sub-contractors and all of their employees are trained in W.H.M.I.S.
24.0.
INDEMNITY
The Vendor shall comply with all statutes and
regulations of Canada and Ontario.
Without the limitation of the foregoing, the Corporation relies upon the
skill and judgment of the Vendor and the Vendor covenants and agrees that having
acquired full knowledge of the use, function, purpose and application of the
goods to be supplied, hereunder it shall include in its price for and forthwith
advise the Corporation of any alterations which may be necessary to ensure that
the goods are fit for the said use, function, purpose and application
contemplated. The Vendor further
covenants and agrees to indemnify and save harmless the Corporation from any
and all claims, loss or damages (including special and consequential damages
and damages for loss of use) arising directly or indirectly from any breach of
the terms of this purchase order or any contract following thereupon and from
any claims, loss or damage of whatsoever nature and kind for injury to persons
and the destruction of, or damage to, property arising directly or indirectly
from the construction, installation and supply of goods to be furnished
hereunder or from anything undertaken or done in fulfilling the provisions of
this purchase order or any contract following thereupon.
25.0.
VENDOR PROFILE
A Vendor must be prepared, if requested, to
present evidence of experience, ability, service facilities and financial
status necessary to satisfactorily meet the requirements set forth or implied
in the Tender, Proposal or Quotation Request. With this concern the City may request a
credit report and/or a current bank history report for the company, or person,
submitting a bid.
26.0.
WARRANTY
The manufacturer’s warranty shall be clearly
stated and the manufacturer’s specifications shall be submitted with Tenders,
Proposals and Quotations.
27.0.
CONSTRUCTION LIEN ACT
27.1.
The successful Vendor shall comply with the
provisions of the Construction Lien Act, as may be amended, and supply
any proof of compliance with the Act as required by the Corporation. The Vendor shall fully relieve and indemnify
the City from any and all liability or expenses in respect to any claim, e.g. a
lien, liability, etc. The City shall not in any case be liable to any greater
extent than the amount owing by it to the Vendor pursuant to the contract.
27.2.
Holdback Improvements to City lands or
buildings valued at more than $10,000. will have a 10%*
payment hold back in effect for 45 days.
This will be released upon confirmation that no liens related to the
work have been registered against the City.
*Construction contracts may
have an additional 1% or 2% holdback applicable for a warranty or maintenance
period. This will be described in the
specific bid invitation document.
Further, we reserve the option to use discretion for work valued
between $5,000. and $10,000. in
relation to applying a 10% payment holdback for 45 days.
28.0.
DELIVERIES
28.1. Deliveries to City Hall, 426 Brant Street, are to be made between the hours of 9:00 a.m. and 3:30 p.m. local time, Monday through Friday. The City Hall receiving area has a receiving dock but its bay doors restrict vehicles to a maximum height of 3.4m (11 feet).
28.2. Deliveries to the Civic Operations Centre, 3330 Harvester Road, are to be made between the hours of 8:00 a.m. and 3:00 p.m. local time, Monday through Friday. The City’s Harvester Road location does not have a shipping/receiving dock. Delivery trucks should have open sides to facilitate unloading with a forklift truck.
28.3. Deliveries to the Transit Maintenance Facility, 3332 Harvester Road are to be made between the hours of 8:00 a.m. and 10:00 p.m. local time, Monday through Friday. The Transit Maintenance location does not have a shipping/receiving dock. Delivery trucks should be equipped with tailgate lifts or the shipment should be accessible for forklift trucks.
29.0. INVOICE REQUIREMENTS
All invoices are to be sent
to the shipping address, or:
The Corporation of the City of Burlington
Department of Finance/Accounts Payable
P.O. Box 5013, Burlington, Ontario, L7R 3Z6
All applicable taxes are to be itemized separately on invoices (i.e. P.S.T. and G.S.T.).
Include the purchase order number on each invoice (Invoices will be returned if this information is omitted).
30.0.
PAYMENT TERMS
Net 30 days after
receipt of invoice unless a discount for quick payment is offered. No other terms of payment will be accepted
whether stated/implied without written approval. Payment may be delayed if the goods/services
are not acceptable to the Corporation.
SCHEDULE
C TO BY-LAW 69-2005: STANDARD TERMS AND
CONDITIONS
PERTAINING TO THE
PURCHASE OF CONSULTING SERVICES
Unless
otherwise stated, the following Terms and Conditions form part of all Tender,
Proposal and Quotation offers to sell goods and services to the Corporation of
the City of Burlington.
