HomeMy WebLinkAboutBy-law No. 2015-030 THE CORPORATION OF THE MUNICIPALITY OF BAYHAM
BY-LAW NUMBER 2015-030
BEING A BY-LAW TO DEFINE THE PROCUREMENT
POLICIES AND PROCEDURES FOR THE
CORPORATION OF THE MUNICIPALITY BAYHAM
WHEREAS the Corporation of the Municipality of Bayham, pursuant to Section 271 of
the Municipal Act, 2001,as amended, deems it prudent to enact a procurement policy;
NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE MUNICIPALITY OF
BAYHAM HEREBY ENACTS A BY-LAW AS FOLLOWS:
SHORT TITLE
This by-law may be referred to as the 'Procurement By-law"
Section 1 — Purposes, Goals & Objectives
1.1 The purposes, goals and objectives of this by-law and of each of the methods of
procurement authorized herein are:
a. to encourage competition among suppliers;
b. to maximize savings for taxpayers;
c. to ensure service and product delivery efficiency and effectiveness;
d. to ensure service and product delivery quality;
e. to make service and product providers accountable to the Municipality and the
public;
f. to encourage the procurement of goods and services with due regard to the
product being accessible to persons with disabilities or be capable of being made
accessible through the use of technology;
g. to ensure environmentally responsible and sustainable purchasing where possible;
h. to provide the highest level of government service at the least possible cost;
i. to ensure fairness between bidders;
j. to ensure objectivity in the procurement process;
k. to the extent possible, ensure openness, accountability and transparency while
protecting the financial best interests of the Municipality;
I. to obtain the best value for the Municipality when procuring goods and services;
m. to avoid conflicts between the interests of the Municipality and those of the
Municipality's employees and elected officials.
Section 2 - Definitions
2.1 In this by-law,
a. "Award" shall mean authorization to proceed with the purchase of Goods,
Services and Construction from a chosen supplier;
b. "Bid" shall mean an offer or submission from a supplier in response to a Request
for Quotation, Tender, Request for Proposal, Request for Price Agreement, an In
House Bid or a Two Phase Bid request, which is subject to acceptance or rejection
by the Municipality;
c. "Bid Bond" shall mean the form of security required by the terms and conditions
of Bid Solicitation documentation to guarantee that the Successful Bidder enters
into a Contract with the Municipality, as required by Section 8 of this by-law;
d. "Bid Solicitation" shall mean a formal request for Bids that may be in the form of a
Request for Quotation, Request for Qualifications, Request for Tender, Request
for Proposal, Request for Price Agreement, Request for In House Bid or a Two
Phase Bid Request;
e. "Conflict of Interest" shall mean a situation where a personal or business interest
of a councillor, officer or employee of the Municipality is in conflict with the best
interests of the Municipality, and includes:
i. the giving or receiving of a direct or indirect personal gain or benefit, or a direct
or indirect advantage or privilege, by any business or individual that provides
advice, Goods, Services or Construction to the Municipality or a family
member of such business that provides Goods, Services or Construction;
ii. employment by the Municipality on a full time basis; and
iii. a direct or indirect interest in any business that provides Goods, Services or
Construction to the Municipality;
f. "Construction" shall mean a construction, reconstruction, demolition,
repair or renovation of a building, structure or other civil engineering
or architectural work and includes site preparation, excavation,
drilling, seismic investigation, soil investigation, the supply of products
and materials and the supply of equipment and machinery if they are
included in and incidental to the construction, and the installation and
repair of fixtures of a building, structure or other civil engineering
design or architectural work, but does not include professional
services related to the construction contract unless they are included
in the specifications for the procurement;
g. "Consulting and Professional Services" shall mean those services
requiring the skills of a professional for a defined service and includes
but is not limited to architects, engineers, designers, surveyors,
planners, accountants, auditors, management professionals, marketing
professions, software and information technology experts, financial
consultants, lawyers, law firms, real estate agents and brokers,
planners, environmental planners and engineers, hydrogeologists,
transportation planners and engineers, communications consultants
and any other consulting of by the professional services which may
be required by the Municipality;
h. "Contract" shall mean a binding agreement between two or more
parties that creates an obligation to do or provide a particular thing or
service;
i. "Employee-Employer Relationship" shall mean a relationship that
exists where persons for pay or other consideration enter into the
service of others and devote their personal labour for any given period
and the other person has the power or right to control or direct the
person in the material details of how the work is to be performed;
j. "Employment" shall mean the act of being employed by the
Corporation of the Municipality of Bayham;
k. "Expression of Interest" shall mean a written detailed proposal
submitted in response to a Request for Expression of Interest;
"Extraordinary or Emergency Circumstance" shall mean an event or
circumstance where the immediate purchase of Goods or Services or
the entering into of a Construction Contract is essential or necessary
to prevent or alleviate serious delay, a threat to public health, safety
or welfare, the disruption of essential services or damage to public
property or any expenditure that is necessary to respond to any
emergency of the Municipality;
m. "Fair Market Value" shall mean the price that would be paid, in an
open and unrestricted market, by a knowledgeable and willing
purchaser to a knowledgeable and willing vendor, both of whom are
dealing at arm's length, are fully informed and are not under any
compulsion to transact with one another;
n. "Financing Lease" shall mean a lease which allows for the provision of
Goods, Services or Construction if the lease may or will require payment
by the Municipality of financing, interest, bonuses, premiums or other
charges or costs for the Goods, Services or Construction over time and
upon term;
o. "Goods" shall mean moveable property including:
i. the costs of installing, operating, maintaining or manufacturing such
moveable property, and
ii. raw materials, products, supplies, equipment and other physical
objects of every kind and description whether in solid, liquid, gaseous
or electronic form, unless they are procured as part of a Construction
Contract;
p. "Holdback" shall mean an amount withheld under the terms of a
Contract to be used as security for the completion or performance of the
Contract, and to avoid overpayment in relation to the progress of work;
q. "In House Bid" shall mean a Bid made by a Department or a group of
employees and authorized by Senior Staff submitted in response to a Bid
Solicitation, where the provision of the Good, Service or Construction
will be provided entirely by the employees of the Municipality;
"Low Value Purchase" shall mean a purchase of Goods, Services or
