Procurement Code - Source Selection and Contract Formation

A. Definitions of Terms Used in this Article.

B. Methods of Source Selection.

C. Cancellation of Invitations for Bids or Request for Proposals.D. Responsibility of Bidders and Offerors.

E. Contracts

F. Inspection of Plant and Audit of Records

G. Determinations and Reports

A. Definitions of Terms Used in this Article.

1. Definitions of Terms Used in this Article. Unless the context clearly indicates otherwise:

a. "Cost-reimbursement contract" means a contract under which a contractor is reimbursed for costs, which are allowable and allocable in accordance with the cost principles as established by the District and a fee, if any.

b. "Established catalog price" means the price included in a catalog, price list, schedule, or other form that:

(1) is regularly maintained by a manufacturer or vendor of an item;(2) is either published or otherwise available for inspection by customers;

(3) states prices at which sales are currently or were last made to a significant number of buyers constituting the general buying public for the supplies or services involved.

c. "Invitation for bids" means all documents, whether attached or incorporated by reference, utilized for soliciting bids in accordance with the procedures of Competitive Sealed Bidding.

d. "Purchase description" means specifications or any other document describing the supplies, services, equipment or construction to be procured.

e. "Request for Proposals (RFP)" means all documents, whether attached or incorporated by reference, utilized for soliciting proposals.

f. "Responsible bidder or offeror" means a vendor who has the capability in all respects to perform fully the contract requirements, and the integrity and reliability, which will assure good faith performance, which may be substantiated by past performance.

g. "Responsive bidder" means a vendor who has submitted a bid, which conforms in all material aspects to the invitation for bids.

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B. Methods of Source Selection.

1. Exceptions to Sealed Bidding: Unless otherwise provided by regulations, all District contracts shall be awarded by competitive sealed bidding, except as provided below

a. Fixed Priced Bidding;

b. Competitive Best Value Bidding;

c. Authority to Contract for Auditing Services;

d. Authority to Contract for Legal Services;

e. Authority to Contract for Certain Professional Services;

f. Competitive Sealed Proposals;

g. Negotiations After Unsuccessful Competitive Sealed Bidding;

h. Small Purchases;

i. Sole Source Procurements;

j. Emergency Procurements;k. Procurement of Information Technology;

l. Construction Procurement Procedure;

m. Leasing of Real Property;

n. Procurement of Architect-Engineer, Construction Management and Land Surveying Services;

o. Procurement of Small Architect-Engineer and Land Surveying Services Contracts (less than $25,000);

p. Competitive On-Line Bidding.

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2. Competitive Sealed Bidding.

a. Condition for Use. Contracts amounting to twenty-five thousand dollars or more shall be awarded by competitive sealed bidding except as listed above

.b. Invitation for Bids. An invitation for bids shall be issued in an efficient and economical manner and shall include specifications and all contractual terms and conditions applicable to the procurement.

c. Notice. Adequate notice of invitation for bids shall be given at a reasonable time prior to the date set forth therein for the opening of the bids. Such notice shall publication in a newspaper of general circulation in the immediate area, such as "South Carolina Business Opportunities", within a reasonable time prior to bid openings. Such notice may be by means of central electronic advertising as approved by the District. An advertisement for goods and services (not to include construction and related services) may be supplemented through publication in a local trade journal or newsletter.

d. Receipt and Safeguarding of Bids. All bids (including modifications) received prior to the time of opening shall be kept secure and unopened.

e. Bid Opening. Bids shall be opened publicly in the presence of one or more witnesses at the time and place designated in the invitation for bids and in the manner prescribed by regulation. The amount of each bid, and such other relevant information as may be specified by regulation, together with the name of each bidder, shall be tabulated. The tabulation shall be open to public inspection at that time.

f. Bid Acceptance and Bid Evaluation. Bids shall be accepted unconditionally without alteration or correction, except as otherwise authorized in this Code. The invitation for bids shall set forth the evaluation criteria to be used. No criteria may be used in bid evaluations that are not set forth in the invitation for bids. Bids shall be evaluated based on the requirements set forth in the invitation for bids.

g. Correction or Withdrawal of Bids; Cancellation of Awards. Correction or withdrawal of inadvertently erroneous bids before bid opening, withdrawal of inadvertently erroneous bids after award, or cancellation of awards or contracts based on such bid mistakes, may be permitted in accordance with regulations. After bid opening, no changes in bid prices or other provisions of bids prejudicial to the interest of the District or fair competition shall be permitted. Except as otherwise provided by regulation, all decisions to permit the correction or withdrawal of bid, or to cancel awards or contracts based on bid mistakes shall be supported by a written determination of appropriateness made by the Procurement Officer.