1. “Corporation”
means The Corporation of the City of Burlington.
2. “City” means The Corporation of the
City of Burlington.
3. “Tender” means an
offer to supply products and/or services to the Corporation at a stated price of $100,000.00. or more.
4. “Request for
Proposals” differ from Request for Quotations and Tender Requests in that
no particular specification is supplied.
Instead,
a need is described for supplier recommendations and respective prices are to
be submitted. Proposals differ from Tenders
in the following ways:
- Proposals are not
opened in public
-
Proposal prices and sources are not disclosed.
After the contract award only the name of the successful vendor is
disclosed.
- Proposals may be open
to price negotiation
-
Proposals may be valued over or under $100,000.00
5. “Quotation” means
any offer to supply products and/or services to the Corporation at a stated
price under $100,000.00. Prices and
supplier identities are not disclosed.
6. “Vendor” means
the person or organization submitting a Tender, Proposal or Quotation including
the person or organization submitting the successful Tender, Proposal or
Quotation.
GENERAL TERMS
2.0.
DOCUMENT
SUBMISSION
2.1.
Tenders
must be placed in the Tender depository in the Clerks Department, Main level,
City Hall, 426 Brant Street, Burlington, Ontario by 2:00 p.m. on the stated
date for public opening at 2:15 p.m. local time unless stated differently. Vendors or representatives may be present at
the public Tender opening.
The
Vendor names and respective total Tender values will be read aloud at a public
Tender opening. Tenders will be reviewed
by staff after the opening.
Responses
other than Tenders are received by Purchasing Services. In Non-Tender circumstances only the
name of the successful bidder is disclosed subsequent to a purchase order
award. All prices and the other Vendor
identities are NOT disclosed in Non-Tender circumstances.
3.2.
A
Vendor may withdraw or qualify their bid at any time prior to the official
closing time by submitting a letter bearing his signature on his
letterhead. In the case of a Tender this
will be directed to the Clerks Department who will stamp thereon the time and
date of receipt. Other bid formats
should have communication directed to Purchasing Services.
3.3.
Telephone
calls or facsimiles are not acceptable for Tender related communication.
3.4.
Bid
submissions are irrevocable after the official closing time.
3.5.
Bid
submissions must be signed.
4.0.
THE
CITY’S RIGHTS IN RELATION TO BID REQUESTS
The
City reserves the right to:
a) terminate the process described in a
Bid Request at any time, including before the closing date, for any reason
whatsoever and will not be responsible for any costs incurred by vendors in the
preparation and submission of their responses to Bid Requests.
b) Not to accept any bid and is expressly permitted to reject
any or all bids.
c) To terminate negotiations with a bid proponent at any
time.
N.B. The bid request process is designed to allow the City
to select one or more proponents with whom it will attempt to negotiate an
arrangement responsive to the City’s needs.
Selection as a proponent with whom the City will negotiate does not
guarantee that the City will conclude an arrangement with the proponent. The City expressly reserves the right to terminate
the bid process before a proponent is selected, to terminate negotiations with
the selected proponent(s) or to determine that the City’s needs can be met, or
have been met, in a different manner.
5.0.
SECURITIES
Where
required the Vendor will provide the Corporation with a valid bid, performance,
and labour and material payment bond. This will be issued by a Canadian Surety
Company acceptable to the Corporation in its sole discretion. Alternatively, an irrevocable letter of credit
from a Canadian chartered bank in the Corporation’s format and in accordance
with the Corporation’s requirements may be supplied. A certified cheque is also acceptable.
4.0.
CURRENCY
All references to dollar amounts will be Canadian funds unless
otherwise specified.
5.0.
PRICE
AND SOURCE DISCLOSURE
5.1.
Tenders
are for purchase values of $100,000. or more. The names of the respondents and the total
Tender prices are read aloud at a public opening.
5.2.
In
Non-Tender situations only the successful Vendor’s name will be disclosed after
the award. All prices and the names of
other bid process participants will be confidential and not revealed. Non-Tender situations include R.F.P.s, Formal
Written Quotation Requests, Verbal Quotation Requests and purchase by
Negotiation. This policy is supported by
the Municipal Freedom of Information and Protection of Privacy Act.
5.3.
For
Non-Tender situations as noted above in 5.2 an exception will be made if a
member of City council becomes a participant in the competition. In this circumstance an addendum will be sent
to all of the competitors before the bid submission closing date advising that
a member of Council is now a participant.