Construction which is random in nature, is not included as part of a Price
Agreement, and does not exceed a value of$1,000.00;
s. "Lowest Compliant Bid" shall mean the Bid that would provide the
Municipality with the desired Goods, Services and Construction at the
lowest cost, meets all the specifications and requirements and contains no
major irregularities or qualifications;
t. "Municipality" shall mean the Corporation of the Municipality of Bayham;
u. "Online Tendering" shall mean the use of a computer-based system
authorized by the Municipality and directly accessible by suppliers, that
provides suppliers with information related to Bid solicitations;
v. "Payment Security" shall mean the form of security required by the terms
and conditions of Bid Solicitation documentation to guarantee the
payment of labour and materials to be supplied in connection with a
Contract, as required by Section 8 of this by-law;
w. "Performance Security" shall mean the form of security required by the
terms and conditions of Bid Solicitation documentation to guarantee the
faithful performance of the Contract by a supplier, as required by Section 8
of this by-law;
x. "Price Agreement" shall mean an agreement between the Municipality
and the supplier of a Good, Service or Construction arrived at following a
competitive tender or proposal process, whereby the supplier commits to
the Municipality to provide Goods, Services or Construction, as and when
needed by the Municipality, at a pre-determined price, for a pre-
determined period of time, upon pre-determined terms and conditions;
y. "Pre-qualification Submission" shall mean a detailed written proposal
submitted in response to a Request for Pre-qualification but which does
not create any contractual obligation between the party submitting the
Pre-qualification Submission and the Municipality, but which may be a pre-
condition to further procurement Contracts with the Municipality;
z. "Progress Payment" shall mean a payment made under the terms of a
Contract after the performance of the part of the Contract in respect of
which payment is made but before the performance of the whole contract;
aa. "Proposal" shall mean an offer submitted in response to a Request for
Proposal, acceptance of which may be subject to further negotiation;
bb. "Purchase" shall mean to acquire Goods, Services or Construction by
purchase, rental, lease or trade;
cc. "Purchase Order" shall mean a written order to a supplier formally
stating ail terms and conditions for the purchase of Goods, Services or
Construction or a written acceptance of an offer received in accordance
with this by-law;
dd. "Quotation" shall mean a binding offer submitted in response to a Request
for Quotation;
ee. "Request for Expressions of Interest" shall mean a request made by the
Municipality to the market place for the purposes of compiling a list of
persons or corporations who may be interested in providing Goods,
Services or Construction to the Municipality from time to time. Acceptance
of an expression of interest by the Municipality does not create any
contractual obligation between the party submitting the expression of
interest and the Municipality, but may be a precondition to Pre-
qualification or further procurement Contracts with the Municipality;
ff. "Request for Pre-qualification" shall mean a request for the detailed
submission of the experience, financial strength, education, background
and personnel of persons, firms or corporations who may, from time to
time, qualify to supply Goods, Services and Construction to the
Municipality;
gg. "Request for Price Agreement" shall mean a request for the submission
of a Tender or Proposal to enter into a Price Agreement with the
Municipality;
hh. "Request for Proposal" shall mean a request for proposals made pursuant
to this by-law, which may or may not result in further negotiation, or the
creation of Contractual obligations between the parties, depending on the
terms of the Request for Proposal;
ii. "Request for Quotation" shall mean a request for Quotations for the
provisions of Goods, Services or Construction to the Municipality made
pursuant to this by-law;
jj. "Sole Source Purchase" shall mean the purchase of a Good, Service or
Construction where there is only one available supplier of that Good,
Service or Construction that meets the needs or requirements of the
Municipality;
kk. "Substantive Objection" shall mean a written objection provided to Senior
Staff or the CAO by an interested party giving specific reasons for the
objection;
II. "Successful Bidder" shall mean the Bid that would provide the
Municipality with the best product or service as measured by the
evaluation criteria and which is compliant;
mm. "Tender" shall mean a written detailed offer from a vendor or service
provider, to supply Goods, Services or Construction to the Municipality;
nn. "Two Phase Bid" shall mean a Proposal submitted in response to a
Request for Proposals which requires the submission of the Proposal in
phases, either in separate bid envelopes or at different times, whereby
the proposal is evaluated in the first phase, and price is evaluated in the
second.
2.2 To establish the definition of any other purchasing term not herein included,
reference shall be made to the latest edition of the National Institute of
Governmental Purchasing Inc.'s Dictionary of Purchasing Terms.
2.3 Schedules "A" and "B"attached hereto form part of this By-law.
Section 3 —General Procurement Polices & Procedures
3.1 The policies and procedures prescribed in this by-law, including all of the purposes, goals
and objectives of Section 1 hereof, shall be followed for the procurement of all Goods
and Services and for the awarding of any Construction Contract by the Municipality or
any of its officers, servants and employees with the exception of any of those pertaining
to the Drainage Act or Municipal Drains.
3.2 This by-law shall not apply to those procurement processes enumerated in Schedule "A".
Section 4— Responsibilities &Authorities
4.1 Senior Staff shall be responsible for and shall have authority for all
procurement activity and decisions within their Department (including the
Awarding of any Contract), subject to all of the following:
a. all of the purposes, goals and objectives of Section 1 of this by-law
shall be complied with;
b. all procurement activities and decisions must be authorized by this by-
law and must be carried out within the financial and other limits set out
herein;
c. no procurement activity or decision shall be contrary to any specific
direction of the CAO or Council;
d. ensuring that all necessary authorizations to proceed have been given
and that sufficient funds are budgeted.
4.2 The CAO has the authority to instruct Senior Staff to not to award Contracts
and to direct Senior Staff to report to Council for approval and may provide
additional restrictions concerning procurement where such is considered
necessary and in the best interest of the Municipality.
4.3 The exercise of all authority to award a Contract is subject to the
identification and availability of sufficient funds in appropriate accounts within
Council approved estimates or upon a determination being made by the
Treasurer that the required funding can reasonably be expected to be made
available in the current, or future years.
Section 5 - Restrictions
5.1 No Contract for Goods, Services or Construction may be divided into two or
more parts to avoid the application of the provisions of this by-law.