h. Discussion with Bidders. As provided for in the invitation for bids, discussions may be conducted with apparent responsive bidders for the purpose of clarification to assure full understanding of the requirements of the invitation for bids. All bids, in the Procurement Officer's sole judgment, needing clarification shall be accorded such an opportunity. Clarification of any bidder's bid must be documented in writing by the Procurement Officer and/or Buyer and shall be included with the bid. Documentation concerning the clarification shall be subject to disclosure upon request as required by Section I.D., above.

i. Tie Bids. In the event two or more bidders are tied in price while otherwise meeting all of the required conditions, awards are determined as follows:

(1) Should there be a firm located within the District tied with an out-of-District firm, the award shall be made automatically to the firm located within the District.

(2) Should there be a Richland County firm tied with an out-of-County firm, the award shall be made automatically to the Richland County firm.

(3) Should there be a South Carolina firm tied with an out-of-state firm, the award shall be made automatically to the South Carolina firm.

(4) Tie bids involving South Carolina produced or manufactured products, when known, and items produced or manufactured out of the State shall be resolved in favor of the South Carolina commodity.

(5) Tie bids involving firms located within the District shall be resolved by the flip of a coin in the Purchasing Department witnessed by at least two people.

(6) Tie bids involving Richland County firms shall be resolved by the flip of a coin in the Purchasing Department witnessed by at least two people.

(7) Tie bids involving South Carolina firms not located within Richland County shall be resolved by the flip of a coin in the Purchasing Department witnessed by at least two people.

(8) In all other situations where bids are tied, the award will be made by the District to the tied bidder offering the quickest delivery time, or if the tied bidders have offered the same delivery time, the tie shall be resolved by the flip of a coin in the Purchasing Department witnessed by at least two people.

j. Award. Unless there is a compelling reason to reject bids as prescribed by regulations of the District, notice of an intended award of a contract to the lowest responsive and responsible bidder whose bid meets the requirements set forth in the invitation for bids shall be given by posting such notice at a location specified in the invitation for bids. Prior to the posting of the award, the District may negotiate with the lowest responsive and responsible bidder to lower his price within the scope of the invitation for bids. The invitation for bids and the posted notice must contain a statement of a bidder's right to protest and the date and location of posting must be announced at bid opening. When a contract has a total or potential value in excess of fifty thousand dollars ($50,000) in addition to the posted notice, notice of an intended award must be given to all bidders responding to the solicitation, except when only one is received. Notice shall be given by first-class mail to the name and address on the bid documents or at the District's option via facsimile (confirmed receipt). All bidders must be given notice by the same method. Such notice must contain a statement of the bidder's right to protest.

When a contract has a potential value in excess of fifty thousand dollars ($50,000), sixteen days after notice is given the District may enter into a contract with the bidder named in the notice in accordance with the provisions of this Code and the bid solicited. When only one response is received, the notice of intended award and the sixteen-day delay of award may be waived. A determination of responsibility must be made prior to award.

k. Request for Qualifications. Prior to soliciting bids, the District, through the Procurement Officer, may issue a request for qualifications from prospective bidders. Such request shall contain at a minimum a description of the goods or services to be solicited by the invitation for bids, the general scope of the work, the deadline for submission of information, and how prospective bidders may apply for consideration. The request shall require information concerning the prospective bidders' product specifications, qualifications, experience, and ability to perform the requirements of the contract. Adequate public notice of the request for qualifications shall be given in the manner provided in Section III.B.2.c.After receipt of the responses to the request for qualifications from prospective bidders, the prospective bidders shall be ranked from most qualified to least qualified on the basis of the information provided. Bids shall then be solicited from at least the top two prospective bidders by means of an invitation for bids. The failure of a prospective bidder to be selected to receive the invitation for bids shall not be grounds for protest.

l. Minor Informalities and Irregularities in Bids. A minor informality or irregularity is one which is merely a matter of form or is some immaterial variation from the exact requirements of the invitation for bids having no effect or merely a trivial or negligible effect on total bid price, quality, quantity, or delivery of the supplies or performance of the contract, and the correction or waiver of which would not be prejudicial to bidders. The Procurement Officer or Buyer shall either give the bidder an opportunity to cure any deficiency resulting from a minor informality or irregularity in a bid or waive any such deficiency when it is to the advantage of the District. Such communication or determination shall be in writing. Examples of minor informalities or irregularities include, but are not limited to:

(1) failure of a bidder to return the number of copies of signed bids required by the solicitation;

(2) failure of a bidder to furnish the required information concerning the number of the bidder's employees or failure to make a representation concerning its size;

(3) failure of a bidder to sign its bid, but only if the firm submitting the bid has formally adopted or authorized the execution of documents by typewritten, printed, or rubber stamped signature and submits evidence of such authorization, and the bid carries such a signature or the unsigned bid is accompanied by other material indicating the bidder's intention to be bound by the unsigned document, such as the submission of a bid guarantee with the bid or a letter signed by the bidder with the bid referring to and identifying the bid itself;

(4) failure of a bidder to acknowledge receipt of an amendment to a solicitation, but only if:

(a) the bid received indicates in some way that the bidder received the amendment, such as where the amendment added another item to the solicitation and the bidder submitted a bid thereon, provided that the bidder states under oath that it received the amendment prior to bidding and that the bidder will stand by its bid price; or

(b) the amendment has no effect on price or quantity or merely a trivial or negligible effect on quality or delivery, and it is not prejudicial to bidders, such as an amendment correcting a typographical mistake in the name of the governmental body;

(5) failure of a bidder to furnish an affidavit concerning affiliates;

(6) failure of a bidder to execute the certifications with respect to Equal Opportunity and Affirmative Action Programs;

(7) failure of a bidder to furnish cut sheets or product literature;

(8) failure of a bidder to furnish certificates of insurance;

(9) failure of a bidder to furnish financial statements;

(10) failure of a bidder to furnish references;

(11) failure of a bidder to furnish its bidder number; and

(12) the failure of a bidder to indicate his contractor's license number or other evidence of licensure, provided that no contract shall be awarded to the bidder unless and until the bidder is properly licensed under the laws of South Carolina.

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3. Competitive Fixed Price Bidding.

a. Conditions for Use. When the Procurement Officer determines in writing that the use of competitive sealed bidding is either not practicable or not advantageous to the District, a contract may be entered into by competitive fixed price bidding subject to the provisions of Section III.B.2. and the ensuing regulations, unless otherwise provided for in this section.

b. Fixed Price Bidding. The purpose of fixed price bidding is to provide multiple sources of supply for specific goods or services based on a preset maximum price, which the District will pay for such goods or services.

c. Public Notice. Adequate public notice of the solicitation shall be given in the same manner as provided in section Competitive Sealed Bidding Procedures.

d. Pricing. The District shall establish, prior to issuance of the fixed price bid, a maximum amount the District will pay for the goods or services desired.

e. Evaluation. Vendors' responses to the fixed price bid will be reviewed to determine if they are responsive and responsible.

f. Discussion with Responsive Bidders. Discussions may be conducted with apparent responsive bidders to assure understanding of the requirements of the fixed price bid. All bidders whose bids, in the Procurement Officer's sole judgment, need clarification shall be accorded such an opportunity.

g. Award. Award must be made to all responsive and responsible bidders to the District's request for competitive fixed price bidding. The contract file shall contain the basis on which the award is made and must be sufficient to satisfy external audit.

h. Bids Received After Award. Bidders not responding to the initial fixed price bid may be added to the awarded vendors' list provided the bidder furnishes evidence of responsibility and responsiveness to the District's original fixed price bid as authorized by the solicitation.

i. Remedies. The failure of a specific offeror to receive business, once it has been added to the awarded vendors' list, shall not be grounds for a contract controversy.

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4. Competitive Best Value Bidding.