Consequently, prices and sources will be disclosed following the award
of a contract whether the council member is successful or not. Proponents may withdraw, replace or allow
their non-tender submission to remain “as is” if already submitted.
8.0.
PRICE
DISCREPANCIES
If the extended value, based upon the
estimated quantity, is inconsistent with the unit price, the unit price shall
prevail, and the total price will be corrected accordingly.
11.0.
AWARD
11.1.
The
lowest or any other bid will not necessarily be accepted
11.2.
The
evaluation of bids is not based solely on price, but will take into
consideration other factors such as quality of previous work, ability to meet
construction schedules on previous work, co-operation with the Corporation or
other persons on previous jobs, experience, references, senior staff to be
used, equipment, plant facilities, sub-contractors, provisions of securities,
etc. as detailed in the specific bid request document and will take into
consideration the best value for the Corporation.
11.3.
The
City reserves the right to accept or reject all or any part of a submission
contingent upon the terms of the specific bid/proposal request.
12.0.
ACCESSIBILITY
Pursuant
to the Ontarians with Disabilities Act, 2001, S.O. 2001, c32, as
amended, in deciding to purchase goods or services, the City will have regard
for persons with disability. The City is
committed to accessibility principles and is taking steps to improve
accessibility in accordance with the Act.
17.0.
COLLUSION
The Vendor declares that the bid response is
NOT made in conspiracy with any other Vendor bidding for the same
products/services and is without collusion or fraud.
18.0.
COPYRIGHT
The copyright for respective purchased
concepts and/or materials will become the property of the City of Burlington
unless otherwise mutually agreed upon by the successful proponent and the City.
19.0.
CONFLICT
OF INTEREST
The Vendor insures that advance disclosure before accepting a purchase award will be made if a member of City Council or staff has a conflict of interest or a financial interest related to the purchase order/contract.
20.0.
VENDOR
RESPONSIBILITIES
20.1.
It
is mutually agreed and understood that the Vendor shall not assign, transfer,
convey, sublet or otherwise dispose of the Tender, Proposal, Quotation or
Contract or the right, title or interest therein, or the powers to execute the
same, without the previous written consent of the Corporation.
20.2.
Acceptance
of a purchase order issued by the Corporation for a bid or any part of a bid
shall constitute a contract between the Corporation and the Vendor which shall
bind the Vendor on his part to furnish and deliver the goods or services at the
prices given and in accordance with the conditions of the bid and these
Standard Terms and Conditions.
20.3.
If
requested by the Corporation, the Vendor shall execute a written contract, as
an appendix to, and further detailing of, the purchase order.
21.0.
CONTRACT
AND VENDOR REQUIREMENTS
The
vendor hereby covenants and agrees that if their Tender, Proposal or Quotation
or an part thereof is accepted by the Corporation,
they:
p)
Shall
perform the contract in accordance with the specifications, terms and
conditions under which it is awarded.
q)
Shall
furnish adequate protection from damage for all work and to repair damage of
any kind for which the Vendor is responsible, to the premises or equipment, to
his own work or the work of other contractors.
r)
Shall
pay for all permits, licences, fees and inspections and shall give all notices
and comply with all by-laws and regulations of the Corporation and Regional Government.,
s)
Shall
comply with all statutes and regulations of Canada and Ontario applicable to
the work and persons employed on or in connection with the work. (The Corporation and Vendor agree that the
sale offer, a subsequent purchase order and any schedules attached shall be
governed by and construed according to the laws of the Province of Ontario
where the Corporation is located and the courts of such Province of Ontario
shall have sole jurisdiction. The Vendor
agrees to and attorns to the jurisdiction of the
Province of Ontario including all executions and processes issued therefrom.),
t)
Shall
address and be subject to Withholding Tax, if applicable, i.e.
i
Payments
to non-resident Vendors will be subject to the required Withholding Tax from
payment for any services rendered in Canada as required by the Canadian Income
Tax Act.,
ii
Collection
of the Withholding Tax by the City may be waived or reduced upon written
confirmation by Revenue Canada.,
u)
Shall
use due care that no person is injured and that no property is damaged in the
performance of the work. The successful
Vendor shall further indemnify the Corporation from all claims that may result
from this work. Proof of such
indemnification will be required prior to commencement of work. (Certificate of
Insurance) (see g).,
v)
Shall
covenant and agree to maintain during this agreement, at the Vendor’s own
expense, public liability, property damage and comprehensive liability
insurance coverage satisfactory to the Corporation, in the amount of not less
than $2,000,000.00 (two million dollars) and the policy to include the
Corporation as an additional insured.
