PROCUREMENT PROCEDURES OF THE GUAM PRESERVATION TRUST
The purpose of the Procurement Procedures. ( hereinafter referred to as the “Procedures”) of the Guam Preservation Trust (hereinafter referred to as the “Trusf’) is to provide standards and guidelines applicable to procurements of supplies, equipment, construction and other services under programs and projects supported with Trust funds, pursuant to section 13985.85 of the Government Code of Guam (Public Law 21-07).
2.01 LOCAL PROCUREMENT PREFERENCE
All procurement of supplies, equipment and procurement of services, to the extent consistent with accomplishment of the purposes of the Trust, shall be made from among businesses licensed to do business on Guam.
3.01 METHODS OF PROCUREMENT
Procurement by the Trust shall be made by one of the following methods:
- small purchase procedures;
- competitive sealed bids;
- competitive negotiation; and
- noncompetitive negotiation.
3.02 SMALL PURCHASES
The Procurement Officer may use this section if the procurement costs not more than $10,000.00 in the
aggregate for services, supplies or other property.
3.02.01 PROCEDURE FOR PURCHASES BETWEEN $500.00 AND $10.000.00
Insofar as it is practical for small purchases of services, supplies or other property, no less than three businesses shall be solicited to submit written quotations or oral quotations that are recorded and placed in the procurement file. Awards shall be made to the business offering the lowest acceptable quotation.
3.02.02 PROCEDURE FOR PURCHASES LESS THAN $500.00
The Procurement Officer shall adopt operational procedures for making small purchases of less than $500.00. Such operational procedures shall provide for obtaining adequate and reasonable competition and for making records to properly account for funds and to facilitate auditing of the Trust.
The names of the businesses submitting quotation and the date and amount of each quotation shall be recorded and maintained as a public record.
3.02.04 SMALL PURCHASES FOR PROFESSIONAL SERVICES
If it is expected that the services of accountants, physicians, lawyers, dentists, architects, engineers, or land surveyors can be procured for less than .$10,000.00 and more than $500.00 the methods specified in this section may be used in lieu of the procedures specified in section 3.04 et seq.
3.02.05 EXAMINATION FOR QUALIFICATIONS AND NEGOTIATIONS FOR SMALL PURCHASES
Before contacting any person to perform the required services, the Procurement officer shall examine any current statements of qualifications on file with the Trust. Based on this examination, the Procurement officer shall contact the most qualified form and attempt to negotiate a contract for the required services at a fair and reasonable price. If no current statements of qualifications are on file or the statements on file are inadequate to determine the most qualified firm, technical proposals or statements of qualifications shall be solicited. A minimum of three firms shall be considered unless there are only one or two qualified firms; in the latter case, the Procurement officer shall make a written determination justifying the consideration of only one or two firms.
A price or fee shall not be solicited until the most qualified firm is chosen and only the most qualified firm will be requested to submit a price. If. after negotiations, a fair and reasonable price cannot be agreed to, negotiations will be terminated with such firm and negotiations begin with the next most qualified firm. The progress shall continue until a contract can be negotiated at a fair and reasonable price to the Trust.
3.03 COMPETITIVE SEALED BID
Competitive sealed bidding is a preferred method for the procurement of supplies, services or property in excess of $10,000.00. Competitive sealed bidding is used only when the criteria for competitive negotiation does not apply.
3.03.01 INVITATION FOR BIDS
The Procurement officer shall issue an Invitation for Bids to initiate competitive sealed bid procurement. The Invitation for Bids shall include the following:
- instructions and information to bidders concerning the bid submission requirements, including the time and date set for receipt of bids which shall be no later than 14 calendar days and not more than 45 calendar days from the last date of publication of the Invitation for Bids, the address of the office to which bids are to be delivered, the maximum time for bid acceptance by the Trust, and any other special information;
- a complete and adequate specification or purchase description which clearly defines the items or services needed in order for the bidders to properly respond to the invitation; and
- the contract terms and conditions, including warranty and bonding or other security requirements, as
3.03.02 BID BOND
A surety bid bond or cash deposit may be submitted with any bid and if required, the Trust shall prescribe the amount thereof and shall be fully authorized to enforce forfeiture of such bond or deposit if the successful bidder fails to enter into contract within the prescribed time. Determinations to require bid bonds shall be made by the Procurement officer. The use of a bid bond, however, is required when a performance bond is required.