 

(1) operational costs that the District would incur if the bid were accepted;(2) quality of the product or service, or its technical competency;(3) reliability of delivery and implementation schedules;(4) maximum facilitation of data exchange and systems integration;(5) warranties, guarantees, and return policy;(6) vendor financial stability;(7) consistency of the proposed solution with the District's planning documents and announced strategic program direction;(8) quality and effectiveness of business solution and approach;(9) industry and program experience;(10) prior record of vendor performance;(11) vendor expertise with engagement of similar scope and complexity;(12) extent and quality of the proposed participation and acceptance by all user groups;(13) proven development methodologies and tools; and

(14) innovative use of current technologies and quality results.

f. Discussion with Responsive Bidders. Discussions may be conducted with apparent responsive bidders to assure understanding of the best value bid. All bidders whose bids, in the Procurement Officer's sole judgment, need clarification shall be accorded such an opportunity.

g. Selection and Ranking. Bids shall be evaluated by using only the criteria stated in the best value bid and by adhering to the weighting as assigned. All evaluation factors, other than cost, will be considered prior to determining the effect of cost on the scope for each participating bidder. Once the evaluation is complete, all responsive bidders shall be ranked from most advantageous to least advantageous to the District, considering only the evaluation factors stated in the best value bid.

h. Award. Award must be made to the responsive and responsible bidder whose bid is determined, in writing, to be most advantageous to the District, taking into consideration all evaluation factors set forth in the best value bid. The contract file shall contain the basis on which the award is made and must be sufficient to satisfy external audit.

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5. Competitive On-Line Bidding.

a. Conditions for Use. When the District determines that on-line bidding is more advantageous than other procurement methods provided by this Code, a contract may be entered into by competitive on-line bidding, subject to the provisions of Section III.B.2 (Competitive Sealed Bidding) and the ensuing regulations, unless otherwise provided in this section.

b. Bidding Process. The solicitation must designate both an Opening Date and Time and a Closing Date and Time. The Closing Date and Time need not be a fixed point in time, but may remain dependent on a variable specified in the solicitation. At the Opening Date and Time, the District must begin accepting real-time electronic bids. The solicitation must remain open until the Closing Date and Time. The District may require bidders to register before the Opening Date and Time and, as a part of that registration, to agree to any terms, conditions, or other requirements of the solicitation. Following receipt of the first bid after the Opening Date and Time, the lowest bid price must be posted electronically to the Internet and updated on a real-time basis. At any time before the Closing Date and Time, a bidder may lower the price of its bid, except that after Opening Date and Time, a bidder may not lower its price of its bid, except that after Opening Date and Time, a bidder may not lower its price unless that price is below the then lowest bid. Bid prices may not be increased after Opening Date and Time. Except for bid prices, bids may be modified only as otherwise allowed by this Code. A bid may be withdrawn only in compliance with Section III.B.2.g. If a bid is withdrawn, a later bid submitted by the same bidder may not be for a higher price. If the lowest responsive bid is withdrawn after the Closing Date and Time, the District may cancel the solicitation in accordance with this Code or reopen electronic bidding to all pre-existing bidders by giving notice to all pre-existing bidders of both the new Opening Date and Time and the new Closing Date and Time. Notice that electronic bidding will re reopened must be given as specified in the solicitation.

c. Receipt and Safeguarding of Bids. Other than price, any information provided to the District by a bidder must be safeguarded as required by Section III.B.2d. (Receipt and Safeguarding of Bids).

d. Provisions Not to Apply. Section III.B.2.e. (Bid Opening) does not apply to solicitations issued pursuant to this section.

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6. Competitive Sealed Proposals.

a. Conditions for Use. When the Procurement Officer determines and states in writing that the use of competitive sealed bidding is either not practicable or not advantageous to the District, a contract may be entered into by competitive sealed proposals subject to the provisions of Section III.B.2.

b. Public Notice. Adequate public notice of the request for proposals/qualifications shall be given in the same manner as provided in Competitive Sealed Bidding Procedures.

c. Receipt of Proposals. Proposals shall be opened publicly. A tabulation of proposals shall be prepared and shall be open for inspection after contract award.

d. Request for Qualifications. Prior to soliciting proposals, the Procurement Officer may issue a request for qualifications from prospective offerors. This request shall contain a minimum description of the goods and services to be solicited by the request for proposals and the general scope of the work and shall state the deadline for submission of information and how prospective offerors may apply for consideration. The request shall require information only on their qualifications, experience and ability to perform the requirements of the contract.After receipt of the responses to the request for qualifications from prospective offerors, the prospective offerors shall be ranked from most qualified to least qualified on the basis of the information provided. Proposals shall then be solicited from at least the top two prospective offerors by means of a request for proposals. The failure of a prospective offeror to be selected to receive the request for proposal shall not be grounds for protest

e. Evaluation factors. The request for proposals shall state the relative importance of the factors to be considered in evaluating proposals but shall not require numerical weighting for each factor. Price may, but need not be, an evaluation factor