This insurance shall include protection against claims that might be
brought against the Corporation by any employee of the Vendor and also
protective coverage for all sub-contracted operations. A certified copy of the policy of insurance
is to be forwarded to the Corporation.
This policy of insurance shall not be cancelled without giving the
principal thirty (30) days notice of intention to cancel such policy of
insurance.,
w)
Shall
pay compensation to the Corporation for time spent to prepare for, and attend,
any hearings and for all legal fees concerning any suits or legal action taken
against the Vendor, contractors, etc., not directly involving the Corporation.
x)
Shall
not, except with the consent of the Corporation in writing, release information
relating to any subsequent order for advertising, promotional or
technical purposes or otherwise give it publicity in any fashion, nor shall the
name of the Corporation be used for, or in connection with, any advertising or
promotional purpose of the Vendor.
y)
Vendors
are to treat information gained while working with the City confidentially and
not use it for any other project and return it to the City if requested with no
copies to be retained.,
z)
Shall
comply with all requirements of the Workplace Safety Insurance Board, and its
regulations as amended. The
Vendor/contractor shall supply a Workplace Safety Insurance Board Clearance
Certificate before commencing work, and one after work is completed.
l) Shall, where work is performed on City property or on
behalf of the City, comply with the Occupational Health and Safety Act
and its regulations, as amended, and applicable Industry Standards for the work
and shall be responsible for and take every precaution reasonable in the
circumstances for the protection of all workers associated with the work being
performed, whether employed by the Vendor, the City or a third party. The successful Vendor shall indemnify and
save harmless the Corporation, its officers, employees, servants and agents
from any liability incurred as a result of the Vendor’s negligence or any
latent or obvious violation of the Occupational Health and Safety Act.
19.0.
DELIVERY
DEFAULT / NON-COMPLIANCE / LACK OF FULFILMENT
14.1.
Default
of delivery or non-compliance with the Tender, Proposal, Quotation Request or
Contract will make the Vendor responsible for any increased cost. Compensation will be the City’s choice of
cash or certified cheque payable to the Corporation to obtain proper
commodities or services in the open market.
Consequences
can include exclusion from City bidding opportunities for up to 3 years.
14.2.
If
the bid is withdrawn after the closing date and before the validity term
expires, the Vendor shall forfeit any deposit/bid bond and shall continue to be
liable to the City for any damages beyond the deposit/bond amount. The City may advertise for new Tenders,
Proposals or Quotations in this event.
22.0.
UNSATISFACTORY
PERFORMANCE
The
Corporation reserves the right to cancel any order or contract at no cost to
the Corporation if services are unsatisfactory.
16.0.
CONTRACT
CANCELLATION
The City may terminate a
subsequent contract with thirty (30) days written notice. Such termination will be without penalty,
damages or liability to the City.
17.0.
VENDOR
PROFILE
A Vendor must be prepared, if requested, to
present evidence of experience, ability, service facilities and financial
status necessary to satisfactorily meet the requirements set forth or implied
in the Tender, Proposal or Quotation Request.
With this concern the City may request a credit report and/or a current
bank history report for the company, or person, submitting a bid.
18.0.
CONSTRUCTION
LIEN ACT
18.1
The
successful Vendor shall comply with the provisions of the Construction Lien
Act, as may be amended, and supply any proof of compliance with the Act as
required by the Corporation. The Vendor
shall fully relieve and indemnify the City from any and all liability or
expenses in respect to any claim, e.g. a lien, liability, etc. The City shall
not in any case be liable to any greater extent than the amount owing by it to
the Vendor pursuant to the contract.
18.2.
Holdback
Improvements to City lands or buildings valued at more than $10,000. will have a 10%* payment hold back in effect for 45
days. This will be released upon
confirmation that no liens related to the work have been registered against the
City.
*
Construction contracts may have an additional 1% or 2% holdback applicable for
a warranty or maintenance period. This
will be described in the specific bid invitation document. Further, we reserve the option to use
discretion for work valued between $5,000. and
$10,000. in relation to applying a 10% payment
holdback for 45 days.
19.0.
INVOICE
REQUIREMENTS
All invoices are to be sent
to the shipping address, or:
The
Corporation of the City of Burlington
P.O. Box 5013, Burlington,
Ontario, L7R 3Z6
All
applicable taxes are to be itemized separately on invoices, i.e. P.S.T. and
G.S.T.
Include
the purchase order number on each invoice.