3.03.03 AMOUNT OF BID BOND
Whenever a bid bond is required, the Procurement officer in accordance with his or her best judgment shall determine the amount or percentage which when applied to the bid price will produce an amount that will provide a bid guarantee which is adequate to protect the Trust from loss in the event of termination of the contract for default. The amount shall be not less than 1 0% of the bid price.
3.03.04 PERFORMANCE BOND
A performance bond may be required before a contract is entered into, and if required, the trust shall prescribe the amount thereof and shall be fully authorized to enforce forfeiture of such bond if the successful bidder fails to perform the contract in a satisfactory manner. Performance bonds may be required where essential to the best interest of the Trust. Determinations to require performance bonds shall be made by the Procurement officer. Examples of situations which may warrant requiring a performance bond for procurement of supplies, services or other property include but are not limited to:
- where substantial progress payments are made before delivery of such items commences: and
- where, in connection with a contract for construction, dismantling, demolition, or removal of improvements. a performance bond is determined necessary to ensure completion of work and to protect the Trust against damage to adjoining property during contract performance; or
- an other conditions deemed to be in the best interests of the Trust.
3.03.05 AMOUNT OF PERFORMANCE BOND
Where the Procurement officer determines that a performance bond shall be required, he or she shall determine the amount thereof that will adequately protect the Trust. Performance bonds as may be required shall be issued by any surety licensed to do business in the Territory of Guam. Bonds shall be drawn on certified or cashier’s check or standby irrevocably letter of credit issued by any bank or bonding agency.
3.03.06 RECEIPT OF BIDS OTHER THAN BY HAND DELIVERY
The Invitation for Bids may state that bids submitted by facsimile or mail will be considered if they are received in hand at the designated office by the time and date set for receipt of bids.
3.03.07 NOTICE OF INVITATION FOR BIDS
Invitations for Bids shall be mailed or otherwise furnished to a sufficient number of bidders for the purpose of securing competition.
Every procurement in excess of $10,000.00 shall be publicized at least 2 consecutive times in a newspaper of general circulation on Guam at least 14 calendar days and not more than 45 calendar days calendar days before the final date of submission of bids. The Procurement officer may also, but shall not be required, to cause the Invitation for Bids to be posted in public places.
3.03.08 PRE-BID CONFERENCES
A pre-bid conference, may be conducted to explain the procurement requirements. and the date thereof shall be announced to all prospective bidders known to have received an Invitation for Bids. The conference shall be held long enough after the Invitation for Bids has been issued to allow bidders to become familiar with it, but sufficiently before bid opening to allow consideration of the conference results in preparing their bids. Nothing stated at the pre-bid conference shall change the Invitation for Bids. A summary of the conference shall be prepared and supplied to all those prospective bidders known to have received an Invitation for Bids.
3.03.09 AMENDMENTS TO INVITATION FOR BIDS
Amendments to Invitation for Bids shall be identified as such and shall require that the bidder acknowledge receipt of all amendments issued. Amendments shall be sent by hand delivery, mail or by facsimile transmission to all those prospective bidders known to have received an Invitation for Bids, within a reasonable time to allow prospective bidders to consider such amendments in preparing their bids. If the time and date for receipt of bids will not permit such preparation, the time and date set for receipt of bids shall be increased accordingly in the best judgment of the Procurement officer.
3.03.10 PRE-OPENING MODIFICATION
Bids may be modified or withdrawn by written notice received in the office designated in the Invitation for Bids prior to the time and date set for bid opening. Modifications or withdrawals may be sent by hand delivery, mail or by facsimile transmission provided that any modification or withdrawal is actually received by the Trust prior to the time and date set for bid opening. If a bid is withdrawn in accordance with this section, the bid security, if any, shall be returned to the bidder.