.f. Discussion with Offerors. As provided in the request for proposals, discussions may be conducted with apparent responsive offerors who submit proposals for the purpose of clarification to assure full understanding of the requirements of the request for proposals. All offerors, whose proposals in the Procurement Officer's sole judgment needed clarification shall be accorded such an opportunity.

g. Selection and Ranking. Proposals shall be evaluated using only the criteria stated in the request for proposals and there must be adherence to any weighting that have been previously assigned. Once evaluation is complete, all responsive offerors shall be ranked from most advantageous to least advantageous to the District, considering only the evaluation factors stated in the request for proposals. If price is an initial evaluation factor, award shall be made in accordance with Section III.B.6.i. below.

h. Negotiations. Whether price was an initial evaluation factor or not, the District, through the Procurement Officer, may, in its sole discretion and not subject to challenge through a protest filed under Article IX, proceed in any of the manners indicated below:

 

(1) negotiate price with the highest ranking offeror. If a satisfactory price cannot be agreed upon, price negotiations may be conducted in the sole discretion of the District with the second, and then the third, and so on, ranked offerors to such level of ranking as determined by the District in its sole discretion; or(2) negotiate with the highest-ranking offeror on matters affecting the scope of the contract so long as the overall nature and intent of the contract is not changed. If a satisfactory contract cannot be negotiated with the highest ranking offeror, negotiations may be conducted in the sole discretion of the District with the second, and then the third, and so on ranked offerors to such level of ranking as determined by the District in its sole discretion; or(3) during the negotiation process as outlined in subsections (1) and (2) above, if the District is unsuccessful in its first round of negotiations, it may reopen negotiations with any offeror with whom it previously negotiated;(4) if, after following the procedures set forth above, a contract is not able to be negotiated, the scope of the request for proposals may be changed in an effort to reduce the cost to a fair and reasonable amount and all responsive offerors must be allowed an opportunity to submit their best and final offer.

In conducting negotiations, there must be no disclosure of any information derived from proposals and negotiations submitted by competing offerors

i. Award. Award must be made to the responsive offeror whose proposal is determined in writing to be the most advantageous to the District, taking into consideration price and evaluation factors set forth in the request for proposals unless the District determines to utilize one of the options provided in Section III.B.6.h. The contract file shall contain the basis on which the award is made and must be sufficient to satisfy external audit. Procedures and requirements for notification of intent to award the contract shall be the same as those stated in Section III.B.2.j.

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7. Negotiations After Unsuccessful Competitive Sealed Bidding. When bids received pursuant to an invitation for bids are considered unreasonable by the District, or are not independently reached in open competition, or the low bid exceeds available funds as certified by the appropriate fiscal officer, and it is determined in writing by the Procurement Officer, or the District's designee above the level of the Procurement Officer, that time or other circumstances will not permit the delay required to re-solicit competitive sealed bids, a contract may be negotiated pursuant to this section, provided that:

a. each responsible bidder who submitted a bid under the original solicitation is notified of the determination and is given reasonable opportunity to negotiate;b. the negotiated price is lower than the lowest rejected bid by any responsible and responsive bidder under the original solicitation;

c. the negotiated price is the lowest negotiated price offered by any responsible and responsive offeror.

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8. Bid Procedures on Procurements not Exceeding $25,000.00.

a. Authority. The following small purchase procedures may be utilized in conducting procurements that are less than Twenty-Five Thousand ($25,000) Dollars in actual or potential value. However, procurement requirements shall not be artificially divided so as to constitute a small purchase under this section.

b. Competition and Price Reasonableness.

 

(1) Purchases not in excess of $1,500.00. Small purchases not exceeding $1,500.00 may be accomplished without securing competitive quotations if the prices are considered to be reasonable. The Procurement Officer or Buyer indicates by signature on the purchase order that: "Price is fair and reasonable." Such purchases shall be distributed equitably among qualified suppliers. When practical, a quotation must be solicited from other than the previous supplier before placing a repeat order. The administrative cost of verifying the reasonableness of the price of purchase "not in excess of" may more than offset potential savings in detecting instances of overpricing; therefore, action to verify the reasonableness of the price needs to be taken only when the Procurement Officer or Buyer suspects that the price may not be reasonable; e.g., comparison to previous price paid, or personal knowledge of the item involved.