(Invoices will be returned if this information is omitted.)
20.0.
PAYMENT
TERMS
Net 30 days after receipt of
invoice unless a discount for quick payment is offered.
No other terms of payment will be accepted whether stated/implied
without written approval. Payment may be
delayed if the goods/services are not acceptable to the Corporation.
SCHEDULE D TO BY-LAW
69-2005: PURCHASE ORDER CONDITIONS
1
OWNERSHIP IN TRANSIT All
prices are F.O.B. destination, freight prepaid to Burlington, Ontario unless
otherwise specified.
2.0 CURRENCY All
references to dollar amounts will be Canadian funds unless otherwise specified.
INSPECTION All shipments shall be subject to
final inspection after receipt by the Corporation at destination. Delivery to
the Corporation is not to be an acceptance unless inspected and approved by the
Corporation and subject to rejection based upon:
(a) Defective
workmanship discovered within one year of the date of receipt
(b) Latent defects, frauds and
mistakes
4.0 REJECTION If any of the goods are
found at any time to be defective in material, workmanship, quality, quantity
or otherwise not in strict conformity with the specifications or requirements
of the original bid request and any subsequent order, the Corporation in
addition to any rights which it may have under warranties or otherwise shall
have the right to reject and return such goods for full credit. All freight
charges are to be at the Vendor's expense. Without limiting the foregoing right
of rejection, the Corporation shall have the right to require prompt
replacement, repair or correction of defective work or goods at the Vendor's
risk and expense. If the Vendor is unable or unwilling to effect such
replacement, repair or correction the Corporation may do so by using his own
workers, goods or facilities or by outside contract and shall be entitled to
charge the original Vendor for excess costs directly or indirectly occasioned
thereby.
5.0 UNSATISFACTORY PERFORMANCE The
Corporation reserves the right to cancel any order or contract at no cost to
the Corporation if goods and services are unsatisfactory.
6.0 DELIVERY DEFAULT / NONCOMPLIANCE /
LACK OF FULFILMENT Default of delivery or non-compliance with the (Tender,
Proposal, Quotation Request or Contract) will make the Vendor responsible for
any increased cost. Compensation will be the City's choice of cash or certified
cheque payable to the Corporation to obtain proper commodities or services in
the open market. If the bid is withdrawn after the closing date and before the
validity term expires, the vendor shall forfeit any deposit/bid bond and shall
continue to be liable to the City for any damages beyond the deposit/bond
amount. The City may advertise for new Tenders, Proposals or Quotations in this
event.
7.0 RISK If
services and/or other goods are being supplied, such other goods remain at the
complete risk, responsibility and loss of the Vendor until this contract is
fully completed. If damage, loss, theft, robbery or impairment occurs to any
goods, the Vendor shall replace such goods at the Vendor's sole cost and
expense. In the event the Vendor terminates or abandons the services either
temporarily or permanently the Corporation may take all necessary steps to
complete the services and the Vendor is responsible for all damages incurred by
the Corporation.
8.0 INDEMNITY The
Vendor shall comply with all statutes and regulations of Canada and Ontario.
Without the limitation of the foregoing, the Corporation relies upon the skill
and judgment of the Vendor and the Vendor covenants and agrees that having acquired
full knowledge of the use, function, purpose and application of the goods to be
supplied hereunder it shall include in its price for and
forthwith advise the Corporation of any alterations which may be necessary to
ensure that the goods are fit for the said use, function, purpose and
application contemplated. The Vendor further covenants and agrees to indemnify
and save harmless the Corporation from any and all claims, loss or damages
(including special and consequential damages and damages for loss of use)
arising directly or indirectly from any breach of the terms of this purchase
order or any contract following thereupon and from any claims, loss or damage
of whatsoever nature and kind for injury to persons and the destruction of or
damage to property arising directly or indirectly from the construction,
installation and supply of goods to be furnished hereunder or from anything
undertaken or done in fulfilling the provisions of this purchase order or any
contract following thereupon.
9.0 DELAY In the event of delivery or
service delay, the Corporation may terminate the contract and hold the Vendor
responsible for any damages.
10.0 COLLUSION The
Vendor declares that their bid response is NOT made in conspiracy with any
other Vendor bidding for the same products/services and is without collusion or
fraud.
1 1.0 CONFLICT OF INTEREST The Vendor
ensures that advance disclosure before accepting a purchase award will be made
if a member of City Council or staff has a conflict of interest or a financial
interest related to the purchase order/contract.