5.2 No Contract for Services shall be Awarded where the services could result in
the establishment of an Employee -Employer Relationship.
5.3 No personal purchases shall be made by the Municipality for members of
Council or any appointed member of a local board or commission or for
Municipal employees or their families.
5.4 An employee who has the responsibility of declaring Goods surplus shall not
bid or personally obtain any Goods that the employee has declared as
surplus unless approved by the CAO.
5.5 No employee of the Municipality having responsibility for sending items to a
public auction may bid on any of the Municipality's Goods unless approved by
the CAO.
5.6 No employee or Council member shall purchase, on behalf of the Municipality,
any Goods, Services or Construction, except in accordance with this By-law.
5.7 No councillor, officer or employee or member of an employee's family of the
Municipality shall accept, directly or indirectly, from any person, company,
firm or corporation to which any purchase order or contract is, or might be
awarded, any rebate or gift or money, except:
a. gifts of a very small intrinsic value;
b. gifts given for the use and benefit of the Municipality;
c. moderate hospitality during the normal course of business that would not
significantly exceed what the Municipality, through the employee's expense
account, would likely provide in return and would not be perceived by others as
influencing the making of a business decision.
5.8 All councillors, officers and employees of the Municipality shall declare any
Conflict of Interest to the CAO such persons shall refrain from
participating in the procurement process to which the Conflict of Interest
relates. The CAO shall report any personal conflicts to Council.
5.9 All procurement undertaken by the Municipality shall be undertaken in
accordance with the Municipality's Code of Conduct, policies and
procedures manual and in accordance with the Municipal Conflict of
Interest Act, R.S.O. 1990, c. M.50.
5.10 Where an applicable national or international trade agreement is in conflict
with this by- law, the trade agreement shall take precedence.
5.11 The Municipality may only enter into a Financing Lease if:
a. a by-law authorizing the Financing Lease is passed;
b. before the by-law authorizing the Financing Lease is enacted,the
Municipality has adopted a statement of the Municipality's lease
financing policies and goals; and
c. the Financing Lease includes a schedule of all fixed amounts of
payment, if any, required under the lease and that may be required
under any possible extensions or renewals of the lease.
5.12 The statement required by Section 5.11, shall include, ata minimum, a
discussion of the financial and other risks for the Municipality of Financing
Leases.
5.13 Before entering into a Financing Lease, the Treasurer shall:
a. prepare a report to Council with a recommendation, assessing, in the
opinion of the Treasurer, the costs and financial and other risks
associated with the proposed Financing Lease, including, a comparison
between the fixed and estimated costs and the risks associated with
the proposed Financing Lease, and those associated with other
methods of financing;
i. a statement summarizing the effective rate or rates of financing
for the Financing Lease, the ability for lease payment amounts
to vary, and the methods or calculations, including possible
financing rate changes, that may be used to establish that
variance under the Financing Lease;
ii. a statement summarizing any contingent payment
obligations under the Financing Lease that in the opinion of
the Treasurer would result in a material impact for the
Municipality, including lease termination provisions,
equipment loss, equipment replacement options, and
guarantees and indemnities;
iii. a summary of the assumptions applicable to any possible
variations in the Financing Lease payment and contingent
payment obligations; and
iv. any other matters the Treasurer or Council considers
advisable;
b. obtain legal advice and financial advice with respect to the proposed
Financing Lease and if the scope of the proposed transaction warrants it,
ensure that the legal and financial advice is from a source independent
from the advice ordinarily obtained by the Municipality for legal or
financial matters;
c. provide an opinion about whether the costs of the financing for the
proposed Financing Lease are lower than other methods of financing
available to the Municipality, and whether the risks associated with the
Financing Lease are reasonable.
5.14 The costs and risks associated with a proposed Financing Lease in a report
made under Section 5.13 shall be assessed as of the date the report is made.
5.15 If at any time after a report under Section 5.13 is made, but before the
Financing Lease is executed, the Treasurer becomes of the opinion that a
changed circumstance with respect to the proposed Financing Lease may
result in a material impact for the Municipality, the Treasurer shall, as soon
as is reasonably possible update the report and present it to Council.
5.16 A report made under Section 5.13 shall summarize the information required
by that section for the entire term of the Financing Lease, including any
possible extensions or renewals.
5.17 Where applicable each of the procurement procedures set out in Section 8 of
this by-law shall be undertaken in compliance with the following steps:
a. the scope of the Goods, Services and Construction shall be clearly and
extensively defined by the Bid Solicitation documentation;
b. the form of Bid Solicitation documentation shall be, to the extent possible,
standardized using common forms and processes;
c. the Bid Solicitation documentation shall be circulated and advertised in as
wide and extensive a manner as will ensure the best, most
comprehensive and most competitive response to the Bid Solicitation;
d. all Bids shall be fairly and completely evaluated using as open, fair and
transparent a process as may be possible in the circumstances of the
particular Bid Solicitation. Evaluation criteria shall be established for
each class of procurement undertaken by the Municipality;
e. the evaluation of each Bid shall be carefully recorded using a
standardized form of evaluation record, such as a tally card or other
method of point tabulation method. The evaluation record shall be
stored and shall not be destroyed until three years following completion
of the procurement Contract;
f. all Successful Bidders shall,where required by this by-law, be
required to comply with the Contract negotiation, preparation and
execution requirements of Section 8 of this by-law;
g. all Contracts shall be monitored to ensure that performance is in
accordance with the requirements of the Contract and steps
shall be taken to correct the performance of suppliers where it
falls below the standard required by the Contract;
h. all Bids received by the Municipality shall be kept together in a secure
place until the time for opening. All Bids shall remain sealed until the
opening, which shall occur in public. Bid Solicitations requiring the
submission of proprietary information or information containing
intellectual property protected by law shall contain provisions
providing for protecting the confidentiality of same, in
accordance with the provisions of the Municipal Freedom of
Information and Protection of Privacy Act;
all Bid Solicitation documentation shall clearly set out the
requirements for the price element of the submission, specifying
whether the Bid price is submitted on a unit price or total price basis
and whether it is net of any taxes, early payment discounts,
premiums, financing charges, administrative costs, cost of living or
other escalations, contingencies or other deductions or additions
and how any Contract extras shall be dealt with;
all Bid Solicitation documentation shall clearly specify how each of
the following criteria shall be utilized in evaluating all Bids (criteria is
not listed and any order of preference):
i. price;
ii. quality of Goods, Services and Construction;
iii. experience and qualifications of Bidder(s);
iv. risk;
v. strategy;
vi. approach;
vii. methodology;
viii. scheduling of work;
ix. past performance;
x. facilities and equipment to be utilized in Contract
performance;
xi. personnel to be used in Contract performance.
