HomeMy WebLinkAboutResolution - City Council - 82-526 - 1982-11-09•
RESOLUTION NO. 82-S26
A RESOLUTION OF THE COUNCIL OF THE CITY OF
FRESNO, CALIFORNIA, ESTABLISHING PROCEDURES
FOR REJECTION OF A LOWEST BID, BASED ON A
FINDING OF NONRESPONSIBILITY ..
General Services
Cf. ty Attornt?Y
WHEREAS, in those situations where competitive bidding is
required in conjunction with the award of a city contract, the
contract must be awarded to the lowest bidder unless the city:
( l) noti.f ies the lowest bidder. that. hE1 has been
ten ta ti viely found not to be a responsible bidder, together
with the reasons for such finding,
(2) affords him an opportunity to rebut such finding·,
(3) permits him to present evidence that he is
qualified to perform the contract, and
(4) makes .a finding, supported by evidence, that the
lowest bidder is nonresponsible; and
WHEREAS, the City of Fresno desires to establish procedures"'
for making such an evaluation and rejecting the lowest bid
received on a project required to be competitively bid, based
on a finding.of nonresponsibility.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City
of Fresno:
The :following procedures shall ctpply in .all instances where
a preliminary evaluation of the lowest bidder on a project
required to be competitively bid shows that he may be
nonresponsible, i.e., unable to perform satisfactorily the
proposed contract.
Section l., Departmental Recommend?-tiqn ..
Pursuant to Administrative Manual Instruction No. 6-10, the
Purchasing Agent, after bid opening, shall forward to the
department administering the contract all documents related b:>
the bid, specifying the date a reply is requir1ed to meet the
bid award deadline, and id1entifying any perceived errors,
irregularities, or Qreas of nonresponsiveness.
If the Purchasing Agent at any time becomes aware of
circumstances which cast reasonable doubt upon the ability of a
bidder to perform satisfactorily the contract, he shall
immediately advise the admi.nistering d~:ipa:rtment.
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The department shall review the bids submitted, prepare a
recommendation,, and submit it to the Purchasing Agent. If the
recommendation is to awarc1 to other than the lowest bidder,
written justification shall be submitted with the
recommendation.
section 2. Purchasit}i9 Agent• .s Recommendation.
Pursuant to Administrative Manual Instruction Na. 8-3, the
Purchasing Agent shall ascertain, in consultation with the City
Attorney, whether the justif:ication submitted by the department
demonstrates that the lo1west bidder may not be a responsible
bidde](::.
If the Purchasing Ag,ent, with the City Attorney's
concu1:rence, determines th;at. the lowest bidder may be
nonresponsible, the Purchasing Agent shall submit his
recommendation to that effect, with justification, to the Chief
Administrative O:Eficer.
Section 3. Initiation of H__§1aring _Process.
The Chief Administrative Officer shall review the
Purchasing Agent's recommendation to ascertain whether he
concurs that there may be sufficient justification that the
lowest bidder (hereinafter Bidder} may be nonresponsible.
If he concurs, the Chief Administrative Officelr: shall
prepare and serve (personally or by registetE~d mail) a Notice
of Intent to Reject Lowest Bid, notifying the Bidd(~r' of the
evidence reflecting upon his responsibility.. The Not.ice shall
also notify the Bidder that he may request a hearing within
seven (7) calendar days of service of the Notice, and that if a
request for a bearing is not received within that time, the
City may proceed to award the contract to the next low bidder
without a hearing on nonresponsibility.
If necessary, the Purchasing Agent shall obtain statements
from the other bidders extending the time within which the City
may accept their bids.
Section 4. Prehearing Procedures.
a. ~earing Offi~er.
If a request for a hearing is received within the specified
time, the Chief Administrative Officer shall have the authority
to contract with the vffice of Administrative Hearings_ of the
State of California for the services of a staff hearing
officer. If such a hearing officer is not availableJ the Chief
Administrative Officer may contract with any independent
hearing officei:.
lb. ~09-ce of Hea~ing.
The hearing shall be scheduled as soon as J;>racticable after
the request is received, to take place not less than ten (10)
calenda.r days, and not more than twenty ( 20) catlendar days from
the Bidder's request; provided that such time s:hall be extended
to accommodate the hearing officer's schedule i.f he is not
available within twenty days 0 and such time may, in any event,
be extended or shortened upon agreement by both parties ..
Notice of the date and time of the hearing shall be served on
the Bidder at least ten (10) calendar days prior to the hearing~
The Bidder shall be notified that he may be present at the
hearing, may but need nc•t be represented by counsel, may
present any relevant evidence, will be given full opportunity
to cross-examine all witnesses testifying against him, and will
be entitled to the issuance of subpoenas by applying to the
hearing officer.
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c. Notice of Defense ..
The bidder shall submit to the Chief Administrative
Officer, at least five (5) calendar days prior to the hearing,
a Notice of Defense which contains evidence rebutting that
contained in the Noticie of Intent. to Reject, and any additional
evidence to be presented at the hearing as a defense .. Failure
to timely submit suc~h a response shall be deemed an admission
that the statements set forth in the Notice of Intent to Reject
are all true and correct.
d.. sub120.enas:.
If the Bidder or the City requests, at least five (5)
calendar days prior to the hearing, the issuance of" a subpoena
or subpoena duces tecum, the heating officer shall issue the
subpoena.. The party requesting the subpoenc. shall be
responsible for serving it. Whenever possible, subpoenas shall
be served at least forty-eight (48) hours in advance of the
hearing.