3.03.11 LA TE-BIDS, LATE WITHDRAWALS AND LATE MODIFICATIONS
Any bid, withdrawal or modification of a bid actually received after the time and date set for opening of bids at the place designated for opening is late. No late bid, late withdrawal or late modification shall be considered. All bidders submitting late bids, late withdrawals or late modifications that will not be considered shall be notified
in writing as soon as possible.
All documents relating to the modification or withdrawal of bids shall be made part of the appropriate procurement file. In addition, all documents relating to late bids, late withdrawals and late modifications shall be made part of the appropriate procurement file.
3.03.13 RECORDING OF BIDS
Each bid and modification shall, upon receipt, be time-stamped. but not opened and shall be stored in a secure place until the time and date set for bid opening.
3.03.14 OPENING OF BIDS
Bids and modifications shall be opened publicly in the presence of one or more witnesses, at the time, date and place designated in the Invitation for Bids. The name of each bidder, and the bid price shall be read aloud or otherwise made available. Such information also shall be recorded at the time of bid opening; i.e., the bids shall be tabulated or a bid abstract shall be made. The names and addresses of required witnesses shall also be recorded at the opening. The opened bids shall be available for public inspection except to the extent the bidder has designated trade secrets or other proprietary date to be confidential as set forth in Section 3.03.15. Material so designated shall accompany the bid and shall be readily separable from the bid in order to facilitate public inspection of the non-confidential portion of the bid. Prices and makes and models or catalogue numbers of the items offered, deliveries, and terms of payment shall be publicly available at the time of bid opening regardless of any designation to the contrary.
3.03.15 CONFIDENTIAL DATA
The Procurement officer shall examine the bids to determine the validity of any requests for nondisclosure of trade secrets and other proprietary data so identified in writing. If the parties do not agree as to disclosure of confidential data, the Procurement officer shall inform the bidders in writing what portions of the bids will be disclosed and that, unless the bidder protests under Section 3.07.01, inspection, subject to any continuing prohibition on the disclosure of confidential data.
3.03.16 MISTAKES IN BIDS
A bidder may correct mistakes in bids discovered before the time and date set for bid opening by withdrawing or correcting the bid as provided in Section 3. 03.1 0.
3.03.17 MISTAKES DISCOVEREQAFTER OPENING BUT BEFORE AWARD
Mistakes discovered after opening but before award which may be waived by the Procurement officer are those minor informalities which are matters of form rather than substance evident from the bid document, or insignificant mistakes that can be waived or corrected without prejudice to other bidders; that is. the effect on price. quantity. delivery or contractual conditions is negligibl~. The Procurement officer shall waive such informalities or allow the bidder to correct them, according to the best interests of the Trust.
3.03.18 MISTAKES WHERE INTENDED CORRECT BID IS EVIDENT
If the mistake and the intended correct bid is clearly evident on the face of the bid document, the bid shall be corrected to the intended correct bid and .may not be withdrawn. Examples of mistakes that may be clearly evident on the face of the bid document are typographical errors, errors in extending unit prices, transportation errors and mathematical errors.
3.03.19 MISTAKES WHERE INTENDED CORRECT BID IS NOT EVIDENT
A bidder may be permitted to withdraw a low bid if:
- a mistake is clearly evident on the face of the bid document, but the intended correct bid is not similarly
- the bidder submits proof of evidentiary value which clearly and conflictingly demonstrates that a mistake
3.03.20 MISTAKES DISCOVERED AFTER AWARD
Mistakes shall not be corrected after award of the contract except where the Procurement officer makes a
written determination that it would be unconscionable not to allow the mistake to be corrected.
3.03.21 BID EVALUATION AND AWARD
The contract is to be awarded to the lowest responsible and responsive bidder whose bid meets the
requirements and criteria set forth in the Invitation for Bids. No bid shall be evaluated for any requirement or
criterion that is not disclosed. in the Invitation for Bids.