Section 6—Total Project Cost
6.1 Where this by-law prescribes financial limits on Contracts that may be
Awarded on the authority of Senior Staff, or provides for financial limits on
Contracts required to be reported to Council, for the purpose of
determining whether a Contract falls within these prescribed limits, the
Contract amount shall be the sum of all costs to be paid to the supplier
under the contract plus all taxes and less any rebates.
Section 7— Prescribed Council Approval
7.1 Despite any other provision of this by-law, the following Contracts are
subject to Council approval:
a. any Contract requiring approval from the Ontario Municipal Board;
b. any Contract prescribed by statute to be made by Council;
c. where the cost amount proposed for acceptance is higher than the
Council approved estimates and the necessary adjustments cannot be
made;
d. where a Substantive Objection emanating from the Bid solicitation has
been filed with Senior Staff;
e. where a major irregularity precludes the Award of a Tender to the
supplier submitting the Lowest Complaint Bid;
f. where authority to approve has not been expressly delegated;
g, any contract having a value in excess of ten thousand dollars
($10,000.00);
h. where the final costs of the contract exceed the amount originally
submitted and approved in the contract by 10%or$10,000.00 whichever
is less.
Section 8— Procurement Procedures
8.1 The following are hereby authorized as the acceptable procedures for all
procurement undertaken by or on behalf of the Municipality. They may be
utilized individually or in combination with one another, as may be appropriate
in the circumstances:
Request for Expression of Interest
8.2 Senior Staff may conduct a Request for Expression of Interest for the purposes
of determining the availability of suppliers of any Good, Service or Construction
and for the purposes of keeping a list of available suppliers (which shall be
deemed to be the "goal" of the Request for Expression of Interest form of
procurement). The submission of an Expression of Interest does not create
any contractual obligation between the Municipality and the interested supplier.
The submission of an Expression of Interest may be made a specific pre-
condition of any other procurement procedure utilized by the Municipality.
Request for Pre-Qualification
8.3 Senior Staff may conduct a Request for Pre-qualification for any Good, Services or
Construction to select the number of acceptable Bidders that may Bid on the
subsequent competitive sealed Bid process under the following circumstances, which
for the purposes of this section, shall also be deemed to be the "goal" of the Request
for Pre-qualification form of procurement:
a. the work is considered "high risk"with respect to Regulations governed
under the Occupational Health and Safety Act;
b. the work is such that Contract administration costs (work inspection,
follow-up, extra fee negotiations) could result in a substantial cost to
the Municipality if the work is not satisfactorily performed the first time;
c. the Goods or equipment to be purchased must meet national
safety standards or has demonstrated an acceptable level of
performance; or
d. the work involves complex, multi-disciplinary activities;
8.4 When the Request for Pre-qualification is utilized, a Pre-qualification
Proposal document shall be provided to the potential Bidders setting out the
criteria for pre-qualification which may include:
a. experience on similar work (firm and staff assigned);
b. references provided from other customers for similar work;
c. verification of applicable licences and certificates;
d. health and safety policies and staff training;
e. financial capability;
f. past performance with the Municipality.
8.5 The selection of Bidders following a pre-qualification process does not create
any contractual obligation between the Municipality and the pre-qualified
bidder. Pre-qualification may be made a specific pre-condition of any other
procurement procedure utilized by the Municipality.
Low Value Purchase (Less Than $1,000.00)
8.6 A Low Value Purchase may be utilized for purchases involving Contracts
which do not exceed one thousand dollars ($1,000.00) (which shall be
deemed to be ''le "goal" of the Low Value Purchase form of procurement).
These purchases may be made utilizing a Purchase Order, petty cash, a
cheque, or a Municipal credit card. Senior Staff shall appoint individuals
within their department who have authority to make Low Value Purchases.
These purchases are within the discretion of Senior Staff or the Senior
Staffs delegate. Only purchases which can be demonstrated to have been
made at Fair Market Value shall be made.
Request for Quotation — Informal (Purchases Between $1,000.00-$10,000.00
8.7 For the procurement of Goods, Services and Construction having a Contract
value of one thousand dollars ($1,000.00) or more but not exceeding ten
thousand dollars ($10,000.00), an informal Request for Quotation shall be
utilized (which shall be deemed to be the "goal" of the Informal Request for
Quotation form of procurement). Three Quotations, either by telephone or in
writing, shall be obtained. These purchases do not require formal advertising
nor the receipt of sealed Bids. The Quotations shall be reviewed, and the
results tabulated to determine the Award of the Contract for same upon
approval of Senior Staff.
Request for Quotation — Formal (Purchases Between $10,000.00-$50,000.00)
8.8 For the procurement of Goods, Services and Construction having a Contract
value of ten thousand dollars ($10,000.00) or more but not exceeding
fifty thousand dollars ($50,000.00), a formal Request for Quotation shall be
utilized (which shall be deemed to be the "goal" of the Formal Request for
Quotation form of procurement). At least three Quotations shall be obtained,
in writing. These purchases do not require formal advertising, nor the
receipt of sealed Bids. The Quotations shall be reviewed and the results
tabulated, to determine the Award of the Contract for same. In appropriate
circumstances, the Request for Proposal or the Request for Tender
processes may be utilized for Contracts in this value range, if the criteria for
each procurement method is otherwise met.