A written motion to quash a subpoena may be made to the
hearing officer on one oir more of the following 9rounds, which
shall be clearly and fully stated in the motion:
i. Compliance will be unduly burdensome or against
public policy ..
ii. The items subpoenaed are privileged by law.
iii. The items subpoenaed are irrelevant or unnecessary
to the proceedings.
iv. The items subpoenaed have not been de~~cribed with
sufficient clarity to enable the witness to co:mply.
Before he commences or continues with the procieeding, the
hearing officer shall wholly or partially grant or deny the
motion to quabh. A motion to quash a subpoena may be made by
either party at any time up to the time for hearing, or as
otherwise: directed by the hearing of;ficer.
section 5. Hearing Rule:..e_.,
a. Purpose.
Th,e purpose of the hearing shall he to evaluate the
Bidder's responsibility, i.e~, whether he is qualified to
perform satisfactorily the proposed contract ..
b. Rules of Evidence.
i. Oral evidence shall be taken only on oat;h o,t
affirmation which shall be administered by the bearing
officer, and all relevant written evidence is admissable ..
11~ Each party may call and examine witnesses, introduce
exhib:t ts, and cross-exa1mine and impeach any witness on any
matter relevant to the issues. If the Bidder does not
testify. in his own beha.lf, he may be called ancl examined as
if under cross-examination.
iii. Refusal by any witness or party to submit to
examination or to answer relevant questions shall be
grounds for fair conunent by the party propounding said
questions ..
iv. The he.aring n~sed not be conducted according to the
technical rules of law relating to evidence and witnesses.
Any relevant evidence shall be admitted if it i.s the sort
of evidence on whi1cb responsible persons are accustomed to
rely in the conduct of serious affairs, regardless of the
existence of any common law or statutory rule which might
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make improper the admission of such evidence over objection
in civil actions. Hearsay evidence may be used for the
purpose of sup_plementin~ or explaining any direct evidence
but shall not be sufficient in itself to support a finding
unless it would be admissible over objection in civil
actions.
v. Copies of the reports and records of any
government.al agency, division or bureau, will be accepted
as evidence in lieu of the original thereof.
c. EFes~,ntation of .Testimony.,_ Evidence and ~rgumen_!:..
The hearing officer shall preside at the hearing, rule on
the admission and exclusion of evidence, and exercise all other
po"fer s relating to the conduct of the hearing.. The hearing
shall be tape recorded at the cost of the City.
The order. of presentation shall be as follows:
i. The City shall present tes.timony and evidence ..
ii. The bidder shall present testimony and evidence.
iii. Each party may cross-examine witnesses, after
examination, but limited to the scope of said direct
examination.
iv. Rebuttal evidence may be presented.
v. Each party shall be allowed to present closing
arguments, the City to argt?,e first and to have the right to
a rebuttal argument .. ·
d.. Decisiog.
Upon the conclusion of all testimony, evidence and
argument,. the hearing of:ficer shall ask if the parties are
ready to submit the matter fo:r decision, and if so, or if the
hearing officer otherwise orders for good cause, he shall close
the hearing and declare the matter submitted for decision,,,
The decision of the hearing officer shall be in writing,
and shall contain findings of fact determining whetber the
Bidder i.s responsible, is nonresponsible, or ts conditi.onally
responsible. If the hearing officer finds the Bidder to be
conditionally nonresponsible, he shall include a finding that
if the Bidder meets certain conditions, the facts which make
the bidder otherwise nonresponsible will be remedied. Any such
conditions must be reasonably related to the objective of
eliminating the objections to the bidder.
Copi,es of the cleci.sion shall be served on the part:i.es
within fifteen {15) calendar days of the hearing.
The decision of the hearing officer shall constitute a
recommendation to the council. At its next regular meeting
after the filing of the hearing officer's decision with the
City, or on the date to which the matter may h,ave been
continued by the Council, the Council shall, without t::aki.ng
evidence, on behalf of either the Bidder or the City, consider
the recommendation <>f the hea.ring officer .. Following
consideration thereof, the Council shall make a finding of
responsibility or nonresponsibility, and may award the contract
to the Bidder, with or without conditions, may award to other
than the Bidder, or may reject all bidsa ·
Section 6. Effect of Decision. ------------
A finding of nonresponsibilitl1 by the hearing officer, when
affirmed by the Council 1 shall be sufficient cause to reject
bids submitted by the nonresponsible Bidder for substantially
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similar contracts for a period of one year following the
Council's action, or such other period as the Coun,cil may
determine ..
The Bidder shall be given at least five (5) calendar days'
notice prior to the Council meeting at which the subject
contract will be awarded, or bids will be rejected, and will be
permitted at that time to present evidence to the Council
concerning the time period within which he will be suspended
from bidding on substantially similar contracts, if applicable.
Whether he appears at the Council meeting or not, the
Bidder shall be given written notice of the Council's decision,
and of the time period during which any susp,ension from bidding
will be effective.
Section 7. Judicial Review.
If judicial review of the council's decision is sought, the
petition to the court shall be filed within thirty (30}
calendar days from the <late of mailing of notice of the
Council's decision.
Section 8. A failure to comply precisely with the technical
requirements set forth in this resolution shall not negate the
Councilts authority to make a finding of nonreeponsibility.
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STATE OF CALIFORNIA
COUNTY OF FRESNO
CITY OF FRESNO
CLERK'S CERTIFICATION
)
) ss.
)
I, JACQUELINE L. RYLE, City Clerk of the City of Fresno, certify
that the foregoing resolution was adopted by the Council of the
City of Fresno, California, at a regular meeting held on
the 9th day of November, 1982 •
APPROVED AS TO FORM
CITY AT'rORNEY' S OFFICE
By: J{i14t+Qut~ -=-
DEPUTY
JLW/zzd
11-5-82
1490/40
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