3.03.22 FACTORS GOVERNING RESPONSIBILITY
Factors to be considered in determining whether the standard of responsibility has been met include whether a prospective contractor has:
- the appropriate financial, material, equipment. facility, and personnel resources and expertise available or the ability to obtain them, necessary to indicate its capability to meet all contractual requirements;
- a satisfactory record of performance;
- a satisfactory record of integrity;
- qualified legally to contract within the Territory of Guam; and
- supplied all necessary information in connection with the inquiry concerning responsibility.
The Procurement officer may require a prospective contractor to supply requested information concerning the responsibility of such contractor.
3.03.23 RESPONSIVENESS OF BIDDER
A bidder shall be deemed responsive where the submitted bid conforms in all material respects to the Invitation for Bids.
3.03.24 DETERMINATION OF LOWEST BIDDER
Bids shall be evaluated to determine which bidder offers the lowest cost to the Trust in accordance with the evaluation criteria set forth in the Invitation for Bids. Only objectively measurable criteria which are set forth in the Invitation for Bids shall be applied in determining the lowest bidder. Nothing in this section shall be deemed to permit contract award to a bidder submitting a higher quality item than that designated in the Invitation for Bids if such bidder is not also the lowest bidder as set forth in this section.
3.04 COMPETITIVE NEGOTIATION FOR PROFESSIONAL SERVICES
The Trust shall engage in competitive negotiations for procurement of the services of professionals, including but not limited to accountants, physicians, lawyers, dentists, architects and engineers for amounts exceeding $10,000.00. This section shall also apply to non-professional services when evaluation factors involve specialized experience and technical competence, capacity of the offer to perform or when the types of services may require the use of comparative or judgmental evaluations.
3.04.01 STATEMENT OF QUALIFICATIONS
When the professional services specified in section 3.04 §.!.J.Q.J:g are needed on a recurring basis, the Procurement Officer shall actively solicit persons engaged in providing such services to submit annual statements of qualifications in a prescribed format which shall include the following information:
- technical education and training
- general or special experience, licenses and membership in professional associations, societies or boards
- an expression of interest in providing a particular professional service; and
- any other pertinent information requested by the Procurement Officer
Persons may amend statements of qualifications at any time by filing a new statement.
3.04.02 PUBLIC NOTICE
Notice of the need for services shall be made by the Procurement Officer in the form of a Request For Proposals at least fourteen (14) days and not more than forty-five (45) days before the proposals are due. Publication of the Request For Proposals shall be made at least two (2) consecutive times in a newspaper of general circulation in Guam at least fourteen (14) days and not more than forty-five (45) days before the proposals are due. In addition, the Request For Proposals shall be distributed to persons who have submitted Statements of Qualifications pursuant to section 3.04.01 supra. The Request For Proposals may be distributed to the relevant professional societies on Guam or other geographic areas.
3.04.03 REQUEST FOR PROPOSALS
The Request for Proposals shall be in the form specified by the Procurement Officer and contain at least the following information:
- the type of services required;
- a description of the work involved;,
- an estimate of when and for how long the services will be required;
- a date by which proposals shall be submitted;
- a statement that proposals shall be in writing;
- a statement of the minimum information that the proposal shall contain, including:
- the name of the offeror, the location of the offeror’s principal place of business and, if different,
the place of performance of the proposed contract;
- if deemed relevant by the Procurement Officer, the age of the offeror’s business and average
number of employees over a period of time, as specified in the Request for Proposals;
- the abilities, qualifications, and experience of all persons who would be assigned to provide the
- a listing of other contracts under which services similar in scope, size, or discipline to the required
services were performed or undertaken within a period of time, as specified in the Request for
- a plan giving as much detail as is practical explaining how the services will be performed;
- the factors to be used in the evaluation and selection process and their importance; and
- the name of the offeror, the location of the offeror’s principal place of business and, if different,
- whether fees, cost or pricing data will be required.