Request for Tender(Purchases Exceeding $50,000)
8.9 For the procurement of Goods, Services and Construction having a Contract
value of fifty thousand dollars ($50,000.00) or more, a Request for Tender shall
be used where all of the following criteria apply which for the purposes of this
section, shall also be deemed to be the "goals" of the Request for Tender form
of procurement:
a. two or more sources are considered capable of supplying the
Good, Service or Construction;
b. the Good, Service or Construction is adequately defined to permit
the evaluation of Tenders against clearly stated criteria,
c. the market conditions are such that Tenders can be submitted on a
common pricing basis, and
d. it is intended that the lowest priced Compliant Tender will be accepted
without negotiations;
8.10 Notice of the Tender shall be given by formal advertising or On-line Tendering.
Notice shall also be given to all Bidders who were required to be Pre-qualified
and to all bidders who were required to submit an Expression of Interest.
8.11 Sealed Tenders with a public opening shall be required.
8.12 The Award shall be made to the Lowest Compliant Bidder.
8.13 The Tender shall beopened and read out in public. All Bid amounts shall be
recorded on a Summary of Bidders sheet.
8.14 Any irregularities in the Tender shall be dealt with in accordance with
Schedule "B"of this by-law.
8.15 The Tender documents shall require the Successful Bidder to execute
those documents and take those steps set out in Section 8 of this by-law.
8.16 The Award of any Tender having a Contract value in excess of ten thousand
dollars($10,000.00)requires Council approval.
Request for Proposals (Purchases Exceeding $50,000)
8.17 For the procurement of Goods, Services and Construction having a Contract
value of fifty thousand dollars ($50,000.00) or more, a Request for Proposal
shall be used where after applying the following criteria, it is determined that
the Request for Proposal is a more appropriate form of procurement than
Tender which for the purposes of this Section shall also be deemed to be the
"goals" of the Request for Proposal form of procurement:
a. the procurement is required as a result of a peculiar problem,
requirement or objective;
b. the selection of the supplier depends more upon the effectiveness of
the proposed solution, than the price alone;
c. one or more of the criteria for issuing a Tender cannot be met;
d. it is expected that negotiation with one or more Bidders may be
required with respect to any aspect of the Contract;
e. the precise Good, Service or Construction, or the specifications
therefore are not known or are not definable and it is expected that
Bidders will further define them;
8.18 Notice of the Request for Proposal shall be given by formal advertising or
On-line Tendering. Notice shall also be given to all Bidders who were required
to be Pre-qualified and to all bidders who were required to submit an
Expression of Interest.
8.19 The Award of any Request for Proposal having a Contract value in excess of
ten thousand dollars($10,000.00) requires Council approval.
8.20 Any irregularities in the Request for Proposal shall be dealt with in
accordance with Schedule "B"of this by-law.
8.21 Where an Award may be made following an evaluation of the Proposals, without
further negotiation, the successful Bidder shall be required to comply with
the Contract requirements of Section 8 of this by-law.
Request for Price Agreement—Any Price
8.22 A Request for Price Agreement shall be used for the procurement of Goods,
Services and Construction of any Contract value when the following criteria
apply, which for the purposes of this Section shall also be deemed to be the
"goals" of the Request for Price Agreement form of procurement:
a. where it is important that the Municipality be guaranteed a continuous
supply of Goods, Services or Construction;
b. the volume of Goods, Services and Construction over the course of a
year is high;
c. economies of scale can be achieved by eliminating multiple low-value
Bids;
d. demand is not known in advance;
e. the use of the Goods, Services or Construction required is repetitive
in nature;
f. delivery of the Goods, Services or Construction is Contracted for as
the need arises;
8.23 Notice of the Request for Price Agreement shall be given by formal
advertising or On-line Tendering. Notice shall also be given to all Bidders
who were required to be Pre-qualified and to all bidders who were required
to submit an Expression of Interest.
8.24 The Award of any Price Agreement having a Contract value in excess of
one hundred thousand dollars($100,000.00) requires Council approval.
8.25 Any irregularities in a Price Agreement submission shall be dealt with
in accordance with Schedule "B"of this by-law.
8.26 The Award shall be made to the Lowest Compliant Bidder.
8.27 The Tender shall be opened and read out in public at a time and date
established by the CAO. All Bid amounts shall be recorded on a Summary of
Bidders sheet.
8.28 The Tender documents shall require the Lowest Compliant Bidder to
execute those documents and take those steps set out in Section 8 of this by-
law.
8.29 No Contractual obligation shall arise between a supplier and the Municipality
who have executed a Price Agreement until the Goods, services or
Construction are actually ordered.
8.30 Negotiation may be used for the procurement of Goods, Services or
Construction for Contracts of any Contract value when any of the following
criteria apply, which for the purposes of this Section shall also be deemed to
be the "goals" of the Negotiation form of procurement:
a. due to abnormal market conditions, the Goods, Services or Construction
required are in short supply;
b. where competition is precluded due to the existence of any patent
rights, copyright, technical secret or control of raw material;
c. where there is only one source of the Goods, Services or
Construction which would be acceptable and cost effective;
d. where two or more identical Bids are received;
e. where all Bids received are not acceptable or exceed the amount
budgeted for the procurement;
f. where the extension or reinstatement of an existing Contract would
be more cost effective or beneficial to the Municipality;
g. where Extraordinary or Emergency Circumstances exist;
h. where for security or confidentiality reasons it is in the public interest; or
i. where authorized by Council so to do;
8.31 The Award of any negotiated Contract having a Contract Value in excess of
ten thousand dollars($10,000.00) requires Council approval.
8.32 The Award of any negotiated Contract shall comply with Section 8 of this by-
law.
Extraordinary or Emergency Circumstances Purchases
8.33 When Senior Staff is of the opinion that an Extraordinary Circumstance
exists, Senior Staff, in consultation with the CAO or the Mayor may
authorize the purchase of such Goods, Services and Construction as is
considered necessary to remedy the situation without regard to the
requirement for a Bid solicitation and may award the necessary Contract
provided that the Contract does not exceed $10,000 (which for the purposes of
this Section, shall also be deemed to be the "goal" of the Extraordinary
Circumstance Purchase).
8.34 The relevant details surrounding an Extraordinary or Emergency
Circumstance Award shall be reported to Council at the next possible
meeting following the Award.