(2) Purchases from $1,500.01 to $5,000.00. Solicitations of verbal or written quotes from a minimum of three qualified sources of supply shall be made and the award will be made to the lowest, responsive and responsible source.

(3) Purchases from $5,000.01 to $10,000.00. Solicitation of written quotations from three qualified sources of supply shall be made and the award will be made to the lowest, responsive and responsible source.

(4) Purchases from $10,000.01 to $24,999.99. Written solicitation of written quotes, bids or proposal shall be made by the Procurement Officer or Buyer. A notice of the written solicitation shall be placed in The State Newspaper or South Carolina Business Opportunities or through a means of central electronic advertising. A copy of the written solicitation and written quotes shall be maintained in the quote file. The award will be made to the lowest responsive and responsible source, or when a request proposal process is used, the highest-ranking offeror.

c. Protest Rights. The provisions of Article IX, Legal and Contractual Remedies, of the Procurement Code do not apply to contracts awarded under the procedures set forth in this section.

d. Procurements of $25,000 or More. All competitive procurements of $25,000.00 or more must be advertised in The State Newspaper or South Carolina Business Opportunities or through a means of central electronic advertising. The District may charge vendors the costs incurred for copying and mailing bid or proposal documents requested in response to a procurement advertised in The State Newspaper or South Carolina Business Opportunities.

e. Dollar Limit Changes. If the dollar limits established in S.C.Code Ann. § 11-35-1550 (Supp. 1999) (Bid procedures on procurements not exceeding twenty-five dollars), are increased, the increased limits shall automatically be incorporated into this Section III.B.8. without necessity of this Code being amended.

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9. Sole Source Procurement. A contract may be awarded for a supply, service or construction item without competition, when the Superintendent or his designee above the level of the Procurement Officer determines, in writing, that there is only one source of supply available. Written documentation must include the determination and the basis of the proposed sole source procurement. Any delegation of authority with respect to sole source determinations shall be submitted in writing to the Procurement Officer. In cases of reasonable doubt, competition must be solicited. Any violation of these regulations by the District shall, upon approval of the majority of the Board, result in the temporary suspensions not to exceed one year, of the District's ability to procure supplies, services or construction items under this section.

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10. Emergency Procurements. Notwithstanding any other provision of this Code, the Procurement Officer or a designee may make or authorize others to make emergency procurements only when there exists an immediate threat to public health, welfare, critical economy and efficiency, or safety under emergency conditions as defined in the District's Regulations; and provided, that such emergency procurements shall be made with as much competition as is practicable under the circumstances. A written determination of the basis for the emergency and for the selection of the particular contractor shall be included in the contract file.

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11. Participation in Auctions. The District may, in its sole discretion, elect to participate in any auction of which it has knowledge. The District shall:

a. survey the needed items being offered at auction to ascertain their condition and usefulness,b. determine a fair market value for new like items through informal quotes,c. determine a fair market value from similar items considering age and useful life, and

d. Estimated repair cost and delivery cost, if any, of the desired items.

Using this information, the District shall determine a maximum price it can pay for each item desired. The District shall not bid more than the maximum price at the auction

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12. Leasing of Real Property for the District.

a. Designation as Single Central Broker. The Executive Director of Finance, or such other person as designated in writing by the Superintendent, is hereby designated as the single central broker for the leasing of real property. The District shall not enter into any lease agreement or renew any existing lease except in accordance with these provisions.

b. Notification as to Need When District-Owned Property is Unavailable. When the District needs to acquire real property for its operations or any part thereof and District-owned property is not available, it shall notify the Board. Such notification shall indicate the amount and location of space desired, the purpose for which it shall be used and such other information as the Board may deem necessary. Upon receipt of any such request, the Executive Director of Finance, or the Superintendent's designee, shall conduct an investigation of available space, which would adequately meet the District's requirements, including specific locations, which may be suggested and preferred by the District. When suitable space has been located which the District agrees meets necessary requirements and standards for leasing, the Board shall give approval to the Executive Director of Finance, or the Superintendent's designee, to enter into a lease agreement. All proposed lease renewals shall be submitted to the Board by the time specified. The Executive Director of Finance shall be responsible for short-term leases of District facilities for related functions; e.g., Township Auditorium for District graduation exercises.

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C. Cancellation of Invitations for Bids or Request for Proposals. Any solicitation under this Code may be canceled, or any or all bids or proposals may be rejected in whole or part as may be specified in the solicitation, when it is in the best interest of the District. The reasons for rejection, supported with documentation sufficient to satisfy external audit, shall be made a part of the contract file.