Proposals shall be evaluated only on the basis of evaluation factors stated in the Request for Proposals. The following factors are appropriate to use in conducting the evaluation. The relative importance of these and other factors will vary according to the type of services being procured. The mandatory minimum factors are:
- the plan for performing the required services;
- ability to perform the services as reflected by technical training and education, general experience, specific experience in providing the required service, and the qualifications and abilities of personnel proposed to be assigned to perform the services;
- the personnel, equipment, and facilities to perform the services currently available or.demonstrated to be made available at the time of contracting;
- a record of past performance of similar work;
- past record of performance on contracts with Government of Guam Agencies and private industry with respect to such factors as control of costs, quality of work, and ability to meet schedules; and
- familiarity with the area in which the project is located.
3.04.05 RECEIPT AND REGISTRATION OF PROPOSALS
Proposals shall not be opened publicly, .but shall be opened in the presence of two or more witnesses. Proposals and modifications shall be time-stamped upon receipt and held in a secure place until the established due date. After the date established for receipt of proposals, a register of proposals shall be prepared which shall include for all proposals the name of each offeror, the number of modifications received, if any, and a description sufficient to identify the service offered. The register of proposals shall be opened to public inspection only after award of the contract. Proposals and modifications shall be shown only to Trust officials having a legitimate interest in them.
The Procurement Officer or his designee, and/or an executive committee of the board may conduct discussions with any offer for the purpose of:
- determining in greater detail such offeror’s qualifications; and
- exploring with the offeror the scope and nature of the required services, the offeror’s proposed method of performance, and the relative utility of alternative methods of performance.
3.04.07 NO DISCLOSURE OF INFORMATION
Discussion shall not disclose any information derived from proposals submitted by other offerors, and the representatives of the Trust conducting the procurement shall not disclose any information contained in any proposals until after award of the proposed contract has been made. The proposal of the offeror awarded the contract shall be opened to public inspection.
3.04.08 MODIFICATION OR WITHDRAWAL OF PROPOSALS
Proposals may be modified or withdrawn at any time prior to the conclusion of discussions.
3.04.09 SELECTION OF THE BEST QUALIFIED OFFERORS
After conclusion of evaluation and discussion, the Procurement Officer or his designee and/or an executive committee of the Board conducting the procurement shall select, in the order of their respective qualification ranking, no fewer than three (3) acceptable offerors (or such lesser number if less than three (3) acceptable proposals were received) deemed to be the best qualified to provide the required services.
3.04.10 DISCUSSION WITH BEST QUALIFIED OFFERORS
Upon the selection as described in section 3.04.09, the Procurement Officer or his designee and/or an executive committee of the Board conducting the procurement may not want or need to interview and may conduct discussions with those offerors selected under section 3.04.09, for the purpose of analyzing anticipated concepts of performance and relative utility of alternative methods of performance. Fees, cost or pricing data shall not be considered in these discussions, unless otherwise specified in the Request For Proposals.
3.04.11 NEGOTIATION WITH BEST QUALIFIED OFFEROR
At the conclusion of discussions with the best qualified offerors pursuant to section 3.04.1 0, the Procurement Officer, or his designee and/or an executive committee of the board shall conduct negotiations with the offeror given first preference pursuant to section 3.04.09. Negotiations shall be directed toward:
- making certain that the offeror has a clear understanding of the essential requirements;
- determining that the offeror will make available the necessary personnel and facilities to accomplish the work within the required time; and
- reaching mutual agreement on the provisions of the contract, including a fair and reasonable price for the required work.
3.04.12 AWARD TO BEST QUALIFIED OFFEROR
If compensation, contract requirements and contract documents can be agreed upon with the best qualified offeror. the contract shall be awarded to that offeror.
3.04.13 FAILURE TO NEGOTIATE CONTRACT WITH BEST QUALIFIED OFFEROR
- If compensation, contract requirements and contract documents cannot be agreed upon with the best qualified offeror a written record stating the reasons therefor shall be placed in the file and the Procurement Officer or his designee and/or an executive committee of the board shall advise such offeror of the termination of negotiations which shall be confirmed by written notice within three (3) days.