Sole Source Purchase
8.35 A Sole Source Purchase may be used for the procurement of Goods,
Services or Construction for Contracts of any Contract value, in the following
circumstances, which for the purposes of this section shall also be deemed to
be the "goals" of the Sole Source Purchase form of procurement:
a. where the compatibility of a purchase with existing equipment, facilities
or service is a paramount consideration and the purchase must be
made from a sole source;
b. where a Good is purchased for testing or trial use;
c. where the Municipality purchases supplies for resale;
d. where the Municipality has a rental contract with a purchase option and
such purchase option could be beneficial to the Municipality;
e. notwithstanding anything in this policy, where a purchase is determined
by Council to be fair and reasonable and is made from a non-profit
corporation supported by the Municipality, the Municipality may make
such a purchase as a Sole Source Purchase;
f. where Goods are offered for sale by tender, auction or negotiation
such purchase will be deemed to be a Sole Source Purchase and the
CAO may authorize the submission of a Bid or the conduct of
negotiations where the CAO determines the purchase to be clearly in
the best interest of the Municipality;
g. for matters involving security, police matters, or confidential issues, a
purchase may be made in a manner that protects the confidentiality of the
contractor or the Municipality. Such purchases may be made as a
Sole Source Purchase;
h. in any situation where the Council of the Corporation of the Municipality
of Bayham deems it appropriate.
8.36 The Award of any Sole Source Purchase Contract having a Contract Value
in excess of ten thousand dollars ($10,000.00) requires Council approval.
8.37 The Award of any Sole Source Purchase Contract shall comply with Section 8
of this by-law.
Two Phase Bid
8.38 A Request for Proposal may require the submission of the Proposal in two
phases. Phase 1 would assess the Proposal and Phase 2 would assess the
price.
8.39 The Two Phase bid may require one submission containing two sealed
envelopes, the first containing the Proposal and the second the Price. In the
case of a two envelope submission, the first envelope shall be opened first
and assessed. Only the second envelopes of those Bids meeting the
specifications of the Request for Proposal shall be opened. The unsuccessful
Bidders price envelopes shall be returned unopened. The Price envelopes
of successful Phase 1 Bids shall be treated as Tenders. The Proposal
envelopes shall be treated as Proposals.
8.40 The Two Phase Bid may require two separate submissions. The first
submission shall contain the Proposal, without price. It shall be evaluated
and only those Bidders meeting the Request for Proposal specifications would
be asked to submit a Phase 2 price Bid envelope. The Phase 1 envelopes
shall be treated as Proposals and the Phase 2 envelopes shall be treated as
Tenders.
8.41 The goal of the Two Phase Bid form of procurement shall be to deal with
procurement situations that require the combined advantages of the Proposal
and the Tender forms of procurement.
8.42 In House Bids may be used for the procurement of Goods, Services
and Construction of any Contract value only in the following circumstances,
which for the purposes of this Section shall be deemed to be the "goals" of
the In House Bid form of procurement:
a. where a Good, Service or Construction has historically been provided by an
external supplier and Council determines that it is in the best interests of the
Municipality to allow its staff to compete for the provision of the Good, Service or
Construction;
b. where a Good, Service or Construction has historically been provided by staff of
the Municipality and Council determines that it is in the best interests of the
Municipality to allow its staff to compete for the provision of the Good, Service or
Construction;
c. in any other circumstances that Council determines may be appropriate; and
d. where proper cost accounting, allocation and other infrastructure are in place to
permit an accurate and thorough examination of all of the direct and indirect
costs associated with the provision of the particular Good, Service or
Construction;
8.43 In House Bids shall only be utilized where external suppliers have also
been requested to submit Bids;
8.44 In House Bids must be authorized by Council, in advance;
8.45 only one In House Bid will be permitted for each Bid Solicitation;
8.46 If any Bid Solicitation permits In House Bids, all Bidders shall be made aware
of this fact in the Bid Solicitation documentation;
8.47 where an In House Bid will require the services of a unionized employee of
the Municipality and the provisions of the Good, Service or Construction will
require a change to a collective agreement, then the concurrence of the
Union which has collective bargaining rights with respect to that agreement
shall be required before the In House Bid will be accepted;
8.48 In determining whether an In House Bid is in the best interests of the
Municipality, the following criteria shall be taken into account by Council:
a. whether the Bid will result in a significant increase or decrease in capital
equipment and infrastructure expenditures by the Municipality;
b. the extent to which the In House Bid will affect the future ability of the
Municipality to deliver essential health, emergency or other vital
services to the public, in a cost effective and efficient manner;
c. the extent to which the In House Bid will affect staffing and
personnel complement of the Municipality;
d. the extent to which the In House Bid will affect the financial position of
the Municipality; and
e. the extent to which the In House Bid will affect service levels provided to
the public;
8.49 if an In House Bid is selected as the Successful Bid, then compliance
with Section 8 of this by-law shall not be required, but instead, a
memorandum of understanding shall be drafted. In all other respect, the
Bid documentation required shall be the same for all Bids.
Section 9— Bid &Contract Administration
Submission of Bids
9.1 Bids shall be accepted by the CAO or designate in paper form or where
provided, as an On-line Tender.
9.2 If two equal Bids are received, a means of breaking the tie consistent with the
provisions of the solicitation shall be employed.
9.3 Factors to be considered in breaking the tie include:
a. whether a prompt payment discount has been offered;
b. when delivery is an important factor, the Bidder offering the best delivery date
shall be given preference;
c. a Bidder in a position to provide better after sales service, with a good record in
this regard, shall be given preference;
d. a Bidder with an overall satisfactory performance record shall be given preference
over a Bidder known to have an unsatisfactory performance record.
9.4 Following the closing of a Bid Solicitation, there shall be no informal contact
between any Bidder and any elected official or staff member of the
Municipality relating to the Tender. Any contact shall only occur in a formai
manner, to the extent permitted by the Bid Solicitation documentation.
9.5 Prior to the closing of a Bid Solicitation, the only contact that a Bidder may have
with the Municipality or any of its staff or elected officials shall be made in
writing, and only if made for the purposes of requesting clarification
about the Bid Solicitation documentation. The Municipality may only
respond to such clarification requests in writing, either in the form of a letter
response or in the form of an addenda, but in either case, a copy of both the
clarification request and the response or the addenda shall be provided to all
Bidders at the same time.