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D. Responsibility of Bidders and Offerors.

1. Responsibility of Bidders and Offerors.

a. Determination of Responsibility. Responsibility of the bidder or offeror shall be ascertained for each contract awarded by the District based upon full disclosure to the Procurement Officer concerning capacity to meet the terms of the contracts and based upon past record of performance for similar contracts. The District shall by regulation establish standards of responsibility that shall be enforced in all District contracts.

b. Determination of Nonresponsibility. A written determination of nonresponsibility of a bidder or offeror shall be made in accordance with regulations. The unreasonable failure of a bidder or offeror to supply information promptly in connection with an inquiry with respect to responsibility may be grounds for a determination of nonresponsibility with respect to such bidder or offeror.

c. Right of Nondisclosure. Except as otherwise provided by regulations, information furnished by a bidder or offeror pursuant to this section shall not be disclosed outside of the offices of the District without prior written consent by the bidder or offeror.

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2. Prequalification of Supplies, Suppliers and Services - The District shall be authorized to provide by regulation for prequalification of suppliers, supplies or services.

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3. Prequalification of Construction Bidders - The District may develop a procedure and a list of criteria for prequalifying construction bidders. The criteria shall include, but are not limited to, prior performance, recent past references on all aspects of performance, financial stability, and experience on similar construction projects. The District may use the prequalification process only for projects where the construction is unique in nature or over ten million dollars in value. When the prequalification process is employed, only those bidders who are prequalified through this procedure are entitled to submit a bid for the project The determination of which bidders are prequalified, and therefore entitled to bid, shall not be grounds for protest.

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4. Cost or Pricing Data.

(1) the pricing of any contract awarded by Competitive Sealed Proposals or pursuant to Sole Source Procurement exceeds an amount established by the District in its regulations; or

(2) the pricing of any change order or contract modification exceeds an amount established by the District in its regulations.

b. Price Adjustment. Any contract, change order or contract modification under which a certificate is required shall contain a provision that the price to the District, including profit or fee, shall be adjusted to exclude any significant sums by which the District finds that such pricing data was increased because the contractor furnished cost or pricing data was inaccurate, incomplete, or not current as of the date specified by the District.

c. Cost or Pricing Data Not Required. The requirements of this Section shall not apply to contracts:

(1) where the contract price is based on adequate price competition;

(2) where the contract price is based on established catalog prices or market prices;

(3) where contract prices are set by law or regulations; or

(4) where it is determined in writing in accordance with regulations promulgated by the District that the requirements of this Section may be waived and the reasons for such waiver are stated in writing.

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E. Contracts.

1. Types of Contracts. Subject to the limitation of this section, any type of contract, which will promote the best interests of the District, may be used. A cost-reimbursement contract, including a cost-plus-a-percentage-of-cost contract, shall be used only when a determination sufficient for external audit is prepared showing that such contract is likely to be less costly to the District than any other type or that it is impracticable to obtain the supplies, services, equipment, or construction required except under such a contract approved by the Board.

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2. Approval of Accounting System. The Procurement Officer or a designee may require that:

a. the proposed contractor's accounting system permit timely development of all necessary cost data in the form required by the specific contract type contemplated;

b. the proposed contractor's accounting system is adequate to allocate costs in accordance with generally accepted accounting principles.

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3. Multi-Term Contracts.

b. Determination Prior to Use. Prior to the utilization of a multi-term contract, it shall be determined in writing:

(1) that estimated requirements cover the period of the contract and are reasonably firm and continuing;

(2) that such a contract will serve the best interests of the District by encouraging effective competition.

c. Cancellation Due to Unavailability of Funds in Succeeding Fiscal Periods. When funds are not appropriated or otherwise made available to support continuation of performance in a subsequent fiscal period, the contract shall be cancelled.

d. Maximum Length. The maximum time for any multi-term contract is five years. Contracts exceeding five years must be approved by the Board.

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F. Inspection of Plant and Audit of Records

1. Right to Inspect Plant. The Senior Associate of Management Services, Procurement Officer, Buyers, the Director of Food Services, Director of Maintenance and Director of Facilities, or such other person(s) as designated by the Superintendent, shall be authorized, at reasonable times, to inspect the part of the plant or place of business of a contractor or any subcontractor which is related to the performance of any contract awarded or to be awarded by the District.