- Upon failure to negotiate a contract with the best qualified offeror, the Procurement Officer or his designee and/or an executive committee of the board may enter into negotiations with the next most qualified offeror. If compensation, contract requirements and contract documents can be agreed upon, then the contract shall be awarded to that offeror. If negotiations then fail, negotiations shall be terminated as provided in 3.04.13(a) of this section and commence with next qualified offeror.
3.04.14 NOTICE OF AWARD
Written notice of award shall be public information and made a part of the contract file.
3.04.15 FAILURE TO NEGOTIATE CONTRACT WITH OFFERORS INITIALLY SELECTED AS BEST QUALIFIED
Should the Procurement Officer or his designee and/or an executive committee of the board be unable to negotiate a contract with any of the offerors initially selected as the best qualified offerors, offers may be resolicited or additional offerors may be selected based on original, acceptable submissions in the order of their respective qualification ranking and negotiations may continue in accordance with section 3.04.11 until an agreement is reached and the contract awarded.
3.04.16 MEMORANDUM OF EVALUATION AND NEGOTIATION
At the conclusion of negotiations resulting in the award of the contract the Procurement Officer or his designee
and/or an executive committee of the board shall prepare a memorandum setting forth the basis of award
- how the evaluation factors stated in the Request For Proposals were applied to determine the best
qualified offerors; and
- the principal elements of negotiations including the significant considerations relating to price and the other terms of the contract.
All memoranda shall be included in the contract file and be available for public inspection.
3.05 NONCOMPETITIVE NEGOTIATION
The Trust may engage in noncompetitive negotiation when the award of a contract is not feasible under small purchase, competitive sealed bids, or competitive negotiation procedures. Circumstances under which a contract may be awarded by noncompetitive negotiation are limited to the following:
- the supplies, services or property is available only from a single source;
- an exigency or emergency. exists where the need for the supplies, services or property will not permit a delay incident to competitive solicitation; and
- after solicitation of a number of sources, competition is deemed adequate.
The determination to engage in noncompetitive negotiation shall be made by the Procurement Officer, with the approval of the Board of Directors for the Trust. Such determination shall be made in writing.
3.05.01 CONDUCT OF NEGOTIATION
The Procurement Officer shall conduct negotiations, as appropriate, as to price, delivery and terms.
All documents relating to procurement under this section shall be maintained by the Procurement Officer.
3.06 PROCUREMENT OF CONSTRUCTION
This section contains provisions applicable to the selection of construction contractors to construct, restore,
repair, rebuild or alter suitable buitdings of historic, architectural or cultural significance.
3.06.01 PREQUALIFICATION OF BIDDERS
Prospective contractors shall be pre-qualified for construction contracts of the Trust. Notice of Invitation for Bids
as set forth in Section 3.03.07 shall be sent to such pre-qualified contractors.
3.06.02 NOTICE TO PRE-QUALIFY
The Procurement Officer shall issue a notice of invitation to all construction contractors to pre-qualify for the purpose of establishing a pool of prequalified contractors for the Trust. Said notice shall also be published in a newspaper of general circulation on Guam at least once a year and said notice shall also be incorporated in all Invitations to Bid.
3.06.03 CONTENTS OF NOTICE TO PRE-QUALIFY
The notice shall request that prospective contractors submit information concerning experience, expertise and availability. Each prospective contractor shall also specify at least four (4) completed projects located on Guam for inspection and evaluation by the Procurement Officer or his designee, and/or an executive committee of the board.
The Procurement Officer or his designee and/or an executive committee of the board shall prior to on-site inspection of projects of prospective contractors, develop evaluation criteria to be used in its project review. Upon adoption of the evaluation criteria, the evaluation team shall select at least two (2) of the projects listed by prospective contractors and conduct on-site evaluations of the projects. The evaluation team will rate the project according to each evaluation criteria on a scale of 1-10.