9.6 In spite of Section 9.5, a bidders meeting may be held where applicable at
the discretion of Senior Staff to allow bidders to seek clarification on the
requirements of the tender/proposal.
9.7 A Bidders meeting is to be held for all tenders and bidder attendance may be a
mandatory requirement at Senior Staffs discretion.
9.8 Prior to the opening of a proposal or tender a bidder can request the return
of such proposal or tender. The bidder may submit another proposal or tender
provided such submission is within the time limits set out in the bid document.
Guarantees of Contract Execution & Performance
9.9 Senior Staff may require that a Bid be accompanied by a Bid Bond or other
similar security to guarantee entry into a Contract.
9.10 In addition to the security referred to in Section 9.9, the Successful Bidder
may be required to provide,
a. a Performance Bond to guarantee the faithful performance of a Contract, and
b. a Payment Bond to guarantee the payment for labour and materials to be supplied
in connection with a Contract.
9.11 Senior Staff shall select the appropriate means to guarantee execution and
performance of the Contract. Means may include one or more of, but are not
limited to, financial bonds or other forms of security deposits, provisions for
liquidated damages, progress payments, and Holdbacks.
9.12 Prior to the commencement of work and where deemed appropriate, evidence
of Liability Insurance Coverage satisfactory to Senior Staff must be obtained,
ensuring indemnification of the Municipality from any and all claims, demands,
losses, costs or damages resulting from the performance of a Bidder's
obligations under the Contract and from any other risk determined by Senior
Staff as requiring coverage.
9.13 Prior to payment to a supplier, a Certificate of Clearance from the Workplace
Safety and Insurance Board shall be obtained ensuring all premiums or levies
have been paid to the Board to date or that independent Operator Status has
been secured.
9.14 Senior Staff shall ensure that the guarantee means selected will:
a. not be excessive but sufficient to cover financial risks to the Municipality;
b. provide flexibility in applying leverage on a supplier so that the penalty is
proportional to the deficiencies; and
c. comply with provincial statutes and regulations.
9.15 Financial bonds for Contract performance shall only be required where the
Municipality will be exposed to costs if the supplier does not complete the
requirements of the Contract.
9.16 If the risk to the Municipality is not adequately limited by the progress
payment provisions of the Contract, a minimum payment Holdback of 10%
shall be mandatory on all Contracts exceeding $10,000.
9.17 Senior Staff may release the Holdback funds on construction contracts upon:
a. the contractor submitting a statutory declaration that all accounts have
been paid and that all documents have been received for all damage
claims;
b. receipt of clearance from the Workplace Safety and Insurance
Board for any arrears of Workplace Safety and Insurance Board
assessment;
c. all the requirements of the Construction Liens Act being satisfied;
d. receipt of certification from the Municipality's Solicitor, where
applicable, that liens have not been registered; and
e. certification from the consulting engineer architect, under whom the
work has been performed, that the conditions of the Contract have been
satisfied.
9.18 The conditions for release of Holdback funds provided in Section 9. 17
apply to other Goods or Services Contracts with necessary modifications.
9.19 The conditions for release of Holdback funds provided in Section 9.17 apply
to either Goods or Services Contracts, with necessary modifications.
Bid Irregularities
9.20 The process for administering irregularities contained in Bids pertaining to all
Contracts shall be as set out in Schedule "B"
9.21 For an irregularity listed in the first column of Schedule "B",the response
applicable to it is set out opposite to it in the second column of Schedule "B".
Form of Contract
9.22 The Award of a Contract may be made by way of an agreement, or by letter of approval.
9.23 An approval letter is to be used when the resulting Contract is straightforward and will
contain the Municipality's standard terms and conditions.
9.24 A formal agreement is to be used when the resulting Contract is complex and will contain
terms and conditions other than the Municipality's standard terms and conditions.
9.25 It shall be the responsibility of Senior Staff to determine if it is in the best interest of
the Municipality to establish a formal agreement with the supplier.
9.26 Where it is determined that Section 9.24 is to apply, the formal agreement shall be
reviewed and approved for execution by the CAO or the Municipality's Solicitor.
9.27 Where a formal agreement is not required, Senior Staff shall issue a Purchase Order
incorporating the terms and conditions relevant to the Award of Contract.
Co-operative Purchasing
9.28 The Municipality may participate with other government agencies or public
authorities in Co-operative Purchasing where it is in the best interests of the
Municipality to do so.
9.29 The policies of the government agencies or public authorities calling the co-
operative Tender are to be the accepted policy for that particular Tender.
Supplier Performance
9.30 Senior Staff shall monitor the applicable performance of all procurement
Contracts and shall document evidence related to same and shall advise the
CAO where the performance of a supplier has been unsatisfactory in terms of
failure to meet Contract specifications, terms and conditions or for Health
and Safety, environmental or other violations.
9.31 Senior Staff may, in consultation with the CAO or the Municipality's Solicitor,
prohibit an unsatisfactory supplier from bidding on future contracts.
9.32 Where it is found that a supplier has performed poorly or below Contract
requirements, Senior Staff shall make recommendations to Council about
ways to deal with such performance.
Receipt of Goods
9.33 Senior Staff shall,
a. arrange for the prompt inspection of Goods on receipt to confirm
conformance with the terms of the Contract; and
b. inform the CAO of significant discrepancies immediately.
8.34 The CAO shall coordinate an appropriate course of action with Senior Staff for
any non-performance or discrepancies.
Reporting to Council
9.34 The Treasurer shall submit to Council an information report semi-annually
containing the details relevant to the exercise of delegated authority for all
Contracts awarded by Senior Staff exceeding ten thousand dollars
($10,000.00) including amendments and renewals.
9.35 Where a professional services supplier is awarded Contract(s) of a cumulative
total value of $10,000 or more in a calendar year, all Contracts relative to
the supplier shall be included in an annual information report to Council
submitted by the Treasurer
9.36 Senior Staff shall certify in the report that the awards are in compliance with
the Purchasing By-law.
Access to Information
9.37 The disclosure of information received relevant to the issue of Bid
solicitations or the Award of Contracts emanating from Bid Solicitations shall
be made by the appropriate officers in accordance with the provisions of the
Municipal Freedom of Information and Protection of Privacy Act, as amended.