12.0 VENDOR RESPONSIBILITIES
12.1 It is mutually agreed and
understood that the Vendor shall not assign, transfer, convey, sublet or
otherwise dispose of the Tender, R.F.P., Quotation or Contract or the right,
title or interest therein, or the powers to execute the same, without the
previous written consent of the Corporation.
12.2 Acceptance of a purchase
order issued by the Corporation for a bid or any part of a bid shall constitute
a contract between the Corporation and the Vendor which shall bind the Vendor
on their Part to furnish and deliver the goods or services at the prices given
and in accordance with the conditions of the bid and these Standard Terms and
Conditions.
12.3 If requested by the
Corporation, the Vendor shall execute a written contract, as an appendix to, and
further detailing of, the purchase order.
13.0 CONTRACT AND VENDOR REQUIREMENTS
13.1 The Vendor hereby covenants
and agrees that they:
(a)
Shall perform the contract in accordance
with the specifications, terms and conditions under which it is
awarded,
(b) Shall
indemnify and save harmless the Corporation from any claim or action arising
from the alleged infringement of any patent or trade mark as a result of the
use or sale of these goods,
(c) Shall guarantee for a reasonable
period, goods against defective material or workmanship and to repair or
replace any damage which occasioned in transit,
(d) Shall furnish adequate protection from
damage for all work and to repair damage of any kind for which the Vendor is
responsible, to the premises or equipment, to his own work or the work of other
contractors,
(e) Shall pay for all permits, licences,
fees and inspections and shall give all notices and comply with all by-laws and
regulations of the Corporation and Regional Government.
(f) Shall comply with all statutes and
regulations of Canada and Ontario applicable to the work and persons employed
on or in connection with the work. (The Corporation and Vendor agree that the
sale offer. a subsequent purchase order and any schedules attached shall be
governed by and construed according to the laws of the Province of Ontario
where the Corporation is located and the courts of such Province of Ontario
shall have sole jurisdiction. The Vendor agrees to and attorns
to the jurisdiction of the Province Of Ontario including all executions and
processes issued therefrom.)
(g) Shall covenant and agree to maintain
during this agreement. at the Vendor's own expense,
public liability, property damage and comprehensive liability insurance
coverage satisfactory to the Corporation, in the amount of not less than
$2.000,00. (two million dollars) and the policy to
include the Corporation as named insured party. This insurance shall include
protection against claims that might be brought against the Corporation by any
employee of the Vendor and also protective coverage for all sub-contracted
operations. A certified COPY of the policy of insurance is to
be forwarded to the Corporation. This policy of insurance shall not be
cancelled without giving the principal thirty (30) days notice of intention to
cancel such policy of insurance;
(h)
Shall pay compensation to the
Corporation for time spent to prepare for, and attend, any hearings and for all
legal fees concerning any suits or legal action taken against the Vendor,
contractors, etc. not directly involving the Corporation.
(i) Shall not,
except with the consent of the Corporation in writing, release information
relating to any subsequent order for advertising, promotional or technical
purposes or otherwise give it publicity in any fashion, nor shall the name of
the purchaser be used for, or in connection with, any advertising or
promotional purpose of the Vendor.
14.0 PAYMENT TERMS Net 30 days after
receipt of invoice unless a discount for quick payment is offered. No other
terms of payment will be accepted whether stated/implied without written
approval. Payment may be delayed if goods/services are not acceptable to the
Corporation.
SCHEDULE E TO BY-LAW 69-2005: Government Legislation and potential
consequences Related to Purchasing Staff Responsibilities
Federal Government
-
The Combines Investigation Act
-
The Competition Act
-
Section 22 of the Criminal
Code
Provincial
Government
-
The Sale of Goods Act
-
The Discriminatory Business
Practices
Act,
RSO. 1980, chapter 199
-
The Municipal
Freedom of Information and Protection
of Privacy Act, 1989
-
Ontario Health & Safety Act, RS.0.
1990, c.o.i.
-
Workers' Compensation Act,
R.S.0- 1990, c.W.11
-
Bill 7 - labour
relations as it
relates to contractual services
-
Internal Trade Agreements
Other
-
tax
matters
related to procurement
-
collusion, both seller and buyer
-
fraud
-
breach of public trust
-
secret
commissions (ie. it is a crime to corruptly offer
any reward to an agent or for the agent
to accept one). Sometimes called a "bribe”.
-
must be familiar with the activities and precedents
established by
the Federal
Competition Bureau
See
attached two pages