3.06.05 SELECTION OF QUALIFIED CONSTRUCTION CONTRACTORS
Upon completion of on-site evaluation, the evaluation team shall compile the ratings of each prospective contractor and shall qualify each contractor to the appropriate pool established by the team. Prospective contractors within their respective pool shall be issued the notice for invitation of bids in accordance with Section 3.03.0
3.07 LEGAL AND CONTRACTUAL REMEDIES
An actual or prospective bidder, offeror or contractor that may be aggrieved by the solicitation or award of a contract may file a protest pursuant to this section.
3.07.01 FILING OF PROTEST
Protests shall be addressed in writing to the Procurement Officer and shall be filed in duplicate within 14 days after the protestor knows or should have known of the facts giving rise thereto. A protest is considered filed when received by the Procurement Officer. Untimely protests shall not be considered.
3.07.02 SUBJECT OF PROTEST
Protestors may file a protest on any phase of solicitation or award including, but not limited to, specifications preparation, bid solicitation, award, or disclosure of information marked confidential in the bid or offer.
3.07.03 FORM OF PROTEST
To expedite handling of protests, the protest should be placed in an envelope marked “Protest”. The written protest shall include as a minimum the following:
- the name and address of the protestor;
- appropriate identification of the procurement, and if a contract has been awarded, its number;
- a statement of reasons for the protest; and
- supporting exhibits, evidence, or documents to substantiate any claims unless not available within the filing time in which case the expected availability date shall be indicated.
3.07.04 NOTIFICATION TO THE BOARD OF DIRECTORS
The Procurement Officer shall submit a copy of the protest within 3 days of receipt of the written protest.
3.07.05 REQUESTED INFORMATION: TIME FOR FILING
Any additional information requested by any of the parties should be submitted within the time periods established by the requesting source in order to expedite consideration of the protest. Failure of the protestor to comply expeditiously with a request for information by the Procurement Officer may result in resolution of the protest without consideration of any information which is untimely filed pursuant to such request.
3.07.06 STAY OF PROCUREMENT DURING PROTEST
When a protest has been filed within the time specified in Section 3.06.01 and before an award has been made. the Procurement Officer shall make no award of the contract until the protest has been settled unless the Procurement Officer, after consulting with the Chairperson of the Board of Directors for the Trust, makes a written determination that the award of the contract without delay is necessary to protect substantial interests of the Trust.
3.07.07 MAKING INFORMATION ON PROTESTS AVAILABLE
The Procurement Officer shall upon written request make available to any interested person information submitted that bears on the substance of the protest except where the information requested is proprietary, permitted or otherwise required to be withheld by law or regulation. Persons who wish to keep such information submitted by them confidential should so request by specifically identifying such information within documents submitted, and indicating on the front page of each document that it contains such information. For purposes of this Section “interested person” means an actual or prospective bidder, offeror. or contractor that may be aggrieved by the solicitation or award of a contract and who files a protest.
3.07.08 DECISION BY PROCUREMENT OFFICER
A decision on a protest shall be made by the Procurement Officer as expeditiously as possible after receiving all relevant requested information. If a protest is sustained, the available remedies include, but are not limited to, those set forth in Subsection 3.06-09 of this Section, Subsection 3.06.14 and Subsection 3.06.15(b) of these procedures.
3.07.09 BID PREPARATION COSTS
In addition to any other relief, the Procurement Officer shall award the protesting bidder or offeror the reasonable costs incurred in connection with the solicitation, including bid preparation costs other than attorneys’ fees, when a protest is sustained and the protesting bidder or offeror should have been, but was not awarded the contract under the solicitation.
3.07.10 REQUEST FOR RECONSIDERATION
Reconsideration of a decision of the Procurement Officer may be requested by the protestor or any interested party who submitted comments during consideration of the protest. The request for reconsideration shall contain a detailed statement of the factual and legal grounds upon which reversed or modification is deemed warranted, specifying any errors of law made or information not previously considered.