Surplus Stock
9.38 Senior Staff shall submit to the CAO reports of furniture, vehicles,
equipment, stocks of all supplies, and other Goods and material, which are no
longer, used or which have become obsolete, worn out, or incapable of being
used.
9.39 The CAO shall have the authority to transfer furniture, vehicles, equipment,
surplus stock, and other Goods and material from one department to other
departments.
9.40 Senior Staff with the approval of the CAO shall have the authority to sell or
dispose of all furniture, vehicles, equipment, surplus stock, supplies, or other
Goods and material which have become unsuitable for use by the
Municipality or to exchange or trade the same for new furniture, vehicle,
equipment, surplus stock, supplies, or other goods and material.
9.41 Sale of surplus furniture, vehicles, equipment, stock, supplies and other
Goods and material shall be made to the highest responsive Bidder and the
sale shall be made in accordance with the provisions of this by-law where
applicable.
9.42 Senior Staff with the approval of Council shall have the authority to donate to a
charitable non-profit or religious organization, all furniture, vehicles,
equipment, surplus stock, supplies, or other Goods and material which have
become unsuitable for use by the Municipality.
Section 10— By-law Review
10.1 The Procurement By-law shall be reviewed prior to the end of each Council
term and any amendment thereto shall be made prior to the inaugural meeting
of the next Council.
10.2 The review shall determine how effective the Procurement By-law has been in
achieving the objectives set out in Section 1 of the by-law as well as the
requirements of the Municipal Act, 2001, as amended.
10.3 The review shall be undertaken by the CAO, and Treasurer, and the following
consultations:
a. The Association of Municipalities of Ontario;
b. The Minister of Municipal Affairs;
c. The Federation of Canadian Municipalities;
d. The National Institute of Governmental Purchasing.
READ A FIRST, SECOND and THIRD TIME and finally passed this 19th day of March,
2015
MA R CLEK
SCHEDULE "A"
The acquisition methods described in this by-law may not apply to the following items:
1. Training and Education
Conferences, conventions, courses and seminars;
ii. Magazines, books, periodicals;
iii. Memberships.
2. Refundable Employees Expenses
Advances;
ii. Meal Allowances;
iii. Travel and Entertainment;
iv. Miscellaneous -Non-Travel.
3. Employer's General Expenses
Payroll Deductions Remittances;
ii. Medical;
iii. Licenses (Vehicle, etc.);
iv. Debenture Payments including principal interest and foreign
exchange;
v. Insurance Premiums;
vi. Grants to Agencies;
vii. Damage Claims;
viii. Petty Cash Replenishment;
ix. Payments to Real Property;
x. Tax Remittances;
xi. Regional charges to and from other government bodies;
xii. Payments for employment;
xiii. Legal;
xiv. Planning;
xv. Engineering;
xvi. Specialty Consulting.
4. Professional and Special Services
Committee Fees;
ii. Medical, Laboratory, and Pharmacy Services;
iii. Legal fees for expert or professional legal services
for ail Regional and Insurance Matters;
iv. Payments to Social Service and Health Agencies that are
subject to purchase of Service Agreements;
v. Medical and Dental fees;
vi. Appraisal Fees;
vii. Witness fees;
viii. Honorariums.
5. Utilities (monthly charges and utility relocations)
i. Postage;
ii. Water and Sewer;
iii. Hydro;
iv. Gas.
Schedule `B'
IRREGULARITY RESPONSE
1. Late Bids. Automatic rejection and not
opened or read publicly.
2. Unsealed Envelopes. Automatic rejection.
3. Insufficient Financial Security (No Bid Automatic rejection.
Security or agreement to bond or
insufficient Bid bond or agreement to
bond).
4. Bids not Completed in non-erasable Automatic rejection.
medium and signed in ink.
5. Incomplete Bids (Part bids -all items Automatic rejection unless, in the
not bid). opinion of Senior Staff in consultation
with CAO, the incomplete nature is
trivial or insignificant.
6. Qualified Bids (Bids qualified or Automatic rejection unless, in the
restricted by an attached statement). opinion of Senior Staff in consultation
with CAO, the qualification or
restriction is trivial or not significant.
7. Bids received on documents other Automatic rejection unless, in the
than those provided by the opinion of Senior Staff in consultation
Municipality. with CAO, the matter is trivial or
insignificant.
8. Bids Containing Minor Obvious 48 hours to correct and initial errors.
Clerical Errors.
9. Failure to execute Agreement to Bond Automatic rejection.
(Performance Security) or Bonding
company corporate seal or signature
missing from agreement to bond.
10. Failure to execute Bid Security Automatic rejection.
(Financial Security). _
(a) Corporate seal or signature or both of 48 hours to correct.
the Bidder, missing.
(b) Corporate seal or signature of Automatic rejection.
bonding company missing.
11. Bids Delivered to the wrong location. Automatic rejection
12. Other Bid Security- Uncertified Automatic rejection.
Cheques.
13.Documents - Execution
(a) Corporate seal or signature missing. 48 hours to rectify situation.
(b) Corporate seal and signature Automatic rejection.
missing.
14.Erasures, Overwriting or Strike-Outs which are not Initialed:
(a) uninitiated changes to the Tender 48 hours to initial.
documents which are minor (example:
the tenderer's address is amended by
over-writing but not initialed);
(b) unit prices in the Schedule of Prices 48 hours to initial.
have been changed but not initialed
and the Contract totals are consistent
with the price as amended;
(c) unit prices in the Schedule of Prices Automatic rejection.
which have been changed but not
initialed and the Contract totals are
not consistent with the price as
amended;
(d) other mathematical errors, which are 48 hours to initial corrections as
not consistent with the unit prices. made by the Purchasing Services
Division.
(e) Documents, in which all necessary Automatic rejection.
Addenda, which have financial
implication, have not been
acknowledged.
(f) Other Minor Irregularities. The CAO and Senior Staff shall have
authority to waive irregularities, which
they jointly consider to be minor.
(g) Any Irregularity. Despite the provisions herein
contained, Council may waive any
irregularity where it considers it to be
the best interest of the Municipality.