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2. Right to Audit Records.

b. Right to Audit Contracts. The District shall be entitled to audit the books and records of a contractor or any subcontractor under any negotiated contract or subcontract other than a firm fixed-price contract to the extent that such books and records relate to the performance of such contract or subcontract. The contractor shall maintain such books and records for a period of three years from the date of final payment under the prime contract and by the subcontractor for a period of three years from the date of final payment under the subcontract, unless a shorter period is otherwise authorized in writing by the Procurement Officer or Buyer.

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G. Determinations and Reports

1. Finality of Determinations. The determinations required by Section III.B.2.g. (Competitive Sealed Bidding: Correction or Withdrawal of Bids; Cancellation of Awards), Section III.B.2.k. (Competitive Sealed Bidding: Request for Qualifications), Section III.B.3.a. (Competitive Fixed Price Bidding: Conditions for Use), Section III.B.4.a. (Competitive Best Value Bidding: Conditions for Use), Section III.B.4.h. (Competitive Best Value Bidding: Award) Section III.B.6.a. (Competitive Sealed Proposals, Conditions for Use), Section III.B.6.d. (Competitive Sealed Proposals, Request for Qualifications), Section III.B.6.h. (Competitive Sealed Proposals, Negotiations), Section III.B.6.g. (Competitive Sealed Proposals, Selection and Ranking of Prospective Offerors), Section III.B.6.i. (Competitive Sealed Proposals Award), Section III.B.7. (Negotiations After Unsuccessful Competitive Sealed Bidding), III.B.9. (Sole Source Procurement), Section III.B.10. (Emergency Procurements), Section III.D.1.b. (Responsibility of Bidders and Offerors, Determination of Nonresponsibility), Section III.D.3. (Prequalification of Construction Bidders), Section III.E.1 (Types of Contracts), Section III.E.2. (Approval of Accounting System), Section III.E.3.b. (Multi-Term Contracts, Determination Prior to Use) and Section IX.A.1.g (Stay of Procurement During Protests, Decision to Proceed) shall be final and conclusive unless they are clearly erroneous, arbitrary, capricious or contrary to law. The Procurement Officer shall review samples of such determinations periodically and issue reports and recommendations on the appropriateness of the determinations made.

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2. Reporting of Anticompetitive Practices. When any information or allegations concerning anti-competitive practices among any bidders or offerors, come to the attention of any employee of the District, immediate notice of the relevant facts shall be transmitted to the Procurement Officer.

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3. Retention of Procurement Records. All procurement records of the District shall be retained and disposed of in accordance with records retention guidelines and schedules approved by the Department of Archives and History. All retained documents shall be made available to the Board or a designee upon request and proper receipt therefore.

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4. Records of Procurement Actions.

(1) each contractor's name;(2) the amount and type of each contract;

(3) a listing of the supplies, services, equipment, or construction procured under each contract.

Purchasing Services shall maintain these records for five years.

b. Publication of Record. A copy of the record shall be submitted to the Board, through the Superintendent, on an annual basis and shall be available for public inspection.

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IV. Specifications

A. Definitions.

1. Definitions of Terms. As used within this Article IV, the term "specifications" means any technical or purchase description or other description of the physical or functional characteristics, or of the nature of a supply, service, equipment, or construction item. It may also include a description of any requirement for inspection, testing or preparing a supply, service, equipment, or construction item for delivery.

B. Specifications.

1. Issuance of Specifications. The Board shall promulgate regulations governing the preparation, maintenance and content of specifications for supplies, services, equipment, and minor construction required by the District.

2. Duties of the Procurement Officer and the End User. The Procurement Officer or Buyers shall prepare or review, issue, revise and maintain the specifications for supplies, services, equipment, and minor construction required by the District.

3. Assuring Competition. All specifications shall be drafted so as to assure cost effective procurement of the District's actual needs and shall not be unduly restrictive.

4. Relationship with End Users. The Procurement Officer or Buyers may obtain advice and assistance from the end users in the development of specifications. Specifications shall be drawn in such a manner as to ensure maximally cost effective procurement, consistent with regulations. Procurement Officer and Buyers shall have final approval of specification completeness and corrections.

5. Specifications Prepared by Architects and Engineers. The requirements of this Article regarding the nonrestrictiveness of specifications shall apply to, among others, all specifications prepared by architects, engineers, designers, draftsmen and land surveyors for District contracts.