3.07.11 TIME FOR FILING
Requests for reconsideration of a decision of the Procurement Officer shall be filed not later than ten (1 0) days
after receipt of such decision.
3.07.12 TIME FOR ACTING
A request for reconsideration shall be acted upon as expeditiously as possible. The Procurement Officer may
uphold the previous decision or reopen the case as such officer deems appropriate.
3.07.13 DETERMINATION THAT SOLICITATION OR AWARD VIOLATES LAW
A solicitation or award may be in violation of these procedures due to actions of Trust employees. or bidders, offerors. contractors, or other persons. After consultation with the Board of Directors for the Trust and legal counsel. the Procurement Officer may determine that a solicitation or contract award is in violation of the provisions of these procedures. Any such determination shall be made in writing.
3.07.14 VIOLATIONS OF LAW PRIOR TO AWARD
If prior to award it is determined that a solicitation or proposed award of a contract is in violation of these procedures. then the solicitation or proposed award shall be:
- a) cancelled: or
- revised to comply with the law regulations.
Cancellation shall be made as set forth in subsection 3.03.09.
3.07.15 REMEDIES AFTER AN AWARD
If after an award it is determined that a solicitation or award of a contract is in violation of these procedures,
- if the person awarded the contract has not acted fraudulently or in bad faith the contract shall be
ratified and affirmed provided that doing so is in the best interests of the Trust; or
- if the person awarded the contract has acted fraudulently or in bad faith the contract shall be declared null and void and terminated.
3.07.16 RATIFICATION DETERMINATION
The contract shall not be ratified and affirmed unless the Procurement Officer determines in writing that there
is a continuing need for the services, supplies or other property under the contract and:
- there is no time to re-award the contract under noncompetitive procedures or otherwise; or
- the contract is being performed for less than it could be otherwise performed.
If a contract is terminated pursuant to subsection 3.06.15(b) it shall be terminated at no cost to the Trust or in
accordance with the contract.
3.08 RESOLUTION OF CONTRACT DISPUTES: ARBITRATION
It is the policy of the Trust, to try and resolve all controversies arising out of any contract to which it is a party, by mutual agreement without litigation. If mutual agreement between the Trust and a contractor can not be obtained, the Trust and the contractor shall engage in arbitration.
3.08.01 AUTHORITY OF PROCUREMENT OFFICER
The Procurement Officer is authorized to resolve a controversy by mutual agreement. The word “controversy” is meant to be broad and all-encompassing, and includes the full spectrum of disagreement from pricing of routine contract changes to claims of breach of contract.
3.08.02 PROCEDURES PRIOR TO ISSUING DECISION
When a controversy cannot be resolved by mutual agreement, the Procurement Officer shall, after written request by the contractor issue a final decision. Before issuing a final decision, the Procurement Officer shall:
- review the facts pertinent to the controversy; and
- secure any necessary assistance from legal, fiscal and other advisors.
3.08.03 FINAL DECISION
The Procurement Officer shall immediately furnish a copy of the decision, by certified mail, return receipt requested, or by any other method that provides evidence of receipt, and include in the decision:
- a description of the controversy;
- a reference to pertinent contract provisions;
- a statement of the factual areas of agreement or disagreement;
- a statement of the Procurement Officer’s decision, with supporting rational; and
- a paragraph substantially as follows:
“This is the final decision of the Procurement Officer. You may submit this controversy to arbitration as set forth in your contract with the Trust.”
3.08.04 FAILURE TO TIMELY ISSUE FINAL DECISION
If the Procurement Officer does not issue a written decision within 60 days after written request by the contractor for a final decision, or within such longer period as may be agreed upon by the parties, then the contractor may proceed to arbitration as if .an adverse decision had been received.
3.08.05 ARBITRATION CLAUSE
Language substantially similar to the following clause shall be inserted in all Trust contracts:
“In the event a dispute arises as to the terms of this contract, Contractor and the Trust shall submit the
matter in controversy to arbitration.”